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accused even though the relevant documents in this respect were expeditiously sent by the court to the Attorney General. Indictment was served on the accused only on 3 June, 2002 on 120 charges including murder, attempted murder and unlawful assembly. Trial commenced in the High Court of Trincomalee. 186 The matter remains pending. 187 4.3.2. The Thambalagamam Case In another alleged reprisal killing, several police and home guards killed eight Tamil civilians on 1 February, 1998 to avenge the LTTE bombing a week earlier of the Temple of the Tooth, a sacred place of worship for Buddhists. The alleged perpetrators had acquired a reputation in the area for abducting and killing people and reporting such killings as that of LTTE cadres to qualify for promotions. 188 Fifteen suspects were arrested but released on bail thereafter. This trial too is pending. 189 4.3.3. The Mylanthanai Case This is one rare case of investigations into a reprisal killing resulting in a full-length prosecution, which however culminated in the acquittal of all the accused. On 9 August, 1992, 18 Sinhalese soldiers attached to the Poonani army camp in Batticoloa were charged with the killing of 35 unarmed Tamil civilians in the village of Mylanthani. The killings were believed to be in retaliation for the assassination of senior army officer Denzil Kobbekaduwa at Arali Point in Jaffna. On 25 November, 2002, ten years after the incident, the accused soldiers were acquitted following a jury trial. General patterns prevalent in such cases were present here as well. The case was transferred from the Batticoloa High Court, near where the incident occurred and the witnesses lived, to the High Court in Polonnaruwa in the largely majority-dominated North-Central Province. This was on the request of the counsel for the accused, who contended that conducting the trial in Batticoloa would jeopardize the security of the accused. Though this motion was heeded, the security of the witnesses was ignored. They were compelled to travel to Polonnaruwa, passing security barriers, a cause of great fear. 190 Even worse, the matter was later transferred yet again to the Colombo High Court. This trip was impossible for many witnesses, who were already displaced. The implications of the acquittal in the Mylanthanai Case is analysed in detail immediately below. The analysis is important as it illustrates the role that jury trials play in such prosecutions and highlights the Attorney General’s refusal to appeal against the acquittal despite requests by lawyers appearing for the victims. 4.4. The Chemmani Case 186 Interviews with lawyers associated with the case, 10.06.2008. 187 ibid. One significant reason for the delay was the fact that all material evidence including weapons allegedly used in the massacre, were apparently destroyed in a fire that had occurred at the Government Analyst’s Office in Colombo in 2005. 188 Interview with attorneys-at-law monitoring the case, 09.06.2009. 189 ibid. 190 Centre for Human Rights and Development, ‘CHRD in 2002; CHRD provides legal assistance to those without help,’ Sentinel Special Issue, Colombo, 2002, at p. 9. 61
Lance Corporal Somaratne Rajapakse was convicted in July 1998 of the rape and murder of Krishanthi Kumaraswamy, and the killing of her mother, brother, and a neighbour. The disclosures that he made during the trial regarding the burial of hundreds of Tamil civilians extra judicially executed by state forces in the Jaffna peninsula during 1996 shocked the conscience of the country. The government promised an inquiry and the exhumation of the bodies took place in June 1999 with overseas forensic expertise. Specific security personnel were named by Rajapakse as being responsible for the executions; five army soldiers named by Rajapakse as the alleged perpetrators were arrested. They were subsequently released on bail. Years later, the case still remains at the preliminary stage. Six years after the exhumation of the graves, the police were only able to tell the court that as there have been no instructions forthcoming from the Attorney General’s department, they have been unable to proceed with the case. Under any other justice system, the next step would be the filing of indictments at a high court. […] [T]he office of the Attorney General, the agency responsible for such matters, has given no reason for the long delay in the proceedings. This situation raises radical concerns regarding its accountability and responsibility. 191 Later, Rajapakse voluntarily communicated his desire to testify as a witness in the habeas corpus applications filed in the Jaffna courts by family members of the victims. Though the preliminary inquiry before the magistrate had recorded army involvement in the extrajudicial executions and enforced disappearances, the cases remained pending. Alleged perpetrators named as the respondents in these applications were on active duty in the (then) ongoing conflict in the North and East. 192 4.5. The Mirusuvil Case Eight Tamil civilians were arrested, tortured and killed in Mirusuvil in December 2000. Five Sinhalese soldiers, including a lieutenant, were indicted. The case was ordered to be heard before a trial-at-bar of the Colombo High Court in 2003 but was postponed for almost four years due to the assassination of one of the judges, Sarath Ambepitiya, in 2004. Later, another judge was removed from the judiciary on disciplinary grounds resulting in the fresh constitution of the Bench. Delays were also occasioned by the reluctance of the witnesses to travel to Colombo for the court hearings. 193 A question of law then arose due to one of the five accused soldiers appealing to the Supreme Court on the basis that his confession was inadmissible under the Evidence Ordinance since it was recorded by the military police. This was on the basis that a 191 See press release of the AHRC (05.01.2006) which pointed to the failure on the part of the Attorney General to effecively prosecute this case. 192 Interview with attorneys-at-law monitoring the case, 09.06.2009. 193 Interviews with attorneys-at-law monitoring the case, 12.04.2009. In January 2003, warrant was, in fact, issued on four witnesses who had not come for the hearings due to fear. The witnesses were brought to Colombo and kept in safe custody thereafter on the intervention of a non governmental organisation; the Centre for Human Rights and Development (CHRD). 62
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In exploring what constitutes a ver
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ABBREVIATIONS AC AG AHRC AI A-L ALR
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TAB TELO TUF TULF TYL UN UNHRC UNP
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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
Page 54 and 55: the findings of guilt against the a
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 64 and 65: confession made to the military pol
Page 66 and 67: Chapter Three - Commissions of Inqu
Page 68 and 69: excesses that had preceded the acti
Page 70 and 71: property of Sinhalese persons domic
Page 72 and 73: appear before the Commission was al
Page 74 and 75: Notwithstanding these consideration
Page 76 and 77: The Commission’s recommendation t
Page 78 and 79: Date of Publication of Report: not
Page 80 and 81: (f) the measures necessary to preve
Page 82 and 83: were SLFPers. I was told, that area
Page 84 and 85: The 1994 Western, Southern and Saba
Page 86 and 87: focused on allowing within its purv
Page 88 and 89: 3.1.3. Reflections on the Procedure
Page 90 and 91: However, the weak process of re-ref
Page 92 and 93: ouster) clause ruling out judicial
Page 94 and 95: (g) The relief if any that should b
Page 96 and 97: Interdiction from service of allege
Page 98 and 99: The Batalanda Commission recommende
Page 100 and 101: 3.3.3. The Bindunuwewa Commission D
Page 102 and 103: ecommendation to this effect by the
Page 104 and 105: As of 31 December 2000, according t
Page 106 and 107: much affected by the awareness that
Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: 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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