Preventive Measures

The objectives of the recommendations set out below are –

The restoration of mutual confidence amongst citizens interest, and between citizens and the State.

The strengthening of the underpinnings of a just and democratic society

We are mindful that our recommendations should have relevance and be meaningful to citizens living in all parts of Sri Lanka.  Priority must be given at all times to avoidance of situations of disappearances arising.  The security forces and the police are necessary adjuncts of a State.  They are required for the protection of the state and the protection of the citizens of the State.

The average citizen looks to them for protection.  The tragedy of Sri Lanka lies in the distortion of relationships between the citizens and the security forces including police, which has resulted from the acts of both politicians and subversives.

The paragraphs following will consider the changes required, whether by way of changes to existing institutions and procedures or by way of the establishment of new institutions and procedures, for the realization of the objectives as rightly identified in the Southern Commission Report quoted above.

1.  Provisions relating to Arrest, Detention and Transfer

The following recommendations shall be applicable to all arrests, detention and transfers, irrespective of whether they take place under the usual provisions of law or the extraordinary provisions under the Emergency Regulations and the Prevention of Terrorism Act : -

1. The Duty to Record Arrests, Detentions and Transfers:- All arrests, detention and transfers must be recorded, in the books of the arresting authority immediately with the event.

2. The Duty to Inform :- The security forces including the police must inform the nearest Police station forthwith of all arrests made by them.  There shall be a concomitant duty on each police station to maintain a register of such notifications.  The information to be recorded at the police station must contain the following particulars :-

(i) Name of informant and other particulars of Rank, Regiment, and Army camp/Police station.

(ii)Time and date when the information was received.

(iii)Full particulars of the transaction informed i.e. place, time, purpose, etc.

(iv) Name and address of relatives as supplied by detainees.

Information to Divisional Secretary – Additionally there should be a duty cast on Officers-in-Charge of the Police Station or the Army Camp which was the arresting authority to submit to the Divisional Secretary weekly a list of persons arrested, detained or being transferred with particulars including such person’s permanent address.  There shall be concomitant duty on the Divisional Secretary to maintain a register of such information received which will be available to relations, lawyers or other persons/organizations with a legitimate interest in such information.

Duty to inform the Human Rights Commission

Her Excellency the President has already issued a directive to Heads of Armed

Forces and the Police Force.[i]

Section 6 (ii) of the Presidential Directive is as follows:-

“Every officer who makes an arrest or order of detention as the case may be, shall forthwith, and in any case not later than forty eight hours from the time of such arrest or detention, inform the HRC or any person specially authorized by the HRC, of such arrest or detention as the case may be, and the place at which the person so arrested or detained is being held in custody or detention,”

However, the penalty for non-compliance with this directive is unclear and statistics of compliance are unavailable.  This Commission accordingly recommends that the penalty for non-compliance should be clearly specified and that it should cover Chain-of-Command Responsibility, in respect of non-compliance and that the IGP be required to compile and make available to the Human Rights Commission statistics of compliance.

3. The Duty to produce before the Magistrate within 24 hours: - The requirement that all persons taken into custody be produced before the Magistrate within 24 hours, which was a long-standing salutary feature of law, was rendered inoperative during this period concerned in respect of the many persons in detention under Emergency Regulations and the prevention of examined by the Supreme Court in the exercise of its fundamental rights jurisdiction.  The 24-houra rule should be re-introduced without delay. Additionally, the Magistrate must continue to be kept informed of any change in the place of custody, transfer out of the Magistrate’s jurisdiction, and release.

The Magistrates Court shall maintain a written record of such information, which will be available for perusal at the Magistrate’s Courts.

4. The duty to issue a Receipt of Arrest:- The arresting officer must give at the time of arrest to a family member or friend of the person arrested, a Receipt of Arrest.  This receipt must contain the name of the person arrested, date, place, officer arresting with rank and place of intended detention.  A copy of this Receipt of Arrest is to be given in writing to the detainee himself.

5.Detention

Place of Detention:- “I looked for him all over the country” was a familiar statement in the evidence of the many petitioners before the Commission. We welcome the fact that detention is required to be only at a place which is designated by the relevant authority to be “an authorized place[ii]” of detention.

It is recommended:[iii]

(i)That adequate publicity be given of the authorized places of detention[iv]:

(a) At a central regional office eg. The Government Agent’s office or the

Kachcheri.

(b) Through public display at the Magistrate’s Courts, the Divisional Secretary’s

offices and the Grama Niladharis offices concerned.

