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CHAPTER TWO - PRINCIPLES ADOPTED BY THE COMMISSION IN RELATION TO PROCEDURE AND TERMS OF THE MANDATE

RULINGS OF THE COMMISSION RELATING TO THE MANDATE

  1. Cases Falling Within Mandate
  2. Cases Falling Outside Mandate
  3. Suicide Resulting From Political Threats

A. Cases Falling Within Mandate

(a) Ex Facie Falling Within Mandate

  1. Involuntarily removed allegedly by agents of the State (Police, Army, etc.) of Para Military groups in collaboration with them or subversives or unknown persons and subsequently disappeared (in the sense, the present whereabouts of the corpus are unknown)
  2. Allegedly hold under detention in unauthorised Army Camps or Police Stations and subsequently disappeared (the present whereabouts of the corpus being unknown)

(b) Other Cases

This category of cases stemmed from the query raised in the course of our proceedings namely, whether killings fell within the terms of the Commission's Mandate.

This category of cases may be classified as follows:

  1. Involuntarily removed allegedly by agents of the State (Police,Army, etc,) or Para Military Groups in collaboration with them or Subversives or unknown persons or allegedly held under detention in unauthorised Army Camps or Police Stations and subsequently found killed (body identified by witnesses)
  2. Alleged agents of the State (Police, Army, etc.) or Para Military Groups in collaboration with them or Subversives or unknown persons invading the residence etc, of the corpus and killing corpus.

Our determination reflected in Category (b)(i) above was based on paragraph (a) of the Mandate read with the reasoning that it would be illogical to draw a distinction between a person who has disappeared after being involuntarily removed and a persons who was killed after being involuntarily removed.

Illustrations

  1. A case where the evidence showed that the corpus had been in a detention camp after being involuntarily removed and subsequently found dead art a public road.
  2. Cases where girls who had been abducted from their homes as hostages by unidentified persons who had come looking for their brothers or fathers were later found to be raped and killed (in one case the body burnt)
  3. Cases where three brothers had been involuntarily removed and while the dead bodies of two of them had been subsequently discovered the third disappeared without any trace and remains missing to date.

In regard to category(b)(ii) above although "'the killing"" was not preceded by and involuntary removal in a physical sence, taking into considaration the phenomenon we have been called upon to investigate as perceived by us namely, to ascertain the fate that had befallen certain persons during the period under investigation as a result of extra-judicial and/or other unaccountable conduct, we were of the view that, it was unrealistic to drive a distinction between physical disappearance and a killing (disappeared from the face of the earth). Even if a distinction could be drawn it is a distinction without a difference. Furthermore, in an enforced disappearance and inevitable presumption to be drawn would be that the corpus had been extra-,judicially executed. Accordingly, we were of the view that it would amount to violating common sense and logic to regard a case where the evidence directly establishes an extra-judicial execution as not falling within the scope at our Mandate.

Illustration

A tenant cultivator from Embilipitiya had gone to the paddy field. On ties return borne he found two of his sons had been burnt alive inside the house. A third son had been removed. The cultivators wife and his daughters who were waiting at the doorstep had not been able to identify the perpetrators of these acts.

If a view contrary to the one expressed above was adopted it would mean that, while the case of the son who had been removed would fall within the Mandate the case of the two sons who were killed inside the house would fall outside the Mandate. We were fortified in the aforesaid view by what is envisaged in paragraph (c) and (g) of the terms of our Mandate.

(iii) Disappearances or Killings without evidence of prior involuntary, removal

we enumerate below the factors that influenced us in this category of cases

  1. The surrounding circumstances and/or climate of the times
  2. The personal antecedents and/or socio-economic and socio-political involvenents of the corpus.

Illustrations of 'Disappearances'

Corpus had gone to the Market place/Junction/friend's or relatives's place to attend a function/work place/some other errand on the day in question where there had been an official curfew or a curfew imposed by subversives/the complaint being "I think my son/husband/Friend/relative must have been taken away by the Police/Army/subversives".

