- to make it a thing of the past
A Review of “Disappearances in Sri Lanka and the Available Legal Remedies
by Priyadharshini Dias, published by the Women and Media Collective, May 2003, Colombo”
by M.C.M. Iqbal
Quite aptly, the preface to the book opens with the lines of a poem on the anguish of a Philipino mother whose husband had disappeared. I wish to repeat it. She says to her teenage sons -
Looking at you in your sleep
I realize how much bigger you have become
You are not anymore
The helpless 3 and 4 year olds you were
The day your father suddenly disappeared.
You counted the days ……
You waited for him to come home,
He never did.
This poem reminded me several such laments which I have had to listen to while being the secretary to three commissions of inquiry into disappearances. A mother who came recently before the Human Rights Commission’s Committee on Disappearances in the Jaffna Region accompanied by her 10 year old son said with tears in her eyes - “Every time soldiers go past our house, my son asks me, are these the ones who took my father away? ” There are thousands of sons, daughters, wives, parents, and others not just in Sri Lanka, but in other parts of the world living with a similar frame of mind.
We have read about the scourge of disappearances in various parts of the world. Reports of the Truth Commissions appointed in respect of these disappearances are available in many libraries. Just as the eminent members of the Disappearances Commissions in our country did, the members of the Truth Commissions world over had put their hearts and souls together to make recommendations that they thought could prevent such inhuman atrocities being committed once more in their respective countries. Many persevering persons like Priyadharshini Dias have written commentaries on the different aspects of disappearances supplementing, amplifying, and even questioning some of the recommendations of the truth commissions. The book attempts to deal with the legal remedies available to families of the victims and others in order to raise awareness on the options and also to deter the repetition of such events..
In fact one of the terms of reference of the Presidential Commissions of Inquiry into Disappearances in Sri Lanka was to recommend ‘ the measures necessary to prevent the occurrence of such alleged activities in the future’ . The book not only comments on the recommendations in this regard, but has also added new material to it, including some from reports of international bodies such as Amnesty International and judgments of the Supreme Court and those from other truth commissions.
The recommendations of the three Zonal Commissions and the All-Island Commission had been made after much thought and careful study of the various aspects pertaining to disappearances. But unfortunately these reports did not receive the attention they deserve from the authorities concerned and are now confined to bookshelves of libraries. Yet the efforts of the Commissions have not been in vain. They provide a proper insight into the events of the time; pinpoint the inadequacies of the laws of land in dealing with or preventing such situations and perhaps is the only official document which lists the names of those confirmed to have disappeared.
Sri Lanka is a country where provisions for the protection of human rights or rather the fundamental rights have been diligently provided for in the constitution. But there is much to be done to make them meaningful.
In her book on the “Unspeakable Truths” Priscilla Hayner of the International Centre for Transitional Justice in New York states as follows ( at page 65) -
“The ongoing war (in Sri Lanka) weakened the impact of the commissions, especially as the President was dependent on the support of the military as the war continued and thus apparently unwilling to criticize or confront the armed forces’ human rights record. As a result she failed to publicly comment on the commissions’ reports, did not push for prosecution of perpetrators who were identified, and was slow to address the commissions’ recommendations.”
Priyadarshini has this to say about it in her book –
“Most of the ‘state sponsored cases of disappearances’, extra judicial killings, torture, illegal arrest and detentions that took place in Sri Lanka were committed with the acquiescence of the state and are expected to be investigated and by the state itself. Therefore these are peculiar cases where the perpetrators and the investigative bodies remain one and the same; and in the occurrence of such an event , the victim is compelled to complain to one and the same official and/or the colleagues of the perpetrators of the said violation.”
Quoting Amnesty International Priyadarshini goes on to endorse the opinion that the government’s failure to effectively pursue investigations and hold members of the security forces accountable for their violations of human rights had facilitated the emergence of a pattern of disappearances. I wish to add to this and say that such actions nurtured the climate of impunity which pervaded the police and the security forces and still lingers, though to a lesser degree.
One wonders if the title of the book could have been different. The title has the words ‘disappearances’ and ‘remedies’. One cannot see how disappearances could be remedied. A disappearance once it is confirmed, is a done thing. There is no way of bringing such a person back. He is gone for ever. So there cannot be a remedy for disappearances, but there could be ways in which disappearances could be prevented in the future or a person taken into custody to be caused to be disappeared could be rescued before it could happen. That calls for swift and effective action from the moment a complaint is made. Once it is known that someone has in fact been ‘disposed of’ and if the perpetrator is known, then again swift and effective action has to be taken to deal with the perpetrator. If not he would have had enough time to cover up his actions. With the lapse of time, witnesses forget the details of the incident and fail to stand the test of rigorous cross-examination at the trial against the perpetrator. It is for this reason that one feels that cases filed before the High Courts and/or the Magistrate’s Court against perpetrators of disappearances based on reports of the disappearances commissions, are unlikely to succeed as nearly ten years have lapsed since the event and the witnesses may not be able to give coherent evidence.
