TABLE OF CONTENTS

EDITORIAL

COVER STORY

- Realizing A World Without Desaparecidos

COUNTRY SITUATIONS

- The Making of Nepal’s Anti-disappearance Law

- Disappearances & Fake Encounters

NEWS FEATURES

- Claimants 1081

- Tracing Patterns of Disappearances in Latin America

- For the Want of Peace & Justice

- Probing Deeper into Munir’s Death

- Out of the Shadows

- Reclaiming Stolen Lives

PHOTO ESSAY

INTERNATIONAL SOLIDARITY

- Growing Federation

- At the Heart of Buenos Aires

REPRINT

- Submissions to the Independent Group of Eminent Persons

STATEMENTS

- Exhuming Truth

- Joint Statement of Independent Observers for the GRP - NDF Peace Process

POEM

- Of The Vanished

Reprint


Submissions to the Independent Group 
of Eminent Persons
 
 
By: Priyadharshini Dias 
Attorney-at-Law, LLM (Kings College, London)

 

 

In order to address the serious human rights violations taking place throughout the country, the President of Sri Lanka appointed a Commission of Inquiry (COI) to investigate and inquire into the commission of serious violations of human rights arising since August 1, 2005 caused by various persons in the context of ‘(a) the ongoing terrorist activities against the government of Sri Lanka, its security forces and its people, and (b) the countermeasures adopted by the security forces and the police, to arrest, suppress, or terminate such terrorist activities.’ The Commission was given the mandate to especially inquire into 15 serious violations specified in the Schedule to the warrant. 

The Commission of Inquiry (COI) Act No. 17 of 1948 was first introduced primarily to inquire into allegations of widespread corruption among members of the government in power especially after the grant of independence. The original COI Act was not designed nor has it later been amended to suit the complex inquiries of serious human rights abuses and extra judicial killings such as the cases contained in the schedule before the present COI. 

In Sri Lanka, there are two legislative provisions which relate to the appointment of COIs. The SPC Act No. 7 of 1978 gives the power to the Commissioners to recommend the civic disability of a person whose conduct was the subject of inquiry.1 

However, the COI Act No. 17 of 1948 which is the applicable law to the present commission requires the Commission to inquire into and report on the limited matters specified in the warrant of the appointing authority and has no power to alter the legal rights or liabilities of persons. This Act does not contain any provision to enforce the recommendations and the President is not bound to even release the report.  

As was held by Justice Sharvananda in Fernando v. Jataratne2 the ‘only power the commissioner had was to inquire and make a report and embody therein his recommendations. He had no power of adjudication in the sense of passing an order which can be enforced propio vigore, nor did he make judicial decision. The report of the commission had no binding force: it was not a step in consequence of which legally enforceable rights might be created or extinguished.’ 

However, the court added in obiter, ‘I am constrained to add that while there may be no duty to act judicially, it does not follow that there is no duty to act fairly by observing the principles of natural justice.’ 

The COI Act in section 16 provides for the right to legal representation to those whose conduct is the subject of inquiry, (a) those who are in any way implicated or (b) concerned with the matter under inquiry. The Act also gives the power to the commission to permit representation to ‘any other person who may consider it desirable that he should be so represented’. 

Section 12 of the Act specifies the offence of contempt against the disrespect to the commission for (a) those who fail to appear before the commissions as specified in the summons, (b) refuses to be sworn or refuses to answer questions regarding the matters directed by the commission to be inquired into by the commission and (c) refuses without cause to produce any document or thing which is required by the commission to arrive at the truth of the matters inquired into. 
 

Role of Commission of Inquiry 

One of the essential roles of a COI is to encourage people to come and give their version of what happened without having to point a finger at a particular accused in the dock. Therefore, based on the information received, the COI is required to arrive at certain conclusions. That is an opportunity to fulfill their mandate, which is to submit a fact finding report on the actual incident. In this respect, the COI can serve a purpose to give the victims and witnesses an opportunity to come before an impartial tribunal. 

Most of the serious human rights incidents specified in the warrant of the present COI may justify the need for a COI since an independent commission may be able to ascertain more facts relating to the particular incidents. So far, the general public has been receiving information or versions of only the interested parties. For example, there have been incidents where two bodies have given completely different versions which are quite contrary to each other, resulting in no action being taken. In such an instance, the COI will be able to probe and evaluate on the truth of the incidents.

 

Standard of Proof 

On the other hand, the AG may remark that the COI did not give the quality of evidence for a winning case which requires evidence to be proved3 beyond a reasonable doubt. 

As stated in the mandate of the present COI, the nature of the inquiry seems to be to enable the President ‘to present the relevant material to the appropriate competent authorities of the Government of Sri Lanka including the Attorney General.’ 

However, one of the evidential obstacles that arise in this regard is that the evidence presented in a COI does not have the same force as that before a court of law. For example, most findings in the Bindunuwewa Commission were not taken into account when the AG framed the indictment before the Trial at Bar. In spite of all the evidence uncovered by the commission, there was no indictment against the ASP or the HQI. 