(ii) That the regulation should include the requirement of prompt handing-over to the custodial authorities:

(a) That members of armed forces hand over persons arrested by them to the officer-in-charge of the nearest Police Station; and

(b) Custody of the persons under arrest be handed over to the prison authorities as soon as possible and this be on a valid detention order.  The task of the prison authorities is detention, independent of any investigation process that may be involved.

(a) and (b) above shall apply equally to a change of place of detention.

(iii) The Magistrate be required to visit alleged places of detention brought to his notice.

[v]

6. Visits by Magistrate of places of detention.  This Commission recommended the Magistrate be required to visit all places of detention once a month.   A record of the Magistrate’s monthly visit and comments, if any, and of any special visit made by the Magistrate pursuant to his Habeas Corpus Jurisdiction as proposed in this report, must be maintained at the places of detention as a record available for perusal by lawyers, Court, and persons or organizations with legitimate interest in the information.[vi]

7. Conditions of Detention. The Prison Rules should apply, including the right to communicate with the detainee’s family and with legal counsel as stipulated in U.N. Standard Minimum Rules for the Treatment of Prisoners.

 It is recommended that :

(a) The Prison Rules are made applicable to the detention of persons under the Emergency Regulations, including the right of the detainee to communicate with the family with legal counsel as stipulated in UN Standard Minimum Rules for the Treatment of Prisoners.[vii]

(b) That the detainee be produced before the Magistrate within 24 hours of the arrest, even if it is necessary to be returned to police custody for investigation.[viii]. This system is prevalent in Japan today.[ix]

8. Release: -Release from detention must be –

(i) Through Courts; or

(ii) To the families

When release is to the family, a family member must sign the record of release. The Magistrate’s Court and the Divisional Secretary must be informed, including particulars of the person to whom the detainee was released.

ii. The effect of a failure to abide by rules regarding Arrest/Detention/Transfer “We checked everywhere, the Police, the Army, the ICRC, the Presidential mobile Secretariat” was another familiar statement before the Commission, while Presidential Directives specify clearly that every member of the armed forces and of the police force shall ensure that fundamental rights of the persons arrested or detained are respected and the present Emergency Regulations provide a procedure for dealing with a non-adherence of the Regulations, it is vital that the State itself is seen to be alert to the preservation of these rights by way of an institution of action in respect of alleged violators.

1.A Criminal Prosecution: - The failure or refusal on the part of the Police to record arrests, detentions and transfers by the police and security forces, and to record complaints of abductions if followed by an involuntary disappearance, should be declared a cognizable offense by Act of Parliament.  A criminal prosecution shall take place without delay.[x]

2.A right of Private Plaint – The failure to record arrests, detentions and transfers coupled with the refusal to record complaints of involuntary removals or disappearances as it happened in the period under review lie at the root of the phenomenon under consideration.  It is a frontal attack at this root hat requires attention.  We accordingly recommend that the failure or refusal per se to perform the rules envisaged  above be declared to be acts entailing penal consequences, with a right to file a private plaint in a virtual complainant, whether and individual or a representative institution, in the even of the police failing to institute proceedings.  The recognition of an institutions as having locus stand to institute proceedings may serve to translate into practical terms the concept of the community concern in respect of the failure on the part of state agencies  on whom public trust has been reposed.

3. A Disciplinary inquiry – A failure to abide by the Regulations without more should make the officer concerned subject to a disciplinary inquiry which shall be conducted by an inquiring officer from outside the service to which the alleged defaulter belongs. An absence of Disciplinary Inquiry for breaches of these Regulations was a feature of the era under consideration which. Regrettably. Continues and must be addressed. It is the duty of superior officers to control subordinates and ultimately create a culture of accountability in the security forces. If follows that superiors should themselves be subject to disciplinary  action for a non-performance of this Duty.

4. In-Service consequences of non-adherence to Regulations- That penalties of suspension, termination of the service, loss of promotional rights and other disciplinary measures should invariably ensue from a finding if the disciplinary inquiry that the officer has violated the Regulations, is the best corrective factor for the prevention of abuses.[xi]

5. Entry in Service Record- This is required for the success of any assertion of  the principle of accountability whether at the level of the individual or at the level of the Chain-of-Command. As at prese4nt, neither a finding of the Supreme Court that an Officer is in breach of the Fundamental rights of a citizen, nor a finding of responsibility against an officer in a Habeas Corpus application, is entered in his service Record. This, coupled with the absence of Disciplinary Inquires into alleged breaches of Regulation in this field, have resulted in several instances of promotions taking place without due attention being given to these incidents of proven abuse and breach of regulations. The resultant twin consequences are a disenchantment on the part of the general public in the institutions of the police and security forces (as opposed to the individual officer.) alongside the growth of a tendency on the part of the members of the police and security forces to view the attempted re-assertion of the principle of accountability as a political ploy of playing-to the masses.