The book also discusses the relative merits and demerits of the remedies available. Attention has been drawn to the fact that the Human Rights Commission could play a role in checking disappearances and adds that it does not have the power to give any binding decisions and that it can only attempt to resolve violations by conciliation and mediation. As to how it could handle complaints of disappearances with such powers is a matter for conjecture. Priyadarshini urges the HRC to bring to the notice of the government the need to formulate an Act penalizing enforced disappearances and to create a human rights prosecutor to take violators to courts. In fact these are two of the key recommendations of the Presidential Commissions on Disappearances. Howeer, it is the writer’s opinion that none of the remedies indeitified in the book will be of any avail so long as the government in power does not have the will and the determination to end human rights violations. Reforms in the legal system, getting rid of the loop holes that facilitate violations and making provisions for dealing swiftly and effectively with violators are crying needs. The reports of the Commissions on Disappearances have set out explicit measures that could be taken to prevent disappearances. These need to be taken serious note of by those concerned with human rights violations in Sri Lanka.
Going through the book one would realize it is a very good commentary on the reports of the Commissions of Inquiry into Disappearances rather than a book on ‘remedies for disappearances’. Copious examples from Supreme Court judgments, reports of other truth commissions the world over and other connected reports such as those of Amnesty International have been given. However the book could have had a little bit on why disappearances occurred in Sri Lanka onsuch a scale and who benefited by the events that took place. That would have helped in looking at the events in the correct perspective.
In any event, one must pause and think how the police and security forces which consists of ordinary citizens of the country, most of whom profess a noble religion that is based on non-violence and teaches its followers the theory of karma, could have become ruthless savages. They are alleged to have committed most atrocious crimes in the name of maintaining law and order. Have our religious leaders failed to inculcate the noble precepts of the religions sufficiently deep to make them abhor violence and cruel acts they have done? Why were the religious leaders silent when the country was having a blood bath? Or was it that their voices were not loud enough to reach the ears of the blood thirsty and the power hungry? In any event, the good name of the country has been marred by the magnitude of the disappearances that have taken place. The political leaders of the time too should take the blame for this. The role played by civil society during and in the aftermath of the period of terror left much to be desired. Those who promised to end violations and deal with the perpetrators were placed in power, but soon they themselves turned out to be violators and failed to deal with the past violators as promised. The civil society was a docile onlooker of this deception. The mass graves and the torture chamber named by the Disappearance Commissions still remain uninvestigated.
If cumbersome procedures in the legal system had delayed legal action being taken against the perpetrators of disappearances identified by the Commissions of Inquiry, why could not the Inspector General of Police taken disciplinary action against the police officers who were reported to have violated departmental rules in handling persons taken into custody and are now missing? Instead even those who were under interdiction following criminal cases being filed in respect of such disappearances, have been re-instated by a circular to that effect. Promotions have been given to them even while the cases are pending. The Commissions had pointed out several instances. These include refusal to record complaints during the period of terror; recording complaints of abductions, if at all, in the Minor Offences Register of the Police Stations;, destroying Information Books in the police stations (disregarding a circular issued by the IGP not to do so until the Commissions of Inquiry have finished their task) and failing to enter in the register of detainees in the names of those detained in the Police cells while the Diet Registers contain such names.
Finally, could not the names of persons against whom the Commissions had found ‘credible material indicative of their responsibility in the disappearance of certain persons’ been made public? It may be argued that such a step would not be fair because they had not been given a chance to defend themselves, but their names could have been published as persons against whom there are allegations just as they do when serious crimes are reported in newspapers. Priscilla Hayner has this to say about it in her book on the Unspeakable Truths: (at page 127) quoting Prof. Juan Mendez Director of the Inter-American Institute for Human Rights:
“We name people all the time for acts before they are proven. The press often names people…. If someone is alleged to have stolen a car, their name is put in print. It is an allegation; it is not a pronouncement of guilt.”
At page 112 of the same book, it is stated that …not naming the perpetrators in Chile was simply a reflection of the power that those perpetrators still held, which left the commission little room, or little desire, for pointing fingers.
Perhaps that is true in Sri Lanka too and the perpetrators have nothing to worry about being accountable for the atrocities they committed.
Publishing names could have certainly disturbed a hornet’s nest but it could also act as a deterrent for future violators of the rights of individuals and given some solace to the families of the victims. Must this wait another Truth Commission of the South African kind to give a chance to the perpetrators to make a clean breast of it on promise of an amnesty and the families of the victims to be made to “remember and forget”.
A few more words in the book on the security forces personnel who are classed as missing in action when in fact they had disappeared, and their families left to fend for themselves, would have been desirable. That continues to be an resolved matter and a cause for concern among the families of persons missing in action.
I conclude, that Priyadarshini has done a wonderful job not only in analyzing, critiquing and complementing the recommendations of the commissions on disappearances, but also including in it numerous examples from various sources. I recommend this book to everyone who is interested in the phenomenon of disappearances in Sri Lanka and predict that it will be quoted by many researchers in the years to come.