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CHAPTER FIVE - RESPONSIBILITY FOR THE ALLEGED REMOVALS OR DISAPPEARANCES

Criminal Acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religions or any other nature that may be invoked to justify them;1

Although the recognition of the fact that all crimes are to be condemned should never be lost, it is most important to emphasise the special character of the crimes committed by the state which uses its power to violate the law rather than to uphold it.2

 Your Excellency has mandated this Commission to report on

"Whether there is any credible material indicative of the person or persons responsible for the alleged removals or disappearances."3

 The Material Available

  This will be considered under:

 The material available with regard to individual perpetrators

  1. The material available with regard to the category of perpetrators
  2. The material indicative of the existence of a Political Dimension.

A. The Material Available with Regard to Individual Perpetrators

1. According to the available evidence the cases inquired into by us can placed in three categories:

(i) Where there is credible material indicative of the person or persons responsible to warrant further investigations for the purposes of legal proceedings.

(ii) Where the material available is insufficient to warrant further investigation for legal proceedings.

(iii) Where there is no material whatsoever to identify the individual perpetrators.

  1. In respect of all these three categories we do not have before us the evidence of the persons against whom there are allegations. Until further investigations by the investigative authorities are held confidentiality must prevail both in respect of the nature of the evidence available and in respect of the identity of persons implicated by such evidence. Accordingly we are submitting to Your Excellency under separate cover the list of names of individuals in respect of whom there is credible material before this Commission.4
  2. This list is sub-divided into three parts :

i. The first section consists of names of persons who are implicated in three or more instances coming within our Mandate;

ii. The names of persons thus implicated on two occasions ;

ii. The names of persons who are implicated in respect of one incident

  1. In view of the serious nature of the acts revealed by the evidence available to date, Your Commissioners recommend that the investigations by the IGP should be under the supervision of the Attorney General and be referred to the Attorney General for the determination of the appropriate legal proceedings that should ensue.

B. The Material Available with Regard to the Category of Perpetrator

 In the 7239 cases where disappearance was proved the identification by the petitioners of the category of perpetrators responsible was as follows:5

  • Agents of the State/para military groups in collaboration with them - 4858
  • Subversive Groups - 779
  • Personal enemies Acting in collaboration with agents of the state/ paramilitary etc - 59
  • Unknown - 1543

1. Identification by the petitioners of the category of perpetrators responsible we found to be based on the following factors:

  • Factors Specific to the Corpus

Such as his political affiliation, or that there had been an evasion of earlier searches for him;6 his refusal to identify himself with the political structure at village level;7 that he held public office/ was a Government employee/ a family member of a member of the Security Forces/ had asserted his right to vote or contest in elections.8

  • Factors Specific to a Perpetrator who had animosity towards the corpus

Eg : A person who was a locally recruited Reserve Police Constable, MP's Security Guard etc. allied with the fact of the Security Forces' acceptance without independent investigation of an 'Information' laid by such a person, invested that person with the power to 'use' the Security Forces for his own ends.

  • Factors Specific to the times

E.g: The corpus was taken in a combing-out operation by the Security Forces, or modern weapons and vehicles were used in the incidents of abduction, or killed for defying an "unofficial curfew".

 In all these instances the petitioners were clearly aware that what had happened went for beyond what could be attributed to a break-down of relations between the particular perpetrators and the victim. While seeking to identify the person who had been the immediate link in bringing the 'system' into operation against them, they would describe the prevalent situation graphically and in concrete terms.

2. The Pattern Of The Incident

The pattern of the incident was a general indicator of the agency involved. The subversive act was a destruction9 of a person in as public a manner as possible. The corpse would be left identifiable bearing several ante-mortem injuries of a brutal nature and a placard be displayed, bearing a message such as "Death to Informers". There would usually be instructions that the body be buried without ceremony, and the marks of respect to the dead usual in our society.

