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However, the weak process of re-referrals meant acquiescence to the same structural obstacles to truth, justice and reparations that the Commissions, in theory, were created to overcome. With the Kumaratunge administration itself plunging into renewed conflict with the LTTE, leading to the return of the phenomenon of enforced disappearances and extrajudicial executions in the North and East during the years thereafter, any existing political will to address gross human rights violations effectively dissipated. As noted below, the recommendations of the 1994 Disappearances Commissions led to few prosecutions. The 1994 Western, Southern and Sabaragamuwa Disappearances Commission observed great care in not publicly naming alleged perpetrators. Its reluctance to ‘name and shame’ alleged perpetrators emanated from the fact that these alleged perpetrators had not been given an opportunity to refute the charges made against them. The 1994 Northern and Eastern Disappearances Commission and the 1994 Central, North Western, North Central and Uva Disappearances Commission Commissions, however, did name some politicians, security personnel and police officers as being ‘credibly implicated’ 309 in the enforced disappearances in their respective reports. The issue of protecting the rights of alleged perpetrators in commission proceedings is taken up in a subsequent chapter, below. 3.1.4. Reflections on the Recommendations The 1994 Commissions Reports are unambiguous with regard to the expectation that justice and reparations follow their determination of truth as disclosed through their inquiries. This Commission recommends a vigorous prosecution of those responsible for disappearances. 310 Severe disciplinary measures should be meted out to Government Officials who have failed to take adequate measures to prevent disappearances. 311 The Recommendations of the 1994 Disappearances Commissions in relation to reforms of the law and legal process included the following: Investigations into all acts of gross human rights abuses should be carried out through a special unit of the police under the direct supervision of an officer not below the rank of a Deputy Inspector General of Police; 312 309 This term which has been used commonly by all three Commissions, refers to instances where an alleged perpetrator’s name is found to repeatedly occur in the evidence of witnesses before them. 310 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No. V, 1997, at p. 175. 311 Final report of the 1994 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 p. 3. 312 ibid, at pp. 68 and 171 Following these recommendations, a Disappearances Investigation Unit (DIU) was established under the Deputy Inspector General of Police of the Criminal Investigations Department. It has been consistently maintained by the government that police officers are ‘handpicked’ for this Unit and that great care is taken to ensure that they have a ‘good record’ – as reiterated in confidential interviews with police officers conducted for the purpose of this research. However the performance of this Unit has been poor despite the good intentions of some police officers 89
An Independent Human Rights Prosecutor should be established as an institution similar to the Commissioner of Elections and the Auditor General with funds provided by Parliament; 313 Evidentiary rules in regard to cases of enforced disappearances and extrajudicial executions should remain that of the normal law. However, once detention is established, the burden should shift to the person charged in the absence of an explanation. 314 Legal principles relating to chain-of-command liability should be clarified by the Supreme Court in the exercise of its jurisdiction in terms of Article 126 of the Constitution. 315 Due obedience should not be entertained as a defence to abuses. 316 It is also worth noting one specific recommendation that did not make it into the final report. This recommendation arose in the case of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, and relates to the frequently debated issue of whether commission proceedings and findings should be reviewable by the judiciary. The recommendation, later removed, read as follows: “the Commission of Inquiry Act [should] be amended by introducing a comprehensive preclusive (or who have attempted to do their work properly. In certain instances, officers had been transferred out from the Unit after they tried to investigate their senior officers for alleged abuses. Cases investigated by the DIU which appear to result in credible evidence against state officers are referred to the Missing Persons Unit (MPU) of the Attorney General’s Department for prosecution. The MPU’s lamentably unsatisfactory record of prosecutions is examined immediately below. 313 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No. V, 1997, at pp. 69 and 171. Recommendation not implemented. See later discussion pertaining to the office of the Attorney General. 314 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No. V, 1997, at p. 171. Recommendation not implemented. The Commission’s recommendation, in fact, mirrored the approach of the Court of Appeal, during a particular period in time, when (in several cases including most notably Violet and others v. O.I.C Police Station, Dickwella and Others, [1994] 3 Sri LR 377 per Justice of the Court of Appeal (as he was) SN Silva and more recently, Kanapathipillai Matchavalavan v. Officer in Charge, Army Camp Plantain Point, Trincomalee and three others SC 90/2003, SCM 31.03.2005, per Justice Shirani Bandaranayake. However, despite such individual decisions, there has been little judicial consistency evidenced, particularly in respect of habeas corpus applications alleging enforced disappearances from the North and East. 315 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No. V, 1997, at p. 172. Though the Supreme Court has clarified the doctrine of vicarious liability of superior officers in numerous recent cases (for example, Sriyani Silva v. Iddamalgoda [2003] 2 Sri LR 63; Wewalage Rani Fernando case, SC(FR) No 700/2002, SCM 26/07/2004) where the culpable inaction of custodial officers included failure to monitor the activities of their subordinates, which would have prevented further ill treatment of persons in custody and failure to investigate any misconduct) there is just one decision relating to chain-of-command- liability in situations of active conflict concerning actions of military officers (Liyanage v. de Silva [2000] 1 Sri LR 21) and this decision by the Court is unfortunately to the negative as would be discussed later. A related recommendation under the section of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission Report dealing with habeas corpus applications was that severe disciplinary punishment be meted out to government officials who failed to take adequate measures to prevent disappearances - see at p.175 of the report. This recommendation remains unimplemented. 316 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No. V, 1997, at pp. 79 and 172. 90
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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
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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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terms, 66 and clear guidelines laid
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Though the drafters of second Repub
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Page 46 and 47: however, linked the habeas corpus a
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Page 62 and 63: accused even though the relevant do
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Page 66 and 67: Chapter Three - Commissions of Inqu
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Page 82 and 83: were SLFPers. I was told, that area
Page 84 and 85: The 1994 Western, Southern and Saba
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Page 88 and 89: 3.1.3. Reflections on the Procedure
Page 92 and 93: ouster) clause ruling out judicial
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Page 102 and 103: ecommendation to this effect by the
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Page 108 and 109: Chapter Four - Evaluating Sri Lanka
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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
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Page 128 and 129: to the attention of the Court in an
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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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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