Chapter IV

“There can be no healing without peace; there can be no peace without justice; and there can be no justice without respect for human rights and the rule of law”.

The old question of impunity remains very much with us. Whether or not each individual Police Sergeant, Police Driver and Army Corporal is prosecuted is hardly indicative; but there are some key figures, and people say: “If those are still free what are you talking about to us about Justice.”

The terms of reference of the Commission requires the Commission to inquire into and report on:

“The legal proceedings that can be taken against the persons held to be responsible for involuntary removals and disappearances during the period under the investigation”[1].

The persons whose names appear in lists sent under separate cover are those in respect of whom one or more Commissions of Inquiry have found there to be credible material indicative of their responsibility for disappearance of persons. At the point in time when Presidential Commissions identified perpetrators on credible material, these finding were purely factual and without legal significance.

This chapter will therefore deal with criminal proceedings starting with the investigation by the police which must follow.

It is imperative and accordingly recommended that the Police investigations be done in respect of the recommendations of all the Presidential Commissions, with regard to the perpetrators of disappearances of persons, and not be done on a case-by-case basis alone. The investigations need to be done in such a manner as to give the victims confidence in their impartiality. In response to the recommendations of the earlier Commissions that the independence of the investigations be safeguarded, a Disappearances Investigation Unit (DIU) has been set up under the Deputy Inspector General of Police of the Criminal Investigations Department.

It is recommended that the DIU be well equipped and provided with all logistical support.

A special unit named the Missing Persons Unit was established in 1998 at the Attorney General’s Department to advise on investigations and to conduct prosecutions in cases of disappearances. By 1^st January, 2000, this unit had initiated 213 prosecutions in the High Court and 79 non-summary inquiries in Magistrate’s Courts[2]. The establishment of this Unit, while underlining the special problems of prosecuting cases of disappearances, suffers from drawbacks, in that the prosecutor is the Attorney General who invariably is the representative of the State, either as prosecutor or as respondent, in judicial proceedings.

In this instance, the present arrangement makes the Attorney General the representative of the victim, and prosecutions are conducted on the basis that the crimes were the acts of errant officials. 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 Officers are investigating into complaints against Officers of the State.

Empowering the Human Rights Commission to have a prosecuting arm could obviate this problem. The Human Rights Commission Act does not confer powers or the means to the Human Rights Commission to investigate and prosecute. We therefore recommend that the Human Rights Commission Act be amended to provide for an Independent Human Rights Prosecutor.

Until then, as an interim measure, such prosecutions could be done by the Missing Persons Unit of the Attorney General’s Department. It is hoped that the coming into existence of an office of an Independent Human Rights Prosecutor, and the prosecutions initiated thereby, will give rise to valuable jurisprudence on State liability for breach of human rights norms, in contradistinction to the outcome of the proceedings in normal prosecutions as at present, which emphasises the culpability of errant individual officials alone[3].

This section will deal with certain aspects relevant to the ascertainment of the legal liability of a person once the Attorney General has filed charges based on the final outcome of the police investigations.

There is no offence of disappearance under the law in Sri Lanka. However, many of the elements of disappearances are offences under the law, such as abduction; wrongful confinement; conspiracy to abduct or wrongfully confine; abet in an abduction or wrongful confinement; conceal an abduction. Additionally, conspiracy to abduct with the intention to murder; and murder itself, are offences already in the Penal Code which carry the death sentence. The present Penal Code is the same law that was prevailing at the time of the relevant incidents.

The creation of a new offence would be relevant in respect of such acts committed in the future only. It is a cardinal principle of the rule of law and enshrined in our Constitution that a person cannot be punished under retrospective criminal legislation. The Torture Act, which was enacted recently following the ratification of the International Convention on Torture, would be operative with regard to incidents of torture subsequent to the enactment of this Act. However, disciplinary action could be taken in respect of officials against whom allegations have been levelled. Such a step is already overdue.

This Commission recommends that an office of an independent Human Rights Prosecutor be created by specific legislation[4], which should be a new independent institution similar to the Commissioner of Elections and the Auditor-General, with funds provided by Parliament. In any event, this could be a unit under the Human Rights Commission[5].

There should be no change in the present law and practice that the forum for the decision on criminal liability should always be the courts of law and not Special Tribunals.

Principles of procedural fairness, which include the principles of “audi alteram pertem” and the right to legal representation, should always be applicable.

We have found Police Records, such as Information Books, Diet Registers, Movement Registers, and Medical Records, are valuable sources of information. It is recommended that these books be handed over to the office of the Disappearance Investigation Unit of the Police with a view to ensure the safety of such books. There appears to be deliberate attempts by some officers to destroy incriminating documentary evidence against certain police officers.

We recommend that no defence of due obedience is to be entertained. As stated earlier, all the offences constituted by the Acts in question are already well-established offences under the law.

The Indemnity Act No. 60/88 is ex-post facto legislation. At the time of the commissions of the Acts in issue, all persons concerned were well aware that they were acting outside the law[6]. We recommend the reaffirmation of the principle of accountability in respect of past Acts as this is required for the good of society in the future. We recommend further that prosecutions not be confined to Junior officers alone[7].

An amnesty for witnesses, including perpetrators who confess to their own participation in human rights violation and give full evidence of the accompanying circumstances, is recommended. We also recommend that the Human Rights Commission be directed by Your Excellency to set up machinery by way of a Special Committee of Eminent Persons to entertain and record evidence and to recommend an amnesty to such witnesses from within the structures who, within a stated period, confess to their own participation in the violation of the human right at issue and give full evidence in respect of the whole incident including orders received, planning, etc. The provisions of the South African Truth Commission may be considered a model. We consider that this would quite properly be considered to come within the Human Rights Commission’s duty to advice. The reports of all Commissions which had dealt with disappearances should be made available to the Human Rights Commission and to the Special Committee set up for this purpose[8].

