Summary with Comment of Views Expressed at the Seminar on Disappearances Held in Colombo on 21 February 1998

Basil Fernando

In his opening speech at this Seminar on Disappearances, Rajan Hoole, referring to the option of doing nothing about the issue of disappearances, posed one question: "One needs to ask if society and the country can survive such blatant disregard for natural justice." The response to disappearances, judging from Sri Lankan government actions taken so far, is to do nothing, except for a few cosmetic gestures. These, too, are becoming fewer and fewer as time passes. The question thus becomes more important: Can society and the country survive such blatant neglect of natural justice? This question was dealt with in the background to this seminar paper titled: "Disappearances of Persons and Disappearance of a System." Society and the country are suffering under the weight of a cynicism generated both by the disappearances and by the processes from which the disappearances originate, compounded by the society's inability to restore the normal functioning of institutions sufficiently to warrant any degree of credibility. In short, there is a massive crisis in society and in the country. The immediate question becomes: Can this crisis be ignored without facing a further collapse? To put it differently: What type of society and country is Sri Lanka becoming? At this stage it will be useful to recall the following comment in the Final Report of the Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces¹ (Hereafter, the Commission Report ): "Killings on the spot, termed extra-judicial killings, constitute the ultimate in 'involuntary removal.' Disappearance following an abduction is in our finding only a euphemism for a killing, a reality that the absence of recovery of the body should not be allowed to obscure (p. 33)."

The Loss of Faith in Legal Institutions

The discussion at this seminar reflected the frustrations in the country in view of an extraordinary collapse of both the rule of law and the faith in reason in dealing with issues of society and the country. This was stated in the following terms by Sasanka Perera: "We cannot disregard the fact that widespread suspicion existed because of what happened in the South during the late 80s. The system did not work, and the police were responsible for carrying on the things that happened. People [the police officers] were transferred out, but the institution remained the same. Policemen did not know how to investigate... Because of our failure, people out there have already found certain kinds of solutions. People at Moneragala and Hambantota do not have access to lawyers. This is a big problem. Those things should be in place before we start speaking of secular or popular justice.²" The loss of the victims' faith that there would be a solution forthcoming from the legal and social system is an indisputable fact. Immediately following the disappearances, most relatives of the victims did all they were asked by the system: they made complaints; they gave all the information they had to those who asked for it; they went from house to house among such important persons as politicians who had appeared to want to help them. Finally they also went before the disappearances commissions. In addition, many of them took an active part in elections to support those who promised them justice.

None of these actions has brought them any tangible result. In fact, all these actions have taught them a stern lesson: that 'nothing is in fact working.' Under these circumstances these people have finally turned to religious rituals and prayers. Some engage in cursing the perpetrators of violence, and some call for divine vengeance. Such practices themselves demonstrate their loss of faith in society's legal and social machinery.

The Victims' Poverty and Weakness

The victims of disappearances are often poor people from faraway rural areas. As seminar participant Javid Yusuf observed: "I remember some years back I interviewed many of these cases to present it before an United Nations organisation. When I interviewed the parents, wives, brothers and sisters, most of them were desperate and helpless type of villagers. Even if they have a legal establishment they will not be able to have access to the police or armed forces. ²" The Commission Report mentions: "During the sittings of the Commission, we had an opportunity to assess the economic difficulties of the affected families, and found that 2,475 families are in need of some kind of financial assistance to support the education of their school children. This clearly shows the low-income level of the affected families (p. 17)." The forces against the victims were formidable and that remain so even now.

Police and Army Pressure

Yusuf further said: "I remember soon after the government came into power ministers were going about digging graves without any expertise which is necessary for this job as otherwise all evidence will be lost. Suddenly it stopped as the army and the police might have brought pressure.²"

The discussion on police involvement in the disappearances led to several comments to the effect that to be an honest and a good officer in the police is to invite trouble. Good officers become victims of unjust transfers and other forms of discrimination, including demotions and dismissals. Extreme conflicts within the police system itself give advantages to those who use unfair means to advance their self-interest. Thus the will to be competent, to be efficient and to care for the public is frustrated. Participants cited many instances of unfair practices by the police. The general view seemed to be that such practices were endemic. One speaker, Sunil Coorey, suggested that an independent police commission should be appointed.

