The need to Investigate Human Rights Violations

The great countries of the world are not those that have never experienced periods of darkness and barbarity, but rather those that have been able to examine such times without fear and overcome them. True democracies must be capable of examining their past; only in this way can they embrace the future…. True peace does not come from silence nor from ignorance, but from the clear and open recognition of our limits and errors.

The Facts Speak for Themselves : The Preliminary Report on Disappearances of the National Commissioner for the Protection of Human Rights in Honduras (NewYork, 1994, p. xi)

The practice of appointing Commissions of Inquiry to investigate mass-scale violations of human rights is of recent origin in Sri Lanka. The country in the last three decades has experienced two armed insurrections in the South and a continuing civil war in the North and the East. A large number of persons were killed during the 1971 JVP insurrection which lasted for about two months (April to June). However, the Criminal Justice Commission created in terms of Act No. 14 of 1972 tried and punished only the leaders of that insurrection (the Act itself received condemnation as being obnoxious to the established domestic and international norms of criminal jurisprudence). In so far as the acts of the State Agencies were concerned, exec t for the isolated case of Premawathie Manamperi (the festival queen of Kataragama) where the officers responsible for her murder were prosecuted and punished, no action was taken to investigate human rights abuses which took place during that short period of time. Also, no serious attempt has been made to study the conduct of security forces in a crisis situation.

Some may have thought that what happened in 1971 was an aberration in the history of this country until similar events overtook us in the North by the end of the 1970's when the youth took up arms against the state. According to the findings of Amnesty International, over 680 people had "disappeared" in custody in the North and the East between 1979 and mid-1987. However, no investigation or prosecution in respect of these has taken place up to date. During the Second JVP Insurrection beginning from mid-1987, the South also experienced a wave of "disappearances" and widespread human rights abuses. There were disappearances during the 1971 insurrection, but "disappearances" as a practice of dealing with opponents began in the late 1970’s, and continue to exist even up to date.

The leaders of the second insurrection were not given an opportunity to face a court trial but were killed under mysterious circumstances in state custody. Other suspects also met with a similar fate. It is true that the second insurrection lasted for about two and a half years creating enormous chaos in the country and subversives were also to be blamed for extra-judicial killings and human rights violations. However, even a perpetrator of heinous crimes is entitle to a fair procedure and trial dictated to by the rule of law as a value ingrained in individual freedom. No man should be condemned unless tried by regular court.

There was tremendous pressure, locally as well as internationally, to investigate the continuing human rights abuses in Sri Lanka. In consequence of the demands President Ranasinghe Premadasa appointed in January 1993 a Presidential Commission of Inquiry into the involuntary Removal of Persons. However, the mandate of that Commission covered only the period beginning from January 11, 1991. Therefore, the most critical stage of the second insurrection was not covered by that Commission. This is equally true in respect of incidents prior to l l.01.1991 associated with the war in the North-East.

During its election campaign, the People's Alliance made a pledge to the people promising speedy action on human rights abuses in the past. After its electoral victory at the parliamentary Elections in 1994, the new government set about to appoint three commissions to investigate involuntary removals or disappearances alleged to have taken place from 1988. However, President D. B. Wijetunga was not agreeable to appoint Commissions to cover the period prior to 1991 . According to a statement issued by the Presidential Secretariat (see, Daily News, 14.09.94) the reasons given, inter alia, were:

The years 1988, 1989 and 1990 were years during which the bullet reigned supreme over the ballot. There were near civil war conditions as well as total chaos and anarchy in the country…..The country was retrieved from the abyss of total destruction and anarchy by the armed forces and the police.

The President was also of the view that it will be difficult to secure reliable evidence regarding incidents that took place during this period of extreme turmoil, when there was a complete breakdown of law and order. The appointment of Commissions of Inquiry to inquire into the incidents that took place would only provide an opportunity for interested persons to maliciously implicate others on false evidence.

Further, the President is of the view that the Commissions of Inquiry act does not confer sufficient powers for inquiries of this nature. Such Commissions of Inquiry are basically of a fact-finding nature. Hence, it will not be possible to mete out justice to the persons affected.

