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y the byzantine and unfair burdens imposed by the criminal justice system. For example, following the widespread and systematic enforced disappearances in the 1980s and the early 1990s, devastated and often destitute family members of victims were informed that much-needed compensation was available only if the enforced disappearance was caused by anti-government elements. The result was predictable. Many victimised persons who were rendered economically vulnerable by the killings of their husbands and sons (often the breadwinners in the family) stated that the enforced disappearances were caused by subversive elements. These statements were then used by defence counsel against them years later in subsequent criminal prosecutions. Similarly obvious and yet frequently ignored are the reasons for delays in lodging complaints: extreme trauma combined with the routinely hostile and sometimes threatening – and retraumatizing – reception by the police. These delays were often used against the victims during prosecutions in order to discredit their case. Rather than upholding the rights of victims to truth, justice, and reparations – the universal norms to which Sri Lanka is bound – the legal process was often an additional and tragic harm visited upon victims. The protracted delays imposed by the legal system itself, not caused by complainants, have resulted in many witnesses facing death threats by perpetrators who continued to occupy high positions in the army and the police. In the special report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, 495 the parents and family members of the “disappeared” children had complained that ‘officials of the security forces who were responsible for the abduction of their loved ones were still working in those same places.” In fact, the Commissioners categorised a particular group of family members of the “disappeared” as “inhibited complainants” due to this reason and came to the view that legal proceedings should be suspended until such time that their security could be assured. 496 Where the massacre cases from the North and East are concerned, witness intimidation is a common feature in all the cases analysed for this report. Thus, in regard to the Kumarapuram massacre for example, Commissioners considered […] how willing witnesses will be to testify when they are still living with a military presence - the Magistrate’s Court itself is surrounded by military when the witnesses testify. Furthermore, the drawn out process of the case has reportedly left many witnesses almost indifferent to the case and cynical about any justice being done. 497 As pointed out by Amnesty International in a further example regarding a prosecution during the period 1987-1990, witness intimidation can rise to the level of the ‘witnesses themselves being abducted and disappeared.’ 498 495 Special report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, submitted to the President on 31.05.1997, at pp. 8 and 43. 496 ibid, at pp. 8 and 9. 497 INFORM, Sri Lanka Information Monitor, Colombo, November 1997, at p. 7. 498 Amnesty International, ‘Sri Lanka: Extrajudicial Executions, ‘Disappearances’ and Torture,’ 1987- 1990, AI Index, ASA/37/21/90, September 1990, at pp. 27-28. 139
Against this overwhelming trend stands a laudable recent decision of the Court of Appeal to quash a police circular that purported to return to full duty officers indicted in the cases of enforced disappearances and released on bail. 499 While this decision was exceptional and welcome, it impacts only a tiny fraction of police officers implicated in such offences. The vast majority of army and police officers credibly implicated in cases of enforced disappearances continue to serve in the military and police establishment, many enjoying promotions. Once a trial commences, marginalisation of victims in the criminal process has often resulted in their dropping out of the process. Again, the Embilipitiya Case illustrates the problems in this regard extremely well. Subsequent to the start of the trial, there is overwhelming evidence as to hostility of the adversarial legal process with its harsh cross examination of witnesses who had to suffer multiple trauma, first with the enforced disappearance of their children and thereafter with the ordeal of having to stand up in open court and withstand the rigorous scrutiny of defence lawyers. Indeed, intimidation of witnesses is not an isolated practice resorted to only on the part of the police and armed forces during times of emergency and war. It is, rather, a common practice among law enforcement agencies and is manifested even in normal times, by police officers accused of torture kept in their positions despite indictment and thus afforded an opportunity to threaten or even kill witnesses. 500 A witness protection system remains an imperative need. 501 In general, the bypassing of victims’ concerns by the prosecutorial process needs to be redressed. In the Embilipitiya Case, the decision of the Attorney General on the grounds of appeal, including particularly, the decision not to appeal against the acquittal of commanding officer of the area and head of the Sevana camp, Lt. Col. RP (Parry) Liyanage, caused considerable anger among the parents. The marginalisation of the parents of the abducted children was clear at every stage of the legal process. 5. Discrimination as a factor impeding prosecutions A teachers’ organization has pointed out that 499 Pathirana v. DIG (Personnel & Training) and others, C.A. Writ Application No. 1123/2002, C.A. Minutes 09.10.2006, per Justice S. Sriskandarajah. 500 Sanjeewa v. Suraweera [2003] 1 Sri LR 317. Although a constitutionally established body to monitor the police, the National Police Commission took the welcome step, in 2005, of interdicting all police officers indicted for torture under the 1994 Anti-Torture Act. This move was met with tremendous opposition from the Inspector General of Police (IGP), whose appeals against the NPC decision to the Supreme Court proved to be unsuccessful. Later, the term of the NPC expired and they were succeeded by members unconstitutionally appointed by the President. The current status of this policy of interdicting police officers indicted under the Anti-Torture Act is unknown. 501 United Nations Human Rights Committee, Concluding Observations on Sri Lanka (2003), CCPR/CO/79/LKA, 01.12.2003. See also observations of former Attorney General of Sri Lanka, Mr. K.C. Kamalasabayson on 02.12.2003: "Another important feature that requires consideration is the need for an efficient witness protection scheme that would ensure that witnesses are not intimidated and threatened. No doubt this would involve heavy expenses for the State and amendments to the law. I will only pose a simple question. Is it more important in a civilized society to build roads to match with international standards spending literally millions of dollars rather than to have a peaceful and law abiding society where the rule of law prevails?" in remarks made during the 13 th Kanchana Abhayapala Memorial Lecture as reported in ‘The Right to Speak Loudly’, Asian Legal Resource Centre, 2004. 140