The Role of Politicians

It was argued that the appointment of an independent police commission would reduce the power of the politicians who are in fact responsible for much of the disorder in the system. So long as there is no independent commission, persons close to power brokers will continue to be appointed to various commissions. Under these circumstances, it is not even possible for an honest police officer to challenge an unfair transfer order. The internal chaos of the law enforcement mechanism seemed both a cause and an effect of the situation that gave rise to the disappearances.

The Involvement of the Structure at the Highest Levels

Mrs. Monouri Muttetuwegama, who had been President of the Commission of Inquiry into Involuntary Removal or Disappearances of Persons in the Western Province, said that the disappearances were not just a result of excesses but were carried out by a structure laid at the highest levels. She recalled that the former minister Ranjan Wijeratne told the Parliament: "You cannot do things under normal law. It takes a lot of time. By the time my good friends who are lawyers take time to solve these things the match will be over... .We have finished the first eleven and the second eleven. Now we are tackling the under fourteen fellows." (Hansard, Volume 62, Column 1249, proceedings of 25 January 1990). [Ed. note: The statistics of the Commission's report show that the former minister's statement is not true. Literally it was persons below the age of 19 who were killed in greater numbers than were "the first eleven." See diagrams attached to this article.]

The crucial issue is the organised nature of the disappearances which, according to statistics from all three Commissions of Inquiry³, numbered over 16,742 ( the NGO estimate is over 60,000). Under the former government, the state engaged in organised and deliberate extra-judicial killings. According to the Commission Report: "the common features of the narration by thousands of humble petitioners in respect of thousands of abductions and disappearances bore powerful witness to the fact that what we were looking at was an orchestrated phenomenon and not a series of isolated instances explicable in terms of 'excesses' by individual transgressors (p. 32)." How can the society and the country face the organisational consequences of such an action on the part of the state? All arguments regarding disappearances reach a dead end when it comes to this question.

One way of avoiding the issue of state responsibility came up during the discussion. One participant⁴ thought that the state killings were necessary because the JVP (Janatha Vimukthi Peramuna or People's Liberation Front) had brought about a situation in which no one was safe. He argued that violence had to be met with even more ferocious violence and brutes must be dealt with as brutes. This brought up the issue that groups other than the government and the JVP, too, were engaged in violence. Participants were perturbed by the discussion of this issue.

'Brute'⁴ Theory and the Disappearances of Children

Commission Report statistics, which revealed that 1,296 out of 8,739 reported cases in its three provinces, 14.82% of the total number of disappearances, were of children aged below 19 years, undermined the validity of the 'brute theory' discussion. Another 2,451 (28.05%) were from the 20-24 age group. Thus 3,747 (43%) of disappearances reported to the Commission were of persons aged 24 and below; 63% of those who disappeared were below the age of 30.

It was pointed out that the issue of mass disappearances was not one purely concerning the JVP. Further, it is common knowledge that there was collaboration between several leaders of United National Party (UNP) and the JVP. According to published documents, there had been arms supplies to the JVP by some prominent UNP leaders.

Development and Disappearances

That there was much more to disappearances than the JVP factor was evident from official UNP statements. For example, in a letter written by then-President Ranasingha Premadasa to Amnesty International through one of his advisers, he said: "It took the industrial countries four centuries, innumerable wars, tens of millions of dead and wounded and the subjugation of almost two-thirds of the globe to the status of colonies before they completed these tasks within their own countries. In some notable cases among them, these tasks are still not complete.

"On the other hand, Third World countries have been addressing these tasks only for about four decades, and that too had been attempted under conditions so inimical to their fulfilment that it is a wonder that they have been able to achieve even what they have within this period.⁵"

Attempting to underline larger issues involved in the disappearances, Mrs. Muttetuwegama said: "We are dealing with a society that has allowed these things to happen, and there are various forces at play. But the government thinks that they can get away with it. This brings us to the situation of a civil society. Civil society is the object of attack by both government and subversives.²" As a result of this attack, civil society has become both a victim and a patient. Society's institutions have become very sick. This, in turn, brings us back to the original question posed at the seminar: Can society and the country survive such blatant disregard for natural justice? Has police and military pressure reached a point where natural justice has become an illusion?

