Untitled - International Commission of Jurists

More documents

Recommendations

Info

anything. We have received information that these cases have been transferred to the Chief Magistrate Colombo for hearing. Due to non-availability of transport I could not travel to Colombo, but Mrs. M. went every month by flight in connection with the case of her son R HCA No. 290/94. Mrs. M has given evidence before the Magistrates in respect of her son, I do not know what has happened in my case. This is the first time I have had opportunity to give evidence. 145 145 Report of the 1998 All-Island Disappearances Commission, Sessional Paper No 1, 2001, at p. 59. 51
Chapter Two – Illustrative Cases This section provides an analysis of a series of emblematic cases of unlawful killings, rape, and enforced disappearances in Sri Lanka. The identification of these illustrative cases and the environment in which they arose provides further context for the analysis of commissions of inquiry appointed during the same period to respond to similar cases. 1. The Krishanthi Kumaraswamy Case In 1996, the rape and murder of an 18-year-old girl near Jaffna by eight on-duty soldiers and a police officer galvanised public opinion in the country. A Tamil school girl named Krishanthi Kumaraswamy, a bright student with several academic distinctions and a promising future, was cycling back from sitting exams at her high school on 7 September, 1996 when she was stopped at a checkpoint near Kaitadi by Sinhala security personnel, detained, repeatedly gang raped, and murdered. Her mother, brother, and neighbour went in search of her and were also killed. The bodies of the four missing persons were later discovered and exhumed from a clandestine grave near Chemmani. The case was brought to the courts because of the sheer weight of public pressure, leading to the arrest and remand of eight army soldiers and three police officers. An indictment was filed directly in the High Court against the 8 soldiers and one policeman 146 and a trial-at-bar was nominated to hear the case. 147 The charges included abduction with intent to force illicit sexual intercourse, rape, and murder. 148 The prosecution had to establish a common intention to commit these offences, including the cover-up of the crimes. One accused died during the trial, one was acquitted, and the other six were convicted on various counts. 149 The support of witnesses and friends of the murdered schoolgirl and active involvement by Sri Lanka’s activist community generated public support for accountability. The political will to punish the perpetrators was evidenced at the highest level of the Presidential Secretariat. As a result, this trial was distinguishable from many other similar incidents of that period. It was also notable that the evidence of Sinhalese witnesses played a major part in securing the convictions of the accused. For example, the testimony of an independent witness, Samarawickreme, who confirmed the arbitrary detention of the young girl at the checkpoint, was crucial to 146 The Attorney-General decided to pardon two suspects who were not directly involved, on condition that they testify against the others. 147 The impact of a trial-at-bar in prosecutions of this nature is examined in Chapter 5 of this report. 148 “Abduction with intent that the victim may be compelled or knowing it to be likely that she will be forced or seduced into illicit sexual intercourse,” s. 357 of the Penal Code; rape, s. 364; and murder, s. 296. 149 Krishanthi Kumaraswamy Case, H.C. Case No. 8778/1997, High Court of Colombo, H.C. Minutes 03.07.1998, Bench of three judges, Analysis of judgment of Judge Gamini Abeyratne, High Court judge Negombo. The bench of three judges was appointed by the Chief Justice in order to dispense justice and equity in the shortest time in terms of sub-section (2) 450 of the Criminal Procedure Code Act No. 15 of 1979 as amended by Act No. 21 of 1988 as a result of the information submitted by the Attorney General under subsection 450(4) of the Criminal Procedure Code, No. 15 of 1979 (as amended) in order to conduct a special judicial hearing in the High Court before a three judge bench without a jury. Their appeals against the convictions were dismissed in the appellate process. 52
Page 2 and 3: In exploring what constitutes a ver
Page 4 and 5: 3
Page 6 and 7: ABBREVIATIONS AC AG AHRC AI A-L ALR
Page 8 and 9: TAB TELO TUF TULF TYL UN UNHRC UNP
Page 10 and 11: government agencies may be unable o
Page 12 and 13: appointed under the Commissions of
Page 14 and 15: communities. Krishanthi Kumaraswamy
Page 16 and 17: investigative function that could m
Page 18 and 19: measures recommended in regard to r
Page 20 and 21: and Bandaranaike became the prime m
Page 22 and 23: assembly and association of trade u
Page 24 and 25: majority pro-Sinhala political lead
Page 26 and 27: The violence reached a crescendo in
Page 28 and 29: enforced disappearances were report
Page 30 and 31: The Court of Appeal dismissed petit
Page 32 and 33: process and commissions of inquiry
Page 34 and 35: Declaration on Upholding Human Righ
Page 36 and 37: terms, 66 and clear guidelines laid
Page 38 and 39: Though the drafters of second Repub
Page 40 and 41: • Perera v. AG 89 and Wickremeban
Page 42 and 43: was also spared the distinction of
Page 44 and 45: The Court’s reasoning at times ap
Page 46 and 47: however, linked the habeas corpus a
Page 48 and 49: The ineffectiveness of the writ rem
Page 50 and 51: The Court of Appeal when sending th
Page 54 and 55: the findings of guilt against the a
Page 56 and 57: The Embilipitiya case is unique in
Page 58 and 59: police did not carry out the arrest
Page 60 and 61: sexual intercourse […].” 177 He
Page 62 and 63: accused even though the relevant do
Page 64 and 65: confession made to the military pol
Page 66 and 67: Chapter Three - Commissions of Inqu
Page 68 and 69: excesses that had preceded the acti
Page 70 and 71: property of Sinhalese persons domic
Page 72 and 73: appear before the Commission was al
Page 74 and 75: Notwithstanding these consideration
Page 76 and 77: The Commission’s recommendation t
Page 78 and 79: Date of Publication of Report: not
Page 80 and 81: (f) the measures necessary to preve
Page 82 and 83: were SLFPers. I was told, that area
Page 84 and 85: The 1994 Western, Southern and Saba
Page 86 and 87: focused on allowing within its purv
Page 88 and 89: 3.1.3. Reflections on the Procedure
Page 90 and 91: However, the weak process of re-ref
Page 92 and 93: ouster) clause ruling out judicial
Page 94 and 95: (g) The relief if any that should b
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
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 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
show all

Untitled - International Commission of Jurists

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?