 The Technique of abduction and disappearance adopted by the Forces was of a different nature. While the abduction would be done very publicly, the re-emergence of the body if at all, would be in a mutilated state that made its identification difficult. When these bodies were left in public places they were not accompanied by a claim as to who were the perpetrators.10

  • The Payment of Compensation by the Slate for loss due to Subversive Act

It is now over 7 years since the occurrence of the incidents under review. In that period a distinguishing mark of the category of the perpetrators has come into existence by reason of the fact that until August 1994 the State paid compensation only in respect of loss suffered at the hands of one category of perpetrators i.e. the subversives.11

  • The Recording of Complaints by the Police

In the period under review another pointer to the category of perpetrators was the nature of complaints recorded by the police. If the act complained of (in the opinion of the police) had been committed by subversive elements the complaint had been recorded, B Reports filed and Post Mortems held. If the case was otherwise, in the majority of cases no complaint had been recorded at all. In instances when the complaint was recorded the police had either refused to record the name of the alleged perpetrator when taking down the complaint or had described it as "perpetrator unknown".

  • Youth at Village-level who Displayed Leadership Quality12

 There was a perception that the JVP had targeted outstanding youth who revealed leadership quality at village-level for recruitment. This led to the "elimination of outstanding youth" at the local community level.

 Time and time again this theme came up in evidence berate the Commission.

My son was popular, the youth turned to him for advice.

My brother was the only educated youth in our area; everyone came to him when a letter needed to be written.

We are of the depressed caste, but my son was an outstanding sportsman and popular among the youth.

 The Elimination of "potential groups" had become a permitted tactic of counter-subversion. The petitioners before us spoke of this from their personal experience.

  • "Broilers"

 A practice of keeping in unrecorded detention "stocks" of detainees of a certain age-group, who had been taken into custody in combing-out operations or casually off the road/beach was evident in several instances from the evidence of returned detainees. These persons then disappeared without trace after being taken out of the camp generally following on a subversive act that had caused loss of life or damage to property damage or on the camp being dismantled. Given the practice of 'reprisal killings'13 sinister significance attached to these disappearances from State custody. Hence the slang of the period :

"Broiler" = an article for consumption.

  • Figure "5"

It is clear from the evidence before the Commission, that counter-insurgency tactics of 'physical elimination' often took the facile from of the so-called identification of "Groups of 5."14 In fact the recurrence of the feature of abductions/disappearances occurring in "Groups of 5" was a revealing mark of the perpetrator like 'like the mark of ash on the shoulder of the thief of the ash-pumpkin' in the popular village tale.15

The arrest of persons perceived to come within specially targeted groups for questioning, is possible under recognized procedures of law. That "abduction" rather than "arrest" was the preferred method of operation, is a clear indication that physical elimination of the persons taken-in was not ruled out. Given, additionally the unrecorded nature of the initial abduction and detention the temptation to adopt 'elimination' as a practice was inevitable.

 C. The Material Indicative of the Existence of a Political Dimension

 1. The testimony of Individual Petitioners

 The common features of the narration by thousands of humble petitioners in

respect of thousands of abductions and disappearances, bore powerful witness to the fact that what we were looking at was an orchestrated phenomenon and not a series of isolated instances explicable in terms of "excesses" by individual transgressors.16

 The transactions spoken to by these witnesses are mainly 2 fold :

 (i) Killing on the spot or following on shortly after forcible removal. In both instances the resulting dead body itself constituted a "Weapon", with its display constituting an intimidatory warning, this would happen to you too if you do not accede to our wishes."

Where the Killing was at subversive hands, a placard was often displayed at the spot, couching this message in so many words. These bodies often bore marks of brutal practices. Several autopsy reports lead in evidence bore witness to this. Autopsy reports on certain other bodies, almost invariably ascribed by witnesses to be killings by the Security Forces, bore evidence of the use of modern fire-arms, while some of this category were cut and chopped about in savage mimicry of subversive killings and alleged they were the work of this-or-that "vigilante" group in reprisal for subversive acts.

(ii) Disappearances following on abductions : These abductions were actually witnessed, or they were abduction inferred from surrounding circumstances within the knowledge of witnesses including "the climate of the times", which was so markedly hostile and mechanical of execution as to justify naming the resulting category of victims as "Age-Victims"17

The Clandestine nature of these transactions is very clear. The series of acts described are clearly done with knowledge that the conduct was altogether outside permitted boundaries of the law.

Killings on the spot, termed extra-judicial killings, constitutes the ultimate in "involuntary removal". Disappearance following an abduction is in our finding only a euphemism for a killing, a reality that the absence of recovery of the body should not be allowed to obscure.

