Untitled - International Commission of Jurists

confession made to the military police amounted to a confession made to a police
officer and was therefore inadmissible as held previously by the Court in the
Krishanthi Kumaraswamy Case. 194 This appeal was upheld and the trial-at-bar
directed by the Court to exclude the confession. Trial is pending.
4.6. The Bolgoda Lake Bodies Case
Several police officers were arrested and remanded consequent to the discovery of 21
partly decomposed bodies of persons of Tamil ethnicity, in Alauwwa, Bolgoda and
Diyawanna Oya during 31 May, 1995 to 14 August, 1995. Here too, overseas forensic
assistance was obtained but the investigations remained pending years later. The
suspects were granted bail with critical magisterial observations being made in regard
to the conduct of the police. 195 The suspects were reported to have been restored to
their posts. 196 The prosecution of these cases was also lackadaisical. 197 This case has
been effectively forgotten in public memory. 198
4.7. The Bindunuwewa Case
In the more recent Bindunuwewa Case, the question was as to whether the accused
police officer could have been held criminally responsible for two specific instances
of illegal omissions: failure to ‘arrest miscreants’ and failure to ‘take action’ when
certain detainees were attacked inside a truck.
This case offers as good an example as the Embilipitiya Case in illustrating the
inherent inconsistencies and systemic biases that impede the prosecutions of grave
human rights violations. The High Court had ruled that the accused police officers on
guard duty at that time 199 were criminally responsible on the basis that they had the
ability and the means by way of troops to control and prevent the situation which led
to the killing of twenty seven detainees and injuring fourteen others. The officers were
found guilty on the basis of the illegal omissions and illegal acts for having aided and
abetted the commission of offences set out in the indictment and thereby rendered
themselves to be members of an unlawful assembly resulting in criminal liability.
Departing from this reasoning, a Divisional Bench of the Supreme Court 200 held that
intentional actions had to be proved on the part of the fourth accused police officer in
order to find him liable. The insufficiency of evidence in respect of the illegal
omissions or illegal acts on the part of the accused police officer was held to preclude
194 As per the judgment of the Court in the Krishanthi Kumarasawamy Case looked at above.
195 INFORM, Sri Lanka Information Monitor, Colombo, February 1996, at p. 9.
196 INFORM, Sri Lanka Information Monitor, Colombo, August 1996, at p. 9.
197 U.S. Department of State, ‘Sri Lanka Country Report on Human Rights Practices for 1997,’ Bureau
of Democracy, Human Rights, and Labour, 30.01.1998.
198 Other such cases also cast into the pale of the forgotten include the discovery of skeletal remains
discovered near the Duriappah Stadium (Jaffna) in March 1999 which were assumed to be the remains
of civilians extra judicially executed by the Indian peace keeping force who had been occupying the
Jaffna peninsula for some years, consequent to the 1987 Indo-Lanka Peace Accord. These cases were
not even brought to the stage of preliminary legal inquiry.
199 For the facts of the case, see preceding analysis.
200 Bindunuwewa Case, S.C.Appeal 20/2003 (TAB), SCM 21.05.2005. See Keenan, Alan (2005),
‘Making Sense of Bindunuwewa - From Massacre to Acquittals,’ ‘Binudunuwewa & Embilipitiya:
Questions of Substantial Justice,’ LST Review, Volume 15 Issue 212, Law & Society Trust, June 2005,
at p. 19, for an incisive commentary on the Court’s reasoning.
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