Untitled - International Commission of Jurists

necessary therefore to incorporate legal provision that recognizes the act of enforced
disappearance coupled with recognition of the doctrine of command responsibility.
The combined effect of such legal reforms should impose responsibility upon the
officer in charge of the relevant camp or police station where the victim had been last
seen as per the reasoning of the Court of Appeal in the Leeda Violet Case 446 and
others as well as in the Matchavallan Case 447 (both of which have been commented
upon earlier), where responsibility in this respect is imposed upon the State. 448
In this regard, impunity resulting from the lack of prosecutorial action is buttressed by
acquittals where indictments have been issued. The foremost reason for nonindictments
particularly of senior officers is the absence of the doctrine of command
responsibility in the criminal law, an aspect discussed further below, combined with
the tendency of the executive to turn a blind eye to violations occurring in the context
of the armed conflict. As has been discussed, although a senior officer was indicted in
the Embilipitiya Case, he was acquitted for lack of evidence directly involving him in
the enforced disappearances. In the Bindunuwewa Case, even though the police
officers in charge were indicted on the basis of culpable omission, for which they
were convicted in the High Court, the conviction was reversed on appeal to the
Supreme Court. A positive example of the High Court affirming the responsibility of
a senior officer by using the existing provisions of the Penal Code is discussed in one
judgment of the High Court below. 449
These experiences have led the Attorney General’s Department to be wary of filing
indictments of senior officers unless the level of direct involvement in the incidents is
clearly established. This problem needs to be overcome by specific amendment to the
law as previously recommended.
A further reason for the failure of the prosecutorial process is that prosecutors depend
solely on police investigations for the establishing of a prima facie case on which
indictment is issued. In many cases, good investigations are simply not forthcoming
by police officers who are essentially investigating their own colleagues, whether the
matter concerns a case of torture or enforced disappearance. A related question would
be whether the decision of the Attorney General to indict or not is subject to judicial
review. This question is dealt with below in examining the role and functioning of the
Attorney General.
Specific reasons for non-indictment, acquittals and withdrawals are as follows.
446 Leeda Violet and others v. Vidanapathirana and others, [1994] 3 Sri LR 377.
447 Kanapathipillai Matchavallavan v. OIC, Army Camp, Plantain Point, Trincomalee and others S.C.
Appeal No. 90/2003, S.C. (Spl) L.A. No. 177/2003, SCM 31.03.2005, per judgment of Justice Shirani
Bandaranayake. “...it is reasonable to conclude that the corpora these cases reiterated the well
established principle that the State will be held responsible for the disappearance of the corpus in the
absence of identification of individual responsibility in the context of habeas corpus applications.
448 Wagaachige Dayaratne v. IGP and others S.C. (FR) 337/2003, SCM 17.5.2004, per judgment of
Justice CV Wigneswaran, at p. 24,“The responsibility for the acts collectively performed by the police
officers who gathered at the scene of the incident, thereafter forcibly arrested and took the petitioner to
the police station at Bambalapitiya and then detained him, must fairly and squarely be placed on the
State. The State is responsible for the actions of its officers.”
449 High Court Galle No. 1947, H.C. Minutes, 01.08.2003. per High Court judge Samith de Silva. This
decision was affirmed in appeal by the Court of Appeal and is presently being appealed from the
Supreme Court.
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