Enforced disappearance of persons in Sri Lanka: Legacy and ongoing challenges

By M.C.M. Iqbal

(This is an abridged version of a presentation made at a meeting at the University of London on 25th April, 2016) http://groundviews.org/2016/05/19/enforced-disappearances-in-sri-lanka-legacy-and-ongoing-challenges,/

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Featured image courtesy TamilGuardian

Enforced disappearance of persons remains one of the widely known human rights violations in Sri Lanka.  The machinery that had been set up during the past to perpetrate such incidents appears to have slowed  down  as a consequence to the passing of a Resolution at the UNHRC in September, 2015. However,  this  machinery  could  be switched on again if those in authority so desires.   Dismantling this machinery  and destroying  the  remains, is a challenge the government  has to face.

The government has now to deal with the untenable number of complaints of disappearances that have been lodged with the various national and international  institutions calling for help to trace those who have disappeared.  A bulk of the complaints relate to  disappearances of persons  either after being  abducted, handed to the security forces by the wives or other relatives,  in response to a call by the military during the closing days of the war  or had surrendered to them in the presence of witnesses.  There are also  allegations of  torture and sexual abuse of persons who had been in the custody. Having to deal with these complaints along with those of enforced disappearances,  to the satisfaction of the victims,  is a daunting legacy the government has to face.

Long years of Emergency Rule and the availing of the obnoxious provisions of the Prevention of Terrorism Act,  have  blunted the knowledge of  the Police and the security forces of the manner in which they should deal  with law and order issues during peace time.  Extracting information and/or confessions from suspects by torturing them,  continues to be the norm. They appear to know no other way in which investigations into allegations against suspects could be conducted. The government is now left with a legacy of a Police force that has gained experience in performing more military duties than civilian functions. Bringing about a metamorphosis in their mentality and methods of investigation is another challenge the Government has to face to restore law and order

Persistent pressure on the Government  to  remove the  Emergency Regulations (ER) made the previous regime, remove it ostensibly.    But soon afterwards the much maligned provisions of the ER were tagged on to  the  provisions of the Prevention of Terrorism Act (PTA) making it   more virulent than it was before. It is the provisions of the PTA  that  enables  persons to be abducted and detained instead of being arrested.  Consequently there has arisen a need to remove the PTA from the laws of the land. The  Prime Minister of Sri Lanka has stated recently  that soon a British style anti-terrorism law will be introduced in place of the existing PTA. Let us hope that the new law does not turn out to be the same wine in a different bottle.  

The culture of impunity  had become endemic among the police and the security forces of Sri Lanka some years ago. That legacy contributed to  enforced disappearances becoming so widespread. Many members of  the  Police and Security Forces who had been perpetrating  abductions, torture and  enforced disappearances  in the past,  have a mind-set   that makes them feel they will not be made to face the consequences of  their misconduct.  Courts require evidence beyond reasonable doubt to deal with alleged perpetrators. The Central Zone Commission  made a specific recommendation to take disciplinary action against police officers who had violated departmental procedures while  dealing with complaints  of enforced disappearances. During its investigations it had found that Police Information Books in some stations had  been destroyed despite  a specific circular issued by the IGP  to preserve them.  Detention Registers of certain Police Stations had not contained the names of persons taken into custody while they were there in the Diet Registers of the Station.  No disciplinary action had been taken in such cases. A clear case of a witness to an incident relating to disappearances who had given evidence before the Commission,  being threated by the alleged perpetrator,  is reported in Interim Report VII of the Central Zone Commission with  a recommendation to deal with the officer concerned. This  had been  disregarded.   Similarly, in spite of some of the commissions of inquiry into enforced disappearances finding evidence indicative of certain persons  being responsible for causing disappearances  hardly any of them had been held accountable. Perhaps the same  fate awaits those who may be so found to be responsible for disappearances by the current Commission on Missing Persons. Such matters  contributed  to the growth of impunity.    

The mandates of the Commissions appointed by President Chandrika  Bandaranaike in and the mandate of the Paranagama Commission have overlapping periods. Consequently the question arises whether the government has decided not to accept the findings of the Commissions appointed in 1994 and 1998 in respect enforced disappearances during the overlapping period.  The presence of many reports of Commissions of Inquiry into enforced disappearances makes it necessary for a comparative study into the findings of all these reports, to taken any meaningful action.  

Among the findings of the set of Commissions appointed during President Chandrika Bandaranaike’s time, is evidence on the many mass graves and torture chambers in different parts of the country. These have not been  probed in depth in spite of a recommendation to do so. If the Government is determined to wipe out impunity and make enforced disappearances a thing of the past,  these recommendations need to be taken seriously.