Illustrations of 'Killings'

  1. Unknown persons had thrown a bomb at a Hindu Kovil. A woman street dweller who had been in the vicinity had become a victim of this act.
  2. One rainy night unknown persons had left a parcel near a playground of a school. The following day three children meddled with this parcel wich turned out to be a bomb. On the bomb going off the children had died.
  3. A large number of cases where the corpora had been found killed on a road side; near a paddy field; on and under bridges; tied to lamp posts and trees; or burnt on tyre pyres etc.

In these cases the evidence revealed circumstances similar to those referred to in illustrations given in regard to disappearances above.

A variation of the above theme was where the complainant suspected that the corpus must have been abducted in a "Cordon and Search" operation or from somewhere "because he is young", "because someone must have petitioned that he is a subversive out of personal jealousy or otherwise", "because he was a political activist", "because he was involved in and/or took the lead in strike (employee/trade union) action etc., "because he put posters art behalf of the J. V. P.", "because he went to vote at the Provincial Council Elections", "because another family member was a UNP/SLFP/JVP activist."

Illustrations

  1. A brother, a graduate teacher giving evidence stated that in September 1989 ghis brother who was a Ruhuna Medical Student had disappeared. A month prior to this incident another brother also a graduate teacher had been abducted by unidentified persons. Their father was a UNP loyalist.

    But thereafter their family had laid off politics, The Police had warned them that there had been petitions against their family that their residence was being used to conduct JVP lectures Witness stated that no such thing happened in their house.

    The evidence suggested that the disappearance had been orchestrated by persons out of personal jealousy with the aid of para-military groups.

  2. A mother giving evidence before the Commission stated that her two sons who were both in their early twenties were missing since March and September 1989 respectively. The evidence revealed that the complainant's daughter had been a SLFP activist and had been a polling agent on behalf of the SLFP at the 1988 and 1989 elections. A family closely related to them were supporters of the UNP. Members of that family had repeatedly threatened the witness that her son will be 'lifted' because of the daughter's involvement with the SLFP. The incident had taken place around the Presidential Elections time in 1988. The evidence suggested that the disappearance had been instigated by this rival family with the assistance of para-military groups.

(iv) Cases of Physical Injury Resulting Eventually in Death

There were several cases falling into this category where unidentified persons had by the use of arms inflicted physical injury on the corpora. Sometimes the perpetrators had invaded the residence of the corpora for this purpose ; or had waylaid and shot at a crowd thereby injuring them. While the majority of these incidents were alleged to have been caused by subversive action on account of the corpus "not heeding warnings calling upon them to resign from Government employment" ; "failing to publicly denounce involvement with the political party (generally the UNP) to which the corpus belonged", "refusing to join and/or assist the JVP" or "for breaking the unofficial curfew". There were also cases where the allegations were against the armed forces. Taking into consideration the type of arms and instruments used by the perpetrators, the location selected for the infliction of the injury and other surrounding circumstances, we were of the view that death had resulted from the physical injury so inflicted in the absence of any evidence to the contrary. In two cases the interval between the injury and the death had been one and half years and two years. In the latter case the corpus had even taken treatment in hospital. Nevertheless, in the absence of evidence that, there was any nova causa interveniens we felt that it was justified to held that the death fell within the terms of our Mandate.

B. Cases Falling Outside the Mandate

(i) Jurisdictional bars (or Territorial ouster)

(ii) Time Bars

(iii) Other Cases -

  1. Cases of insufficient evidence
  2. Disappearance resulting from private quarrels
  3. Cases of physical injury
  4. Some cases of temporary involuntary removal

(i) Jurisdictional Bars (or territorial ouster)

Certain police areas cover parts of the districts falling within our three provinces as well as districts falling outside our provinces. For example the Embilipitiya Police area is located in Embilipitiya in the Ratnapura district falling with the Sabaragamuwa Province (which falls within our Mandate). But the Embilipitiya Police area covers parts of the Moneragala district in the Uva Province(not falling within our jurisdiction). Consequently, if the evidence revealed that the alleged involuntary removal or disappearance had taken place within the territorial limits of the latter we were obliged to rule that the complaint did not fall within the scope of our Mandate.1

(ii) Time Bars

Paragraph (a) of the Warrant decrees us to inquire "Whether any persons have been involuntarily removed or have disappeared at any time after January 1, 1988". Consequently complaints relating to alleged involuntary removals or disappearances prior to January 1, 1988 stood excluded ex facie on the Mandate, (Vide: paragraph (a) of the warrant).

