Disappearances of Persons in Sri Lanka

A brief note on the

DISAPPEARANCES OF PERSONS IN SRI LANKA

by M.C.M.Iqbal

[This is an abridged and updated version of a published article of the author. Some of the information contained in this article are based on the writer’s personal knowledge as he was Secretary to two Commissions of Inquiry into Disappearances.]

1.Introduction

Sri Lanka became notorious internationally during the period of terror between 1984 and 1994 for violations of human rights especially disappearances of persons. According to the United Nations Working Group on Enforced and Involuntary Disappearances, Sri Lanka ranked second only to Iraq for the number of disappearance cases reported to the Working Group.[1] The provisions of the Prevention of Terrorism Act No. 48 of 1979 (PTA) and the Emergency Regulations (ER) promulgated under section 5 of the Public Security Ordinance No. 25 of 1947 (PSO), gave the police and security forces wide powers of arrest and detention, and enabled detainees to be held incommunicado for long periods of time. The ER permitted the security forces and the police to dispose of bodies of suspected terrorists without post-mortem examinations or inquests. This facilitated the cover up of deliberate and unlawful killings of those in custody or otherwise, and the perpetration of torture and disappearance with impunity by the police and the armed forces. Many of the tens of thousands of people who disappeared in Sri Lanka had been detained under the provisions of the PTA or the ER. Others had been  simply abducted on mere suspicion without reference to any legal provision whatever and taken away.  Some unscrupulous people were able to settle personal and political grievances by passing false information to the police and the security forces to get rid of their rivals.

The period of terror in Sri Lanka saw the disappearances of approximately 60,000 persons according to NGO estimates. During this period the rate of disappearances reached particularly alarming levels. The following are some of the landmark events in the history of disappearances of persons in Sri Lanka are - the JVP uprising of 1971; the militancy of Tamil youth following the communal riots of 1983; the disruption civil administration in the South by the JVP following the signing of the Indo-Lanka Accord in 1987; the Presidential and Parliamentary elections of  1989 and 1990, the breakdown of the peace talks between the government and the LTTE in June 1990; and, the suicide bomb attack on Maj. Gen. Hapangama, the Army Commander in charge of the Jaffna Town in July 1996. One cannot speak of numbers with regard to the  disappearances at the hands of the LTTE as they have not been documented.

2.The Modus Operandi of Causing Disappearances.

The modus operandi of causing disappearances has changed over time in Sri Lanka, and the rate of reported disappearances increased rapidly in the late 1980s. Interim Report II of the Presidential Commission Disappearances in the Central Zone mentions the following modes in which disappearances had taken places.

a.      That persons have been involuntarily removed either from their homes, at round ups, at checkpoints or at random sites, by police personnel, members of the armed forces or others, not identified..

b.      In some cases, lists of persons appear to have been given by some politicians of the area. In most other cases, the evidence reveals that the persons involuntarily removed were either Sri Lanka Freedom Party (SLFP) organisers or active supporters of the SLFP. It seems clear that political opponents of the then regime had been eliminated under the guise of crushing the JVP.

c.       In almost every case the persons removed had been taken away on the pretext that they had to be questioned and their statements recorded.

d.      In most of such cases the police stations or the army camps of the area had subsequently denied having removed such persons, in spite of some of the witnesses having identified the persons who had participated in such removals.

e.       In some cases, persons so removed had been seen in custody at police stations and at army detention camps, either by the complainants or by other persons whose evidence was made available to the Commission. No entries of arrest or detention appears to have been made in any of the books or registers maintained by the police or security forces in the case of persons who are alleged to have disappeared.

f.        When persons went to the police station to complain about the removals they were usually driven away and their complaints were not recorded. In the cases where the complaints had been recorded, what was stated by the complainants had been recorded with distortions.

g.      A surprising feature is that complaints of abductions in most cases had been entered in the Minor Offences Information Book of the police station. Abduction with intent to kill is punishable under the Penal Code with rigorous imprisonment up to 20 years and a fine. The Officers-in-Charge of police stations concerned and their superiors should be held responsible for this default.

h.      There had been cases where the Police Headquarters had issued letters denying that certain persons had ever been taken to custody, when there were witnesses who had seen them in custody at the police stations.

i.        Personal rivalries account for the removals and killings in some cases.

3.Efforts to Check Disappearances.

