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 1970s,
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:
- 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 taskthat 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.
- 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 complaintswhich
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.
- 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, wouldnt I be exculpating the real
culprits who took away my son.
- 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 dependentsold parents, spouses (some were
pregnant at the time of the disappearance), and childrenand
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.
- 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
Posted on 1999-01-01
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