The Role of Media and Academics

One participant, C. R. Hensman, complained that the media in the country failed to investigate these important issues. "Freedom of the press is being trivialised into gossiping and slandering people. All these channels are not being used because in so many quarters journalism depends on TV stations. Today death squads are not going to knock at the door unlike in the 80s. I think our people are not doing investigations.²" In reply, Ms. Kishali Pinto Jayawardena said: "Media has not been completely irresponsible in the manner in which they have responded to these issues while in general, it has not responded actively as it should have. There have been certain attempts made to awaken public awareness. For example, the Sunday Times published a series of articles on the Commission reports, analysing the reports. The articles were published with full-page prominence in the Times. The apathy of the press is not uncommon. There is apathy among the academics, activists and the general public. Speaking as a journalist, on many occasions we have focused on many issues and asked the public response. The reactions have been minimal. Therefore, the responsibility has to be shared equally. It is not fair to single out the media for criticism.²"

It seems true that all sectors influencing public opinion, including the academic, have failed the country over the issue of the disappearances. Most of the ideas expressed on this issue still continue to echo state propaganda vehemently asserted by the former government. There has not been examination of the basic premises of this debate in the light of the excellent work of the Commission. One irreducible stumbling block to all state, media and other propaganda concerning the necessity for these killings continues to be the simple age of the victims, as revealed in the Commission Report: 14.82% were 19 years old or below; 43% were 24 or below; 63% were 30 or below. How can these killings possibly be justified as an unavoidable counter-insurgency measure? Can any theory maintaining that that police and military acted in self-defence stand up in the face of these naked statistics? Has the Sri Lankan psyche adjusted even to the killings of children as a politically necessary measure?

Suggestions

Laksman Goonawardene's speech: "Disappearances Commissions - What Next?" dealt with how various philosophical traditions looked at social and moral responsibility in situations like one faced by people in Sri Lanka.

Suggestions for action included giving greater publicity to the Commission Report and its recommendations. They also included the need to keep the issue of disappearances high on the agenda; the need of parents, relatives and friends of the disappeared to meet and exchange views and support; and the duty of religions to come together to discuss and deal with the issue.

Five Foundational Principles for a Civilised Modern Society

1. The Keeping of Records

Keeping records relating to deaths, particularly of those deaths which suggest the possibility of foul play, is a foundational principle in any modern civilised society. It stems from the prohibition on killing found as the First Precept in the Buddhist and the First Commandment in the Judeo-Christian traditions. As pointed out by the Commission Report, the disappearances in Sri Lanka were killings. The state at the highest level made it possible to arrest or to abduct persons and kill them without keeping any record. Record-keeping was dismissed in order to make the killings possible. In fact, there can be no greater challenge to a system of criminal jurisdiction than to destroy its record-keeping function. Now that this has happened, what future is there for the criminal law system of Sri Lanka, unless there is a radical move to revive the system again? Is such revival possible without frank exposure of this foundational crack? If the public remains duped by the propaganda unleashed to justify these killings, even in the face of tremendous revelations made by the commissions, will a frank debate on these issues ever happen?

The duty to keep records was dispensed with in the following ways:

1. Emergency Regulations were used to abrogate the requirement that there be inquest proceedings before the bodies of the deceased were disposed of;
2. Arrests were replaced by abductions. On this issue the Commission Report states: "The arrest of persons perceived to come within specially targeted groups for questioning, is possible under recognised procedures of law. That 'abduction' rather than 'arrest' was the preferred method of operation is a clear indication that physical elimination of the persons taken-in was not ruled out. Given, additionally the unrecorded nature of the initial abduction and detention the temptation to adopt 'elimination' as a practice was inevitable (p.32)."
3. Unauthorised places of detention were allowed to be maintained;
4. Families were deprived of their right to receive the bodies of their dead members;
5. Law enforcement officers were allowed to dispose of bodies;
6. Police and others refused to record complaints relating to disappearances. On this issue the Commission Report states: "In the period under review another pointer to the category of perpetrators was the nature of complaints recorded by the police. If the act complained of (in the opinion of the police) had been committed by subversive elements the complaint had been recorded, B Reports [Ed. note: first reports to the court] filed and post-mortems held. If the case was otherwise, in the majority of cases, no complaint had been recorded at all. In instances when the complaint was recorded the police had either refused to record the name of the alleged perpetrator when taking down the complaint or had described it as 'perpetrator unknown' (p.31)";
7. Complainants and their legal representatives were intimidated and eliminated.