In instances of judicial review of administrative action by the Supreme Court in complaints of transfer and non-promotion by Officers, the absence from Service Records of such crucially relevant particulars can well result in undue weightage accruing to the petitioner-officer’s allegation of political discrimination. Moreover, more than one instance has been brought to our attention of the Print Media, misled by alleged particulars given in a petitioner-officer’s Petition to Court, in its turn misleading the General Public.

We accordingly recommend-

(i) the Service Record of an Officer should include instances where the Supreme Court has found the Officer to be in breath of Fundamental Rights, and a finding of responsibility in Habeas Corpus Applications.

(ii) that the failure to abide by these regulations when proved shall be entered in the officer’s service record.

(iii) Speedy Action based on the findings of the Disappearances Commissions

There is an urgent need for speedy investigations based on the findings of the four Disappearances Commissions.  The dangers that lurk from a delay in the conduct of investigations is well illustrated by a recent decision of the Supreme Court where a Police officer’s transfer was stopped on an application by him that his transfer was a violation of a Fundamental Right.  He had submitted to Court that he had a good service record and that the transfer was mala fide. In fact two Commissions of Inquiry into Disappearances have made recommendations in the light of the evidence before them that this officer was responsible for several disappearances and had recommended legal action and disciplinary proceedings be initiated against him.  But this fact was not before the Supreme Court when it considered the Fundamental Rights application of the officer.  This would not have happened but for the delay in taking steps to prosecute this officer and take disciplinary action against him as recommended by the Disappearance Commissions.  If such action had been taken this police officer could not have pleaded that he had a clear record of service.

(iv) The Enlargement of the Efficacy of Writ of the Habeas Corpus

The need for speed of Response:- The writ of Habeas Corpus is a main plank in the prevention of disappearances from custody.  First and foremost is the requirement of speed of response.  The opportunity to invoke this jurisdiction no sooner a situation of unacknowledged custody arises, is the first requisite.

Enlargement of the Magistrate Court Jurisdiction in HCA matters:- Your commissioners recommend the enlargement of the jurisdiction of the Magistrate Court  to empower the Magistrate to receive the affidavits of the petitioner and his witness; to register the complaint; to entertain the petitioner’s application that the Magistrate visits the place of alleged unacknowledged detention; to forward to the High Court the affidavit and the notes of visit etc.  The existing jurisdiction to record evidence once a matter is referred to the Magistrate Court by the High Court, will continue, and the High Court shall continue to exercise jurisdiction in respect of the declaration of responsibility and compensation as at present.

A Special Division of the Magistrate’s Court Colombo:-  It was the increase of arrests and detentions under the Emergency Regulations during the period relevant to this Commission that saw the use of the writ of Habeas Corpus as a challenge to the use of powers under the Emergency Regulations.  A total of 2925 Habeas Corpus applications had been filed during the years 1988 to 1997.

The effectiveness of the remedy of Habeas Corpus became questionable however in view of the delay attendant on obtaining the relief.  A perusal of the break-up of the Habeas Corpus applications filed and pending.  (vide chart) shows that out of 2625 cases have been filed between 1988 and 1997.  Of those 272 have not been concluded as yet,  while most of the applications were disposed of after a lapse of over 5 years.   In most of the areas outside the Eastern Province the facility for Habeas Corpus Applications to be filed in the High Court was not availed of.  This facility made it easier for petitioners to have access to the Courts to locate abducted persons.  However, the Habeas Corpus applications received by the High Court of Batticaloa appears to have been dealt with more expeditiously, out of 49 filed between 1994 and 1997, 44 have already disposed of.

Particulars of Habeas Corpus Applications filed between 1988 and 1997

*These are complaints filed in the High Court of Batticaloa.

It is recommended that a Special Division of the Magistrate’s Court Colombo should be established in order to deal with the Habeas Corpus Applications pending in the Court of Appeal Since 1988.[xii]  Petitioners must feel they have had the attention of the Courts.  It is important that notices should go out anew to the petitioners from the Court of Appeal in respect of their applications.