Under pressure from the international human rights community for the scale of gross violations committed in the country, the Government began to respond in the early 1990s with the establishment of new human rights mechanisms. First, in late 1989 when the height of the JVP insurgency was over, it granted access to Sri Lanka to the International Committee of the Red Cross (ICRC), which started to visit detainees held in police and military custody; it then invited the UN Working Group on Enforced or Involuntary Disappearances and the UN Special Rapporteur on Summary or Arbitrary Executions to visit the country.[2] Then, in 1991 it began to establish new institutions for human rights protection. Some of which are as follows:- 

 (a) Human Rights Task Force (HRTF)

The Human Rights Task Force (HRTF) was originally established in August 1991 by a regulation gazetted under section 19 of the Sri Lanka Foundation Law No: 31 of 1973.[3]  With the change of the government in 1994, the performance of this body was reviewed and it was reconstituted with greater authority by regulations made by the President under section 5 of the Public Security Ordinance (PSO).[4]

In the exercise of its functions, the HRTF was particularly concerned of ensuring that the fundamental rights of persons in custody were not violated. Its officials made unannounced visits to detention centres and interviewed detainees confidentially, providing detainees with an opportunity to air any grievances and requiring the persons responsible for the detention to ensure that at least the basic facilities were provided. The HRTF also helped to locate many persons taken into custody, if they were in unacknowledged detention. The HRTF was primarily concerned with locating such missing detainees; it did not generally investigate who was responsible for such events.

The HRTF established regional offices in almost every province, making itself easily accessible to complainants and enabling its officers to visit detention centres more frequently. However, despite its efforts, disappearances of persons taken into custody continued.

Subsequently the President issued a directive dated 18^th July 1995 to the armed forces and the police force under Regulation 8 of the said regulations [5] wherein special provisions were included to make the police and the security forces accountable for every person taken into custody and were required to issue a receipt of arrest. Despite this illegal arrests and detentions continued because there were no penal provisions to deal with those who do not comply with this directive to issue receipts.

(b) Commissions of Inquiry into Disappearances

Following the period of terror in Sri Lanka when the People’s Alliance (PA) party contested the parliamentary elections in 1994, it made the issue of disappearances and human rights protection a major element in its election campaign. The PA promised to put an end to involuntary removals and disappearances and undertook to ensure that those responsible for disappearances would be brought to book.

Having won the elections in 1994 the new President, Chandrika Bandaranaike Kumaratunga, appointed three Commissions of Inquiry into the Involuntary Removal or Disappearance of Persons on a zonal basis: one covered the Northern and Eastern Provinces; the other covered the Western, Southern and Sabaragamuwa Provinces; while the third covered the Central, North Western, North Central and Uva Provinces.[6] These Commissions were mandated to inquire into and report on disappearances that took place after 1^st January 1988. Thus they were not empowered to investigate the hundreds of disappearances that had been reported in the North and East and the rest of the country prior to 1988.

The terms of reference of these Commissions were as follows:

To inquire into and report on the following -

a.      Whether any persons have been involuntarily removed or have disappeared from their places of residence at any time after 1^st January 1988;

b.      The evidence available to establish such alleged removals or disappearances;

c.       The present whereabouts of the persons alleged to have been so removed, or to have so disappeared;

d.      Whether there is any credible material indicative of the person or persons responsible for the alleged removals or disappearances;

e.       The legal proceedings that can be taken against the persons held to be so responsible;

f.        The measures necessary to prevent the occurrence of such alleged activities in the future;

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 so disappeared.

These Commissions received about 30,000 complaints in all (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 to date. Their reports, which were handed to the President in September 1997, have since been published as Sessional Papers.[7]  

The Commissions had not completed their inquires into all the complaints received by them when they were asked to stop inquiries. When they finished writing their Reports a total of 10,136 complaints 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, except that it was precluded from inquiring into new complaints.

However, around 16,000 further cases of disappearances that had not been reported to any previous Commission were brought to the notice of the All-Island Commission. Although the parties concerned now wished these cases to be investigated and made the particulars available to the Commission, the mandate of the Commission barred it from inquiring into them. These cases other than the disappearances of persons in the Jaffna Region in 1996/97 have not been investigated by any Commission of Inquiry to date. The All Island Commission handed its report to the President in August 2000, and has since been published.