2. The evidence of returned detainees

A valuable pointer to the fate that befell many of the abducted is to be found in the evidence of the many returned detainees who have come before the Commission whether as petitioners on their own behalf or as witnesses to the fate of others. They constitute a powerful credible body of evidence on:

  1. The serious, often fatal injuries suffered by the prevalent practices of torture by the authorities with the attendant issue of disposal of bodies.
  2. The transport of detainees to undisclosed destinations in circumstances loudly speaking to the clandestine nature of the journey - Removal of number plates/ affixing of false number plates to the vehicles, use of fire arms, implements for digging old tyres taken along, on these journeys being inconsistent with the object of the journey being a lawful one.
  3. In some instances "confession" to participation in such "extermination" under duress etc.

3. Mutilated Bodies at Public Places

The evidence of members of the public was that mutilated bodies at public places was a common sight. 

4. Mass Graves

Mass Graves came into existence Contemporaneously. The inference as to who were the creators is inescapable when the massive logistics entailed, not to mention their proximity to locations under state control, are taken into consideration.18

 5. The United Nations Working Group on Enforced and Involuntary Disappearances (WGEID)'s

The UN Working Group's compilation of a list of 12,000 separate cases of disappearances reported by voluntary organisations, and the ICRC"s records.19

6. Habeas Corpus Applications filed in this period

These cases provide a record of the allegation of disappearance from state custody.20

7. The Political Dimension

Acknowledgement of the political dimension inherent in the scene revealed by the evidence before this Commission, is a necessary response to the trust and confidence reposed in the Commission by the thousands of witnesses who spoke openly placing their hard-earned experience, and perceptions on record.

(i) The Public Perception.- The Public Perception was that the conspicuous spectacle of impunity21 could not have existed without the complicity of the political leadership. The various allegations before us of the close participation of the local politicians in the exercise, the various allegations of 'informers' who functioned as the channel of misinformation from the politicians to the security Forces, the allegation of 'Lists' of names of political enemies being supplied to the Security Forces for elimination, are all based on this perception.

(ii) Confirmation by 2 Senior Officials. - This perception of the petitioners has found confirmation in the evidence of two Senior officials of that time, one of the Police the other of the Army, who have given evidence under oath on the role played by politicians of the governing party in the counter-subversion exercise, the practice of the preparation of 'Lists' of names by them, and the issue by them of illegal orders, for execution by the Police and Army respectively

Mr. E. E. B. Perera, Inspector General of Police, 01.08.1988 to 18.11.1993:

When the second insurrection-wave struck the Police Force was dependent on informers. Hence the phenomenon of Members of Parliament who were providing the political direction to the anti-subversive drive being supplied with 'Lists' of names by informers, who in turn passed them over to the Forces and the Police. In 1971, the Political authority at District level was required to give support to the Forces. By the second insurrection the Provincial Councils had come into operation. There was an administrative direction that the Deputy Inspector General (DIG) should be subjected to the control of the political authority usually the Chief Minister, notwithstanding the fact that Police powers had not been developed to the Provincial level under the 13th Amendment.

This confirms the practice of 'Lists', whose source was the local politician. It also clarifies the path by which the Security Forces came to be used in the narrow interests of particular politicians.

Further it makes clear that the police had to put into effect directions that were clearly outside the law.

Lt. General Rohan Daluwatta, Commander Sri Lankan Army, has stated

While I was co-ordinating Officer, Ratnapura certain political pressures were brought to bear on me. I was given a list of names with the direction to take them into custody, that they were JVPers. I received the List from a former Minister.....When I checked the list with the Police, I came to know that they were SLFPers. I was told, that area could be cleared were I to catch them.22

(iii) The use of the Forces and Police in the Narrow Interests of Politicians.- This was spoken of by two Inspectors-General of Police in their evidence before us.

Mr. L. D. G. Cyril Herath was IGP December 1985 to 31.07.88. Mr. Herath said:

In the promotion of Udugampola, SP over 15 more senior officers, to the rank of DIG, I saw the portents of the plan to use the Police Force in the narrow interests of politicians. It was clear to me that alternative structures of command were being put in place within the Police force for the purpose. I realised that a system of promotions to this effect was being put into operation.

W. B. Rajaguru - IGP 29.07.95 to-date. Mr. Rajaguru, the present IGP stated:

I am aware that there were specific instances where rapid promotions were given. One was that of Mr. Premadasa Udugampola who was an Inspector of Police in 1977 and had rapid journey through the ranks of A.S.P., S.P., Senior S.P., and became Deputy Inspector General by about 1988 (in 10 years time). At that time it was mentioned that this officer had moved over 180 other officers at different stages.

