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Chapter XII

 

SUMMARY OF RECOMMENDATIONS

A SUMMARY of the recommendations of this Commission, Chapter by Chapter is given below:

1. In chapter II – “Present Whereabouts of Disappeared Persons”, in the section on Returned Detainees, it is recommended that –

1. further investigations of the complaints of returned detainees be done as a matter of urgency.

2. the evidence of returned detainees on the events they witnessed while in custody be recorded.

3. the Human Rights commission be directed to deal with instances of torture of returned detainees inquired into by this Commission.

II.  In Chapter III – “Responsibility for the Disappearance” it is recommended that –

1. further investigations into the complaints of returned detainees be done as a matter of urgency.

2. the investigations into the persons against whom the Commission has found credible material indicative of their responsibility for disappearances be done by the Inspector General of Police under the overall supervision of the Attorney General.

3. the Attorney General to determine the appropriate legal proceedings to be taken against such persons.

4. the government of Sri Lanka to take up at the relevant International fora the issue of the need for the formulation and promulgation of an International instrument on the subject of the responsibility of Armed Groups.

5. the Police investigations be done in respect of the recommendations of all Presidential Commissions on Disappearances with regard to perpetrators of disappearances and not be done on a case by case basis.

6. the investigations be done in such a manner as to give the victim confidence in the impartiality of persons conducting such investigations.

III. Chapter IV – “Legal Proceedings against those Responsible”, in respect of those persons against whom credible material indicative of responsibility for causing disappearance have been found by this Commission, it is recommended that the following steps be taken-.

1. the Disappearances Investigations Unit established in the Criminal Investigation Department of the Police be well equipped and provided with all logistical support necessary for them to perform their duties of proceeding against those responsible, effectively.

2. the Human Rights Commission Act be amended to provide for an independent Human Rights Prosecutor to conduct prosecutions into complaint of human rights violations in general and disappearances in particular.

3. the Police records such as information Books, Diet Registers, Movement Registers and Medical Records be handed over to the Disappearance Investigation Unit of the CID to ensure the safety of such books.

4. no defence of due obedience to orders from superiors, be entertained.

5. the principal of accountability in respect of past acts be reaffirmed for the good of the society in future.

6. prosecutions be not confined to Junior Officers alone.

7. an amnesty be give to witnesses, including perpetrators who confess to participation in human rights violations and give evidence to the circumstances including the orders received, planning for, etc.

8. the Human Rights Commission be directed to set up a machinery by way of a Special Committee of Eminent Persons to entertain application for Amnesty, and record their evidence of human rights violations.

9. where investigations have commenced against alleged perpetrators, they be transferred out of the area of the alleged incidents under investigation.

10. interdiction from service of such alleged perpetrators to take place following the initiation of criminal and/or disciplinary proceedings.

11. if any perpetrator is alleged have attempted to interfere with a witness threatened lawyers, threatened the prosecutor, or obstructed investigations such action to be a subject of a further inquiry followed by further punishments and it should also be a ground for interdiction.

12. allegations of unjust enrichment be a subject of consideration at a trial against an alleged perpetrator so as to obviate the need for a multiplicity of actions.

13. a right of the dependents of a disappeared person to institute civil proceedings for the recovery of losses suffered by reason of disappearance, be recognized, against those found responsible for abduction or wrongful confinement by a Court of Law, where subsequent to such act the disappearance of the victim had ensued.

14. article 17 and 26 of the Constitution be amended enlarging the scope of locus stand  in fundamental rights applications.

15. returned detainees be permitted to make applications, despite the lapse of time, in terms of Article 11 and Article 13 of the Constitution, through the Legal Advisory (Assistance) Service Bureau.

IV. In Chapter V – “Preventive Measures”, It is recommended that –

1. any member of the Armed Forces and the Police Force who makes an arrest or orders a detention must inform the Human rights Commission of such arrest of detention within forty eight hours.

2. a Penalty for non-compliance, including the Chain of Command responsibility for such non compliance, be specified.

3. inspector General of Police to be required to provide monthly statistics of compliance.

4. the duty to produce before the magistrate any person arrested within 24 hours, be made applicable even during the operation of Emergency Regulations.

5. the arresting officer to give a receipt of arrest including the name of the person arrested, date, place and the name and rank of officer arresting to a family member of friend, at the time of arrest.

6. detention to be only at an authorized place of detention.

7. adequate publicity be given to the authorized places of detention.

8. an arrested person to be promptly handed over to custodial authorities, viz the officer in charge of a police station or the prison authorities.

9. a change of the place of detention to be promptly notified to the family of the arrested person.

10. magistrate to visit places of detention every month.

11. the prison rules be made applicable to all detainees.

12. release from detention to be through Courts or to families.

13. the State itself to be seen to be alert to the preservation of the rights of the detainees by way of institution of action against violators.

14.the failure or refusal by the Police to record an arrest, detention and transfer or to record complaints of abduction.  If followed by an involuntary disappearance, be declared a cognizable offence.

15. the failure or refusal per se to comply with the rules be declared acts entailing penal consequences with a right to file a private plaint by the virtual complainant, in the event of the Police failing to institute legal proceedings.

