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(g) The relief if any that should be afforded to the parents, spouses and dependents of the persons alleged to have been so removed or to have disappeared; And to make such recommendations with reference to any of the matters that have been inquired into under the terms of this warrant. The 1994 Disappearances Commissions regretted the fact that, despite having been given extensions of their time period, they had not been able to finish their work. Due to the fact that they were unable to enquire into all the complaints of enforced removals they had received and a further 10,135 complaints submitted to the Commissions by relatives and witnesses remained to be investigated, the All-Island Presidential Commission of Inquiry was appointed in 1998. The mandate of this Commission had a geographical reach extending to the entire country which was a considerable improvement from its predecessor. The 1998 All Island Commission adopted procedures similar to its predecessors to inquire into the remaining 10,136 files handed over from the earlier Commissions. The majority of the 10,316 files inquired into came from Kandy (Central Province – 3397 files), Kurunegala (North-Western Province- 1581 files) and Matale (Central Province – 1042 files) and Anuradhapura (North-Central Province – 883 files). Files from the North/East provinces were considerably less in number, totalling Jaffna-42 files, Batticoloa – 18 files, Kilinotchi – 8 files, Mannar – 1 file, Mulaithivu – 7 files, Trincomalee - 9 and Vavuniya – 3 files. The Commission concluded that a further 10,400 persons had “disappeared” during the relevant period. Distinct patterns were indicated in the “disappearances” and abductions. Thus, for example, at least 680 of such cases were linked to the participation of such persons in legitimate political activities. 323 The repeated involvement of perpetrators was clear: Thirty-seven persons were credibly implicated in three or more incidents and an additional 37 were credibly implicated in respect of two incidents. In one incident, alone, 270 persons were implicated. 324 Twenty-seven persons implicated in grave human rights violations in the findings of this Commission had also been implicated in the findings of the three 1994 Disappearances Commissions and other Presidential Commissions, including the Batalanda Commission as well as the Special Presidential Commissions inquiring into the assassinations of Brigadier (subsequently Lt General) Denzil Kobbekaduwe, Lalith Athulathmudai and Vijaya Kumaratunge. The chilling account below recounted by this Commission is emblematic of the atrocities of that period: Where the perpetrators were the agents of the State or paramilitary groups, family members generally had no access to bodies for identification. In a few cases, even where disappearances were at State hands, bodies were publicly exhibited. For instance, a resident of Katupotha was taken into custody by the police, tied to the rear of a jeep and dragged along the streets of Katupotha 323 Report of the 1998 All-Island Disappearances Commission, Sessional Paper No 1, 2001, at p. 10. 324 ibid. 93
town, before being shot dead and strung up on a tree at the market place for public exhibition. Floating dead bodies in rivers, bodies on roads, burning bodies on tyres had been a common sight during this period. 325 The 1998 All-Island Disappearances Commission sent a list of individuals implicated in the enforced disappearances under confidential cover to the President, following the 1994 Disappearances Commissions’ procedures in not embarking to the second stage of affording the alleged perpetrators an opportunity to testify. 326 It was concluded that in the 4,473 cases where enforced disappearances had been proved, agents of the state, paramilitaries acting in collaboration with them, as well as subversive groups, were implicated. 327 Personal enemies and unknown persons were also noted to be responsible for some of the cases. This Commission recommended, inter alia, the following measures in respect of legal proceedings against those responsible for gross human rights violations: The creation of an office of an Independent Human Rights Prosecutor 328 Worth noting in this regard is the problematic nature of the Commission’s recommendation that the Human Rights Commission of Sri Lanka (HRCSL) Act, No 21 of 1996 be amended to provide for an Independent Human Rights Prosecutor to deal with complaints of human rights violations in general and disappearances, in particular. 329 Without first addressing the manifold problems affecting the independence and functioning of the HRCSL, 330 purely vesting prosecutorial powers in the HRCSL would be a cosmetic measure. Preferable in this respect is the suggestion by one of its predecessor Commissions, namely the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, that an Office of an Independent Prosecutor be established with appropriate constitutional safeguards. 331 The creation of a crime of enforced disappearances 332 and inclusion of the concept of command responsibility 333 325 Report of the 1998 All-Island Disappearances Commission, Sessional Paper No 1, 2001, at p. 6. 326 ibid, at p. 9. 327 ibid, at p. 10. 328 ibid, at p. 16. Recommendation not implemented. 329 ibid. 330 For an examination of the deficiencies in the HRCSL Act, No. 21 of 1996, see Pinto-Jayawardena, Kishali ‘The Rule of Law in Decline; Study on Prevalence, Determinants and Causes of Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka’, The Rehabilitation and Research Centre for Torture Victims (RCT) Denmark, 2009, at p. 194. These deficiencies relate primarily to the HRCSL’s independence from government including the fact that Section 31 of the Act empowers the Minister to make regulations in regard to the fiunctioning of the HRCSL as well as its powers of investigation. The HRCSL’s record of performance even when its members were appointed following approval by the Constitutional Council in accordance with the dictates of the 17 th Amendment to the Constitution (2002-2005) has not been optimal. 331 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No. V, 1997, at p. 83 in particular. 332 Report of the 1998 All-Island Disappearances Commission, Sessional Paper No 1, 2001, at pp. 16- 17. Recommendation not implemented. 333 ibid, at p.19. Recommendation not implemented. 94
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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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• Perera v. AG 89 and Wickremeban
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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
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 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
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
Page 136 and 137: officers who were prepared not only
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Page 140 and 141: y the byzantine and unfair burdens
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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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