Chapter VI

We are thus empowered to acknowledge the customary “Extended Family System” of Sri Lanka. This accords with the obligations under international customary law requiring attention to be given to the customs of the country in the ascertainment of who are the successors of a particular victim.[ii]

We endorse the extensive recommendations on relief made by the three earlier Presidential Commissions on Inquiry.(An updated compendium of these recommendations follow.)

Over and above those recommendations we bring to your notice the following areas requiring attention and urgent implementation.

We recommend a TRUST for the rehabilitation of persons affected by disappearances be set up under a Board of Trustees comprised of persons who have contributed in the field of human rights. The Inland Revenue Law should be amended so as to remove the ceiling on contributions to charity which qualify for tax exemption in respect of contributions to this Trust, so that the customary practice among our people of donating alms in memory of the departed may be tapped, and a national culture created considering those affected by this national calamity in terms of kinship. Additionally the international community including non-governmental organizations, should be invited to contribute to the various projects formulated under the Trust, such as gender-based vocational training schemes designed to benefit female-headed families, schemes of foster-parenting which feature the fostering of bonds of relationship in addition to financial contributions, and schemes of a similar nature set-up to meet the needs already identified by the Commissions. We recommend that the schemes recommended should benefit victims in all parts of the country and not be restricted to any particular areas. The implementation of the relief should be through local structures including non-governmental organizations.

The representative of the Tamil United Liberation Front Dr Neelan Thiruchelvam M.P. who has since been assassinated by subversives, whilst giving evidence before this Commission asked for the establishment of such a fund, emphasizing its symbolic significance as an urgent national need for which priority should be given for the sake of national reconciliation.

We recommend the construction of a Wall of reconciliation on which are inscribed the names of all the Disappeared and the Dead, irrespective of whether they are victims of subversive acts or the acts of the security forces. We consider this would be a lasting monument to the efforts of Sri Lanka under the leadership of Your Excellency to reconstruct our society on the basis of principles of democracy and mutual trust. We came across many instances of memorials, which have been set up already in various parts of the country. The Maaveerar cemeteries in the North, the Shrine of the Innocents at Sri Jayawardenapura, the Memorial to the Disappeared Students at Embilipitiya, the memorial to the Disappeared at Raddolugama, are some of these. While they all evidence the emotion unabated to this day on the part of the various sections of the community, a National Monument encompassing All the victims would be a Lasting Monument with significance both to the living and to the future generations. The Sri Lankan State under the leadership of Your Excellency is already engaged in a national acknowledgement of the wrong done should be by the whole of the Sri Lankan community and that officials of every level of the State administration are made aware of the importance placed by Your Excellency on the gigantic task Sri Lanka is currently engaged in.

A FURTHER COMMITMENT IS REQUIRED FROM ALL THE COMMUNITIES OF SRI LANKA TO PROVIDE THE FINANCIAL WHEREWITHAL to enable the Implementation of recommendations of four Commissions, including our own, in respect of the unmet needs of the affected families. Accordingly we recommend that a tax of 2% be collected by budgetary provision on the lines of the Defence Levy. This is required, additionally, to enable a through implementation of the recommendations, to avert the youth of the affected families constituting a power-keg waiting to be ignited in yet another insurrection.

PROSECUTIONS:- The earlier three Disappearances Commissions have already reported to Your Excellency the importance of initiating prosecutions against those responsible and that it should be at the highest levels including “not only the minnows but also the sharks.”

This Commission must underline the utmost necessity of this, if this exercise of the appointment on commissions of Disappearances is to really contribute to the restoration of the democratic principles of respect for law and order, and mutual trust in relationships, whether between State and citizens or between citizens.

The investigations and prosecutions of officers responsible for the disappearances of the Embilipitiya students is one instance of prosecution at the requisite level. We adopt the observations of the Special Report, which says that Sri Lankan Army is poised to enter the Jaffna Peninsula and that it is all the more reason to ensure discipline in the army.

International Women’s Day in the first year of this new century saw the Mother’s Front of the Disappeared Persons has been agitating on the urging the President to punish perpetrators of the 88-89 reign of terror, regardless of their social or political status. Such persons are now free and are enjoying their privileges of office and even getting promotion they pointed out, and called for action against such persons without delay.

While our observations above underline the need for prosecutions of the general objective terms of the restoration of law and order in society, the action of the Mothers front underlines the continuous cry for justice above all other considerations by the families concerned.

