PROSECUTING A CRIMINAL COMPLAINT ON INVOLUNTARY DISAPPEARANCES:
THE SRI LANKAN EXPERIENCE

Wishvalith de Silva, LlB.
Legal Consultant, OPFMD

On the 17th of May 1985, armed commandos of the Special Task Force of the Sri Lanka Security Forces entered the village Natpattimunai in the Eastern province of Sri Lanka and picked up 23 youngsters and dragged them away. None of them was ever seen alive again. They disappeared.

 

A person is considered to have “disappeared” rather than to have simply gone missing when there are reasonable grounds to believe that he/she has been taken into custody by State officials or with their connivance and when the authorities then deny any knowledge about the victim’s fate or whereabouts.


The youngsters who were kidnapped or abducted fit this definition.


A retired government servant who was the president of a local civil committee complained to government authorities about this and the police started the investigations. They exhumed a suspicious site and found a shirt and an identity card of one of the “disappeared.” Then, they had to stop the investigations because it soon got dark. It never continued after that.


But the Criminal Investigation Department instead of continuing the said investigations took the above-mentioned complainant into their custody, brought him to Colombo (the capital of Sri Lanka), and charged him of “spreading rumors and gossips” under the Emergency Regulations.


He was tried by the Colombo High Court and lasted for 49 days. Two witnesses gave evidence on behalf of the accused. Ultimately, he was acquitted. But the government officials never attempted to deny the allegations regarding the abductions.


Though international organizations like the United Nations had taken measures to consider “disappearances” as a criminal offense, there is no called involuntary disappearance in SRI LANKA like in many other countries in the world.

But those who are responsible can be charged under the various offenses defined in the Penal Code of Sri Lanka. These are:


1. Murder
2. Kidnapping
3. Abduction
4. Torture (which is now an offense according to Sri Lankan law)


The first kind of offense is self-explanatory and needs to further elaboration.


Kidnapping means taking away of minors (as defined in the law) from their guardians or any lawful custody and has no relevance to the present subject.


The pursuit of a criminal complaint is done under the Code of Criminal Procedure Act No. 15 of 1979 and the Penal Code. In disappearances, investigations are done by police officers like in any other criminal cases.


The persons involved in involuntary disappearances are police officers, armed forces personnel, or government-supported armed private groups or individuals.


Since disappearances involve State agents, civilians are usually frightened to file complaints. This belatedness in the filing of complaints undermine the case of the complainants at both the investigation stage and also at the trial stage.


The prosecution of complaints in type of cases are also done by the Attorney-General of Sri Lanka, who is also the Chief Legal Advisor of the State.


Because of this, a conflict of interest arises and the prosecution is usually deemed to be not so keen in getting a conviction.


The government of Sri Lanka, under international pressure, appointed three Commissions to investigate thousands of cases of involuntary disappearances that occurred between 1985-1990. Unfortunately, they recommended the prosecution of only about 500 people. Moreover, most of those who were tried were acquitted by the courts.


The government also passed The Indemnity Act No. 60 of 1988 which exempts the members of the security forces from prosecution of acts which they committed in “good faith” (bona fide) between 1 August 1977 to 16 December 1988.


If it is a case of murder, there must be a preliminary inquiry by a magistrate dubbed as a non-summary trial which takes a long time to conclude. After its conclusion and there is sufficient evidence, the accused will be tried by the High Courts which can either convict or acquit him.


The procedure in the High Courts is for the State Attorney, representing the Attorney-General, to lead the presentation of evidence to be given by the lay witnesses and police officers (and other formal evidence, if there is any) on behalf of the prosecution.


The lawyers for the defense, on the other hand, are entitled to cross-examine the witnesses of the prosecution. They can also summon witnesses on behalf of the accused.


The accused can present evidence under oath or can make a sworn statement, though it has less evidential value since it is not subject to cross-examination by the prosecuting counsel.


Then, after the prosecution and the defense have presented all their evidence, both sides will address the court. At the end of the case, if it appears to the judge that the charges have not been proven, then the accused will be acquitted. If there is sufficient evidence to establish the charges against the accused, only then will the defense be called by the judge. After that, if the High Court holds that the case against the accused have been proven beyond reasonable doubt, the latter will be convicted and sentence will be passed.


The accused can exercise his/her a right of appeal against the conviction twice. First, to the Court of Appeals and if he/she is not successful, he/she can go to the highest forum and that is the Supreme Court.


Bur so far, all governments that have been in power have been very reluctant to prosecute security officers because they need their services to protect themselves from the masses.


It is only as a result of continuous pressure from local human rights groups like the Organization of Parents and Family Members of the Disappeared (OPFMD) and international organizations that the government created four Commissions to investigate the disappearances and file case against lower-ranking personnel of the police and the military.


That is how the aggrieved family members of the “disappeared” students in the famous Embilipitiya case were able to bring the perpetrators to court. The accused were convicted and jail terms were passed, but the accused made an appeal against the conviction and the ruling is still pending.


Therefore, we must appeal to regional and international human rights organizations to do much more to eradicate this menace called involuntary disappearances. I also take this opportunity to propose to form an Asian regional organization composed of lawyers under the auspices of AFAD to fulfill the requirements mentioned above; so at least, we can keep our hopes alive and see our beloved disappeared family members once again.