Untitled - International Commission of Jurists

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