Recently in a case of a writ of mandamus at the Magistrate’s Court of Mullaitivu, a military officer who testified had stated in a statement he had made in December 2015  that the names of the persons referred to in the case concerned,  were not in a list of the names of persons who had  surrendered. When this case came up before the Magistrate on 17th February, 2016,  the officer concerned was ordered by Court to furnish the list to Court on the next date, viz. April 20th.  On that date neither the witness nor the State Counsel had attended  Court with the document. The case had then to be  postponed for 17th May 2016.  Whether the document would be produced on that date is anybody’s guess.  The absence of co-operation by the military to let the judiciary deal effectively with  cases  concerning  enforced disappearances is another of the challenges the government has to face.

The need to include enforced disappearances as a crime was accepted  by the Government only in September 2015. It  had  agreed to ratify the UN Convention on Disappearances of Persons in December 2015.  It is  still to be made part of the  domestic laws of the country.   According to international law,  the crime of enforced disappearance is a continuous crime.  It gets completed as a crime only at the point at which the fate and whereabouts of a disappeared person is finally determined.   In the absence of  retrospective  legislation,  there will be a juridical  barrier to prosecutions in such cases. This has to be dealt with if the government is keen to put an end  to  the continuing agitation of the  families of the victims of enforced disappearances who are still waiting for justice.

 The Government has stated recently that  laws to create a permanent office on missing persons to deal with the various issues relating to enforced disappearances,  is  in the process of being  finalized.  Let us hope that it is not going to be another mirage.

A recommended in the Resolution at the UNHRC  to deal with  the human rights violations that took place during the conflict speaks of the need for such cases to be dealt  by a hybrid court. Whether this would actually happen is yet to be seen.  

In dealing with perpetrators of disappearances, the  Attorney General has to get the services of the Police Department to get the necessary investigations done and statements recorded.  Whether the police would co-operate in doing so, especially if the perpetrator is a police officer, is debatable.  Past performances of the police in such matters speak for themselves.  Besides, can the present government deal with such cases diligently  while  it is faced with the legacy of  the Attorney-General’s Department  consisting of personnel,  most of whom are known to be loyal to the regime that failed to deal with complaints of enforced   disappearances of persons effectively.   This was one of the issues raised by the International Independent Group of Eminent Persons when they found the Attorney General’s representative leading evidence before  the Commission of Inquiry into Certain cases of Serious Human Rights Violations also known as the Udalagama Commission.   That eventually led to IIGEP to abort their mission stating that the government does not have  the will  to promote or protect human rights.  Whether the current government would take the necessary steps  to avoid being  branded in that manner,  is to be seen.    

 A recommendation had been made in the  Reports of two of the  Disappearances Commission appointed by President Chandrika Bandaranaike on the need to  create  of an independent Public  Prosecutor with powers to institute criminal prosecutions after collecting sufficient evidence through his own investigating officers instead of through the Attorney General.  This recommendation remains  to be acted on.  

 Amnesty International  had  pointed out  in one of its reports, that  intimidation of witnesses can rise to the level of the witnesses themselves being abducted and caused to be disappeared. Effective measures to protect witnesses are yet to be taken.  Whether  the Witness Protection Authority set up recently can  perform this function  effectively,  is to be seen.                  

Article 6 of the UN Convention on Enforced Disappearances makes it obligatory for Governments to take ‘measures to hold any person who commits, orders, solicits, induces the commission of, or  attempts to commit’  such an offence ,   criminally responsible for the offence.  This is not yet part of the law in Sri Lanka.   The Government will have to face the challenge of having to adopt appropriate laws after ratifying the Convention, as it has agreed to do so. This Convention does not condone the causing of disappearances even during a war.

               The Government is faced with the legacy of persistent misrule by a  regime that thought it was invincible.  Condoning and overlooking the breaches of  the rule of law by its agents led to its demise.  If  that pattern is allowed to continue  unchecked and appropriate remedial measures not taken diligently, the perpetrators of human rights violations and disappearances in particular, would continue to be  a law unto themselves.    The current regime has to face the challenge of disciplining  the very same State machinery  that brought disrepute to the previous regime and the Country itself.  The lessons learnt should not be in vain. It is hoped that the State would henceforth be seen as protector of its citizens and not as a perpetrator of abductions, torture and enforced disappearances or as protector of  persons who had committed such offences.  

Disclaimer: The views expressed by interviewees or contributors are their own and do not necessarily reflect Confluence editorial policy. 

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