(c)  Missing Persons Unit of the Attorney General’s Department (MPU)

The zonal Commissions recommended, among other things, that a special unit be established in the Attorney General’s Department to study the evidence unearthed by the Commissions indicative of the persons responsible for disappearances, and ensure that such persons are brought to book. Consequently, in July 1998, a Missing Persons Unit (MPU) was established in the Attorney General’s Department to examine about 3,000 cases that the zonal Commissions had investigated where prima facie evidence of responsibility was available.

The MPU has initiated legal proceedings against over 500 police and armed forces personnel, but it will take several years for these cases to reach a conclusion. However, even though the provisions of the Establishment Code make it mandatory for the heads of departments to interdict officers against whom criminal cases have been initiated, and commence disciplinary proceedings, no such action has been taken in most cases by the Police or the Army Headquarters. Later however, even the few who had been interdicted were reinstated in their posts even though their cases are pending before the courts.

It should be noted that causing disappearances is not a punishable offence under Sri Lanka’s Penal Code. Thus, the most serious charge that can be levelled against persons responsible for disappearances is abduction with intent to kill.[8] As bodies have not been found in most cases of disappearances, and there are no eye witnesses it is very difficult to sustain a charge of murder.

Most of the cases that have been filed so far are against junior officers. This is because the Disappearances Investigation Unit within the Police Department (see below) simply does not return files relating to senior officers to the  (MPU), claiming that its investigations are not yet complete. The MPU is then helpless to expedite action in these cases. The ‘delays’ on the part of the Police Department are said to result from ‘considerations of brotherhood’, which leads the investigators to protect brother officers, especially the seniors at the expense of the juniors.

(d) Disappearances Investigation Unit (DIU) of the CID.

Consequent to the establishment of the MPU in the Attorney General’s Department, it became necessary for a special unit to be established in the Police Department to attend exclusively to cases referred to the Inspector General of Police (IGP) for further investigation. This unit – the Disappearances Investigation Unit (DIU) – was established as a branch of the Criminal Investigation Department in 1997. 

The MPU is dependent on the assistance provided by the DIU of the Police Department to collect the necessary evidence. It is the DIU that has to conduct further investigations, record the evidence of witnesses and to tie up loose ends in the chain of evidence needed to obtain convictions in a court of law. However since the DIU works so slowly that the MPU is unable to proceed in many cases. Most of the few files that the DIU has disposed of and returned to the MPU concern junior personnel.

As evidence given before the Commissions of Inquiry is not admissible in courts of law, it is necessary for normal legal procedures to be followed prior to the institution of court proceedings against perpetrators. The evidence placed before the Commissions of Inquiry have to be re-recorded by police officers of the DIU, to enable cases to be filed in the courts. At the beginning the year 2000, the MPU had referred 2796 such cases to the DIU for investigation.

(e)  The Human Rights Commission (HRC)

The Human Rights Commission (HRC) was created under the PA government by the Human Rights Commission Act No. 21 of 1996. It began functioning in 1997. With regard to the prevention of disappearances, amongst other powers, the HRC can monitor the welfare of persons taken to custody by the police or security forces, a function which it took over from the HRTF, which was disbanded in 1998 when the HRC had been created. Upon receiving a complaint, the HRC can visit the person at the place of detention. If the place of detention is not known and if there is evidence of arrest, the HRC has the power to ask the arresting authority for the place of detention, so that it can visit and look after his welfare.

The existence of a body that can visit detainees is an important safeguard against torture and disappearance. However, the HRC has been unable to perform this task adequately because it does not have the necessary resources. Further, the law does not empower the HRC to give binding decisions. It can only make recommendations. In the event that such recommendations being not complied with, the HRC is empowered to make a full report of the facts to the President, who can place the report before the Parliament. However, this procedure does not appear to have been followed so far.

The HRC has been criticised by some human rights activists for being a ‘lion without teeth’. For various reasons it has not been able to fulfil the hopes that the creation of such an institution inspired. Those who are bent on violating the rights of detainees carry on regardless of the HRC knowing its limitations.

4. Writ of Habeas Corpus

The right to obtain a Writ of Habeas Corpus in the event of a person being taken into custody and detained unlawfully or incommunicado, is one of the important means available to prevent a person taken into custody from being caused to disappear. Although only the Court of Appeal had the jurisdiction to receive and inquire into Habeas Corpus Applications (HCA) initially, this was later extended to the Provincial High Courts as well. However, only the High Court of the Eastern Province and the Northern Province have availed this authority.