We must emphasize the NEED TO TRAIN MEDIA PERSONNEL including proprietors to an awareness of the problems of the dependants of the disappeared persons. Proprietors should be encouraged to promulgate this scheme of training. In view of the sharp political divisions which were a feature during the ear in which these incidents occurred. It is important that journalists of all media channels be included in this training scheme.

Compendium of Recommendations endorsed by all 4 Disappearances Commissions updated

6. Employment, Emoluments (such as Unclaimed Salaries), E.P.F. Gratuity Payments lying to the Credit of Disappeared Persons.

12. A Stipend to Maintain mentally or Physically Handicapped Members of Devastated Families

18. Relief Through legal Aid Commission and Proposed legal Advisory Services Bureau

In the ensuing paragraphs we recommend relief measures based on specific problems faced by members of affected families during the period under consideration which will be referable to one or more of the broad subject headings enumerated above.

Compensation is now being paid to all affected families without reference to and non conditional upon a police report that the loss suffered was as a result of Terrorist act.

The following shortcomings, even in regard to the present mode of payment of compensation need to be rectified and instances of continuing discrimination done away with.

A departure on the part of some Divisional Secretaries was brought to the notice of this Commission in that they had refused to pay compensation where a report of the Police had indicated that the victim was either “suspected to be a Terrorist” or was “A terrorist who was wanted by the Police”. We recommend that all Divisional Secretaries be informed that the Basic Compensation must be paid to all affected Families irrespective of any categorization as Terrorist or not.

Further, in the Particular instance where the disappeared person was an employee in the Public sector we found that the Ministry of Public Administration circular 59/89 (1) based on the Cabinet decision of 22.11.1989 still continues to operate to exclude affected families from eligibility to compensation payments by the government. In response to this Commission’s request for Clarification, the Ministry of Public Administration has stated that compensation referred to in the said circular could be denied only if a Court of law had declared such a person to be a terrorist. We recommend that all Divisional Secretaries be instructed in writing in this regard. However, this ruling is still morally incorrect in that it amounts to a segregation of certain families of victims as “Terrorist by relationship”. We recommend that this discrimination should cease to operate, forthwith.

This commission recommends that a finding of a Disappearances Commission be taken as adequate proof in respect of Widows and Orphans pension schemes and other benefits.

The scheme of payment though implemented fairly consistently in certain districts, has not being effective in other districts. We recommend that a realistic time frame be fixed with the objective of completing the payment of such compensation. This should apply to all the districts, equitably, as a matter of policy and priority. We have found discrepancies in the operations of this scheme. It should be noted that the overwhelming majority of the disappeared persons families belong to low-income groups. It has also become an established practice in international law that the State takes the responsibility for the breakdown of law and order in a given situation by compensating affected families.

We consider that that the payment of fair and adequate compensation is an urgent necessity. This will be a tremendous financial burden on the Government in the present context but it is the appropriate method of acknowledgement of the principle that the entire society should share the responsibility of helping out these affected families.[vi]

We attach the utmost importance to the initiation of such a scheme and regret that there is no such scheme in operation already. Over 10 years has elapsed since the relevant incidents. A similar scheme is in operation for children of missing soldiers.

Vocational Training to the needy members of the affected families is a vital need that requires priority attention. We recommend a comprehensive scheme of vocational training be formulated as government policy. Many of these incidents occurred over 10 years ago and the children are now ten years older. These families are now female-headed, and these women heads of Households are vulnerable to exploitation. Lacking the skills required for gainful employments. Upgrading the skills of women as part and parcel of achieving Gender Equality is an issue currently receiving attention worldwide. The need identified here is over and above even that generalized prioritization. The stipulated terms of a recent grant to UNISEF by the Netherlands Government for use in programs in the North and East is a good example of attention being rightly paid to this need:-

“In addition to helping rehabilitate health-care and education, the Netherlands Grant will be used to strengthen ongoing UNICEF assisted programmes related to reducing and overcoming the psycho-social stress of Children, protecting orphans and single-parent families protecting widows and children from exploitation.”

During the course of its inquiries this Commission had to listen to the traumatic and agonizing experiences the members of the affected families had to undergo in dealing with the fact of disappearance. Any welfare scheme should take into consideration not only their economic problems but also their emotional rehabilitation.

In the recent past Sri Lanka has undergone two insurrections in the South and three Eelam wars in the North, with disastrous consequences on the social psyche of the nation. People take it for granted that our culture is capable of absorbing all these shocks. Culture has its own limits. We saw how emotionally shattered people were when they came before the Commission. These people urgently need emotional help.

