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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. 53
As noted in the next chapter with regard to the Kokkadicholai Commission, Sri Lanka’s criminal justice system must take into account the decisive impact that omissions by military and civilian commanders (as much as their actions) have in enabling gross violations of human rights by their subordinates. This decisive influence is well understood within the security forces, and the basis for its rigid disciplinary regime, but this influence is ignored by the justice system when the state’s accountability is demanded. 2. The Embilipitiya Case The enforced disappearance of more than fifty Sinhalese students from Embilipitiya between 8 September, 1989 and 30 January, 1990 was due to the determination of a school principal whose son was being bullied to teach a lesson to his son’s tormentors. What converted an ordinary story of discord between an authoritarian principal and mischievous schoolchildren into a crime of systematic enforced disappearances was the principal’s collusion with soldiers at the nearby Sevana army camp to abduct the children and keep them in custody. Many of these children were thereafter disappeared and their bodies never recovered. The accused soldiers as well as the abducted and disappeared schoolchildren were all of Sinhalese ethnicity. Testimony from a number of abducted students who managed to escape from the camp, as well as teachers of the school, established that the principal harbored enmity towards students in the school whom he saw as flouting his authority. He arranged for a list to be made so that “he could ask the army to take care of them.” He also kept weapons on his desk at school, including a gun and a grenade. The disappearances of the schoolchildren failed to attract official attention despite appeals written by the distraught parents to the authorities, from the President to the local area army personnel. Reports by the Human Rights Task Force (HRTF), 156 with support from international and national activist pressure, led to the initiation of investigations and prosecutions in some of the disappearances. The findings of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, analyzed in detail in the next chapter, are important in this regard. A Special Report on the Embilipitiya incidents was submitted by the Commission to President Chandrika Kumaratunga. 157 The Commission received complaints of the disappearances of 53 schoolboys from Embilipitiya and also considered the cases of eleven other disappearances which were relevant to the cases under investigation. The findings of the Commission, however, did not feature prominently in the assessment by the trial judge of the criminal culpability of the accused. 156 The HRTF was established under Regulations made in terms of the enabling provisions of Section 19 of the Sri Lanka Foundation Law No. 31 of 1973 as expanded by Emergency Regulations, Gazette Extraordinary 673/2, 31.07.1991 in pursuance of regulations made under the PSO by then President R. Premadasa. The HRTF functioned from 1991 to mid 1994 and was re-established in terms of the Emergency (Establishment of the Human Rights Task Force) Regulations No. 1 of 1995, Gazette Extraordinary 874/8, 07.06.1995. The HRTF concluded its work on 30.06.1997 and its staff was absorbed into the newly established Human Rights Commission of Sri Lanka (HRC). The Human Rights Task Force, Annual Report, 10.08.1991 – 10.08.1992, at p. 27, makes specific findings against a soldier and the school principal as being implicated in the abductions of the schoolchildren. 157 Volume 11 of the Special Report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, ‘Some Reports of Cases’ dated 31.05. 1997 (unpublished). 54
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In exploring what constitutes a ver
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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
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Page 26 and 27: The violence reached a crescendo in
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Page 30 and 31: The Court of Appeal dismissed petit
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Page 34 and 35: Declaration on Upholding Human Righ
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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 52 and 53: anything. We have received informat
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
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Page 66 and 67: Chapter Three - Commissions of Inqu
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Page 72 and 73: appear before the Commission was al
Page 74 and 75: Notwithstanding these consideration
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Page 80 and 81: (f) the measures necessary to preve
Page 82 and 83: were SLFPers. I was told, that area
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Page 102 and 103: ecommendation to this effect by the
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As of 31 December 2000, according t
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much affected by the awareness that
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Chapter Four - Evaluating Sri Lanka
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pattern of harms, to recommend meas
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justified and spelled out in the ma
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against any particular soldier or s
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analysis, these pillars of the judi
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competence. Their findings must be
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Regardless of the amendment however
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It was recorded by at least some of
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6.4. Affording alleged perpetrators
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Chapter Five - Sri Lanka’s Crimin
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to the attention of the Court in an
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2.1. First Information Reports In a
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arrests. In consequence, most of th
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Lengthy delays in filing indictment
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officers who were prepared not only
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prosecutor’s office would be to i
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y the byzantine and unfair burdens
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[…] while those in authority hold
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5.2. Language Issues at Trial Stage
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enforced disappearance; (ii) Exerci
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as to why specific reform of the cr
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6.3. Absence of a Specific Crime of
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camp. Scrutiny of the evidence in t
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any direct or indirect physical or
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have been adjourned by the relevant
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fact, acknowledged. 563 The accused
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The Human Rights Committee affirmed
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Thavaneethan v. Dissanayake [2003]
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Dias v. Abeywardene [1966] 68 NLR 4
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Vadivel Sathasivam and Parathesi Sa
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Criminal Courts Commission, Session
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Keenan, Alan, ‘Making Sense of Bi
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Principles on the Effective Prevent
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United Nations Human Rights Committ
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Pinto-Jayawardena, Kishali, ‘Furt
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