Untitled - International Commission of Jurists

The Embilipitiya case is unique in that it presents perspectives at three different
levels: first, from the prosecutions in the High Court; second, from the findings of the
magisterial inquiry in the habeas corpus applications; 158 and, thirdly, from the report
of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission.
Each of these stages possessed distinctive features and proceeded on different legal
principles relating to the burden of proof. The Commission heard evidence of those
affected ex parte while in accordance with established law. The magisterial inquiry in
the habeas corpus applications established responsibility for the ‘disappearances’ on
the civil standard of balance of probability. The High Court considered the specific
question as to whether those particular army officers specified in the indictment were
responsible beyond all reasonable doubt for the detention of those particular
schoolboys named before court as having been disappeared.
Six soldiers accused in the case as well as the school principal were convicted in the
High Court of conspiring to abduct and actual abduction and kidnapping of the
students in order to murder and/or with intent to secretly and wrongfully confine
them. However, the most senior army officer, then Lt. Col. R.P. Liyanage, district
coordinating secretary for the area, was acquitted on the basis that no evidence could
be found linking him to the charges of abduction with intent to kill. 159 This was
despite a strong finding by the Commission that the schoolchildren had been detained
for a long period at the army camp and that Liyanage, who was in charge of the camp,
bore a measure of responsibility. 160 Several aspects of this emblematic case will be
commented upon later in this report.
3. Two Political Killings
Two cases are emblematic of political killings of Sinhalese activists by the
government or paramilitaries linked to the government during the period 1988-1990,
covering the span of the presidential terms of J.R. Jayawardene and R. Premadasa.
Both cases revealed police responsibility for the killings at an institutional level, and
disclosed major flaws in the investigative and prosecutorial processes. The Attorney
General’s complicity in not pursuing the cases will be specifically examined in this
regard.
The first case involves Wijedasa Liyanaaratchi, 161 a lawyer by profession, who was
arrested on 25 August, 1998 on suspicion of being a JVP sympathizer and kept in
illegal police custody until he died on 2 September of that same year of multiple
injuries resulting from torture. Tremendous public outrage ensued, particularly from
158 In terms of Article 141 of the 1978 Constitution, once a habeas corpus application is filed, the case
is referred to the magistrate’s court for inquiry and specifically to ascertain whether the named
respondent is responsible for the disappearance.
159 Embilipitiya Case, H.C. Case No. 121/1994, High Court of Ratnapura, H.C. Minutes 23.02.1999.
160 The convictions were upheld on appeal but the convictions of some the accused were varied and the
7 th accused –appellant (effectively the 9 th accused at the trial) was acquitted. The appeal court judgment
was affirmed by the Supreme Court declining to grant special leave to appeal, with however the
direction that the period in which the accused were in custody after conviction pending the
determination of the appeal should be taken into account as having been served as part of the sentence,
Embilipitiya Case S.C. (Spl) L.A. Nos. 15-20/2002, SCM 14.02.2003.
161 During this period, at least ten lawyers were killed for attending to their professional duties and the
total number of lawyers killed amounted to at least twenty.
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