Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
You also want an ePaper? Increase the reach of your titles
YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.
the findings <strong>of</strong> guilt against the accused. The trial was sensationalized when the main<br />
accused in the case, Corporal Rajapakse, publicly disclosed details <strong>of</strong> hundreds <strong>of</strong><br />
bodies which had been buried in the Jaffna peninsula following extrajudicial<br />
executions carried out by, as he alleged, state military forces.<br />
The confessions <strong>of</strong> the accused, which had been made during questioning by military<br />
police investigating the crimes and which led to discovery <strong>of</strong> the bodies, were <strong>of</strong><br />
central importance to the convictions. The three judges composing the trial-at-bar<br />
ordered that those confessions were admissible if they were made freely and<br />
voluntarily, without inducement, threat or promise, under the terms <strong>of</strong> Section 24 <strong>of</strong><br />
the Evidence Ordinance. Upon a voir-dire inquiry being held to test the admissibility<br />
<strong>of</strong> the confessions, the judges held that they could be admitted in evidence. It was<br />
specifically ruled that a military police <strong>of</strong>ficer would not come within the definition <strong>of</strong><br />
a police <strong>of</strong>ficer in terms <strong>of</strong> Section 25 <strong>of</strong> the Evidence Ordinance.<br />
In appeal to the Supreme Court, this portion <strong>of</strong> the trial-at-bar was overturned while<br />
other grounds <strong>of</strong> appeal were rejected. The Court relied on precedent to liberally<br />
interpret the term ‘police <strong>of</strong>ficer’ in order to protect the liberty <strong>of</strong> the subject, by<br />
including within its ambit a ‘Mudliyar’ (military <strong>of</strong>ficial) who had held an inquiry. 150<br />
The Court did not find that this was sufficient grounds, however, to overturn the<br />
convictions and sentences. The impact <strong>of</strong> this decision is analysed later within the<br />
general context <strong>of</strong> confessions given its central importance to trials <strong>of</strong> this nature. 151<br />
While only junior soldiers were prosecuted and convicted despite “very definite<br />
pointers to culpability at a much higher level,” 152 the Krishanthi Kumaraswamy Case<br />
generated hope that the impunity afforded to security personnel was not without<br />
limits. However, rather than being emblematic <strong>of</strong> judicial integrity, this rare instance<br />
<strong>of</strong> a high-pr<strong>of</strong>ile successful prosecution appears to have been the exception that<br />
proved the rule <strong>of</strong> impunity 153<br />
From this perspective, legitimate questions may be raised about whether national and<br />
international pressure resulted in important steps in the criminal justice process being<br />
bypassed. 154 It has been observed that the speed with which the case was brought to<br />
the trial phase, with limited opportunities for investigation and discovery, resulted in a<br />
case with weak evidence and restricted the complexity <strong>of</strong> the truth in terms <strong>of</strong> the<br />
“larger issues <strong>of</strong> accountability and command responsibility for the abuses that were<br />
being committed in Jaffna at the time <strong>of</strong> the murders.” 155<br />
150 ibid, at p. 13.<br />
151 Re the patent contradiction between the strict application <strong>of</strong> the ‘normal law’ to military suspects<br />
and extraordinary emergency laws that permit the admissibility <strong>of</strong> confessions to police <strong>of</strong>ficers above<br />
a particular rank in relation to civilians arrested under the Public Security Ordinance and the Prevention<br />
<strong>of</strong> Terrorism Act. The bar imposed on confessions to military police <strong>of</strong>ficers in the Supreme Court<br />
judgment in the Krishanthi Case was used later in the Mirusovil Case to shut out a similar confession,<br />
see analysis in section 4.7 below.<br />
152 University Teachers for Human Rights (Jaffna), ‘Gaps in the Krishanthi Kumaraswamy Case;<br />
Disappearances and Accountability,’ Special Report, Wasala Publications, Colombo, 1999.<br />
153 The other single successful prosecution concerning enforced disappearances from the South (the<br />
Embilipitiya case) is discussed immediately below.<br />
154 Kois, Lisa, ‘Beyond the Rhetoric: Human Rights and Breakdown <strong>of</strong> the Rule <strong>of</strong> Law – The Krishanti<br />
Kumaraswamy Case,’ unpublished outline for a paper.<br />
155 ibid.<br />
53