2. The Right of the Deceased to Decent Disposal of their Remains

The right of all deceased persons to a decent disposal of their remains (in whatever way their society and/or religion define these terms) is fundamental to any civilised society. Even the worst criminal, once dead, must be treated with respect, as a form of respect for human persons. This normally extends even to the treatment of enemies who die in war. To allow bodies to be floated in rivers, burnt on roads or eve left for dogs to eat is sheer barbarism. And it is of no use trying to play down the extent to which the country's morale is broken when such actions are committed. Connected to the right to a decent disposal of remains is the right to mourn, which is the right not of the dead but of the living. No society can ignore this without suffering severe consequences. A fine study on this is the work of Principles of Collective Behaviour: The Inability to Mourn.⁶

3. The Special Protection of Children

That over 14% of the disappearances in Sri Lanka are of children below the age of 19 is a damning indictment. That there has not been much worry in the society about this fact makes it worse. Various human rights conventions have been written and adopted which recognise the special status of children and mandate their special protection and consideration, especially under conditions of war and/or other forms of conflict. Even during Argentina's 'dirty war' children were not targeted for murder, but were instead abducted into childless families loyal to the regime. While this was horrible, Sri Lanka's failure to observe even this modicum of concern for the survival of children places it alongside Herod in the Bible and such actively genocidal regimes as those acting against Jews and gypsies in Europe, Muslims in the former Yugoslavia, Tutsis in Rwanda and Native Americans in what is now the United States.

4. The Prevention of Impunity

Prevention of impunity is a mark of civilisation. The extent to which this was breached in Sri Lanka shows how very far from any civilised standard the society had deteriorated. The Commission Report lists a number of ways in which impunity was embedded into the fundamental structure of disappearances in Sri Lanka, giving detailed information and cases for each aspect and claim. Regarding the first of these, The Spectacle of Impunity, the Commission Report states: "The climate of impunity was so tangible as far as the witnesses before this Commission were concerned that many of them did not even trouble to list its features. This Commission discovered that the features ranged from the most spectacular and sensational to the most mundane disregard for the Rule of Law. These features included the sight of scavenging dogs feeding on mutilated bodies left in piles on the road-side (p. 50)." Other aspects of impunity the Commission lists include the use of State Terrorism as an Instrument of counter-Subversion and eight aspects of what it terms the Structure of Impunity. These, in turn include the following:

1. The Denial of Recourse to Ordinary Procedures of Law;
2. Distorted/Non Existent Investigations;
3. The Absence of Prosecution Despite Clear Chain of Evidence;
4. The Use of Unauthorised Places of Detention;
5. The Failure to Record Detention;
6. The Frequent Transfer of Detainees;
7. The Use of the Following Three Official Positions in Situations When Detentions

Cannot be Denied:

1. Escaped from Custody;
2. Killed in an Exchange of Fire with Subversives; and
3. Released from Custody; and

8. The Continuation of the Practice of Abduction/Disappearance Alongside the Efforts of the All-Party Conference 1990 to Institute a Practice of Surrender, Rehabilitation and Release.

The Commission also lists the Provision by Statute of Protection from Liability the Indemnity (Amendment) Act 1988 and the Failure to Move Against Persons and Institutions already Identified in Other Legal Proceeding as important aspects of impunity in these cases. Clearly the prevention of impunity has not been made part of Sri Lanka's legal system.

5. The Independence of the Judiciary

The independence of the judiciary is a primary principle of modern civilised social management. It has been called the right which is protective of all other rights.⁷ When the power of the judiciary to intervene in any matter of social significance is interfered with, disaster follows. Such a removal of power took place in Sri Lanka by the promulgation of Emergency Regulations.

Recommendations by the Commission

The Commission made some very important suggestions for dealing with the situation of disappearances in Sri Lanka (a full list of these recommendations is contained elsewhere in this publication.). Some of the very significant ones are the following:

1. To continue inquiries to prosecute persons named by the Commission;
2. In view of the serious nature of the acts revealed by the evidence available to date, to place the investigations by the Inspector General of Police under the supervision of the Attorney General and to refer them to the Attorney General for the determination of appropriate legal proceedings;
3. To establish an office of an independent human rights prosecutor; and to hand over to this prosecutor all relevant police;
4. To refuse to entertain any defence of due obedience;
5. To utilise the following forms of punishment for offenders:

1. Imprisonment;
2. Loss of promotion;
3. Future promotions and advancement to be affected;
4. Restitution to complainant where perpetrator has been unjustly enriched at complainant's expense; and
5. Compensation to be in addition to punishment - not a substitute.

