Untitled - International Commission of Jurists

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property of Sinhalese persons domiciled in the North during the violence (though no Sinhalese person lost his or her life). 220 However, despite a general condemnation of ‘unruly’ behaviour of the police, his disposition to accept police versions of particular incidents solely on the basis that no complaint had been made to the police, 221 and to dismiss eye-witness accounts of ‘a reign of police terror’ during the 1977 communal violence, 222 raises unresolved questions about the Sansoni Report. In a few instances, specific police officials were named as originators of the violent action as was the case in respect of the violence that took place in Anuradhapura when a number of Tamil passengers in trains arriving at the station were assaulted and some were killed. 223 A senior police officer, Superintendent of Police, Anuradhapura G.W. Liyanage, was particularly implicated along with several of his subordinates. 224 In this instance, the unequivocal evidence that was placed on record by Sinhalese government officers attached to the Railways Department confirming the culpability of these police officers was a distinguishing factor. Undoubtedly, the Sansoni Commission Report remains an important reference point for the events of that period. However, the political context in which it was delivered as well as the manner of its functioning are relevant issues for the purpose of this analysis. There is no doubt that there was tremendous political pressure on Commissioner Sansoni to avoid giving a prejudicial impression of the actions of the Sinhalese political leadership in bringing about the outbreak of communal violence. One commentary points to obstacles faced by the Commission in its functioning as when the Police Information Books in Kandy were not furnished to it, purportedly on grounds of national security, 225 and the Commission faced threats during its sittings. 226 Unsurprisingly, these obstacles are not publicly recorded and were denied in later years. The interaction of the officers of the Attorney General’s Department with the Commission was also not without controversy. At the inception, Deputy Solicitor General G.P.S. de Silva (who became Sri Lanka’s Chief Justice on 14th October 1991) had been assisting the Commission, only later to withdraw. Those who defend Sansoni point out that the Commission and Sansoni himself were handicapped in many ways. The powerful team of Tamil lawyers led by Sam Kadirgamar QC and P. Navaratnarajah QC who appeared at the beginning of the sittings in Jaffna then dropped off, leaving the Tamil side weak on cross examination. The State decided to intervene when it thought stating that government buses were being set on fire and that crowds had gathered to attack incoming passengers. Though a second message was sent fifteen minutes later, canceling the first message as a false message, the damage had been done and communal attacks had started on Tamils in other parts of the country. 220 The Sansoni Commission report, Sessional Paper No. VII, July 1980, at p. 100. 221 ibid, at p. 93. 222 ibid, at pp. 97 and 98. 223 ibid, at p. 145. 224 See later analysis for the impact of these findings in regard to prosecutions. 225 Hoole, Rajan, op. cit, at p. 35. 226 ibid, at p. 37. 69
that things might get out of hand. Deputy Solicitor General GPS de Silva who appeared for the State at the beginning later dropped out citing personal reasons. He was considered a person who would have been uncomfortable about lowering his ethical standing. His place was taken by State counsel ADTMP Tennekoon. 227 Victims’ lawyers objected to State counsel ADTMP Tennekoon’s manner of leading the police witnesses. Commissioner Sansoni dismissed these criticisms as unjustified. 228 However, the question of the politicisation of the Sansoni Commission continues to raise no small measure of debate. Former Chief Justice Miliani Claude Sansoni was a man fighting a battle with himself. During the later stages of the Commission hearings, he remarked to a confidante gravely “I have never before headed a political commission.” 229 This quotation as well as the fact that threats were levelled at the Commission during its sittings has been vehemently contested in recent times. 230 More generally, revelations of information that raise questions regarding the integrity of Sri Lanka’s commissions of inquiry – whether due to internal motives or external pressures - are typically strenuously contested. Private conversations with legal personalities of the day intimately connected with these events (but who understandably prefer to remain anonymous) indicate the subtle pressures at play in such contexts. In this particular instance, the police hierarchy supported by key political figures of the day, made known its displeasure with the efforts of then Deputy Solicitor General (DSG) G.P.S. de Silva to lead evidence fairly, which meant that the actions of certain police officers were liable to get exposed. It is confirmed on the most impeccable of testimony that (then) DSG de Silva’s withdrawal from the Commission sittings was not as had been portrayed for personal reasons. Insofar as the functioning of the Sansoni Commission was concerned, Commissioner Sansoni allowed lawyers to cross-examine witnesses. He also admitted confessions, using Section 7(d) of the COI Act of 1948 and overruling objections raised in that regard. 231 His rationale was that the makers of such confessions were not being charged in a court of law and that therefore there was no valid reason to disallow their admittance. 232 The objection that the makers of such confessions should be noticed to 227 ibid, at p. 36. 228 The Sansoni Commission report, Sessional Paper No. VII, July 1980, at pp. 19 and 20. 229 Hoole, Rajan, op. cit, at p. 37. 230 See Secretary to the Sansoni Commission, Tissa Devendra’ss rebuttal of this writer’s column Focus on Rights titled ‘Further Reflections on Commission Inquiries and Rights Violations, Part 111’ The Sunday Times, 17.02.2008. Mr Devendra statedthat (then) Deputy Solicitor General GPS de Silva withdrew from the Sansoni Commission not due to his disillusionment with the proceedings but because ‘he had to go back to the Department which just could not spare the services of the Deputy Solicitor General to assist a long term Commission.’ See also ‘Rebutting a Defence of the Sansoni Commission’ in Focus on Rights, The Sunday Times, 24.02.2008 and ‘More on the Sansoni Commission’ The Sunday Times, 02.03.2008 for the somewhat acrimonious dialogue that took place on this matter. 231 The Sansoni Commission report, Sessional Paper No. VII, July 1980, at p. 5. 232 ibid. 70
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In exploring what constitutes a ver
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3
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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
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communities. Krishanthi Kumaraswamy
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investigative function that could m
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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 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 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
Page 114 and 115: against any particular soldier or s
Page 116 and 117: analysis, these pillars of the judi
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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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