Among the rank and file there was a degree of disillusion and heart-burn, for there were persons who had become able to move upward quite freely within the police. This disillusion affected discipline.

A specific instance I will give is the Mulkirigala by-election.23 At this time found that contrary to specific orders made at Head Quarters there were certain police officers moving about the electorate. At this time I was DIG Greater Colombo and Southern Range. I found that Mr. Udugampola, then SSP Gampaha had moved into Mulkirigala electorate on his own, He had brought with him several officers in charge from his division. There were no orders for him or other officers in charge to perform any duties within the electorate. Later, there were many complaints received about bands of police intimidating the public and committing acts of thuggery; and there was evidence that the police had beaten up voters to prevent them from going to vote.

My experience is not limited to the day of election, This feature I have described was continued police thuggery. The complaints came from Kirama Weeraketiya, Walasmulla and Middeniya. It was organised and widespread

We have also noted that former Inspector General of Police Mr. E. E. B. Perera in his evidence before the Presidential Commission of Inquiry into Disappearance of persons, unlawful Arrest of Persons and the Operation of Places of Detention at the Batalanda Housing Scheme" had stated that

There were several occasions when we had to put into effect directions that were clearly outside the law. Not just one occasion. It was undoubtedly due to the fact of undue interference by the Executive that Ronnie Gunasinghe was not taken into custody.24

Some instances of the political control of the structures follow.

(i) The Lakshman Perera Case: Lakshman Perera was a dramatist and poet and Pradeshiya Sabha MP of the Governing Party. Soon after posters appeared in and around Colombo advertising his satirical play termed "WHO IS HE? WHAT IS HE DOING?", he was abducted from his home and disappeared. His wife's identification of the abductors is as follows:

I do not see personal enmity to be the cause. This abduction is an indication of the hollow nature of the profession of democracy by the ruling party. We were at the police station very shortly after the abduction, but the police displayed utter indifference.

(ii) The Richard de Soyza Case: The case of Richard de Soyza Journalist and broadcaster (who was abducted on 18.02.1990. is another instance.25)

(iii) The Adiruppu Street Case: A U NP organiser of a Colombo Central area was abducted by an armed gang who came in modern vehicles in the night. The incident, apparently, is a consequence of an intra-UNP leadership struggle. His wife giving evidence before the Commission said:

There was no UNP high-up who didn't know my husband. And yet no one would move in the matter of his abduction and disappearance. 

The disappearance from police custody of suspects regarding the assassination of a political leader during this period is a striking instance of the practice under consideration. 

(iv) The Disappearance from Police Custody of Suspects Regarding the Assassination of a Political leader: The Vijaya Kumaratunga Case 

Vijaya Kumaratunge, Leader of the SLMP, was assassinated on 16.02.88. Lionel Ranasinghe and Tarzon Weerasinghe were taken into Police custody as the suspected assassin and accomplice respectively. The mother of Lionel Ranasinghe and the sister of Tarzon Weerasinghe, have stated to the Commission that these persons disappeared from Police custody while they were detained at the 4th floor of the CID Headquarters in Colombo. Tarzon Weerasinghe's sister produced to the Commission a letter from the ICRC representative who visited this place of detention had been informed by a co-detainee that this person had disappeared while in the custody of the CID in March 1990. 

The Commission was unable to summon the said witness as the ICRC informed the Commission that they are unable to disclose the co-detainee's identity to the Commission. The CID's position to the IRP had been one of the denial of detention of Tarzon Weerasinghe. The mother of Lionel Weerasinghe stated that she visited her son in the custody of the CID and the last time she visited him was 16.09.89. She was then informed that he was in remand custody. Both petitioners have had no further information about these persons' fate until they read newspaper accounts of the evidence trasnpiring at the Special Presidential Commission of Inquiry into the assassination of Vijaya Kumaratunga. 

The finding of the Commission of Inquiry into the assassination of Vijaya Kumaratunga on the disappearance of Lionel Ranasinghe from custody is as follows:- 

The preceding account clearly shows that the conduct of the police regarding the transfer of the suspect from the CID to Homagama, his interrogation for five days at Homagama, the ambush of the police party and the escape of the suspect is laced with falsity at every turn. The evidence of the respective police officers stretches credulity to breaking point and more.26 

That Commission's finding on the disappearance of Tarzon Weerasinghe from custody is as follows:- 

The evidence is, that Tarzon Weerasinghe was not seen alive after his detention in the CID.27 

It is in evidence before us that no disciplinary inquiry or action of any kind was taken against the errant police officers. 

