Nature of Evidence and Present Whereabouts
- Paragraphs (a) and(b) of our terms of
reference require us to inquire into and report on
whether any persons have been involuntarily removed or
have disappeared etc., any time before January 1, 1988,
and whether there is evidence available to establish such
alleged removals or disappearances.
- The preamble as well as paragraphs (a) and
(f) of our terms of reference make it clear that the
phenomenon under investigation to be one brought about by
the wrongful act of an external agency. Consequently, we
found that out of the 7761 complaints inquired into by
the commission, in 7238 an involuntary removal or
disappearance was established as contemplated by our
- Those Affected were
- Those Involved in Political
- Subversive activity, ranging from killing
to pasting posters on behalf of subversives or attending
classes conducted by subversives.
- Activists of the political opposition to
the governing party of the time.
- Activists of the ruling party.
While (a) above was the target of the state and
allied agencies and (c) the target of the subversives, category
(b) was victimized by both state etc. agencies and the
2. Those Allegedly involved in Political
Activity v.. the Ruling Party: the practice of
3. Persons Caught in Apparent Intra-party
- Within the government alliance, e.g.
Intra-UNP, UNP/CWC etc. or
- Among the subversives
4. Reprisal Killings. - Reprisal
killings victimized by-standers, neighbours, passers-by, and
persons in detention. Reprisal killings were a device used by
both government agencies and subversives.
5. "Punishment" for "Failure
to Obey Commands".- E.g. "Resign from the
Army"/ "Resign from a government job".
"Punishment" for refusing to join/ joining the other
side. Speaking disparagingly of one side :This was a device used
mainly by the subversives. However the retaliatory killings of
whole families in "Punishment" was practiced by both
sides, "as if" families were mere appurtenances.
Failure to "obey" a curfew was "punished" by
6. Elimination of Personal Enemies-.
This is a category of cases where individuals took advantage of
the situation to eliminate personal enemies in the guise of
"subversive" of "counter-subversive" action.
IV. Nature of the evidence Acted Upon
- To establish a de facto disappearance
- To establish the involuntary nature of
removals or disappearances as contemplated by the Mandate
A. To Establish a de facto disappearance
(a) Oral evidence of witnesses (as a
rule, corroborative evidence was called for)
(b) Documentary evidence
(i) Grama Sevaka's certification
(ii) Certification by a priest of the
(iii) Certificates or other writings issued
by Principal of School attended by children of corpus
(iv) Certification by independent
organisations and persons such as the ICRC, WGEID
(v) Police reports
(vi) Written initiatives taken by political
B. To Establish the Involuntary Nature of
Removal or Disappearance as Contemplated by the Mandate
(a) Oral evidence of witnesses (as a
rule corroborative evidence was called for)
(b) Documentary evidence
(c) Evidence produced in terms of Section
7 of the Commission of Inquiry Act, No. 17 of 1948.
(d) Besides the categories of specific
evidence determining that a de facto disappearance
amounted to a disappearance as contemplated by the Mandate, we
took into consideration the Socio-political antecedents of the
corpora and other members of his family, surrounding
circumstances such as the climate of the times, and other
- We now proceed to consider
"present whereabouts of the persons alleged to have
been so removed or to have so disappeared", as
required by paragraph (c) of the terms of reference. In
this regard, the cases inquired by us fall into several
- Where there is evidence that the victims
were killed and their bodies were found and identified
- Where there is evidence to show that the
victims were seen in places of detention after their
abduction (1026 cases).
- Where there is evidence regarding
abduction but no evidence to ascertain where they were
taken afterwards. This category constitutes the majority
of the cases.
- Where there is no evidence either to
abduction or detention. For example, a mother said :
"My 24 year old son left home in Matara to go to
Colombo by bus but never returned home". In view of
the situation that prevailed at the time, petitioner's
perception was that he could be presumed to have fallen
into the hands of security forces who constantly carried
out search operations during this period. Such
"age-victims" (in the sense that they belonged
to a certain age group-youth), would have been suspected
of terrorist connections. This was the time when young
people travelling from certain towns in the Southern
province were treated with utmost suspicion when buses
and vehicles were checked at security points. Also when
terrorist attacks took place in a certain area, people
around the place were also taken in for questioning and
some disappeared as a result.
- Those who were abducted but later released
from detention. They are presently among the living. 191
returned detainees have reported their cases to this
- Those who re-appeared several years after
their alleged disappearance. We came across four such
cases. In one case, the person concerned was in hiding
until he was arrested by the police on suspicion. He was
arrested in October 1994, and his father had sent a
complaint to the Commission two months later. When asked
about the reasons for sending a complaint, he said :
"For us, the law is like a crown on our head. I
thought that I should report this case to the Commission
to clear my son's name since he was considered a
disappeared person for a long time till we found
him." One cannot rule out the possibility that some
of the "disappeared" persons may have left the
country or are living in hiding inside the country
without even informing their families (if at all, this
would be a small number). It should be noted here that
under Section 9 of the Registration of Deaths (Temporary
Provisions) Act No. 2 of 1995, there are procedures to be
followed if person registered as dead is found to be
A few observations regarding the following
three categories are pertinent at this point.