6. To maintain written records of arrests, detentions and transfers simultaneously with the events;
7. To hold inquest proceedings:

1. To remove the provisions in the Emergency Regulations abrogating the need for an inquest before the disposal of the bodies of the deceased;
2. To return the bodies of the deceased to their families.

There has been no attempt so far to implement any of these recommendations. That it is where the society and the country remain at the moment. Even the Commission has not given any special attention to the fact that over 14% of the victims of the disappearances are children. In fact this is the aspect that needs most attention. At least the Children's Rights groups and anyone with ordinary parental instincts or common humanity must wake up and not allow this issue to be ignored. Otherwise, the Commission's recommendations will just be a litany of good intentions

Implementation of Recommendations: Ragging and Disappearances.

If one is to ask what is considered worse in Sri Lanka, ragging (ritual humiliation of freshpersons at schools or colleges) or the disappearances we have been discussing, the obvious answer judging from recent experience is that a single act of ragging is considered much worse than causing hundreds of disappearances. In 1997 one act of ragging caused a serious outcry and immediately a Commission was appointed to inquire into the matter. The Commission quickly did its work and recommended legislation to be passed to punish anyone involves in ragging. Quickly a Bill on Prohibition of Ragging and Other Forms of Violence in Educational Institutions was placed before the Parliament. The Bill was described as "a bill to eliminate ragging and other forms of violence, cruel, inhuman and degrading treatment, from educational institutions." Two Petitioners filed a Petition before the Supreme Court alleging that some sections of the Bill were inconsistent with Articles 12(1) and 14 (1) (a) of the Constitution. The Court held that some provisions of the Bill violated some Articles of the Constitution and therefore must be passed by a special majority (two-thirds majority) and that one particular Provision needed to be approved by the people at a Referendum. The Court also suggested that these Provisions if suitably amended would not violate the Constitution. The Bill was then suitably amended except for the Provision needing a Referendum, and was passed by the required two-thirds majority, with the opposition supporting the government in this rare instance.

In contrast, it took several years and the defeat of the ruling party in power to get Commissions of Inquiry appointed to investigate tens of thousands of disappearances. As the caseload was overwhelming, the three Commissions appointed have to take a considerable time to finish their work. The Commissions have finished their work and made their Recommendations. However, no legislation has been considered for the purpose of implementing the Recommendations of these three Commissions. In Sri Lanka disappearances are not considered as offensive as ragging.

¹ Final Report of the Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces. (Department of Government Printing, Sri Lanka, September 1997).

²All quotes from the contributions at the seminar have been taken from the record of proceedings made by stenographers.

³ The Three Commissions of Inquiry were for the Western, Southern and Sabaragamuwa Provinces; the Central, North Western, North Central and Uva Provinces; and the Northern and Eastern Provinces, respectively.

⁴This participant had been an unofficial spokesperson for the Jayawardana and Premadasa governments. He is reiterating widely used concepts originally found in a statement by then-president J.R. Jayawardana in the newspaper Dinamina, 21 December 1987, (trans. by Prins Gunasekara in A Lost Generation, p. 273):

"The Southern terrorists cannot be treated as human beings. Their thinking is brutish. They are brutes. To save the country from this menace, they have to be treated like brutes... .Are we to permit them to kill innocent people? To kill Village Headmen, Presidents of Gramodaya Societies, Members of Parliament? The Government shall not allow that to happen? TI too shall not allow that. We too have to kill them."

⁵A letter written by Bradman Weerakoon, presidential adviser on international affairs, to Rachel Kiddell-Monroe, chairwoman of the Lawyers Group of Amnesty International, published in Sunday Observer on 2 December 1990.

⁶Alexander and Margaret Mischerlich - Principles of Collective Behaviour: The Inability to Mourn - Grove Press, Inc, New York.

⁷Param Cumaraswamy, UN Rapporteur for Independence of Judges and Lawyers - A paper to a seminar on independence of the judiciary in Hong Kong -14 June 1998.