(v) The Masssacre on the Eve of the Presidential Election 1988 at SLFP Chief Organiser"s Residence 

NF was the SLFP Chief Organiser for Panadura at the Presidential Election of December 19, 1988. His residence was the centre for nominating polling agents and other campaign work. On December 18, 1988 he secured the release of some of his supporters who bid been arrested by the police on the false pretence that they were JVP and returned borne around 10.30 a.m. where several members of the party Youth League including the Branch Secretary and the treasure had assembled. Within minutes the residence was sprayed with bullets. Eight of his supporters had been killed on the spot; another had succumbed to his injuries later. The police had arrived within minutes at his house and given him protection. On the previous morning, December 17, two persons clad in army uniform had called over at his house and had inquired about the state of his security. After requesting for some posters of the SLFP Presidential candidate "to be put up when she wins" They had identified themselves as personnel attached to a temporary army camp at Wadduwe. 

NF: Even after such and incident when so many people were killed in my own house the culprits have not been found. There were posters against me by the JVP. But I had no direct threats from them. 

My House is situated two or three miles from the police station. But they arrived within a few minutes at my house. When I reflect on all these matters I think the Army was responsible for this incident and that the police also was aware of it.28

This incident is a clear indication of the political dimension of the use of the structure. 

(vi) The Promotion of some Security and police officers found to be in breath of fundamental rights by the Supreme Courts: 

When the Supreme Court in a 5-Judge Bench decision found a Viharadhipathi had been prevented from exercising his fundamental rights to "Freedom of Speech and Expression including Publication" by a police officer, the state media announcing the decision that evening announced also that the said police officer had been given a promotion. The incident that had violated the Viharadhipathi's fundamental rights was the seizure of posters objecting to the Referendum, at the time of the Referendum 1982.29 

The same juxtaposition is discernible in the circumstances of the failure to investigate, prosecute or hold disciplinary inquiry into instances where the courts has found a Forces or Police officer to have acted in breath of a fundamental right or to be responsible in a Habeas Corpus Application.

Three aspects of the evidence before the Commission requires special mention in this regard.

The case of Wijedasa Liyanarachchi30

At the conclusion of the trial-at-bar on the death of Liyanarachchi from 100 injuries suffered in police custody the court, accepting a plea by two of the accused police officers to the crime of wrongful confinement, passed the following strictures on Premadasa Udugampola, DIG Southern Range, who had been a Witness at the trial: 

The inescapable and irresistible inference deducible from the entirety of the proved facts in this case is that in actual fact no such applications for detention orders and detention orders were in existence on the third of September 1988. But that these documents were fabricated later with collusion between the first accused and witness Udugampola for the avowed object and authority on an otherwise illegal arrest, illegal detention and the illegal removal of a mutilated Liyanarachchi to Sapugaskanda so as to mislead and deceive the ultimate deciding authority as to when these injuries were in fact inflicted. 

The court went on to state, as part of its judgement, as follows: 

It is the fervent hope of this court that the Hon. Attorney General the law enforcement Agencies and the executive will in the near future probe and investigate into the issue as to who caused this death, using the varied facts, matters and information disclosed in these court proceedings. 

No steps, as directed by court, have been taken to this date. Nor dies the service record of Udugampola show that any steps have been taken by way of disciplinary inquiry or any other v. this officer departmentally. By the time the judgement was delivered in the Liyanarachchi case, 18.03.91 Udugampola was Head of the newly established Bureau of Special Operations, on presidential directive.

Case of Sunil of Obeysekerapura

The Case of Sunil of Obeysekerapura: Sunil"s abduction and disappearance occurred in the context of the inner party rivalry that occurred at the Colombo Municipal Council Elections 1991. Sunil, a strong UNPer and friend of one 'Malu Nihal' a leader of the local under world-gang, fell out with Malu Nihal as they supported the rival UNP candidates who contested the election. Sunil was abducted by police officers attached to the Bureau of Special Operations. His mother traced him to the office of the BSO. 

