Untitled - International Commission of Jurists

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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. 63
criminal liability. The Court overruled the conviction by a trial-at-bar and acquitted the accused. The judges stated that: […] if the officer in charge has exercised his discretion bona fide and to the best of his ability, he cannot be faulted for the action he has taken even though it may appear that another course of action could have proved more effective in the circumstances. 201 The Court further commented that while police officers are bound to prevent the commission of offences 202 , the manner in which they may respond in an emergency situation is left to the discretion of the most senior police officer present. 203 Interestingly, senior police officers, including Headquarters Inspector Jayantha Seneviratne and Assistant Superintendent of Police A.D.W. Dayaratne, who were also implicated in their failure to take effective action, escaped the reach of the criminal law while their junior officers were taken to court. None of the officers was subjected to disciplinary action. The manner in which the hearing before the Court was conducted gave rise to trenchant criticism. Human Rights Watch observed: Impartial observers of the Supreme Court hearing said the justices were openly hostile to the prosecution, and seemed to have decided beforehand that the accused were unfairly sentenced. One justice publicly reminded the courtroom to remember that the inmates who had died were members of the LTTE, suggesting that this might mitigate the guilt of the accused… The judgment of the Supreme Court calls into question its impartiality in dealing with cases related to the Tamil Tigers. The Court must put aside politics and personal feelings when dealing with criminal offences involving Tamils. 204 201 ibid. 202 See Chapter VIII of the Code of Criminal Procedure and to interalia, preserve the peace (See Section 56 of the Police Ordinance). 203 See Departmental Order No. A 19 Rule 29. 204 Human Rights Watch, ‘Sri Lanka: Failure of Justice for Victims of Massacre,’ New York, 02.06.2005. 64
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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
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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
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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 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 62 and 63: accused even though the relevant do
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
Page 112 and 113: 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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