Published in THE VOICE-  Official Publication of The Asian Federation Against Involuntary Disappearances (Philippines). October 2002

DISAPPEARANCES COMMISSIONS  OF  SRI  LANKA  -

a commentary on certain aspects of  their Reports

by   M.C.M. Iqbal*

Introduction

The Government that came to power following the General Elections of 1994 in Sri Lanka appointed three truth commissions called the Presidential Commissions of Inquiry into Involuntary Removals and Disappearances of Persons. These commissions covered the whole country on a zonal basis. They received a total of about 30,000 complaints.  (which included multiple complaints in respect of many of the disappeared persons). In mid-1997 the Commissions were asked to halt their inquiries and to submit reports on the basis of the complaints they had inquired into as at that date. Their reports were handed to the President in September 1997 and have since been published.  

At the time when these Commissions were asked to stop inquiries a total of 10,136 complaints received by them had remained uninvestigated. To deal with these remaining cases, the President appointed another Commission in April 1998, with island wide jurisdiction and with the same mandate as the three zonal commissions, and was directed to inquire into the remaining complaints only,   precluding  it from inquiring into any  new complaints.

The Final Report of this Presidential Commission of Inquiry  was handed over to the President in August 2000 was published and released to the public only  in July 2002.

Proceedings of the Commission

Unlike in the Truth and Reconciliation Commission of South Africa, the proceedings of the Disappearances Commissions in Sri Lanka  were not open to the public. Occasionally the media referred to some of the key cases which were being inquired into  during its sittings in the various districts and  high lighted them on the basis of communiqués issued by the Secretaries of the Commissions. But the names of the persons alleged to have caused the disappearances were not made public. One of the  reasons for this  was to protect the witnesses from possible harm by the perpetrators. It is for the same  reason that the volume of the report which contains the names of the persons against whom credible material indicative of their responsibility for the disappearance of certain persons,  has not been published.  There names come to light from time to time when the Missing Persons Unit of the Attorney –General files charges  against them in the courts of law.  But for some reason, the news media does not give much publicity to them.        

When conducting inquiries into the complaints, the questioning by the Commission was aimed at unearthing credible material indicative of the person responsible for the disappearance concerned.  The Commissions   could come to a finding based on a balance of probabilities as the provisions of the Evidence Ordinance of Sri Lanka  are not  applicable  to the proceedings of  Commissions of Inquiry. It is on this basis that the Commissions had prepared lists of persons responsible for the disappearances which they inquired into. These  lists were handed to the President of the country who has passed them on to the Attorney General for necessary action.    It is left to the Attorney-General to avail the services of the Disappearances Investigation Unit of   the Criminal Investigation Department to record any corroborative evidence that may be needed  to tie up the loose ends of the evidence to enable  charges being framed against the perpetrators and to prove  such charges beyond reasonable doubt, to enable a conviction to be obtained in the Court of law.

The evidence recorded by the Commission and all other connected documents are  deposited at the National Archives from which the Attorney-General could access them if necessary, for further action under the law,  to deal with the those responsible.

The Evidence

There are  eyewitnesses to killings of abducted persons. only in a few cases inquired into by the Commissions.  The Commission took the view that killings during the relevant period, also to be a form of causing the disappearance of a person. In many cases there are    eyewitnesses to abductions at round ups; social gatherings such as funerals, weddings etc; cordon and search operations; schools, at places of work;  on the roads;  at public meetings; check points;  at or near police stations or army camps, and,  from the homes of the persons who have now disappeared.   In such cases the persons involved are being charged for abduction. When abductions had taken place at the hands of unknown persons, there are witnesses who have seen  the person abducted subsequently  in police security force camps in custody. In  other cases even after months or years, the parents or spouses of the disappeared have learnt, through others taken to custody and confined  at detention centers and later released or escaped, that  particular persons who had disappeared were last seen in custody at such centers.

Based on such evidence all that the Attorney-General can do is to charge such persons who  was in charge of that particular detention center for  illegal detention with intent to kill, if he does not give an explanation as to what happened to such person who was in his custody. However the Attorney-General’s Missing Person Unit had not  been vigorous enough in pursuing such lines of investigation and are  averse to instituting such cases. They have to depend on the  Disappearance Investigation Unit (DIU) of the CID to record the evidence required. Often this unit takes months if not years to return a file with the statements recorded to enable the case to be filed. The DIU consists of police officers who have to investigate against other police officers to  punish them for their misdeeds. Brotherly feelings amongst such officers had often inhibited prompt and quick action. Pressure  from international human rights agencies had  prompted  the Ministry of Foreign Affairs to seek statistics to show progress in dealing with such issues.

Often the files in respect of petty officers or lower rang officers have been  attended to while those pertaining to superior officers had got  delayed and some have even got “misplaced”. The Attorney-General has filed nearly 570  cases in the Courts based on finding in reports of earlier commissions on disappearances. As to how many of them would end in convictions is to be seen. But that figure serves the purpose of the Government which  can proudly inform the international human rights agencies that are pressing for action   against those responsible for disappearances. 