When your Excellency assumed power as the President of the Republic of Sri Lanka, one of the first acts of your new government was to appoint three Commissions of Inquiry on disappearances. Our experience has shown that your decision to appoint these commissions to investigate incidents prior to 1991 stands validated. A few observations are pertinent at this point:

1. About 96% of the total complaints received by this Commission in respect of disappearances of persons belongs to the period not covered by the 1993 Presidential Commission of Inquiry (out of 8739 complaints, 8403 belong to the period from January 1, 1988 - January 11, 1991 ). We understand that the other two Commissions have also received a large number of complaints regarding disappearances during this period. This indicates that an opportunity had been denied to the family members of these victims for several years to get a hearing from the state. When the 1993 Presidential Commission was appointed, some of these families had written to that Commission to be told later that their complaints did not fall within the mandate of that Commission. During the "period of terror", most of these people did not even have and opportunity to lodge a complaint at a police station, a basic right that a citizen is entitled to. During the sittings of this Commission, we repeatedly heard the saying: "when e went to a police station, we were chased away like dogs." We are convinced that the appointment of the Commissions has fulfilled a fundamental task—that is to provide an opportunity for affected families to present their cases before a body officially appointed by the state, an important step towards national reconciliation.
2. A feature that struck us most forcefully in our inquiries was the utmost care that had been taken not only by individual perpetrators but also by the system itself to present these occurrences from being reflected in the official records of the country. Starting with the refusal of the local police to record complaints—which was a general feature in all three provinces, through the blatant use of vehicles without number plates, right up to the refusal it allow the bereaved to take possessions of corpses identified by them let alone obtaining death certificates in respect of them, there is clear evidence of a systematic attempt to keep these deaths/disappearances from being recorded in the official annals. A nation which takes pride in the fact of having a recorded history of thousands of years should not leave a dark patch of unrecorded events in the recent past.
3. As Your Excellency's Commissioners, We Should emphatically state that we have been at pains to give no opportunity to anybody to "maliciously implicate others on false evidence." Whenever such possibilities arose, we severely admonished and reprimanded the witnesses. However, except in a negligible number of cases, the demeanor and the general composure of the witnesses left us with no doubt that they were conscious of the obligation cast on them to assist the Commission to ascertain the fate that had befallen their loved ones. A statement made by a witness graphically illustrates the genuineness of their purpose. As one mother, with tears rolling down her cheeks, giving an account of how certain police officers (identified by her) came home and abducted her son, when asked as to how she could be so sure as to the identity of the perpetrators named by her, said:

Am I not giving evidence on oath? If I give the wrong name, wouldn’t I be exculpating the real culprits who took away my son.

4. We are mindful of tire limitations of the powers of our Commission which has been appointed under the Commissions of Inquiry Act, No. 17/1948. Regarding the penal aspects of our findings, we have made certain recommendations to be followed up in order to bring to book those who had been responsible for the extra-judicial treatment meted out to the disappeared persons.

Justice does not simply mean the punishment of offenders, and therefore, the penal aspect constitutes only a part of the problem. The question of how to "mete out justice to affected persons" should be looked at from a broader perspective. Being a fact-finding commission, we were able to go beyond the narrow confines of a judicial tribunal to address our minds to the other issues of long-term importance contemplated by the mandate. Disappeared persons have left thousands of dependents—old parents, spouses (some were pregnant at the time of the disappearance), and children—and their economic and emotional rehabilitation is of crucial importance both to their own families and to the stability of society. We have also made several recommendations to Your Excellency regarding measures to prevent the occurrence of such tragic incidents in the future, an issue contemplated by the mandate. These recommendations are our response to the problems revealed by the evidence before us.

5. We would like to mention here that even the time limit given in the mandate of our Commission (the period beginning from January 1, 1988) was insufficient as the second JVP insurrection in the South began in mid-1987. As a result, we were unable to investigate the incidents of disappearances which took place prior to January 1, 1988