The Consequences of an adverse finding on a Habeas Corpus Application: should not be confined to the payment of damages by the State alone, but should include disciplinary action against the individual officers responsible. Where individual officers and found responsible for such violations the following consequences should follow:-

(a)    The human rights record of the person responsible, be it a member of the armed forces of the police, should be taken into account in the consideration of promotions of such personnel.

(b) Such person who is under investigation for involvement in disappearances should be interdicted and suspended from active duty until inquiries are completed.

(c) In any case those found guilty should not benefit from indemnity legislation.

Problems of recovery of sums awarded by Court and arisen even after successfully completion of an application.  IN many cases the respondents had appealed against the order and had either died while the case was pending or left the Island before the conclusion of the appeal.  Consequently the applicants had not got the benefit of the awards.  It is therefore recommended that,

(a)    The respondent be required to deposit the sum awarded in Court pending appeal;

(b) The obligation to pay the award be available against the respondents assets and if he died, against his estate.

Legal Aid: The Remedy of Habeas Corpus should be made affordable to any citizen irrespective of his financial resources.  We therefore recommend that Legal Aid organizations providing their services to applicants for a writ of Habeas Corpus be made recipients of State grants.[xiii]

(v) Emergency Regulations

The expansion of the powers given under the Regulations to the Police and the Armed Forces accompanied by the reduction of the occasions and degree of scrutiny by the judicial system, assisted in crating an environment  within which the incidents reported to the Commission took place.  This Commission accordingly recommends the utilization of the powers under the state of emergency be minimized.

The Commission further recommends that the underlying principles to the Regulations made under emergency powers should be as follows: -

Scrutiny of Emergency Regulations: - This Commission recommends a mechanism be set up within Parliament entrusted with the specific task of the scrutiny of each Regulation before its monthly promulgation by Parliament, and that Human Rights Groups be given opportunity to make submissions in the course of the month to this structure.  Currently, whilst the extension of the Emergency itself is subjected to discussion by Parliament on a monthly basis and the Public Security Ordinance provides that parliament may revoke, amend of modify a regulation, a scrutiny of the Regulation rarely takes place 

Publicity to the content of Regulations:- The Regulations which should be worded in clear and unambiguous language and be drafted under the supervision of the Legal Draughtsman, should be given wide publicity through the media each month at the time of their renewal.[xiv]

Enlargement of the Magistrate’s Power in respect of Detention Orders: The Commission recommends that the Magistrate be empowered when inquiring into the extension of the Detention Order to require the Secretary to provide supplementary information regarding the Detention Order, for example information on the continuing necessity of detention.Strict observation of the pre-requisites for the Regulations to become operative:  The pre-requisites for the regulations to become operative are the pre-requisites, also, for the prevention or the limitation of disappearances and related abuses.  While the Supreme Court has repeatedly emphasized that the requirements laid down in the Regulations for their provisions to come into operations “were not intended for merely cosmetic purposes, but for the sake of fulfilling the basis obligation of the State to ensure the personal security and liberty of all persons [xv]”, a concerted and continuous effort of compliance is required on the part of all branches of the Security Forces and the Police, for the prevention of Disappearances and a resurgence of the conditions that predisposed Disappearances.

(vi) The re-assertion of the principle of Chain-of-Command Responsibility: The efficacy of the preventive measures considered here, whether of criminal liability, disciplinary inquiries, entry in service records etc, would  be set at nought without the re-assertion of the fundamental principle of the accountability of superiors, or “Chain-of-Command responsibility”.  It is very important that very clear directions are made available for the future, defining the accountability of Chain-of-Command structures. Officials with Chain-of-Command responsibility who order or tolerate “disappearance” by those under their command should incur themselves criminal liability invariably.[xvi]

(vii) The need to dismantle “Alternative Structures of Command” and the Prevention of their coming into existence.

This Commission finds that an alternative structure came into being in the Police during the relevant period, with Officers being promoted through political patronage.  The elimination of alternative structure of command is a prerequisite for prevention.  In this context we recommend that steps be taken without delay against miscreants identified by the Commissions or on complaints made in the ordinary course of investigation.  It follows that legal action will          ensue where warranted.