We recommend that, the Educational Services and Health Services plan out and put into operation a scheme for the sensitization of all their personnel to the need to be alert to this aspect; and the setting up of an institution to provide counseling services.[vii] We also see the need to mobilize the community at large to be aware of the emotional aspects of this phenomenon and be a participant in the healing of emotional wounds. The media too has an important part to play in this regard. IN recognition of the important role NGOs must take in formulating schemes to address the needs of emotional rehabilitation of affected persons, we recommend both financial assistance to and the co-ordination of, the efforts of NGOs operating both at national and grass-root levels.[viii]

There were several instances where the benefits of a life insurance police was denied on the basis that the policy holder had defaulted the payment of the premium, when in fact the default was due to disappearance rather than willful neglect. At other times there was evidence of the person being in unlawful custody at the time the premium fell due, and the disappearance occurred long thereafter. Insurance companies had treated such instances as default and acted accordingly to deny liability. It is recommended that where there is evidence of unlawful detention or disappearance the insurance companies be directed to take cognizance of this fact and not to treat the policy as having lapsed but to give the benefit of the policy to the heirs of the disappeared person.

We also recommend that where findings of a disappearance Commission or a death certificate is issued and where the death or disappearance is prior to due date of premium, the insurance policy be treated as having not lapsed.

As a matter of grave urgency we recommend that those who have already been dispossessed of the lands they had been in occupation directly or indirectly consequent upon the enforced disappearance of their bread winner be given back those or other alternative lands after due inquiry by the Divisional Secretary of the Administrative Division within which the land in question is located. We would like to mention here that, some Divisional Secretaries have already satisfied this compelling need by responding to our request and making arrangements for such families to secure permits or deeds in respect of State lands for their occupation.

The Administrative procedures for the issue of death certificates on the basis of disappearances were set up originally by the Registration of Deaths Act, NO.2 of 1995. Certain shortcomings of such procedures were corrected by Act No.58 of 1998 Consequently –

applicants who are now not living in their earlier places of residence, such as displaced persons, could apply direct to the Registrar General or the District Registrar of the last place of residence.

the ground for issue of a death certificate is the expiration of one year after disappearance and the belief of the next of kin that he is no longer alive. Section 2 reads as follows:-

“Where any person is reported missing and presumed to be dead as he has not been heard of for a period exceeding one year by those who would naturally have heard of him had he been alive, a next of kin of such person to be dead may apply in the manner hereinafter provided to register the death of such person”

It should be noted that the applicant has to be a next of kin. The burden thereafter is on the Registrar General to get the others to move to issue the death certificate.

- The Registrar General or the District Registrar has the responsibility of decision. “The application together with the evidence in support of the application and the objections, if any, and the evidence in support of such objections, and after such inquiry as he may deem necessary, if satisfied as to the truth of the matters stated in the application, allow such application.”[ix]

- Where a Presidential Commission of Inquiry has issued a certificate of a finding of disappearance it empowers the District Registrar to forward the application for a death certificate to the Registrar General and the Registrar General to issue a Certificate of Death without further inquiry.

- Independent of the above procedure and as a part of the Civil Law, procedures are available to get the Death Certificate by an order of Court. However, this is a lengthy procedure.

There were cases where the corpus had disappeared or removed from his work place or place of temporary residence. In such cases affidavits from the employer of the corpus or the hostel keeper of the corpus supporting the application for a death certificate would be evidence of disappearance.

The special problems faced by the displaced persons, were brought to the notice of this Commission. The Muslims of the North who are living in other parts of the country after displacement in 1990 are a particular instance. There had been several

complaints of disappearances of Muslims in the process of displacement. Such disappearances had occurred either immediately before or during the forced exodus from the North. These Muslims are not in a position to go to the North to get the relevant certificate from the Grama Sevaka of the area in which the corpus resided prior to disappearance as required by Section 4. Complainants to the earlier three Disappearance Commissions could of course obtain a certificate of the finding of the Commission under Section 9 of the Act and apply direct to the Registrar General for the death certificate. But many who had not complained to such Commission cannot get the benefit of Section 9. Hence there is a need for a suitable amendment to the Act to enable such category of persons to get the Death Certificates from the Divisional Secretaries of the area in which they now live or the Registrar General direct.

Finally, in this context, it is recommended that adequate publicity be given to the said Act (with the proposed amendments, if enacted into law) through the Media, Grama Niladharies and display at Post and Sub-Post Offices or other conspicuous places in addition to the setting up of the Citizen Advisory Services Unit recommended earlier. Such a course of action to address the problem of the “illiterate applicants”. It should be noted that Presidential Commissions are a temporary institution.

