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police did not carry out the arrest. The investigation was abandoned after a brief gesture of further interest on the part of the Attorney General. The recommendations of the 1994 Southern, Western and Sabaragamuwa Disappearances Commission that the case be investigated further were also disregarded. The complicity of the AG in not prosecuting the case diligently and his refusal to proceed against the accused police officer on the basis that the evidence was not sufficient for him to frame charges against the accused police officer drew critical commentary. 164 The perceived cover-up at all stages of the investigation led to protests by de Zoysa’s lawyer as well as by others. 165 Members of the Liberal Party expressed their consternation at what this prosecution signified for the justice system. An all too clear impression has been created of the obstructionism of the police. In addition, the suspicions of partisanship and lack of commitment to an impartial pursuit of justice by the Attorney General’s Department gravely undermine the credibility of what should be, in a functioning democracy, impartial institutions of the State. The unhelpful attitude adopted in this case by the relevant agencies of the police and by the Attorney General’s Department only serves to confirm the recent deplorable trend in Sri Lankan public affairs that the distinction between the armed forces and the administrators has all but disappeared. 166 The Attorney General was reminded by the Liberal Party members that he was the law officer of the State, not the ‘partisan counsel of any particular persons in authority.” 167 Both de Zoysa’s mother and her lawyer received death threats warning them that if they continue to press the case, that they would be both killed. 168 Years later, the case remains unsolved. 169 The overwhelming majority of extrajudicial executions and enforced disappearances of Sinhalese civilians during this period suffered the same fate. 170 4. Prosecutions Relating to Sexual Violence and Conflict 164 Weerakoon Batty, ‘The Attorney General’s Role in the Extra-Judicial Execution of Richard de Zoysa,’ Star Press, Published by the author, 1991. 165 Civil Rights Movement, ‘The Next Step in the Richard de Zoysa Case,’ E-01/9/90. The Bar Association also found the inquiry to be thoroughly unsatisfactory. 166 Amaratunge, Chanaka and Wijesinha, Rajiva, op.cit, ‘Statement on the Murder of Richard de Zoysa,’ at p.30. 167 ibid. The commentary continues, noting that justice must not only done but seen to be done in “an outrageous and obvious case of political murder,” public confidence in the processes of justice and the law will be greatly compromised. 168 Civil Rights Movement, ‘Death Threats in the Richard de Zoysa Case,’ E-01/6/90. 169 The SSP implicated in the de Zoysa killing was himself killed in a bomb blast engineered by the LTTE and aimed at a prominent UNP politician, Gamini Dissanayake in 1994. 170 Most notably, on 4 April 1997, a Colombo Magistrate ordered the release of Assistant Superintendent of Police Sumith Edirisinghe and Chief Inspector Anton Sisira Kumara who had been accused of abducting and murdering a number of people in the Hokandara area in 1989 and having them buried along a roadside. The site was later excavated and skeletal remains found, some of which were sent for forensic examination. On 5 April 1997, charges were also dropped against suspects in the Wawulkeley murder case in which six persons including four police officers had been accused of abducting and murdering six youths in 1989. In both instances, the charges were dropped due to lack of evidence. See Human Rights Watch World Report 1998, at p. 13. 57
Several cases demonstrate the deeply entrenched impunity for sexual violence committed during Sri Lanka’s conflict with the LTTE. In Yogalingam Vijitha’s case 171 , the Supreme Court ordered compensation and costs to be paid to a Tamil woman who had been arrested, detained, and sexually tortured by custodial officers. Those culpable were not prosecuted. 172 Generally cases of sexual violence are poorly investigated and prosecuted or not pursued at all. Medical examination of the rape victim, when it is carried out, usually occurs long after the initial incident 173 , depriving the medical report of any evidentiary value. The Sri Lankan Army officially has reported detention and dismissal of soldiers accused of sexual crimes, but this is rare and difficult to confirm. 174 Two cases analyzed below are indicative of a general pattern. 175 4.1. The Ida Carmelita Case On 12 July, 1999, a 21 year-old Tamil woman named Ida Carmelita was gang raped and killed by two Sinhalese army officers after surrendering to the police as a former LTTE member. Though the inquest commenced and forensic inquiries matched the bullets found in the killing with that of the weapon used by one of the accused, the trial petered out as the witnesses, after being intimidated by the security forces, left the country one by one. The case was transferred to Colombo on the motion of the accused, who were subsequently released on bail. 176 4.2. The Mannar Women Rape Case On 19 March 2001, Sinhalese police belonging to the Counter-Subversive Unit (CSU) raped and tortured a pregnant woman, Vijikala Nanthakumar, and a mother of three, Sivamani Weerakoon, both of Tamil ethnicity. After sustained pressure by nongovernmental organisations and church leaders, the women were medically examined. Since 18 days had passed, the medical officer found “no positive findings to establish 171 Yogalingam Vijitha v. Wijesekara,Reserve Sup.Inspector of Police S.C. (FR) No. 186/2001, SCM 23.8.2002. The judges said; ‘the facts of this case have revealed disturbing features regarding third degree methods adopted by certain police officers on suspects held in police custody. Such methods can only be described as barbaric, savage and inhuman. They are most revolting and offend one’s sense of human decency and dignity particularly at the present time when every endeavour is being made to promote and protect human rights.’ 172 See letter written by co-ordinator of the urgent appeals programme of the AHRC to then Minister of the Interior dated 09.09.2002, asking that the relevant police officers be indicted. – quoted in Asian Human Rights Commission, ‘A Special Report on Torture’, Nick Cheesman (ed), article 2, Vo1. 1, No. 4, Hong Kong, August 2002, at p. 52. 173 As in the Mannar Women Rape Case, discussed immediately below. 174 United Nations Working Group on Enforced or Involuntary Disappearances, Report of the Working Group on Enforced or Involuntary Disappearances (25-29 October 1999), E/CN.4/2000/64/Add.1, 21.12.1999; Presented to the UN Commission on Human Rights at its 56 th sessions, March-April 2000, at para. 33. 175 The three cases of the rape and murder of Rajini Velayuthapillai, Koneswari Murugesupillai and Sarathambal commited at varying points during the 1990’s were also investigated but did not proceed even as far as the cases that have been analysed in this segment. 176 University Teachers for Human Rights (Jaffna), ‘From Welikade to Mutur and Pottuvil: A Generation of Moral Denudation and the Rise of Heroes with Feet of Clay,’ Special Report, No. 25, 2007. 58
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In exploring what constitutes a ver
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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 52 and 53: anything. We have received informat
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Page 56 and 57: The Embilipitiya case is unique in
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
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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
Page 104 and 105: As of 31 December 2000, according t
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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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