(i) Where bodies were found and identified
(ii) Those who were seen in places of
detention but disappeared afterwards
(iii) Returned detainees
(i) First Category : Where Bodies were
Found and Identified
The general pattern in the case of subversive
killings was that the bodies of the victims would be found in
close vicinity to their home. Out of 779 subversive killings,
bodies were found in 628 cases. In most cases, inquests were held
and B Reports were filed. In some cases, however, inquests could
not be, held due to the worsened security situation.
In the case of killings done by the agents of
the state/paramilitary groups, it is in some cases only that
bodies were found and identified In a vast number of cases,
family members had no access to bodies for identification.
Floating dead bodies in rivers, bodies on roadsides, burning
bodies on tyres, were a common sight during this period of
terror. However, in some cases bodies were publicly exhibited.
For instance, a group of army personnel shot dead two university
students when they were at a well washing their faces, Their
bodies were brought on to the road, tied to two boards stating
that they were leaders of the J.V.P. and, the bodies taken away
in a truck and exhibited them at three junctions.
(ii) Second Category: Those who were
seen in places of detention but disappeared afterwards
Several patterns of disappearances could be
discerned in this category.
(a) Family members or other witnesses
had seen the corpus in state custody, but authorities denied
their detention and offered no explanation as to their
(b) Family members were allowed to speak
to the detainees or to give them food and clothes. Clothes were
given back to the family members to be washed and brought back.
Subsequently, however, they were told that detainees were
transferred to other places of detention such as "Boossa
camp," When family members visited such places, they were
categorically told that such a person was not brought to the
(c) In some cases detainees were seen by
family members for weeks and months till the last day of the
closure of those camps. Family members had seen them being taken
out in vehicles but the subsequent whereabouts were not known.
(d) In some cases returned detainees
gave evidence testifying that some were tortured and killed
inside the camps or taken out of their rooms but never brought
(e) In another set of cases, the
authorities themselves had explained that the detainees were
killed while trying to escape or in cross-fire.
(f) In some cases, detainees were
released from places of detention to be abducted by unknown
persons coming in "hi-ace vans". There is evidence that
such incidents took place with the connivance of the authorities.
In one case, the police purposely delayed the release of a person
till dark; and as he went out he was picked up by persons who had
been earlier seen inside the police station,
(g) Persons discharged by the Magistrate
were abducted by unknown persons on their way back home.
(h) Some persons who surrendered as a
response to and in obedience to requests made by the state had
also disappeared. During this period, there was also a practice
of surrendering persons to the Government Agent of the area who
made arrangements to hand them over to rehabilitation camps.
Some of them have also disappeared. In one such
case, "X" was handed over to the Government Agent of a
certain area by a Grama Sevaka of his village as the security
forces were looking for him. The Government Agent then handed him
over to a rehabilitation camp. After three months however the
C.S.U., of a certain police station took him into custody from
the camp. According to the records of the C.S.U., "X"
had been admitted to a hospital as he had a chest pain and is
missing from the hospital. Our investigation into this case
revealed that there is no mention whatsoever in records at this
particular hospital to say that "X" was admitted to
this hospital during the period concerned. "X" has also
not been issued with a detention order.
In the 7761 cases (88.8%) inquired into the
bodies of the victims were found only in 1513 (19.4%) cases.
Others have disappeared without a trace. However in the given
context, the word "disappearance" is only a euphemism
for the death caused by extra-judicial killings.
(iii) Third Category: Returned Detainees
While our Mandate requires a consideration of
the category of persons who were involuntarily removed but have
not disappeared, constraints of the time available has led us to
give priority to the inquiry into alleged instances of
disappearances. We were further fortified in this decision by the
fact that the main thrust of our Mandate is on the phenomenon of
We have received 191 petitions from persons
alleging they have been involuntarily removed.
The Kind of Complaints
The nature of the complaint of the petitioners
may be classified as follows:
- Unlawful arrest and detention
- Assault and injury
- Humiliation, pain of mind psychological
We find all these grounds of complaint to be
covered by our Mandate. We recognise and accept that they have
Several of these persons came before us
primarily in order to bear witness to the injustices and
illegalities that were prevalent, and they constitute a powerful
body of evidence to the practices at that time.
That the Human Rights Commission should be
requested to advise the government "in formulating
legislation, administrative directives and procedures" for
the protection of the fundamental rights of this category of
petitioners. They have lost their right to petition the Supreme
Court in respect of the breach of their fundamental rights to
freedom from illegal detention and torture by reason of the
constraints of the time limit placed by the constitution on the
invocation of the jurisdiction of the Supreme Court in respect of
an allegation of a breach or fundamental right.
Posted on 1999-01-01