INVOLUNTARY DISAPPEARANCE: SRI LANKAN EXPERIENCE

Country situation given by Atty. K.D.C. Kumarage, Honorary Legal Consultant
of OFPMD, at the Asian and Latin American Lawyers’ Meeting on Involuntary Disappearances, sponsored by the Asian Federation Against Involuntary Disappearances (AFAD) on November 27, 2000 at Jakarta, Indonesia

 

Since 1971, the once peaceful country of Sri Lanka has been under continuous emergency, except for some brief intervals. Political turbulence began in Sri Lanka when the radical rebel movement Janatha Vimukthi Peramuna (JVP/Peoples Liberation Front) staged an armed insurrection against the government on socio-economic grounds.

The coalition government led by the Sri Lanka Freedom Party (SLFP) declared a state of emergency and curbed the insurrection in a few weeks.

For the first time in recent history, torture, involuntary disappearances and extra-judicial killings were committed in Sri Lanka to crush the 1971 insurrection. Many others who were not connected to the insurrection were also arbitrarily arrested and detained under emergency regulations.

The United National Party government, which came to power in 1977, grew more repressive. The “Executive Presidency” created under the new Constitution of 1977 made the president a virtual dictator. Armed with emergency powers promulgated by the President and the Prevention of Terrorism Act (PTA) enacted by Parliament, the government began to suppress the people’s will.

The police, security forces, government-backed hoodlums and goons, and vigilante groups were used to harass and attack university students, trade union leaders, political opponents, intellectuals, journalists and even Supreme Court judges who delivered fought against human rights violations perpetrated by the government. To add insult to injury, police officers found responsible for such violations were rewarded and promoted.

Human rights violations dramatically escalated throughout the 1980s creating an atmosphere of fear among the Sri Lankans, which drew the attention of the international community. During infamous referendum held in 1982, pro-government supporters harassed and intimidated millions of people. The government terrorized opposition political parties, trade unions and other civil society organizations that were opposed to its anti-people economic polices.

At that same time, ethnic Tamil youth in the northern part of Sri Lanka who claimed social and economic discrimination from the Sinhala-dominated government, launched a rebellion under the banner of the Liberation Tigers of Tamil Ealam (LTTE). Their campaign intensified throughout the 1980s, spreading to the East from the North. Government’s response was to use further violence against them. The arrested members of the LTTE were tortured and executed extra-judicially and were made to disappear.

In the meantime, the JVP also launched a second insurrection in the South almost at the same time.

Government security forces, paramilitary squads and vigilante groups massacred thousands of suspected JVP members as well as political opponents of the government. Incidents of involuntary disappearances, extra-judicial killings and torture increased dramatically.

The JVP and the LTTE insurrections were also violent. They also massacred hundreds of innocent people. Nevertheless, the horrendous onslaught unleashed by the State on its opponents threatened basic human rights of all Sri Lankans. When the State itself becomes brutal and lawlessness and anarchy reigns, the entire democratic fabric crumbles. The Sri Lankan government failed to understand the Nietzsche, the German philosopher, that “whoever fights monsters should see to it that in the process, he does not become a monster himself.”
 

According to the report of the United Nations Working Group on Enforced or Involuntary Disappearances (UNWGEID) released in 1992, Sri Lanka has the highest number of recorded cases of involuntary disappearance in the world with approximately 12,000 documented cases. According to various human rights organizations, between 40,000 to 60,000 people had disappeared between 1983 to 1990. Thousands were detained in military detention camps, yet many more were executed extra-judicially by government-sponsored death squads.

All these were perpetrated in the guise of protecting national security by using the dreaded Emergency Regulations which gave the security forces wide powers to arrest and detain suspects and even provided for the disposal of dead bodies without holding any inquest. The Prevention of Terrorism Act on the other hand, which was initially introduced to cover the North and East portions of the country was later made permanent and enforceable throughout Sri Lanka.

The Peoples Alliance (AP) came to power in 1994 with a solemn undertaking inter alia to uphold the rule of law, stop human rights violations and bring to justice all those were responsible for involuntary disappearances. This promise mainly influenced its election victory. But their actions within the past six years show that the present government’s attitude is also apathy and condonation.

This is amply proved by the Report of the 56th Session of UNWGEID released on the 5 April 2000 which had observed, among others things, that “Sri Lanka remains the country with the second largest number of non-clarified cases of disappearances. Many of the missing persons allegedly traced by the authorities seem not to correspond with the disappeared persons submitted by the Working Group.” Although a considerable number of criminal investigations had been initiated in relation to disappearances which occurred since 10 years ago, only a very few of the suspected perpetrators have actually been convicted.

After much pressure from various human rights organizations inside the country and from the international community, the PA government set-up three Presidential Commissions of Inquiry into the involuntary removal and disappearances of persons that occurred since 1 June 1988 on a territorial basis. All the Commissions submitted their comprehensive reports in September 1997. They were, however, unable to finish their work. The investigation of the remaining 10,000 complaints were entrusted to a fourth Commission. From the approximately 4,000 suspected individual perpetrators who were identified, about 500 of them were indicted and a few of them were convicted.

However, massive cases of disappearances continue to be reported.

After the LTTE unilaterally ended peace talks in April 1995, several cases were reported in Colombo, the country’s capital.

The number increased dramatically when the Armed Forces regained control over the Jaffna Peninsula from the LTTE. In 1995, there were 78 cases; in 1996, 623 cases were reported; and in 1997, there were 92 cases of involuntary disappearance. In 1998 and 199, the number has come down to four (4) and two (2) respectively. This could rise in any time considering the re-escalation of the internal conflict.

