Untitled - International Commission of Jurists

police investigations had taken place, with all of their manifest deficiencies.
Subsequent to the recommendations in the 1994 Disappearances Commissions
Reports, a special unit within the CID (the Disappearances Investigation Unit (DIU))
had been put in charge of investigations but their performance had not been
satisfactory, as seen above. Indeed, as noted, when officers heading the DIU
attempted to perform their duties efficiently and proceeded to investigate senior
officers’ consequent to the findings of the Disappearances Commissions, they were
transferred out. 462
2.2. Prosecutorial Discretion
The lack of prosecutorial will in regard to prosecutions of enforced disappearances
and extrajudicial killings 463 is part of a general context of an unsatisfactory
prosecutorial record in respect of grave crimes 464 as well as in regard to ‘ordinary’
torture cases. 465
Insofar as cases of enforced disappearances and extrajudicial killings are concerned,
the current procedure is that the police prosecute at the non-summary stage, with state
counsel appearing only in rare cases judged to be of special significance. This practice
is extremely unsatisfactory, particularly in the cases of crimes under international law,
including torture and other ill-treatment, extrajudicial killings, including in mass
numbers, and enforced disappearances which directly involve the police or the army
as perpetrators.
Thus, for example, human rights monitors expressed concern that in the
Kumarapuram Case, evidence in the non-summary inquiry was led by an Inspector of
Police from the Mutur police station instead of a state counsel from the Attorney
General’s Department. 466 Generally, the non-summary inquiry proceeds at a
lackadaisical pace, frequently taking a number of months, and the vital task of
gathering evidence and conducting good investigations is left entirely to the police,
with no stringent supervision by the magistrate 467 or by the officers of the Attorney
General.
462 Interviews with former senior police officers, 21.06.2009
463 Wijesuriya v. the State, [1973] 77 NLR 25, (Premawathie Manamperi Case) evidences a successful
prosecution in the 1970s, during the first JVP insurrection where the Court of Criminal Appeal held
that whether there was a period of combat during the incident or a state of actual war, in either case,
there could be no justification for the shooting of a prisoner who was held in custody. In a situation
such as that which existed on that date, a soldier subject to military law should remain the custodian of
the civil law and has the responsibility of the discharge of police duties in which process, he is as much
subject to the civil law as the ordinary policeman. In more recent times, the two high profile cases in
which successful prosecutions were evidenced was in the Krishanthi Kumaraswamy case and the
Embilipitiya case, all of which however were limited to the culpability of junior officers.
464 The rate is 4 percent; Committee Appointed to Recommend Amendments to the Practice and
Procedure in Investigations and Courts, “The Eradication of Laws Delays,” Final Report, 02.04.2004,
(the Committee was headed by the incumbent Attorney General). See also, Asian Human Rights
Commission, ‘State of Human Rights in Eleven Asian Nations’, Hong Kong, 2006, at p. 288.
465 From the time that the Anti-Torture Act was enacted into law in 1994, no convictions for torture
resulted up to 2004, for a period of ten years. Thereafter, only three convictions by the High Court have
been manifested to date.
466 Movement for Interracial Justice and Equality, ‘Kumarapuram Massacre and Legal Proceedings,’
April 1997, at p. 2.
467 Section 124 of the CCP whereby Magistrates are called upon to assist the conduct of an investigation
by making and issuing appropriate orders and processes of court is not implemented in actual practice.
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