Police Officers being  state officers are governed  by the provisions of the Establishment Code which lays down the procedures to be followed in administering them.   It requires state officers against whom criminal cases have been filed to be interdicted from service till the case is  decided and dismissed if convicted.  But only a handful of police officers charged with abduction were   interdicted.  A circular issued by the Inspector General of  Police early in year 2000 directs that  all those officers so  interdicted should  be re-instated. Some of them have been posted to  police stations where the complainants and witnesses in the cases against such police officers live. Some of them have contacted human rights organization are expressed their apprehension  to go to Courts to give evidence in such cases.  The chances are that they would absent themselves during the trials  for fear of reprisals  and the accused police officers would invariably be acquitted.

The Attorney General’s role

Another matter that needs to be mentioned is that the Attorney General concentrates on cases where there is direct evidence and  is not concerned so much  with cases that could be proved on circumstantial evidence, perhaps because it is an  uphill task.  For instance  there are cases  where there is evidence of disappeared persons  having been kept under detention in police cells but there are no corresponding  entries in detention registers. However the police officer who has to maintain the Diet Register in such station  has diligently included  such persons name as one to whom meals had been provided while in the cell. In such circumstances the Officer in charge of the police station concerned could be held to be accountable to explain the whereabouts of such person.

Entries in police records to the effect that persons in custody had escaped or had to be  shot while trying to escape.   Such  entries have not been corroborated by  an inquiry into the incident which the police department is expected to conduct  to find out the circumstances of escape to fix responsibility.

Returned Detainees

There is an important category of persons who gave evidence  before disappearances commissions called ‘returned detainees’ or ‘removal cases’.  These are persons who had been abducted  or otherwise taken into custody  as terrorist suspects, and tortured to get information which most of them  did not have.  Some of them had been subsequently released, while a few other had  been  shot  along with others and left to die but had survived their injuries. Still others have been released after detention in rehabilitation camps. While giving evidence before the commissions   these persons spoke of the persons who were  tortured along with them and  many of the who have later  disappeared.  Some of them are also eye-witnesses to killings while in custody.  They  gave evidence before the commission on these matters and pleaded that their torturers be dealt with.  Many of them  had been traumatized and bore signs of  having  endured torture.  Those responsible for their present plight are also accused in many a disappearance case, where the victim is not amongst the living to give evidence and the chances of their getting convictions are slim. But if such persons are charged for causing grievous hurt or unlawful detention of the  ‘returned detainees’ who appeared before the commissions of inquiry the chances of getting a conviction are greater. They cannot be charged for torture because torture was not a criminal  offence in Sri Lanka until December, 1994.   But alas such cases are not  given any attention and the  ‘returned detainees’  who gave evidence before the commissions are living with a grudge against those in authority for   not vindicating their cause. 

Attitude of the Police Department

Another matter that needs to be taken note of  is  the fact that  a circular issued by the Inspector General of Police at the commencement of the inquiries by the Commissions of Inquiry, directs all Officers in Charge of police stations  in the country to preserve all books and records pertaining to the period of terror in Sri Lanka until  the  investigations of the commissions are concluded.  The reports of the commission have mentioned of many instances where the Officers in Charge of certain  Police Stations  have  destroyed the relevant books disregarding this circular and thereby  got rid of incriminating evidence against certain police officers who were responsible for disappearances.                               A recommendation to take disciplinary action against such officers has fallen into deaf ears.

It is  the consequence of such inactions that the culture of impunity which was in existent  during the period of terror, is   persisting among the police and the security personnel.   The anguish  of the parents, spouses and other relations of those who lost their dear ones at the hands of such officers  continues unabated. It gets aggravated when they see or hear such persons have got promotions and doing well in life without any repentance for the  heinous   crimes they have committed against humanity.

The last commission on disappearances has left behind particulars of nearly 16,000 cases of disappearances which they could not inquire into because that commissions mandate did not  permit  it to do so.  It appears that only those in the North are restive about their cases which have not been inquired into.  While the others seem to have resigned to their fate  knowing how helpless they  in this matter.

Reparations to the victims

The commissions  have made comprehensive recommendations for reparations to the families of those who disappeared.  Besides the  payment of a nominal sum of money, the other measures recommended have not been implemented.   The cause of the victims  have no powerful sponsors.  With so many  years that have passed, they have nothing more to hope for.  They have none  to look up to.  It is left for the non-government human rights agencies, local and foreign, to  vindicate their cause and at least see that  adequate reparations are made to make them forget the past and get on with the future inspite of the handicap caused by the disappearance of  their dear ones. 

The last government  which appointed these commissions of inquiry to bring to book such persons and end violations of rights did not keep its promise diligently.  So one cannot expect the present government do so as they are alleged by the last government to be the perpetrators of  the  period of terror.  The machinery  that  was in operation during the  period of terror is still in place in a dormant state but in perfect condition. There is  a  lurking fear  that changing circumstances may  trigger  the reactivation  of this machinery and a renewal  of the period of terror, unless  the recommendations of the commissions of inquiry  on the measures that needs to be taken to prevent disappearances occurring in  the future, are implemented.