It has been observed by this Commission that many of the complainants did not know anything about the steps they had to take to obtain relief. Many did not even know the need to register the disappearance as a death. In the circumstances this Commission strongly feels the need for the establishment of an Advisory Services Bureau with a branch in every Divisional Secretary’s office to advise the people in general and the families of disappeared persons in particular, of the procedures they have to follow to get relief or such other redress from state agencies. Such a Citizens Advisory Bureau was set up in London in 1939 to assist the families of the soldiers who have been in the war front of the Second World War. This Bureau assisted the citizens in matters of Social Security, debt, consumer credit, employment, housing, legal, relationships, tax immigration, asylum and others. The whole concept behind the Bureau was to give free unbiased quality advise to its clients and improve their Awareness of social needs. It is recommended that the Advisory Bureau suggested by this Commission be based on these lines.

The Divisional Secretary has the responsibility of helping the affected persons in his Division. He therefore occupies a key position in identifying the affected persons in need of the services of the Advisory Bureau. Therefore we recommend that the Divisional Secretary be entrusted the responsibility of identifying and reporting to the Ministry of Public Administration and the Ministry of Rehabilitation the steps taken by way of reference to the existing schemes of vocational training operated by relevant Ministry or NGO. The Divisional Secretary should also report back« to the President for the attention of the Inter Ministerial Committee on Implementation of Reports of Disappearance Commissions.

Circulars issued by the Ministry of Public Administration and Ministry of Relief and Reconstruction between 1985 and 1990 deal with matters pertaining to relief to disappeared State employees. Briefly where the a disappeared is a State or semi State employee, either casual, temporary or permanent, the next of kin is entitled to compensation up to Rs 150,000/- and salary he would have drawn if he was alive, until the age of 55 years.[1]

There had been a few instances of employees of State Banks disappearing. The Banks took up the position that public administration Circulars regarding payment of compensation to disappeared State officer’s do not apply to Bank Employees. They stated that by circular No.EA 02/TC/CT/01 of 21.04.1992 the secretary to the Treasury has exempted the Bank of Ceylon and the Peoples Bank from the application of the provisions ofart II of the Finance Act NO.38 of 1971, Public Administration and treasury Circulars. This has been conveyed to this Commission by a letter issued by the Bank of Ceylon on 04.01.1999. On bringing this to the notice of the Public Administration Ministry and seeking confirmation the Director of Establishment of the Public Administration Ministry has notified this Commission by his letter No.1/IV/2/3/9(12) of 04.05.1999 that Public administration Advisory Circulars are applicable to bank employees as well. Thus it could be seen that there is some confusion on the entitlements of the next of kind of bank employees.

Another matter that has been given different interpretations is the status of the employee in the State or semi State Service. There had been instances where compensation had been denied either because the corpus was a casual employee or because such person was an employee of a semi Government body such as a co-operative society or State Plantation. This Commission had to write to such institutions together with the relevant circulars to enable the families to get redress.

A committee has been appointed to monitor the progress of follow up action taken on the basis of recommendations of Disappearances Commission.

We must emphasize the imperative need to address the problems faced by members of the affected families. Even when there is a national calamity such as floods or some similar occurrence the State steps in to repair the loss suffered by the victims. It is with the awareness that these people should not be forgotten merely as victims of an unfortunate period that we have made the foregoing recommendations. The fact that these recommendations are acted upon as part of a reparation package to those affected families will help in the process of national healing and reconciliation

[i] Vide paragraph (g) of the Warrant

[ii] See Aloebboetoe et al v. Suriname, Inter-American Court of Human Rights series Decision and Judgment No. 15 of September 1993.

[iii] vide Annex VII – list of complainants whose children or siblings scholarship have been recommended

[iv] vide Annex VIII – list of complainants to whom vocational training is recommended

[v] vide Annex IX – list of complainants to whom counseling is recommended

[vi]Article 19 of the UN Declaration of the Protection of all persons from Enforced Disappearances provides that, victims of acts of enforced disappearance and their family shall obtain redress and shall have the right to adequate compensation, including the means for as complete a rehabilitation as possible. In the events of the death of the victim as a result of an act of enforced disappearances their dependents shall also be entitled to compensation.

[vii] Training for counseling has commenced under the Ministry of National Integration - Vide Annex L for List of Persons to whom counseling is Recommended.

[viii] Such as Youth Organisations, Fishermen’s Co-operatives

[ix]Vide section 7(1) of Act, NO.58 of 1998

[x]Vide Annex XIV(a) & (b) on Public Administration Circular and problems.