Commissions and Committees on Disappearances
Published in the Christian Worker of January 2004
COMMISSIONS AND COMMITTEES ON DISAPPEARANCES
WHAT NEXT ?
By M.C.M.Iqbal, former Secretary of two Presidential Commissions of Inquiry into Disappearances and Secretary to the Committee of Inquiry into Disappearances Of the Human Rights Commission of Sri Lanka.
The Committee of the HRC
Another inquiry into disappearances of persons has just been concluded and a report has been submitted to the Human Rights Commission (HRC) by the Committee of Inquiry into Disappearances in the Jaffna Region – appointed by the Human Rights Commission of Sri Lanka. The Report which was submitted on the 28th of October 2003, after having inquired into 281 complaints of disappearances between 1990 and 1998 in the Jaffna Region received by the HRC. It analyses the different reasons why such persons had been taken away, by whom and the whereabouts of such persons. The Report puts the blame squarely on the army in respect of the majority of the disappearances saying that there is clear evidence that they were responsible for the arrests of 245 of them and had found no evidence on where they are detained or that such persons are alive somewhere. The LTTE too has been found responsible for the disappearance of 25 persons from amongst the list of 281. Of the remainder, 2 had been shot dead by the army, one had been taken by the navy, the rest had disappeared without a trace. The Committee had gone beyond its terms of reference and recommended ways in which such disappearances could have been prevented and suggests that such measures be adopted, at least to prevent the reoccurrence of such incidents in the future. The need to provide reparations to the victims has also been stressed with a plea for the NGO community to get involved in the process.
The Presidential Commissions
The four Presidential Commissions on Disappearances set up earlier by the President, too, had made similar recommendations. They were more concerned with the disappearances in the regions other than the Jaffna Region because only a fraction of those affected in the North had access to these Commissions which were appointed at a time when the North was under LTTE control and virtually cut off from the South due to lack of communication facilities. All these Commissions and the Committee of HRC saw one common factor in the human rights scenario of Sri Lanka, namely that the Police and the security forces are afflicted with the malady of impunity. The undesirability of letting this malady to breed had been highlighted and the need to stem the proliferation of this disease had been stressed more than adequately by all the Commissions of Inquiry and the Committee. Yet, this scourge continues and could be seen from the widespread prevalence of torture, deaths in custody and violations of fundamental rights by the Police of our country.
The role of the Police and Security Forces
Though the scale of disappearance has diminished considerably, violations of other fundamental rights of individuals persist despite utterances at different fora both by state and humanitarian agencies calling for an end to such incidents. The state is to blame for not effectively dealing with indiscipline among the police and security forces personnel.
The Commissions on Disappearances have recommended that in addition to legal action against the perpetrators, disciplinary action should be taken against them for violating departmental regulations. For instance, in the few complaints of disappearances that the police had contemporaneously recorded, the entries had been made in Minor Offences Registers ( to them the disappearance of a person had been a minor offence ! ); soon after Commissions of Inquiry were appointed the IGP had issued a circular directing all Officers-in-Charge of Police Stations to preserve all Information Books and records pertaining to the relevant period, but the Commissions found many had not complied and but had destroyed all implicating evidence. Yet no action has been taken against such officers. In some of the cases filed against police officers responsible for causing disappearances, the officers had been interdicted from service in keeping with government regulations. But subsequently by a circular issued by the IGP all such officers had been reinstated in their posts and even promotions given in spite of court cases pending against them. These instances clearly indicate that the Police Department is not keen to maintain discipline amongst its ranks and try to improve the image of this institution which has descended to a very low level. No wonder the UN Human Rights Commission has recently passed a stricture on the performance of this Department.
The performance of the security forces is not second to that of the police forces. The security forces chiefs in the respective areas where gross violations of rights had taken place, cannot be freed from blame. They are guilty of either condoning violations by their cadres or had given to orders them to indulge in such acts. Consequently they have to bear ‘chain of command’ responsibility for the events that brought disrepute to the country.
The contents of the Report of the Committee of the Human Rights Commission, a summary of which was made available to the invitees, has had a mixed reception. Some called it a forthright document while others such as the perpetrators of such incidents and their supporters have called it a biased report. This is in spite of the Report pointing its finger both at the security forces and the LTTE for violations of the rights of individuals. In an effort to complete the picture this report has listed over 36 instances of grave acts of violence in all parts of the country in the past. Which resulted in the death of a large number of civilians at the hands of the LTTE and the security forces.