16. disciplinary proceedings be conducted against those officers for breaches of Regulations, with the superiors themselves being made liable for no performance of their duties in this regard

17. a finding at a disciplinary inquiry of the violation of the rights of a detainee be made liable for suspension or termination from service, loss of promotions.

18. the Service Records of officers to include instances where the Supreme Court has found an officer to have breached fundamental rights of persons and a finding of responsibility in a Habeas Corpus Petition.

19. speedy action be taken on findings of disappearances Commission

20. the jurisdiction of Magistrates be enlarged to enable them to receive petitions and affidavits in Habeas Corpus Application, and to visit alleged places of detention, while the High Court to continue with jurisdiction to declare responsibility and compensation.

21.special Division of Magistrate Court in Colombo to be designated to clear backlog of Habeas Corpus Applications.

22. adverse findings in a Habeas Corpus petitions not to be confined to payment of damages by the State alone but to include disciplinary action against the officers responsible.

23. respondents in Habeas Corpus Petitions to deposit the sum awarded, in Court, pending appeal and the obligation to pay the award be made available against  his assets and estate.

24. legal aid organizations providing their services to Habeas Corpus applicants be made recipients of State Grants.

25. the utilization of the powers under the Emergency Regulations be minimized.

26. parliament to scrutinize each Regulation before promulgation and Human rights Groups be given the opportunity to make submissions.

27. adequate publicity be given to the provisions of the Emergency Regulations.

28. magistrates be empowered to require the Defence Secretary to provide supplementary information when seeking an extension of a detention order.

29. officers with Chain –o- Command Responsibility who order or tolerate disappearances by those under their command to be made invariably criminally liable.

30. steps be taken without delay against miscreants identified by the Commission on Disappearances.

31. the possibility of the maintenance of a “Private Army” at State expense be eliminated.

32. a panel of Lay-Visitors be appointed in each Police area with powers to speak to detainees, check police records, etc. and to make complaints themselves to the Human Rights Commission.

33. wide publicity be given to the Reports of Commissions of Inquiry  into Disappearances, translations of Reports to be made available in Sinhala and Tamil.

34. civil society be vigorously enlisted as mediators by the Human Rights Commission in the resolutions of disputes as envisaged by the Human Rights Commission Act.

V. In Chapter VI – “Relief Measures to Affected Persons”, It is recommended that

1. the recommendations on relief made by earlier Presidential Commissions of Inquiry be endorsed.

2. A TRUST for the rehabilitation of persons affected by disappearances be set up under a Board of Trustees and the Inland Revenue Law be amended to remove the ceiling on contributions to charity to qualify for tax exemptions to facilitate contributions to this Trust.

3. the schemes of relief recommended to benefit affected families in all parts of the country without exception.

4. A WALL OF RECONCILIATION be constructed with the names of the disappeared persons as a monument to the Disappeared.

5. a tax of 2% be collected by budgetary provisions on the lines of the Defence Levy to enable implementation of the relief measures recommended.

6. the basic compensation to the affected families of disappeared persons, to be paid to all affected families irrespective of categorization as terrorist or not.

7. any denial of compensation to be only if a Court of Law has declared a disappeared person as a terrorist.  The Divisional Secretaries to be informed of this, though it is recommended that even such segregation should cease to operate forthwith.

8. the finding of a Disappearance Commission be taken as adequate proof for the grant of pensions or other benefits due to affected families of disappeared persons.

9. a realistic time frame be fixed to complete the payment of compensation to all those entitled in every District.

10. a scholarship programme be initiated for children of affected families on the lines of the scheme for children of missing soldiers.

11. the formulation of a comprehensive scheme of vocational training for needy members of affected families.

12. the Educational and Health Services to plan out and put into operation a scheme for the sensitization of all their personnel to the need to provide counseling services to members of affected families, with the financial assistance and co-ordination of Non Governmental Organizations.

13. 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.

14. 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.

15. publicity be given to the Registration of Deaths (Temporary Provisions) Act no.58 of 1998 through the media and Grama Niladharies.

16. an Advisory Services Bureau on the lines of the Citizen’s Advisory Services Bureau set up in London during the Second World War, be set up to assist dependents of disappeared persons in procedures they  have to follow to obtain relief etc.

17. the Divisional Secretaries be entrusted the responsibility of identifying and reporting to the Ministry of Public Administration and the Ministry of Rehabilitation, the kind of vocational training needed for affected families.

18. the recommendations be acted upon as part of a reparation package to those affected families to help in the process of national healing and reconciliation.

VI. In Chapter VII – “Alleged Disappearances not within the Mandate”, it is recommended that –

1. attention be aid to inquire into the complaints allegedly not reported to any Commission so far in respect of disappearances which have occurred after 1988.

2. the Human Rights Commission Act be amended to enable it to inquire into complaints remaining uninquired as these complaints do not fall within the mandate of this Commission, and any subsequent instances of this nature brought to their notice.

3. that each of the complaints not coming within the Mandate of this Commission be referred to Divisional Secretaries to verify with the Grama Niladharies whether the whereabouts of such person is still not known in his area. 

 

Manouri Muttetuwegama,

Chairman,

 

Hetti Gamage Dharmadasa                                                      Ponnuchamy Balavadivel,

             Member                                                                                   Member

                              Signed on this 23rd day of May, year 2000, at Colombo.

 

End Notes

Posted on 2003-06-15



remarks:3


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