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4. Factors that Facilitate Disappearances

 

Certain key factors facilitate the occurrence of disappearances. These include extensive powers available to the police and security forces under the PTA and the ERs and the  climate of impunity that prevails which enables perpetrators of disappearances to believe that they will never be called to account.

The content of the ERs has been altered repeatedly over the years.  At times, the powers of arrest and detention provided under the regulations are broader than at others; at times in the past the security forces have been empowered to dispose of bodies without a post-mortem examination or an inquest. The new Emergency Regulations promulgated in May 2000 are discussed in detail in the chapter on Emergency Rule. Suffice it to say here that they provide powers of arrest and detention far in excess of the limits set out in the International Covenant on Civil and Political Rights (ICCPR), which Sri Lanka ratified in 1980. The Commissions of Inquiry into Disappearances had recommended that the ERs should be amended to prevent disappearances taking place, as did international bodies such as the UN Working Group on Enforced and Involuntary Disappearances. Yet in May 2000 the regulations were changed to weaken safeguards against arbitrary arrest and the abuse of detainees. This change took place with no reference to the 1997 directives issued by the President to the police and security forces on arrest and detention procedures (which had anyway in practice been largely ignored, perhaps partly because there were no sanctions available for non-compliance).

With regard to the continuing climate of impunity, it would appear that the government has not been sufficiently determined to ensure that perpetrators of disappearance are brought to justice. The Commissions of Inquiry appear to have been intended as a palliative for the general public and for the local and international human rights community; they made it appear that the government was genuinely concerned to provide redress for these gross human rights violations.  In practice, however, there has not been sufficient will to act on the recommendations of these and other human rights bodies, or to ensure that the cycle of impunity is broken.

The MPU established in the Attorney General’s Department is dependent on the assistance provided by the DIU of the Police Department. It is the DIU that has to conduct further investigations, record the evidence of witnesses and to tie up loose ends in the chain of evidence needed to obtain convictions in a court of law. Yet the DIU works so slowly that the MPU is unable to proceed in many cases. The few files that the DIU has disposed of and returned to the MPU concern only junior personnel.

It would appear that the only cases in which there may be sufficient political will to ensure that justice is done are those few cases that have been the focus of intense local and international pressure – and even then, only very few of these have resulted in successful prosecutions. The notable example was the case of the schoolboys who disappeared in Embilipitiya in late 1989, where convictions were reached. The Embilipitiya disappearances had been the subject of intensive, long-term campaigning by local and international human rights organisations, the wider public and the parents of those who had disappeared. The Southern Zone Disappearances Commission prepared a special report on these disappearances and unearthed quite a lot of information which facilitated speedy initiation of legal proceedings. The prosecutions in the other cases of disappearances that have been instituted have moved at a snail’s pace and are not pursued in all earnest. So it is highly unlikely that these cases will end in convictions. However without swift and deterrent punitive action there cannot be an end to such violations.    

The Establishment Code of the Government of Sri Lanka lays down the rules of procedure pertaining to all matters concerning persons employed by the government, including the police and security personnel.  Section 21 of Chapter XLVIII of this Code provides for an employee of the state to be interdicted from service if criminal proceedings have been initiated or are about to be initiated on charges which, if established, are sufficiently serious to warrant his dismissal. Yet none of the police officers or security personnel against whom court cases have been instituted based on the findings of Commissions of Inquiry have been interdicted; nor have disciplinary proceedings been initiated against such officers as required by the Establishment Code. This failure has an effect on how the cases proceed, for witnesses are reluctant to give evidence in court in cases where the accused is still in service, sometimes as officers-in-charge of police stations. There had been at least two cases brought to the notice of Amnesty International where witnesses have been threatened.  Consequent to representations made to the President and the Attorney General by Amnesty International, steps were taken to protect the witnesses.

On a request made by the Disappearances Commissions, a specific directive was issued by the IGP to all police stations to preserve the “Telephone Registers, Prisoner’s Detention Registers and other documents connected with the arrest and detention of persons covering the period 01.01 1988 to date”[1] until the Commissions (on disappearances) have completed their tasks. Yet the Commissions of Inquiry found that such books had been purposely destroyed to erase evidence that could implicate officers responsible for the custody of those who had disappeared, or in whose custody the disappeared person was last seen. Neither the then IGP nor the present IGP has taken any action against the OIC’s of the police stations for this act of gross insubordination.  Impunity thus appears to be condoned even by the IGP.[2] 

There are numerous examples of the relevant authorities failing to act to bring known perpetrators of human rights violations to justice. Even a specific recommendation in Interim Report VII of the Presidential Commission of Inquiry covering the central zone to interdict forthwith an Assistant Superintendent of Police who had threatened to kill a witness who had testified before the Commission, was not complied with.[3]  This witness is still said to be in hiding while the police officer concerned continues to enjoy promotions and other benefits arising from being in service.[4] 

Since no action was taken against such an offender in spite of a specific recommendation made against him by a Commission appointed by the President, it is no surprise that members of the police and the security forces  continue to disregard any restrictions that are imposed on their activities, and they continue to violate  rights of  persons with impunity.


 

[1] IGP’s circular No. 1187/95 dated 24 February 1995 – File NO. C4/104/95.

[2] Christian Worker, 3rd Quarter, 1999,  page 8

[3] Interim  Report VII of the Presidential Commission on Removal or Disappearances of Persons in the  Central, North Western, North Central and Uva Provinces. Sessional Paper III of 1997, page 20 & 21.

[4] Christian Worker, 3rd Quarter, 1999,  page 8.

Posted on 2003-06-15



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