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fact, acknowledged. 563 The accused, in his dock statement, had stated that he may
have taken the abducted person into custody on the day in question. The judges then
asked why, if this was the case, the abducted person was not produced in court
thereafter. Discrepancies recorded in the police information book were also held
against the accused. This judgment was affirmed in appeal. Importantly, the defence
of superior orders relied upon by the accused in appeal was categorically rejected.
That cannot be held as a valid defence. If the policeman breaks the law even
under the orders of his superiors, he has to suffer the consequences. Even if
(the) accused (acted, sic) on the orders of a superior, the burden would be in
him to prove it on a balance of probability. 564
A similar affirmation of accountability for the consequences of omissions was
reflected in another conviction relevant to a case of enforced disappearance. 565 Here, a
further innovative feature was the conviction of the officer-in-charge of the relevant
police station on the judicial reasoning that even though he was aware of the unlawful
abduction and detention of the three abducted persons at his police station, he took no
action. He was therefore culpable in terms of Section 359 of the Code of Criminal
Procedure Act in relation to wrongfully concealing or keeping in confinement, a
kidnapped or abducted person, read with Section 356 of the Penal Code. Based on
credible evidence of witnesses that established his state of knowledge in this regard
beyond all reasonable doubt, his guilt was held to have been sufficiently proved.
As these decisions are yet in the appeal stage, either at the level of the Court of
Appeal or on further appeal to the Supreme Court, there is as yet, no firm legal
precedent established. This is an appropriate context perhaps where a Divisional
Bench may lay down an unequivocal precedent as to the nature of command
responsibility relevant in these cases.
7.4. Sentencing
The problem of inadequate sentencing is exemplified in the Embilipitiya Case
discussed above. Unlike in the Krishanthi Kumaraswamy Case, in which the serious
crimes of rape and murder formed the basis for the convictions, the facts of the
Embilipitiya Case gave rise to relatively less serious offences: namely abduction,
secret and unjustifiable detention, aiding and abetting such action with common
intention or conspire to assist in such an action with a common intention or not, with
the purpose of causing the death of the students or putting them into danger.
Correspondingly, the sentences liable to imposed ranged from five to ten years
rigorous imprisonment (RI).
Even so, due to the cluster of offences for which each accused was found guilty, (in
some cases, as in the case of the seventh accused who was convicted on thirty-three
563 This rare link may have been occasioned by the fact that the High Court judge in this case had, in
fact, been assisting this Commission from the Attorney General’s Department during the hearings.
564 At p. 5 of the Appeal Court judgment, in CA No 83/2000, C.A. Minutes 24.11.2006.
565 H.C. Case No. 1947, High Court Galle, H.C. Minutes 01.08.2003.
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