PROCEEDINGS REGARDING THOSE RESPONSIBLE
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.”
terms of reference of the Commission requires the Commission to inquire into and
legal proceedings that can be taken against the persons held to be responsible
for involuntary removals and disappearances during the period under 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
This chapter will
therefore deal with criminal proceedings starting with the investigation by the
police which must follow.
Conduct of Investigation
by the Police
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
recommended that the DIU be well equipped and provided with all logistical
Conduct of Prosecutions
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 1st January, 2000, this unit had
initiated 213 prosecutions in the High Court and 79 non-summary inquiries in
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.
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.
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.
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.
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
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.
Commission recommends that an office of an independent Human Rights Prosecutor
be created by specific legislation,
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.
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
(iv) Procedural Fairness
Principles of procedural fairness, which include the principles of “audi alteram
pertem” and the right to legal representation, should always be applicable.
Access to State Records
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.
Non-availability of a Defence of Due Obedience
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.
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.
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.
(vii) Amnesty for Witnesses
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
The Position of Alleged Individual Perpetrators while they are under
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.
Punishment of Individual Perpetrators
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.
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.
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
enabling Your Excellency to seek the opinion of the Supreme Court where,
“It appears to the President of the Republic that a
question of law or fact has arisen or is likely to arise which is of such
nature of such public importance that is expedient
to obtain the opinion of the Supreme Court.”
bench of the Supreme Court should constitute the Division for this matter. As
the Asian Human Rights Commission said in evidence before the Commission,
disappearances had taken place in a particular area, the ASP in charge, even
if he had no direct hand in such disappearances, should be made liable for the
action of his subordinates. The liability of the officers-in-charge of an
area cannot be treated lightly.”
The Right to Civil
Proceedings where there is a Court Finding
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.
Institution of Applications for Fundamental Rights Violation
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,
enlarging the scope of locus standi in fundamental rights applications.
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.
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.
non-implementation, or a lack of speed of implementation, of the recommendations
on legal proceedings by the three Disappearances Commissions
would understandably be a cause of anxiety to the human rights activist as well
as to complainants themselves.
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,
whether as a structurally distinct unit or as part of the Human Rights
Vide paragraph (e) of the Mandate.
See Annex IV for particulars of the prosecutions
initiated by the Missing Persons’ Unit.
This is a matter of concern to Human Rights activists.
This matter has already been referred to in this chapter in the section
on Conduct of Prosecutions.
the present Act, the Human Rights Commission has no powers to prosecute and
the law needs to be amended to give it such powers.
Section 100 of Army Act No. 17 of 1994 reads as follows:
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 …”.
section on “Chain-of-Command Responsibility” and Section X on “Prosecutions”
in Chapter VI.
The law recognises confessions accomplices to crimes who while giving
evidence for the prosecutions
are granted a pardon.
Vide the Constitution of Sri Lanka.
This is a part of the amendments in the proposed Constitutional proposals
in the chapter on Fundamental Rights.
Vide Chapter V section on Habeas Corpus Application.
Which handed over their reports in September, 1997.
This affects the credibility of appointing Commissions and such
institutions by the Government.
The Attorney-General reported to this Commission that a unit headed by a
Senior State Counsel, called the Missing Persons Unit, has been established.
Posted on 2003-06-15