Untitled - International Commission of Jurists

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The Batalanda Commission recommended comprehensive investigations to be initiated in terms of the provisions of the Penal Code against the individuals implicated. 343 Its other rather novel recommendation related to the Supreme Court being vested with additional jurisdiction to impose suitable sanctions in the deprivation of civil rights on persons who are found to have repeatedly violated basic fundamental rights of citizens. 344 The timing of the appointment of this Commission by President Kumaratunge, the (long-delayed) release of the Report, and the government’s selective use of its extracts for party political propaganda, detracted from the positive impact that such an inquiry might have been expected to achieve. 345 3.3.2. The Presidential Truth Commission on Ethnic Violence (1981-84) Date of Appointment: 23 July 2001 346 Date of Report: September 2002 347 Mandate: Inquire and report on the following matters: (a) the nature, causes and extent of – (i) the gross violation of human rights; and (ii) the destruction of and damage to property committed as part of the ethnic violence which occurred during the period commencing from the beginning of the year 1981 and ending in December 1984, with special reference to the period of July 1983, including the circumstances which led to such violence; (b) whether any person, group or institution was directly or indirectly responsible for such violence; (c) the nature and extent of the damage, both physical and mental, suffered by the victims of such ethnic violence; (d) what compensation or solatium should be granted to such victims or to their dependents or heirs; (e) the institutional, administrative and legislative measures which need to be taken in order to prevent a recurrence of such violations of human rights and destruction or damage of property in the future and to promote national unity 343 See later analysis for the attempted prosecution of individuals implicated in the findings of this Commission. 344 Final report of the Batalanda Commission, Sessional Paper No. 1, 2000, at p.124. 345 Kumaratunge’s use of the Batalanda Commission report at the 1999 presidential election campaign is noted in this regard. As Hoole comments ‘the selective use of commission reports which became the property of the executive president, as propaganda, was started by Jayawardene (ie; Sansoni report). It diminishes the standing of the judiciary,” Hoole, Rajan, op. cit, at p. 252. 346 Appointed by President Chandrika Kumaratunge. The Commission comprised S. Sharvananda (Retired Chief Justice as Chairman) and SS Sahbandu and MM Zuhair (Presidents’ Counsel) as members. 347 The Final report of the Presidential Truth Commission on Ethnic Violence (1981-1984) is published as Sessional Paper No. III, 2003. 97
and reconciliation among all communities and to make such recommendations with reference to any of the matters that have been inquired into under the terms of this Warrant. The Report of this Commission reveals witness testimony and other evidence in regard to the burning of the Jaffna Public Library in 1981, the District Development Council elections (1981), the July riots (1983) and the killing of prisoners at the Welikada Prison (1983). Though a useful historical record for the events of that time, the Commission report is a weakly structured document and the exercise was not, in any sense, comparable to the truth commissions of other countries, most notably South Africa. In the words of one witness who appeared before the Commission: Where the Welikade massacres were concerned for instance it did hardly any – if any – investigation of its own. It relied on me (CRM) for practically everything (for instance, even the inquest proceedings were supplied to it by us) and seemed more than happy with just our material. What it should have done is taken our material as a starting point and then followed up from there, with all its powers of investigation and summoning witnesses, which we didn't have. For instance it could and should have tried to obtain the statements recorded by the police after the first massacre. The instructing attorneys in the 35 civil cases filed by dependents of victims (assisted by CRM; it was in pursuance of these that we tracked down and interviewed survivors) called for these time and again in preparation for the trials, but were met with evasion after evasion by the Police. The cases never came to trial because they were eventually settled, state paying some compensation but without admitting liability… ….By the time of the ‘Truth’ Commission, I guess I was exhausted with putting the facts before them and it was probably partly my fault I did not press sufficiently for follow-up, or possibly I thought it would be no use. Welikade was only a small part of the Commission's whole remit. In its report, the Commission did pay CRM and me a handsome tribute, which was certainly gratifying, but we had really hoped that it would investigate further and uncover information which we had not already found out for ourselves. 348 Despite the many pronouncements of this Commission as to the taking of measures that were deemed necessary for national healing, there was no implementation of any of these recommendations except for the payment of certain amounts of compensation. 349 The Commission report had, in fact, minimal positive impact on public opinion and did not serve as a mechanism for accountability or redress. 348 Assessment of veteran civil rights lawyer and Secretary, Civil Rights Movement (CRM) Suriya Wickremasinghe in reference to the testimony that she gave on the Welikada prison massacres before the Commission, quoted by the University Teachers for Human Rights (Jaffna), ‘Scripting the Welikade Massacre Inquest and the Fate of Two Dissidents,’ ‘From Welikade to Mutur and Pottuvil: A Generation of Moral Denudation and the Rise of Heroes with Feet of Clay,’ Supplement to Special Report No. 25, 31.05.2007. 349 See later analysis for the lack of the Commission’s findings leading to prosecutions. 98
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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
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The Court’s reasoning at times ap
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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
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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 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
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Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
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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
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Page 140 and 141: y the byzantine and unfair burdens
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Page 144 and 145: 5.2. Language Issues at Trial Stage
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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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