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In exploring what constitutes a ver
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3
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ABBREVIATIONS AC AG AHRC AI A-L ALR
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TAB TELO TUF TULF TYL UN UNHRC UNP
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government agencies may be unable o
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appointed under the Commissions of
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communities. Krishanthi Kumaraswamy
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investigative function that could m
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measures recommended in regard to r
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and Bandaranaike became the prime m
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assembly and association of trade u
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majority pro-Sinhala political lead
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The violence reached a crescendo in
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enforced disappearances were report
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The Court of Appeal dismissed petit
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process and commissions of inquiry
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Declaration on Upholding Human Righ
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terms, 66 and clear guidelines laid
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Though the drafters of second Repub
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• Perera v. AG 89 and Wickremeban
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was also spared the distinction of
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The Court’s reasoning at times ap
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however, linked the habeas corpus a
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The ineffectiveness of the writ rem
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The Court of Appeal when sending th
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anything. We have received informat
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the findings of guilt against the a
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The Embilipitiya case is unique in
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police did not carry out the arrest
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sexual intercourse […].” 177 He
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accused even though the relevant do
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confession made to the military pol
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Chapter Three - Commissions of Inqu
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excesses that had preceded the acti
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property of Sinhalese persons domic
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appear before the Commission was al
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Notwithstanding these consideration
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The Commission’s recommendation t
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Date of Publication of Report: not
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(f) the measures necessary to preve
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were SLFPers. I was told, that area
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The 1994 Western, Southern and Saba
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focused on allowing within its purv
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3.1.3. Reflections on the Procedure
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Page 96 and 97: Interdiction from service of allege
Page 98 and 99: The Batalanda Commission recommende
Page 100 and 101: 3.3.3. The Bindunuwewa Commission D
Page 102 and 103: ecommendation to this effect by the
Page 104 and 105: As of 31 December 2000, according t
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Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
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Page 114 and 115: against any particular soldier or s
Page 116 and 117: analysis, these pillars of the judi
Page 118 and 119: competence. Their findings must be
Page 120 and 121: Regardless of the amendment however
Page 122 and 123: It was recorded by at least some of
Page 124 and 125: 6.4. Affording alleged perpetrators
Page 126 and 127: Chapter Five - Sri Lanka’s Crimin
Page 128 and 129: to the attention of the Court in an
Page 130 and 131: 2.1. First Information Reports In a
Page 132 and 133: arrests. In consequence, most of th
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Page 136 and 137: officers who were prepared not only
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Page 142 and 143: […] while those in authority hold
Page 144 and 145: 5.2. Language Issues at Trial Stage
Page 146 and 147: enforced disappearance; (ii) Exerci
Page 148 and 149: as to why specific reform of the cr
Page 150 and 151: 6.3. Absence of a Specific Crime of
Page 152 and 153: camp. Scrutiny of the evidence in t
Page 154 and 155: any direct or indirect physical or
Page 156 and 157: have been adjourned by the relevant
Page 158 and 159: fact, acknowledged. 563 The accused
Page 160 and 161: The Human Rights Committee affirmed
Page 162 and 163: Thavaneethan v. Dissanayake [2003]
Page 164 and 165: Dias v. Abeywardene [1966] 68 NLR 4
Page 166 and 167: Vadivel Sathasivam and Parathesi Sa
Page 168 and 169: Criminal Courts Commission, Session
Page 170 and 171: Keenan, Alan, ‘Making Sense of Bi
Page 172 and 173: Principles on the Effective Prevent
Page 174 and 175: United Nations Human Rights Committ
Page 176: Pinto-Jayawardena, Kishali, ‘Furt
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