(vii)  The Elimination of the Possibility of the Maintenance of a “Private Army” at State expense

The maintenance of a considerable number of armed personnel as security guards etc. of politicians at state expense, was a feature of the period under consideration, which requires to be dismantled immediately.  Persons selected by the politicians were given the rank and emoluments of Army Personnel. They were paid by the Army., armed by the Army, but not controlled by the army though nominally employed in the Army’s function of the protection of society from its enemies.  These “soldiers” saw their role rather in the sphere of moving against personal enemies, acting for personal benefit or moving against the opponent of the politicians concerned.  The security of public figures should be provided by a special security coordination Division of the Police.  Officers attached to this division should be subjected to the command and supervision of superior officers in the service and be subject to periodical transfer.

(ix)  A Police Lay-Visitors’ Panel each Police Area

It is necessary to re-establish community-based forces and procedures to which the citizens can turn when faced with the possible misuse of police powers i.e. State power.  Such community-based structures have an invaluable part to play in the areas both of monitoring and of preventing the misuse of powers. 

To serve this function we recommend a Penal of Lay-Visitors from each Police station area, with powers to speak to detainees, to check conditions of detention, to check records of police station in respect of detention, to liaise in the presentation of complaints to the police station, to liaise with the SSP/DIG of the area, to accompany to the police station when requested to do so, to make complaints themselves in a representative capacity, inclusive of impending problems, the coordination at local level with the Human Rights Commission could be an aspect of their work with importance for the restoration of Law and Order nationally.

(x)  A Citizens’ Advisory Bureau:

A System of Citizens Advisory Bureaus located in the vicinity of every Divisional Secretariat would be a valuable aid to the whole community for advice on various matters.  In the context of disappearances specifically such a system is required for the assistance of bereaved persons on where to go and what to do to obtain the requisite assistance.[xvii]

(xi)Dissemination of the Reports of the Disappearances Commissions:

Wide publicity should be given to all the Reports of the Commissions of Inquiry into Disappearances, with their contents translated into Sinhala and Tamil. There has already been a delay in publishing the earlier Reports in Sinhala and Tamil.  The absence of an adequate number of copies of these Reports and the absence of translations in Sinhala and Tamil defeat the purpose of appointing fact finding Commissions.  The people of the Country must have access to the findings of these Commissions.  These Reports form the nucleus of a Historical Memory of this ear in Sri Lnka.  The translations should be made available to all school libraries and reading rooms in Community Centres, islandwide, at State Cost.  The need to create a culture of respect for Human Rights requires that text books on both History and Social Studies should include the findings of these commissions.

(xii)  The Manifestation of the requisite Political will

The three Commissions on Disappearances appointed in November 1994 and the appointment of this Commission in June 1998 with islandwide jurisdiction, was an important manifestation of the Political will to come to grips with the problems which the Commissions have found to exist and the provision of the necessary infrastructure to enable the four Commissions between them to give attention to every single petitioner  to them, evidenced the continuity of this intention.

This Country’s immediate past history of non-prosecution of abuses of human rights despite the criminal nature of such acts under the law of that time, makes clear that the several prosecutions that have now commenced would not have been possible without the political will that the principle of accountability should prevail in respect of human rights abuses.  That these prosecutions are taking place irrespective of the date of abuse, and in a period of a confrontation with an armed group, is a uniquely encouraging manifestation of the requisite political will, which must continue to be reinforced.

The establishment, concurrently, of a Human Rights Commission by legislative enactment addresses the need for a structure with power to monitor situations of possible abuse in the present and in the future –

“For the purpose of discharging its functions the Commission may exercise any or all of the following powers:-

(a)    investigate, any infringement or imminent infringement of fundamental rights in accordance with the succeeding provisions of this Act;

(b) appoint such number of sub-committees at Provincial level, as it considers necessary to exercise such powers of the Commission as may be delegated to them by the Commission, under this Act;

(c) intervene in any proceedings relating to the infringement or imminent infringement of fundamental rights, pending before any court, with the permission of such court;

(d) monitor the welfare of persons detained either by a judicial order or otherwise, by regular inspection of their places of detention, and to make such recommendations as may be necessary for improving their conditions of detention”;

The fact that this enactment was passed by Parliament without division is a good augury for the future, as is the appointment of Commissioners who between them, represent all ethnic, religious and cultural diversities of Sri Lanka.

The vigorous enlistment of civil society  which is envisaged by the provisions in the enabling Act for the use of Mediators by the Human Rights Commission for the resolution of disputes, is an indicator of the political will, that civil society should be a co-partner with the State in the restoration of normalcy to our beleaguered land.