The UN Human Rights Commission
The United Nations Human Rights Committee has had its deliberations recently on Sri Lanka’s Fourth Periodic Report on the human rights situation in Sri Lanka. The issue of human rights violations by state agencies and the question of impunity of the perpetrators were discussed. The steps taken by the Government to prevent future violations and the prosecution and punishment of persons responsible for disappearances, torture and other violations of the rights of individuals had been scrutinized. It has passed a stricture on the human rights record of Sri Lanka based especially on the inability of the government to effectively check the widespread prevalence of torture at the hands of police officers.
Inadequacies in the law
In spite of the recommendations of the Commissions of Inquiry into Disappearances, causing the disappearance of a person is still not a criminal offence in our statute books. Until 1994 even inflicting torture was not a penal offence. Despite the passing of the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment Act No. 22 of 1994, not a single person has been convicted for the offence of torture so far. The Asian Human Rights Commission has been systematically documenting acts of torture in Sri Lanka since 1994. It has submitted a report to the UN Human Rights Commission stressing the need to address the problems in policing and prosecuting perpetrators. Political interference with police functions has been found to be one of the main reasons for persons being tortured at Police Stations and is also a factor that stands in the way of effective prosecution of the perpetrators.
The Torture Act provides for an imperative seven years imprisonment on any person convicted of torture. The definition of torture given in the Act is very wide -- even a slap on a suspect by a police officer is treated in the same plane as a suspect being hung upside down and assaulted mercilessly. This has inhibited indictments by the Attorney General on perpetrators of torture. Though the need to have different grades of torture is understandable, but the state has taken no steps to change the law to make it overcome this inhibiting provision of the law and make it effective.
One of the important recommendations made by all the Commissions or Committees of Inquiry into Disappearances is the need for the establishment of an independent Public Prosecutor. No steps whatsoever have been taken by the state to make this a reality.
That even the President who appointed the Commissions of Inquiry into Disappearances had not been serious about the issues involved and the recommendations made is seen from the fact that none of the four Reports of the Commissions have been placed before the Parliament for a full discussion on them to enable the Parliament to take action on the recommendations contained in them and to raise public awareness of the issues.
The Reports of the UN Special Rapportuer on the Independence of the Judiciary has criticized the judiciary of Sri Lanka as being bias, adding another dimension to the already slurred human rights situation in Sri Lanka.
The case of Tony Michael Fernando, a torture victim who had been sentenced to jail, and the case of a senior Judge of the Supreme Court wanting to retire prematurely have been highlighted in this report. All these indicate that Sri Lanka has to go a long way before we could call ours a country where human rights violations are minimal and a victim could readily vindicate his grievance, if any, through easily accessible judicial remedies.
What Next? Punitive action or restorative justice
This brings us back to the question of the perpetrators of disappearances and the families of the victims who have waited in anguish for long years hoping to see that justice is done to them. They live with a heavy heart having lost their dear and near ones at the hands of the police or security forces personnel who have caused their disappearance. With the long years that have gone by and the memories of the details of the incidents fading from their minds, the chances of the perpetrators being convicted in a Court of Law are remote. In the circumstances one has to think of other options available to wipe out this blot from the minds of people concerned and the history of this country. Greater importance needs to be given to symbolic forms of healings such as erection of monuments, award of meaningful reparations and the payment of adequate compensation which has to manifest from the State’s acknowledgement of wrong doing. This is what is still lacking in our country. In spite of over 60,000 persons having gone missing, according to unofficial sources, and nearly 30,000 according to official sources, a general acknowledgement of guilt on the part of the perpetrators, is still to come.
The concluding part of the Report of the Committee on Disappearances is very relevant here, I quote – “All that can be said at this stage is that these and many other tragedies need to be addressed on an all island basis with a view to healing and reconciliation, without prejudice to any steps that may be taken to secure justice. There should be no blanket amnesty. Rather, a balance needs to be struck between what Bishop Tutu, in his foreword to the report of the South African Truth Commission, referred to as ‘retributive and punitive justice’ and ‘restorative justice which is concerned not so much with punishment as with correcting imbalances, restoring broken relationships, healing harmony and with reconciliation”.
Kofi Annan, Secretary General of the UN had stated as follows.
There can be no healing without peace; there can be no peace without justice; there can be no justice without respect for human rights and the rule of law”.
Now that our country is slowly and cautiously moving in the direction of peace, we may need to leave the past behind and move forward. Perhaps an acknowledgement by the perpetrators of violations of rights of individuals – be it state or non-state actors, will give an impetus to the healing process. The establishment of a Truth and Reconciliation Commission at a future date could facilitate such an acknowledgement and provide solace to some of the families of the victims and an opportunity for the perpetrators to get their guilt off their mind and clear their conscience.