(iii) Other Cases

(a) Cases of Insufficient Evidence. - Several cases illustrate this category. In all these cases we found that although a disappearance per se had been established the super-added requirement of an involvement on the part of agents of the State or Para-military groups or subversive groups or even an unknown external agency (tied up with the criteria discerned earlier such as the climate of the times, personal antecedents of the corpora and other surrounding circumstances) which would have brought the incident within some limb contemplated by the Mandate was altogether absent2 or was based on pure surmise3 or hearsay evidence4 (or the evidence was found to be lacking in credibility)

(b) Disappearance Resulting form Private Disputes or Quarrels.- 'This category of cases is based on variations of the theme highlighted in category (i) above, for example, the family of the corpus had been involved in a boundary (land) dispute with a neighbouring family. During or aronud this period the corpus had disappeared. Witnesses had sought to impute motives to the said neighbouring family. "We have no one else to suspect" the mother of the corpus had conceded.

Some of the cases had even resulted in litigation. In one such case a father giving evidence before the Commission disclosed that, in August, 1988 his son had been abducted by a crowd of persons and later killed. The killing had been executed as a result of a property dispute which has family had with a party connected to the suspected killers. Proceedings had been instituted in the Magistrate's Court against the suspect. The main suspect had turned state witness. Immediately thereafter he had been killed in mysterious circumstances. Consequently, the other suspects had been discharged in the court proceedings for want of evidence.

A mother alleged that the respective families to which her son and daughter had been given in marriage had killed her said son and daughter through envy.

A witness stated that her husband went to a hotel resort by the sea with his lover. As a result of a quarrel they had had at the hotel the corpus had left her and run across the beach and never returned.

(c) Cases of Physical Injury per Sc. - This was another category of cases coming before us which ex-facie did not fall within the terms of the Mandate for the reason that neither the element of involuntary removal nor disappearance was present.

(d) Some Cases of Temporary Involuntary Removal. - A variation of the theme in (iv) above was represented by a number of cases where the complainants appeared before the Commission on the basis that they had been "involuntarily removed". It was apparent however that their object was purely speculative. Illustrative of this category was a case where the witness claimed that: In May 1989 unidentified gunmen had come in a Delica van which had no number plates to the hotel where the petitioner was working and forced him to get into the van. After asking him to show where he lived the unidentified gunmen had dropped him off on-the road. Probed by the Commission the witness had claimed that the unidentified gunmen were members of the armed forces and that he had been abducted bucause he had been involved in the 1971 insurrection.

There was no independent evidence to substantiate any of these claims. Further examination of the witness revealed that the reason for his coming before the Commission was to obtain financial assistance to run "his hotel". He was also the owner of 8 1/2 acres of tea.

C. Suicide Resulting From Political Threats

This case, by the very nature of it presented us with a novel problem for consideration. During the period of terror under investigation the evidence revealed that many persons had been subjected to threats (directly through warning letters and notices as well as indirectly through anonymous calls or warnings notes) by subversives as well as para-military groups (sometimes allegedly instigated by political opponents). In the case under consideration the corpus had been subjected to continuous threats to leave his work place and give up his political affiliations. This had induced in his mind a state of fear and a condition of anxiety. He had committed suicide allegedly in a state of neurotic depression.

The immediate question we were faced with was whether the case could be brought within the terms of the Mandate. Clearly, there was no involuntary removal or disappearance in the literal sense. If, instead of threats, the group had caused some physical injury to the corpus he would have been compensated. A consequential death would have fallen within the Meaning of "involuntary removal or disappearance". (in the sense that it was an a fortiori disappearance). The question we had to determine was whether, instead of a physical injury that had been inflicted, "the threats" which had led to the State of neurotic depression followed by death, the proximate cause being the act of the corpus itself, could be regarded as a case falling within the meaning of "involuntary removal or disappearance". On the basis of the principle that, "true nervous shock is as much a physical injury as a broken bone or torn flesh wound",5 we accommodated in principle such cases as coming within the terms of our Mandate. Consequently, we took the view that the felonious act of the corpus himself in taking his own life would not break the chain of causation between the state of neurotic depression he was said to have been subjected to as a result of threats and his death. However, we found that in this particular case the evidence placed before the Commission (particularly the absence of adequate medical evidence) in regard to the claim that "the corpus had committed suicide in a state of neurotic depression forced by JVP threats" was not sufficient for us to come to a positive finding on the said claim.

