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Date of Publication of Report: not published Mandate: to inquire into past involuntary removal of persons during 1991- 1993 and (i) whether such illegal acts took place by reason of any lack of legal provision in the present laws relating to law enforcement; (ii) the remedial measures necessary to prevent the future occurrence of such illegal activity. 262 and: (i) any complaints of such alleged removals, and/or the subsequent lack of information of the whereabouts of the person or persons so removed; (ii) the credibility of such complaint; (iii) your recommendation as to whether or not further investigations into such complaint are warranted for the purpose of the institution of legal proceedings 263 2.5. Reflections on the 1991 Presidential Commissions An analysis of the historical context and conduct of these commissions shows them to be, in relative terms, unworthy predecessors to the post-1994 Disappearances Commissions. The 1991 Presidential Commissions 264 are difficult to characterize in any other way than as efforts to deflect international criticism of Sri Lanka’s human rights record. The mandate, proceedings and procedures of the Presidential Commissions were seriously defective. Their hearings were held in secret, their reports on some individual cases reported to it were not made public, and their mandate did not include the thousands of cases reported prior to 1991. 265 Apparently, 3,669 cases had been reported to the PCIIRP which were before the mandated time period. 266 It was during this time period, namely 1987-1990, that the worst of the abuses perpetrated by government and paramilitaries linked to the government had occurred in response to the attempts by the JVP to overthrow the United National Party government. The findings of the 1991 Presidential Commissions were not made public at any stage. However, it has been observed that the Commissions “had submitted reports on at least 142 cases of disappearance to successive presidents between January 1991 261 The Gazette of the Democratic Socialist Republic of Sri Lanka, Extraordinary, No. 784/1, 13.09.1993. This fourth Commission was appointed by President D.B. Wijetunge upon assuming the office of the Executive Presidency shortly folowing President R. Premadasa’s assassination by an LTTE suicide bomber on 01.05.1993. 262 ibid. Schedule “A”. 263 ibid, Schedule “B”. 264 Coining of the phrase ‘involuntary removals’ in relation to Commissions of Inquiry was first evidenced by these Commissions. This terminology was later followed by the 1994/1998 Commissions of Inquiry into Involuntary Removal or Disappearances of Persons consequent to some discussion on the exact parameters of this term as would be seen in the later analysis in this section. 265 This was criticized strongly by Amnesty International. See Amnesty International, ‘Sri Lanka, Implementation of the Recommendations of the UN Working Group on Enforced or Involuntary Disappearances following their visits to Sri Lanka in 1991 and 1992’, AI Index, ASA/37/04/98, February 1998, at p. 6. 266 Amnesty International, ‘Sri Lanka; An Assessment of the Human Rights Situation’, AI Index, ASA/37/1/93, 1993, at p. 4. 77
and the end of 1994. In some cases at least, the reports are believed to contain evidence implicating individual officers in perpetrating disappearances. 267 3. Post-1994 Commissions of Inquiry into Widespread Disappearances Sri Lanka, in the recent past, has undergone several traumatic experiences, two insurrections in the South and a war in the North and East, with disastrous repercussions on the social psyche of the nation. While a particular society may have developed means to absorb or cushion these shocks, special mechanisms should be evolved to help cope with such problems. 268 3.1. The 1994 Commissions of Inquiry into Disappearances Date of Appointment: 30 November 1994. 269 Date of Report: September 1997. 270 Mandate: to inquire into and report on the following matters: (a) whether any persons have been involuntarily removed or have disappeared from their places of residence in the [Central, North Western, North Central and Uva Provinces/Northern & Eastern Provinces/ Western Province, Southern Province and the Sabaragamuwa Province] at any time after 1 January 1988; (b) the evidence available to establish such alleged removals or disappearances; (c) the present whereabouts of the persons alleged to have been so removed, or to have disappeared; (d) whether there is any credible material indicative of the person or persons responsible for the alleged removals or disappearances; (e) the legal proceedings that can be taken against the persons held to be so responsible; 267 Law and Society Trust, “Impunity,” in State of Human Rights Report 1994, 1995, at p. 114. 268 Final report of the Commission of Inquiry into the Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces, Sessional Paper No. V, 1997, at p.167. 269 Appointed by President Chandrika Kumaratunge. The 1994 Western, Southern and Sabaragamuwa Disappearances Commission comprised Manouri Kokila Muttetuwegama (Attorney-at-Law) functioning as Chairperson along with Amal Jayawardene (University of Colombo) and Jayantha de Almeida Guneratne (Attorney-at-Law). The other two Regional Commissions were headed by K.Palakidner (Retd. Court of Appeal President) and T. Sundaralingam (Retd. High Court Judge). 270 See Final report of the Commission of Inquiry into the Involuntary Removal or Disappearance of Persons in the Central, North Western, North Central and Uva Provinces, Sessional Paper No VI-1997 (at Appendix 1, p. 7); the Final report of the Commission of Inquiry into the Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces, Sessional Paper No. V, 1997, at p.179); and Final report of the Commission of Inquiry into the Involuntary Removal or Disappearance of Persons in the Northern and Eastern Provinces, Sessional Paper No VII-1997at p. 1). This Study also examines the Special report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission titled 'Some Reports of Cases' dated 31.05. 1997 (unpublished). 78
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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
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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
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and Bandaranaike became the prime m
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assembly and association of trade u
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majority pro-Sinhala political lead
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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 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 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 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
Page 118 and 119: competence. Their findings must be
Page 120 and 121: Regardless of the amendment however
Page 122 and 123: It was recorded by at least some of
Page 124 and 125: 6.4. Affording alleged perpetrators
Page 126 and 127: 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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