Nature of Evidence and Present Whereabouts

1. 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.
2. 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 Mandate.
3. Those Affected were

1. Those Involved in Political Activities.-

Whether:

1. Subversive activity, ranging from killing to pasting posters on behalf of subversives or attending classes conducted by subversives.
2. Activists of the political opposition to the governing party of the time.
3. 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 subversives.

2. Those Allegedly involved in Political Activity v.. the Ruling Party: the practice of "Lists"

3. Persons Caught in Apparent Intra-party conflicts

1. Within the government alliance, e.g. Intra-UNP, UNP/CWC etc. or
2. 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 both sides.

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

1. To establish a de facto disappearance
2. 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 village temple

(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 personalities.

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 spacio-temporal factors.

5. 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 categories :

1. Where there is evidence that the victims were killed and their bodies were found and identified (1513 cases).
2. Where there is evidence to show that the victims were seen in places of detention after their abduction (1026 cases).
3. Where there is evidence regarding abduction but no evidence to ascertain where they were taken afterwards. This category constitutes the majority of the cases.
4. 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.
5. Those who were abducted but later released from detention. They are presently among the living. 191 returned detainees have reported their cases to this Commission.
6. 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 alive.

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 whereabouts.

(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 camp.

(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 back.

(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 "Disappearance".

Numbers

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:

1. Unlawful arrest and detention
2. Assault and injury
3. Humiliation, pain of mind psychological ill-effects

We find all these grounds of complaint to be covered by our Mandate. We recognise and accept that they have suffered.

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.

We Recommend

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.