11. MATTERS OF PROCEDURE

  1. The procedure followed to ascertain the existence of a prima facie case

At the very commencement of our work and within a short period of it becoming

public that disappearance Commissions had been established, we received over sixteen thousand eight hundred requests for victim identification forms from the next of kin of disappeared persons and social interest groups. More than half the completed victim identification forums contained names of alleged perpetrators

In view of:

(i) The large number of complaints to be dealt with within a relatively short period of time, in which more-over the many aspects covered by our Mandate required attention,6

(ii) The likelihood/possibility that the same name would transpire in respect of more than one/several incidents coming within our Mandate,

(iii) The fact that our findings do not affect the rights of the persons identified as named perpetrators,

We proceeded to ascertain the existence of credible material prime facie

indicative of the person or persons responsible for the alleged removals of disappearances.

We found justification for this approach in the judicial observation that.

Even a public officer who has to decide whether to prosecute ought first to decide whether there is a prima facie case, but no one suppose that justice requires that he should first seek the comments of the accused or the defendant on the material before him. 7

2. Evidence Under Oath or Affirmation

Given the fact that the essence of the earth is its solemn appeal to witness that statements which are to be made are true we felt that the formal administration of an oath or affirmation with its underlined consequences for perjury would induce in the minds of the witnesses to speak the truth.

3. Decision to Hold Hearings In Camera

(a) Section 7(e) of the Commission of Inquiry Act (Cap.393, LEC, 1956 Revised ed.) confers power on the Commission,

subject to any direction contained in the Warrant -

  1. to admit or exclude the public from the inquiry or any part thereof;
  2. to admit or exclude the press from the inquiry or any part thereof;

The Warrant issued to us by Your Excellency also directed that "such part of any inquiry relating to the aforesaid matters, as may in your discretion determine, shall not be held in public,"

(b) In terms of the aforesaid Provisions we, in our discretion, decided to hold all our sittings in Camera. In taking this decision we had regard to the sensitive nature of the matters to be inquired into in terms of our Mandate.

III. Decision to Send Under Separate Cover Names of Alleged Perpetrators

Although our proceedings are not going to affect the legal rights of persons we are mindful of the adverse effect publicity could have on their character and reputation, before the further investigations against such persons as recommended by us could commence.

Accordingly we recommend that the lists of names of persons alleged to have been responsible for involuntary removals or disappearances sent by us under separate cover be not published.

Footnotes

1. However, this type of case was referred to the appropriate Commission possessed of jurisdiction to inquire.

2. (a) around 1.00 p.m. on an afternoon in June, 1989 the corpus had gone fishing in an area in a boat and had not returned home.
(b) The corpus had been an army soldier. One day he had come home and said that he had left the Army. Shortly thereafter he had disappeared.
(c) A woman had been killed in the course of a house-breaking and robbery incident. The husband giving evidence had not even made an allegation against anyone whom he suspected to be the perpetrator.

3. A Mother giving evidence before the Commission stated that her 19 year old son who was studying for the Advanced Level examination had disappeared in November 1989 when he had gone to the town. She had no one to suspect in particular but she surmised that UNP supporters might have been responsible for the incident because her family were strong SLFP supporters.

4. Witness had stated that a list containing their names had gone to a strong supporter of a UNP politician. Asked by the Commission as to who had given them this information the witness had said "we heard from various people". But the witness had failed to name a single person who might have given the alleged information.

5. Eldredge, Modern Tort Problems, p. 76

6. See Mandate paragraph (g)

7. Per Lord Reid in Wiseman v. Borneman, 1971 A.C. 297 at p. 330.

Posted on 1999-01-01



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