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focused on allowing within its purview all cases that assisted in fully accounting for the patterns of abuse. Variations of the above situation was where the complainant suspected that the victim must have been abducted in a "cordon and search" operation or from somewhere "because he is young", "because someone must have petitioned that he is a subversive out of personal jealousy or otherwise", "because he was a political activist", "because he was involved in and/or took the lead in strike (employee/trade union) action etc.”, "because he put posters on behalf of the JVP", "because he went to vote at the Provincial Council Elections", or "because another family member was a UNP/SLFP/JVP activist." 296 Illustrations a. A brother, a graduate teacher giving evidence stated that in September 1989, his brother who was a Ruhuna Medical Student had disappeared. A month prior to this incident another brother also a graduate teacher had been abducted by unidentified persons. Their father was a UNP loyalist. But thereafter their family had laid off politics, the police had warned them that there had been petitions against their family that their residence was being used to conduct JVP lectures. Witness stated that no such thing happened in their house. The evidence suggested that the disappearance had been orchestrated by persons out of personal jealousy with the aid of para-military groups. b. A mother giving evidence before the Commission stated that her two sons who were both in their early twenties were missing since March and September 1989 respectively. The evidence revealed that the complainant's daughter had been a SLFP activist and had been a polling agent on behalf of the SLFP at the 1988 and 1989 elections. A family closely related to them, were supporters of the UNP. Members of that family had repeatedly threatened the witness that her son will be 'lifted' because of the daughter's involvement with the SLFP. The incident had taken place around the Presidential Elections time in 1988. The evidence suggested that the disappearance had been instigated by this rival family with the assistance of para-military groups. 297 Several cases fell into a fourth category, in which unidentified persons had by the use of arms, inflicted physical injury on the victims. The Commission determined that the majority of these incidents were alleged to have been caused by subversive action on account of the victim "not heeding warnings calling upon them to resign from Government employment"; "failing to publicly denounce involvement with the political party (generally the UNP) to which the corpus belonged", "refusing to join and/or assist the JVP" or "for breaking the unofficial curfew". 298 However, the Commission also noted instances where the allegations were against the armed forces. Considering factors such as the type of arms and instruments used by the perpetrators, the location selected for the infliction of the injury and other surrounding circumstances, it was ruled that death had resulted from the physical 296 ibid. 297 ibid. 298 ibid, at p.8. 85
injury so inflicted in the absence of any evidence to the contrary and therefore that these cases also fell within the terms of the mandate. Excluded and Borderline Cases Cases were excluded from the Commission’s consideration on the basis of geographical jurisdiction or territorial ouster where the complaint related to an incident that had occurred in an area falling within the jurisdiction of one of the other Commissions; time limitations (incidents occurring prior to 1 January 1988); or other factors, including insufficient evidence, “disappearance” resulting from private quarrels, cases of pure physical injury and cases of temporary involuntary removal where allegations appeared merely speculative. 299 A more difficult mandate issue concerned cases involving suicide resulting from political threats, observed by the Commission as ‘a novel problem for consideration.’ 300 Many persons had been subjected to threats, directly through warning letters and notices as well as indirectly through anonymous calls or warnings notes, by subversives as well as paramilitary groups, sometimes allegedly instigated by political opponents). They had thereafter committed suicide allegedly in an ill state of mental health. Strictly reading the mandate, the Commissioners acknowledged that there was no involuntary removal or “disappearance” in the literal sense in these cases. However, the question was as to whether, instead of a physical injury followed by death or an involuntary removal, "the threats" which had led to the state of neurotic depression followed by death, the proximate cause being the act of the victim, could be regarded as a case falling within the meaning of "involuntary removal or disappearance". 301 On a liberal interpretation of its warrant amounting to a de facto extension of the mandate and reasoning that, "true nervous shock is as much a physical injury as a broken bone or torn flesh wound", 302 the Commission accommodated such cases for inquiry. The view that the felonious act of the victim himself in taking his own life would not break the chain of causation between the state of neurotic depression he was said to have been subjected to as a result of threats and his death. The categorization by the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, though not exhaustively reasoned in quite the same way, was reflected in the Reports of the other Commissions as well. 299 ibid. 300 ibid. 301 ibid. 302 Eldredge, Modern Tort Problems, p. 76, as quoted in the Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No V, 1997, at p. 11. Though this principle was asserted, in the one such case that was examined by the Commission, it was found that the absence of adequate medical evidence in regard to the claim that "the corpus had committed suicide in a state of neurotic depression forced by JVP threats" was not sufficient for the Commission to come to a positive finding on the said claim. 86
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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
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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
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enforced disappearances were report
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The Court of Appeal dismissed petit
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process and commissions of inquiry
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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
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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
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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 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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Page 120 and 121: Regardless of the amendment however
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Page 124 and 125: 6.4. Affording alleged perpetrators
Page 126 and 127: Chapter Five - Sri Lanka’s Crimin
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Page 130 and 131: 2.1. First Information Reports In a
Page 132 and 133: arrests. In consequence, most of th
Page 134 and 135: 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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Untitled - International Commission of Jurists

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