No independent Presidential Commission have been appointed to probe the disappearances that occurred under the present regime. However, a Special Board of Investigations into the disappearances in the Jaffna Peninsula was created and investigated a total of 2,621 complaints and traced more than 200 disappeared persons and identified a number of perpetrators. Since its creation, however, it has not published even a single report.
 

The three earlier Commissions investigated a total of 27,742 cases. An additional 10,135 alleged complaints are to be studied by the fourth Commission, whrein 4,052 cases have already been “proven.”

Apart from a few individuals who surfaced alive, more than 20,000 disappeared persons are presumed to be dead.

More than 15,000 death certificates have already been issued, in accordance with the Temporary Legislation (The Registration of Birth and Death Amendment Act).

The final reports of the three earlier Commissions were formally published in 1997 but only a limited number of copies were printed and are hard to find. The final report of the fourth Commission is yet to be published.
 

In addition to the above-mentioned cases, there were many more cases of involuntary disappearances during the period between 1983-1990. No Presidential Commission of Inquiry has been appointed to investigate the disappearances that occurred after 1994 and up to the present.

Even though the Commissions stipulated in their reports that the disappearances resulted from a well-orchestrated practice carried out by the State, the UNWGEID in its report dated 28 December 1998 comments about the findings of the three Commissions as follows:

The findings by the three Sri Lankan Commissions established a systematic practice of disappearances carried out by the State. This comprehensive practice includes the initial design of lifting the legal obstacles that impede disappearances by way of:

    1. Carefully drafted emergency regulations
    2. Planning and executing abductions (arrests without intention to kill)
    3. Establishing detention centers
    4. Training and instructing personnel to torture, kill and dispose of bodies
    5. The maintenance of mass graves
    6. And general instructions to erase all records and to protect the culprits

What obligations do these well-founded facts established by government sources pose to the international community? The Sri Lankan Commissions emphasize the special character of the crimes committed by the State which uses its power to violate the law rather than to uphold it.
 

The reports narrated by thousands of humble petitioners bore powerful witness to the fact that what we are looking is an orchestrated phenomenon and not just a series of isolated instances explicable in terms of “excesses” by individual transgressors.

The fourth Presidential Commission on Disappearances (All-Island) has done its work a long time ago but has not been able to get to an appointment with the President of the country to submit its report. By this alone, the international community can ascertain the importance the Sri Lankan government attaches to the Presidential Commission on Disappearances. It is not strange that disappearances are beginning to take place again in various parts of the country.

The mandate of the four Commissions is to report inter alia whether any person or persons were responsible for the removal or disappearance of any person, and if so, what reforms in the laws are needed to prevent such occurrences in the future.

The Commissions have reported that there is sufficient evidence to prosecute many persons responsible for the disappearances; but the government, who rode on the backs of the victims to power, has not taken any action against the perpetrators.

The Missing Persons Unit in the Attorney-General’s Department, which is in charge of prosecuting the culprits on the findings of the Commissions, has been acting very slowly. Only about 200 court proceedings were initiated against security personnel of the lowest ranks, like constables and sergeants; while senior officers in the hierarchy like superintendents, assistant superintendents and commanders of military units have been exempted. Even the actions filed are not perused diligently,and investigators do not show the same interest in prosecuting ordinary civilians. This writer is personally aware that in the majority of cases taken up for trial in the various courts in the country, the majority has been acquitted. Though several leading politicians of the previous government have been named as persons responsible for the disappearances, none has been prosecuted so far. There was also a case wherein a well-known politician linked with the previous government was reported to be involved in the disappearances; but he soon joined the PA government and was made a minister.

A specific directive by the President issued on 11 January 1996 to send on compulsory leave nearly 200 police and army officers against whom there are evidence of complicity with the disappearances, has not been carried out so far. The directive addressed to the Service Commander and Inspector General of the Police to comply with and report within one month from the said date has bee defied with impunity. The failure of the President to take action against the violators of her orders shows that the officers concerned know that no follow-up action would be taken against them for non-compliance with the President’s directive.

The reports of the Commissions also mention about 15 mass graves in various parts of the country (Ankumbura, Ausagahahenkanda, BEmmulla, Esselle, Walpita, Hokandera, Wawulkelle, Suriyakande, Diyadawakelle, Yaklamulla, Wilpita, Akuressa, Masudela, Heendeniya, and Chemanai in Jaffna; but no action has been taken to probe them, to exhume the sites or record the evidence of the witnesses who have mentioned about these sites to the Commissions, in spite of recommendations to that effect. Even at Suiyakanda, there are many bodies to be exhumed. The government was under pressure to do something about the graves at Chemanai in the North because of the dramatic revelation by a Lance Corporal convicted in the famous Chrishna Coomaraswamy rape and murder case that LTTE suspects were killed extra-judicially and buried in the mass graves mentioned above. It only shows that corrupt leaders in Third World countries need the Armed Forces to protect themselves from the people.
 

The total number of disappearances including both those that have already been investigated and those that remain unreported is approximately 50,000.

The recent arrest of Major General (retired) Ananda Weerasekera and Police Superintendent Douglas Peiris were made to achieve political ends on the eve of a general election as both of them have connections with political parties opposed to the government. Now, the purpose for which they were taken into custody is over; no one can expect the government to pursue their cases further.