The disappearance commissions provided in their reports the names of disappeared persons, the complainant’s name and address and the persons responsible for the disappearance where such evidence was available. A list of vehicles involved in removals and/or disappearances and a list of names of owners of such vehicles during the relevant period were also submitted. In spite of the fact that the disappearance commissions held that disappearance was established in 21,215 cases, indictments were filed only in approximately 334 cases against 587 accused but only nine were convicted.   

Another factor that affects the successful prosecution of a criminal case relates to the credibility of witnesses. In most instances, the witnesses are rigorously cross examined on the delay in lodging complaints.  The disappearance cases which are still pending before the courts relate to incidents that took place in 1989 or 1990. This 17-year delay has caused the deterioration of the memory of the witnesses which is severely challenged in favor of the accused.  

This delay has further implications on establishing the identification of the perpetrators. The identity of the accused must be proved by direct or circumstantial evidence. If an identification parade is not held within a reasonable period of time, the value of the identity will be challenged. 

Contradictions arising from the witnesses’ statements to the police, affidavits filed in the FR applications, habeas corpus cases, vis-a-vis the evidence given in the High Courts is yet another bar for a successful prosecution.  

In order to overcome the differences in the degree of evidence led before the COI and a Court of Law, although the evidence ordinance is not crystalised in the COI Act, most commissions have operated within the ambit of the Rule of Law.4 

For example in the Nihal Jayawickrama Commission (Sessional Paper V1-1979) held,  

‘In reaching our findings on any allegation made against the respondents, having regard to the consequences that can ensure upon our recommendations, we decided to treat the burden of proof required to establish any allegation as proof beyond reasonable doubt.’  

Justice K.D. de Silva, the one man commissioner appointed to the Navy Commissioner held in his report (Sessional paper VI 1963) page 31 that although the evidence ordinance was not applicable under the COI Act, the object of the Commission is to ascertain the truth pertaining to relevant matters.  

‘Hearsay evidence is admissible at such an inquiry. Of course in assessing the value of a statement made by a person who is not available for cross-examination, great caution has to be exercised. .. before placing reliance on such a statement, the commissioner should be satisfied, beyond reasonable doubt, that the facts appearing in such a statement which are accepted, are true. Whether or not such a statement is corroborated by independent evidence is a matter of great importance.’ 

The Bandaranaike Assassination Commission held (Sessional Paper 111-1965, at page 36) that ‘although there is no legal bar to our admitting a confession, it is entirely a matter for us to decide what weight we should attach thereto’. Since Somaratne was dead before the commission was appointed, it was held that there was no opportunity to test the truthfulness of that part of the confession and accordingly decided not to admit that part of the confession as an item of evidence.

 

Duplicity 

In spite of the above precautions exercised by the previous commissions appointed under this Act, one of the main drawbacks of a COI is that the findings of the commissions are subjected to further investigations at the direction of the AG prior to filing an indictment before the High Court. Two measures can be suggested to overcome this problem of duplicity and delay. 

1.   The AG should be willing to adopt the commission’s evidence without further investigations by the police;

2.   The COI adopts the test of proof beyond reasonable doubt to be applicable in all cases.

 

Witness protection 

Even in 1956 the Walter Thalgodapitiya commission commented on the reluctance of the persons to come forward with information.   

‘one would have thought from the way people shouted from roof tops about bribery and corruption that we have been snowed under with information, but the expectation proved vain. Reasons for the reluctance were fear of reprisals and the fact that persons who have given bribes are reluctant to come forward’.  

Some of the problems faced by victims and witnesses of state perpetrated crimes

1.   In most instances the police officers refuse to record complaints of abductions and extra-judicial killings caused by state officials. Thereby the relatives of abducted persons act with caution in order not to antagonize the investigative authorities for fear that the corpus will be tortured or killed.

2.   The basic contradiction in ‘state sponsored’ human rights violations is that crimes committed by the state are tried within a framework defining crime as an offence against the state.  

3.   In this respect a conflict of interest arises in the conduct of the duties of the AG’s department and the investigative bodies. Therefore there is a need to look at a distinct procedure to deal with such cases in SL. 

4.   It was recommended by the Southern zonal commission that an office of an independent human rights prosecutor similar to the Commissioner of elections and the Auditor General or the Bribery Commission be created under the constitution, with funds provided by parliament. However, this suggestion has not received serious consideration.  

5.   The AG in the present context acts as the representative of the victim and the prosecutions are conducted on the basis that crimes were committed by errant public officers.   

6.   This again highlights a problem of the public perception of a conflict of interest, in that the victims are very much affected by the awareness that state officials are investigating complaints against officers of the state.  

7.   Thereby there is an urgent need for the establishment of an independent investigative and prosecuting body. 

At present there is no legal provision to enable witness and victim protection in Sri Lanka. In most state-perpetrated crimes in Sri Lanka, when asked why they did not seek the assistance of the administration of justice system, the victims declared that it would amount to ‘asking the thief’s mother to catch the thief.’ 

