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camp. Scrutiny of the evidence in the trial indicates that knowledge of the fact that the “disappeared” children were being kept at the camp had been strongly established. This knowledge was testified to, for example, by the mother of one “disappeared” child who said that she knew full well that the children were being kept in the camp and further, that she had made a trip to the camp to see if her child was being kept there and had been told by the soldiers that her son had been “a naughty boy” and that they would cure this behaviour.” 537 This witnesses’ evidence was accepted on all points by the trial judge who, in fact, praised the credibility of her testimony. 538 In that context, the selective omission of that part of her evidence attesting to the fact of long-term detention of the “disappeared” children at the camp is inexplicable. This is all the more so in the light of other witnesses testifying to that same effect. 539 Evidence of other “disappeared” children who had later been released and who had testified as to detention at the camp is also relevant. 540 Although the fact of long-term detention at the camp had been highly evident in the findings of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission and at the magisterial inquiry, as well as reflected in the evidence led at the trial, this fact was not reflected in the judicial findings. This point, equally unfortunately, was not reflected at the appellate court level. At one level, it showed the manner in which the Commission findings are thoroughly disregarded at the stage of legal proceedings. At another level, the inability to establish long term detention of the children at the army camp impacted on judicial findings in regard to the culpability of the individual accused as well as the culpability of the third accused commanding officer, as discussed below. In contrast, the Supreme Court and the Court of Appeal have affirmed in habeas corpus applications that, if the fact of detention by the state is established, then the liability of the State follows irrespective of whether the actual enforced disappearance can be established or, for that matter, whether the precise identity of the culpable persons (re the Leeda Violet case and the Matchavallan case referred to above) can be established. It is important in this context to note that international law does not permit a shifting of the burden of proof to an individual accused to prove his or her innocence in such a case. This burden remains with the State prosecution. However, it is a different matter to hold the State, itself, responsible for a right to life violation. International jurisprudence holds that, because direct evidence of State involvement in killings linked to disappearances is almost inevitably unavailable, circumstantial evidence of cognizable patterns and practices of the State to which the specific case can be shown to be linked, is sufficient to hold the State responsible for right to life violations. This means a burden of proof less than the reasonable doubt standard. 541 537 Evidence of a witness, Sujatha Kalugampitiya, who was herself, the principal of Moraketiya Maha Vidyalaya, a minor school in the area and whose son had been disappeared, acknowledged at pp. 22 and 24 of the High Court judgment. 538 At pp. 28, 30 and 33 of the judgment. 539 Statements that the first accused, the principal had told the parents that the children were being detained at the camp, referred to at pp. 52 and 64 of the judgment. 540 At p. 100 of the judgment where there is reference to the testimony of one child that he had been kept ‘bound and naked’ at the camp along with the others. 541 Caso Velásquez Rodríguez, IACHR; Çiçik v. Turkey, 27 February 2001, ECHR. 151
6.6. Admission of Confessions Emergency laws allowing “confessions” of guilty conduct made to an ASP and any officer above that rank and imposing the burden on the accused to prove that the statement was involuntary, have been subjected to severe critique, both domestically and internationally. In Theivandran’s Case, 542 the Supreme Court exhibited a sharp division of opinion on the question of the admissibility of confessions under the PTA. Justice C.V. Wigneswaran, writing a 26 page separate opinion was thoroughly disinclined to accept the contents of such confessions are solely sufficient to convict an accused in the absence of corroborative evidence. His warning was pertinent; After all, the general civilised law of the country frowns upon the admission as evidence of confessions to police officers. When a special politically motivated law admits them, significantly when such admission (Section 16(1) &(2) of the PTA) is incompatible with Articles 14(3)(g) and 14(2) of the ICCPR to which Sri Lanka is a signatory (Vide 27(15) of our Constitution and Justice Mark Fernando’s dictum in Weerawansa v. The Attorney General and Others (2000) 1 Sri Lanka Law Reports page 387 at page 409, the responsibility of the Court which sits without a jury increases manifold. The burden on the Judge is quite heavy in such instances. 543 Justice Fernando however in this case, declined to go so far as affirming that confessions in such contexts should invariably be corroborated in order to be accepted and preferred instead to state that a presumption of truth attaches to such confessions. However, both judges agreed with the opinion of the third judge on the Bench, Justice Ameer Ismail that, on the facts of the case before Court, the confession lacked ‘congruity and consistency’ 544 and therefore, that the Court of Appeal has erred in affirming the conviction of the appellant based solely upon the contents of the confession. In Singarasa v. Sri Lanka, 545 a detenu under the PTA filed an individual communication before the United Nations Human Rights Committee under the first Optional Protocol to the ICCPR, stating that inter alia, it was impossible for him to satisfy the burden imposed on him under Section 16(2) of the PTA to prove that the confession was extracted under duress and was not voluntary in terms of Section 16(2), as he had been compelled to sign the confession in the presence of the very police officers by whom he had been tortured. He pleaded that his rights under Article 14, paragraph 3 (g) of the Covenant (no one shall “be compelled to testify against himself or confess guilt”) were consequently violated. The Committee referred to the principle that no one shall "be compelled to testify against himself or confess guilt" which must be understood in terms of the absence of 542 SC Appeal No 65/2000, SCM 16.10.2002 543 ibid. 544 ibid. 545 Nallaratnam Singarasa v. Sri Lanka, Communication No. 1033/2001, CCPR/C/81/D/1033/2001, adoption of views, 21.07.2004. 152
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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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However, the weak process of re-ref
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ouster) clause ruling out judicial
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(g) The relief if any that should b
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Interdiction from service of allege
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The Batalanda Commission recommende
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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
Page 106 and 107: much affected by the awareness that
Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
Page 112 and 113: justified and spelled out in the ma
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
Page 134 and 135: Lengthy delays in filing indictment
Page 136 and 137: officers who were prepared not only
Page 138 and 139: prosecutor’s office would be to i
Page 140 and 141: y the byzantine and unfair burdens
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 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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