(viii) The Position of Alleged Individual Perpetrators while they are under Investigation

Such persons should be transferred out of the area of the alleged incidents under investigations. Interdiction, however, should not take place until a disciplinary inquiry or a criminal prosecution is instituted. However, if any alleged attempt is reported: to interfere with witnesses, threats to lawyers, threats to petitioners and witnesses, or to obstruct investigations, we recommend they should not only be the subject of a further inquiry, followed by further punishment, but such complaints should be a ground for interdiction as being evidence of unchanged attitude and conduct.

Imprisonment of individual perpetrators convicted by a Court of Law and consequently dismissals from service are possible already and should be the invariable practice with regard to this category of offenders. Dismissal from service, loss of promotion prospects, demotion, loss of salary increments, etc. are already possible consequences and should invariably follow from a finding of violation of departmental rules and procedures in accordance with the degree of gravity of the breach. Disciplinary action not only can, but must, follow.

The absence of disciplinary inquiry at Police Departmental level and Court Marshals in respect of errant members of the Security Forces will have as its inevitable outcome a sense of de facto impunity, which in turn will give rise to a sense of resentment in the forces whose accountability is reasserted. It is recommended that the allegations of unjust enrichment should be a subject of consideration at the trial, so as to obviate the need for a multiplicity of actions. The liability to restore to the complainants any unjust enrichment and the award of compensation should be part of a punishment, never a substitute.

The concept of chain-of-command responsibility has already been identified and its implications worked out in the Habeas Corpus Jurisdiction of the Court of Appeal. We recommend that the issue of the accountability of the chain-of-command structures should be referred to the Supreme Court under the Constitutional provisions[9], enabling Your Excellency to seek the opinion of the Supreme Court where,

A full bench of the Supreme Court should constitute the Division for this matter. As the Asian Human Rights Commission said in evidence before the Commission,

Where a person has been found responsible in a Court of Law for abduction or wrongful confinement, and where it transpired that the disappearance of the victim has ensued, we recommend that a right be recognised in the dependants of the disappeared person to institute civil proceedings for the recovery of losses suffered by reason of such disappearance. The right of the dependent should arise with no distinction whether the Court’s finding was in a Fundamental Rights case or a Habeas Corpus application.

As the Constitution presently stands, a dependant of an “involuntarily removed and disappeared” corpus would not be able to invoke the jurisdiction of the Supreme Court under the Fundamental Rights Chapter in respect of the violation of the fundamental rights of that disappeared person. We accordingly recommend amendments to Article 17 and 126 of the Constitution[10], enlarging the scope of locus standi in fundamental rights applications.

Specially in the case of the returned detainees, we commend that they be permitted to make applications, despite the lapse of time, in terms of Article 11 and/or Article 13 of the Constitution through the Legal Advisory Services Bureau proposed in Chapter IV. Although the time limits contemplated in Article 126 (2) of the Constitution have been interpreted liberally by the Supreme Court, a special response to cater for the problem of the returned detainees, by way of a Constitutional Amendment, is merited.

This Commission was struck by the volume of habeas corpus applications filed in respect of disappeared persons in the period under review. This fact goes to underline the necessity that this remedy be made procedurally speedy and uncomplicated, as well as inexpensive. We have dealt with this subject at length in the chapter on Preventive Measures[11].

The non-implementation, or a lack of speed of implementation, of the recommendations on legal proceedings by the three Disappearances Commissions[12] would understandably be a cause of anxiety to the human rights activist as well as to complainants themselves[13]. We adopt the recommendations of the earlier Commissions and stress the need for swift action in respect of those recommendations, and the need to create an office of an Independent Prosecutor[14], whether as a structurally distinct unit or as part of the Human Rights Commission.

[1] Vide paragraph (e) of the Mandate.

[2] See Annex IV for particulars of the prosecutions initiated by the Missing Persons’ Unit.

[3] This is a matter of concern to Human Rights activists.

[4] This matter has already been referred to in this chapter in the section on Conduct of Prosecutions.

[5] Under the present Act, the Human Rights Commission has no powers to prosecute and the law needs to be amended to give it such powers.

[6] Section 100 of Army Act No. 17 of 1994 reads as follows:

“Every person subject to military law who disobeys, in such manner as to show a willful defiance of authority, any lawful command given personally by his superior officer while such officer is performing his duties, whether such command is given orally or in writing or by signal, or otherwise, shall be guilty of a military offence …Every person subject to military law who disobeys any lawful command given by his superior officer shall be guilty of a military offence …”.

[7] Vide section on “Chain-of-Command Responsibility” and Section X on “Prosecutions” in Chapter VI.

[8] The law recognises confessions accomplices to crimes who while giving evidence for the prosecutions

are granted a pardon.

[9] Vide the Constitution of Sri Lanka.

[10] This is a part of the amendments in the proposed Constitutional proposals in the chapter on Fundamental Rights.

[11] Vide Chapter V section on Habeas Corpus Application.

[12] Which handed over their reports in September, 1997.

[13] This affects the credibility of appointing Commissions and such institutions by the Government.

[14] The Attorney-General reported to this Commission that a unit headed by a Senior State Counsel, called the Missing Persons Unit, has been established.