A study of the HCAs filed between 1988 and 1997 in respect of persons whose whereabouts were not known or were allegedly kept under unlawful detention, shows that out of the 2925 cases filed during that period, 272 had not been concluded as at the beginning of the year 2000. Most of those that had been concluded had taken over five years to be disposed of.[9]

This remedy is, unfortunately, both time consuming and expensive. Hence the easy accessibility and effectiveness of a Writ of this nature is questionable.

5. Conclusion

The extensive powers available to the police and security forces under the PTA and the ERs and the  climate of impunity that prevailed enabled perpetrators of disappearances to believe that they will never be called to account and carry on regardless.

Only a few cases that have been the focus of intense local and international pressure have resulted in successful prosecutions due to the publicity they received. A notable example is the case of the schoolboys who disappeared in Embilipitiya in late 1989, where convictions were reached. The Southern Zone Disappearances Commission prepared a special report on these disappearances and unearthed quite a lot of information which facilitated speedy initiation of legal proceedings. The Embilipitiya disappearances had been the subject of intensive, long-term campaigning by local and international human rights organisations. The wide public and the pressure the parents of those who had disappeared exerted led to the prosecution being diligently conducted.

The prosecutions in the other cases of disappearances that have been instituted have moved at a snail’s pace and are not pursued in all earnest. So it is highly unlikely that these cases will be taken up expeditiously or end in convictions. 

On a request made by the Disappearances Commissions, a specific directive was issued by the IGP to all police stations to preserve the “Telephone Registers, Prisoner’s Detention Registers and other documents connected with the arrest and detention of persons covering the period 01.01 1988 to date”[10] until the Commissions (on disappearances) have completed their tasks. Yet the Commissions of Inquiry found that such books had been purposely destroyed to erase evidence that could implicate officers responsible for the custody of those who had disappeared, or in whose custody the disappeared person was last seen. The Police Department has not taken any action against the OIC’s of the police stations for this act of gross insubordination.  Impunity thus appears to have been condoned.

Another such a lapse that had gone unpunished is the fact that most complaints of disappearances have been entered during the relevant period in the Minor Offences Register. OICs of police stations  who categorised disappearances as minor offences still continue in service without any blemish in their service records.   

There are numerous examples of the relevant authorities failing to act to bring known perpetrators of human rights violations to justice. Even a specific recommendation in Interim Report VII of the Presidential Commission of Inquiry covering the central zone to interdict forthwith an Assistant Superintendent of Police who had threatened to kill a witness who had testified before the Commission, was not complied with.[11]  This witness is still said to be in hiding while the police officer concerned continues to enjoy promotions and other benefits arising from being in service.[12]  Without swift and deterrent punitive action there cannot be an end to such and other violations on human rights.    

It is now over 10 years since the rate of disappearances in Sri Lanka reached its peak, but it now looks likely that most perpetrators of disappearances will not be brought to book at all. Both the government and the main opposition party have in various ways either condoned disappearances or been silent spectators while persons disappeared during their respective regimes. Consequently, there is no strong lobby in parliament to press for speedy action against the perpetrators of disappearances; perhaps this is because the practice has been so widespread and that too many people are implicated and both, those in power and those in the opposition had been involved in or at least condoned such happenings. The present government came to power in 1994 with a pledge to end disappearances and other human rights violations.  Today, however, it stands accused of hundreds of disappearances during its own time in power and has not shown itself determined to act against perpetrators. It lacks the will and the commitment that goes beyond mere rhetoric.

There is no substitute for swift and effective action against perpetrators irrespective of their rank or status. This will require changes in the law, administrative procedures and even the judicial structure to expedite the disposal of cases pertaining to disappearances.

The Commissions of Inquiry into Disappearances made exhaustive recommendations on the changes in the law that are necessary to prevent further disappearances occurring in the future. These recommendations need to be carefully studied and implemented diligently, under the supervision of a body charged with this task.  If they are not acted upon, all the efforts and the money spent on these Commissions would have been in vain and  the reports of these Commissions will become a dead letter, confined to the archives for the use of researchers and historians.

In spite of the Commissions cautioning the government never to enact the Emergency Regulations as the did during the period of terror again with the obnoxious provision which facilitated disappearances of persons and other human rights violation, they have once again been promulgated following the tsunami disaster. Only time will tell us if these powers had once again led to the repetition of the events of the “period of terror” in Sri Lanka.