In the present warrant, the president has declared the applicability of Section 14 which provides for immunity from prosecution. The witness is further protected from facing the prospect of any evidence given by him being admissible against him in any court of law. 

In terms of Section 13 of the COI Act, witnesses giving evidence before the Commission are entitled to the same privileges to which a person giving evidence before a Court of law is entitled in relation to the evidence given. In this connection, the Evidence Ordinance in Section 151 forbids any questions or inquiries which it regards as indecent or scandalous unless they relate to the facts in issue. Section 153 forbids any question which is intended to insult or annoy or is offensive in form. Section 150 further provides for the attorney-at-law to be reported to the Supreme Court if he/she asks questions without reasonable grounds according to the opinion of the court.  

These provisions are limited to protect the evidence of the witnesses. In accordance with the international standards, there is no provision to protect the safety of the victims or witnesses, enable them to trigger the jurisdiction of the court or to provide them with compensation, reparation. 

Even though if one succeeds in providing protection up to the trial, there might be difficulties in providing assistance to relocate a person with a new identity etc.

 

Command Responsibility 

The criminal law does not recognize the principle of command responsibility in Sri Lanka although it was pointed out in the previous disappearance commissions that the liability of the OICs should not be treated lightly. The Commission recommended that the SC’s opinion be obtained in this regard.5  

However in a few fundamental rights cases before the Supreme Court, the principle of command responsibility was accepted in cases against the police. For example in Faize’s case, the OIC was held liable for his failure to stop an assault. In few other cases where the victim is unable to identify the police officer, and if the incident can be traced to the particular police station, the OIC has been held responsible.  

However in the Embilipitiya case before the High Court, Brigadier Liyanage who was in charge of the army camp was acquitted due to his lack of direct involvement in the abductions, detention or subsequent disappearance of the school children.   

Indeed, this is an area of law which needs further clarification and development in holding the state and the armed groups responsible. 

Finally let me, as a human rights lawyer welcome you, the most distinguished personnel to our country and thank you for your decision to assist in improving the human rights standards in Sri Lanka. Indeed our victims are pretty skeptic about the previous COIs mainly due to the lack of interest of the appointing authority in giving force to the excellent recommendations given in some of the Commission reports.  

At present the expectations of our people are based purely on the presence of the International Independent group of eminent persons. Although you may be disappointed, distinguished gentlemen, with the lack of legal enforcement of international laws into our domestic legal systems, at least a declaration by his Excellency the President to ensure that human rights abuses are conducted in a transparent manner in accordance with international standards, is a first step forward.

 

(Footnotes)

1 In terms of the SPC, a person who is the subject of inquiry could be (a) a person specified in the warrant as a person whose conduct is the subject of inquiry, or (b) a person who is in any way implicated or concerned with the matter under inquiry, or (c) a person who in the opinion of the Commission is a person whose conduct should be the subject of inquiry.

2 78 NLR 123. In re Ratnagopal v.AG (1969) 72 NLR 145, also see 70 NLR 409 held that the purpose of the commission which was merely to inquire and report on certain matters, did not involve in the exercise of judicial or quasi-judicial functions, or even of executive power; that being so, any failure of the commission to carry out its purposes was a subject for complaint to the Governor-General and not to courts.

3 The essence of Section 3 can be taken into consideration as a definition of what is proved. Evidence Ordinance Section 3- The definition of proved, a  fact is said to be proved  when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

4 Section 7 (b) requires evidence to be given under oath or affirmation. The offence in relation to such a refusal is under Section 12 (1) (b) absolute. In Ratnagopal v. AG (72 NLR 145 at 151) held that the a person who refuses to be sworn under the power given to the Commissioner under Section 7 (b) of the COI Act is guilty under Section 12 (1) (b) of the offence of contempt of Court, whether or not he has reasonable cause to refuse to take part in the proceedings on the ground of the Commissioners’ bias or interest. If such a refusal be considered as a refusal to answer a question, this refusal too may well not be justified by an allegation of bias or interest on the part of the Commissioner.

5 The witnesses before the All Island disappearance commission took the commission into their confidence and disclosed the names of politicians concerned and described graphically the chain of actions starting from a veiled or direct threat by the politician himself. On the other hand, the commission also referred to evidence that illustrated a sharp relief the need to recognize the liability of armed groups for grave human rights abuses and not only as culpability arising from a breach of national criminal laws. The commission recommended that the GoSl take up at the international level the issue of the need for the formulation and promulgation of an international instrument on the subject of the responsibility of armed groups. 


Atty. Priyaharshini Dias is a Srilankan human rights lawyer. She has joined AFAD at home and abroad in lobbying for an international treaty against disappearances


VOICE August 2007

 

Copyright 2007  AFAD - Asian Federation Against Involuntary Disappearances
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