Untitled - International Commission of Jurists

to the attention of the Court in any event. The Court order also ignored the fact that
the army camp in which the children were subjected to enforced disappearance came
directly under Liyanage’s command. 441
Despite this judgment, President Kumaratunge refused to make the promotion. When
the matter came up before the Court again challenging the presidential failure to
adhere to the judicial directive, it was ruled that the constitutional immunity afforded
to acts of the President while in office precluded judicial review of her decision. This
case is perhaps the single instance where the Presidential immunity bar led to
increased accountability for human rights violations.
One conclusion that we can draw from this example is that, just as judicial deference
for unwarranted executive interference in prosecutions is not a given, so too the
executive in rare moments has pushed for accountability beyond prevailing judicial
interpretations. In other words, there is scope for occasional tug and pull between the
executive and the judiciary. However, the overall tendencies, with or without this
exceptional tension between branches of the state, have been deleterious for the rule
of law as outcomes are at best, uncertain and, in most cases, offer no protection for
victims of gross human rights violations.
In several habeas corpus applications that were examined in the Court of Appeal, the
Court specifically recommended that the respondents in the cases who were found
responsible for enforced disappearance should be prosecuted. 442 However, these
directions went unheeded. For example, the prosecutorial policy in the Embilipitiya
Case resulted in the accused being indicted only in 25 cases of enforced
disappearances, while the actual number of children who had been subjected to
enforced disappearance was much greater. The deep sense of individual grievance
suffered by the parents and family members of the missing children whose cases had
not been included in the indictment were articulated by them to the 1994 Western,
Southern and Sabaragamuwa Disappearances Commission. 443 The Commission
recommended that the Attorney General frame the indictment in respect of the
remaining cases but this was not done. 444
The reluctance of the Attorney General in this respect may well have been due to the
difficulty of establishing a prima facie case in regard to penal culpability of the
perpetrators within the ambit of the general criminal offences on which the indictment
proceeded. 445 This amply demonstrates the essential problem in the lack of a crime of
enforced disappearances in the penal law and the absence of any legal mechanism
whereby the State can be held accountable where individual culpability may not be
proved on the evidence. Given the extraordinarily secret nature of these crimes,
proving individual responsibility in many cases is difficult. In this context, it is
camp was not an authorised detention camp and therefore the inference that no persons were held in
detention there, is untenable.”
441 Embilipitiya Case S.C. (Spl) L.A. Nos. 15-20/2002, SCM 14.02.2003.
442 i.e.; Leeda Violet and others v. Vidanapathirana and others [1994] 3 Sri LR 377, per judgment of
Justice Sarath N. Silva.
443 At p. 3 of Volume 11 of the Special Report of the Commission, op. cit.
444 ibid.
445 Penal Code, Sections 355 (kidnapping or abduction in order to murder), 356, (kidnapping or
abduction with intent to cause that person to be secretly and wrongfully confined), 335 (wrongful
confinement), 32 (common intention) and conspiracy (Section 113 (A) and abetment (Section 102).
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