RULINGS OF THE COMMISSION RELATING TO THE MANDATE
- Cases Falling Within Mandate
- Cases Falling Outside Mandate
- Suicide Resulting From Political Threats
A. Cases Falling Within Mandate
(a) Ex Facie Falling Within Mandate
- 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)
- 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:
- 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)
- 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
- 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.
- 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)
- 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
- The surrounding circumstances and/or climate of the
times
- 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'
- 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.
- 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.
- 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
- 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.
- 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 -
- Cases of insufficient evidence
- Disappearance resulting from private quarrels
- Cases of physical injury
- 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
- 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 -
- to admit or exclude the public from the
inquiry or any part thereof;
- 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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