The Bureau of Special Operations was a special unit of the police established according to its mandate to 'fight narcotism" corruption, smuggling and terrorism", with operational jurisdiction island-wide, which was set up in January 1991 on Presidential direction with DIG Premadasa Udugampola as its Head. 

There was no allegation that Sunil was engaged in "narcotics, corruption, smuggling or terrorism" when he was abducted by the B. S. O.

All dissent had come to be equated to "subversion".

The petitioners before the Commission perceived this clearly. They said: 

My husband let the SLFP hold the General Election meetings in our compound when others wouldn't. They came in a jeep in the night time and abducted him. My complaint to the Inspector General of Police was referred for inquiry to the same officer, now, Asst. Supdt. of police of the area. 

I know the murder of my 18 year old President's Scout son just after his return from an international Scout jamboree was by the Army, at the local politician's behest. The local Army Commandant who ordered, and the local politico who put him up to it, are both equally guilty. 

When my 3 brothers, one of them the SLFP Branch President and all 3 quite outstanding, were abducted, it wasn't to keep them alive. It was to stifle political discussion. 

The then President of the Bar Association of Sri Lanka in his evidence to the Commission brought this out clearly from his analysis of the Lawyers who were abducted or were killed out-right during this period. Lawyers who filed Habeas Corpus applications, who worked with Christian Service Organations in the Free Trade Zone for the welfare of workers, Lawyers who appeared in Trade Union Matters, in legal aid work, met with the same fate.31 

A large number of lawyers who were handling Habeas Corpus and fundamental rights matters were killed by unidentified gun men. C. L. was handling a large number of Habeas Corpus Cases in respect of persons who had been taken into custody arid disappeared. Mr. N. N. of Gampaha had been involved in a large number of Hebeas Corpus Cases, but at the date of his killing he was not involved in these. Mr. K. A. who was killed had been involved in a large number of cases in respect of University students who had been taken into custody and could not be traced. He was also active in the Sarvodaya Legal Aid Centre, Mr. S. K. at the time of his death was engaged as a Junior Counsel in a Magistrate Court Case in Theldeniya, where 7 Police Officers of Theldeniya Police were accused on killing a school boy in a demonstration. Prior to the murder of S. K. his clerk and another lawayer's clerk who were eye-witnesses to the shooting of the school boy, had been killed. A delegation of the BASL met H. E. the President of Sri Lanka and requested that the Police and Army personnel should come to an agreement that BASL would be informed with 24 hours of a lawyer being taken into custody. H. E. The President agreed to this. The agreement with the three service Commanders was signed on 21.08.89. On several occasions lawyers were threatened and taken into custody and subsequently released at my intervention. Mr. G K. who was practicing in Gampaha was not involved in Habeas Corpus matters, but he was involved in Trade Union Work for SEDEC, a Catholic welfare organisation in the Katunayake Free Trade Zone. Mr. B. of the Negombo Bar was helping in the work of the Movements for Inter-Racial Justice and equality (MIRJE) a general feature of the abductions of lawyers was the fact that they were carried out by persons in civil coming in unmarked vehicles. This would be followed by my telephoning the Secretary/Defence who would say: I will ring some People and ring you back; thereafter he would phone to say: Your man is safe. 

8. An attitude of considering only one's own human rights as 'Rights' had came into existence 

The Secretary Movement for Development and Democratic Rights (MDDR) an umbrella organisation of voluntary organisations who work in the field of political, civil socio-economic and cultural rights, stated in evidence: 

At the time terrorism came to be used as a political tool in the North, the state's view was that it could be brought under control by slaughter. The resultant State Terrorism could have only restricted operation in the North. But within the Police and Army and even the Govt. the prevalent view was that killing was an essential tool, and machinery to this purpose, to be put to use at any time whatsoever, was set up by the state. This machinery was set up in a frame-work that couldn't be challenged via the courts. The only legal weapon available against abduction and killings was the writ of Habeas Corpus. If the inquests and investigations requisites under ordinary law operated, the law would not have been reduced to this state of helplessness. Emergency Regulation 55 permitted a burial without on inquest EF55's "message" to the Security Forces was that a human body was no more than that of a dog or other animal. All this took place in the context of an attitude of considering only your own Human Rights as "Rights". This was reflected among lawyers also. On one occasion our orgnisation proposed that as a principle we should oppose all Murder, by whomsoever. Those who opposed this took up the position that what was necessary was condemnation of killings by state forces and not killings by others. When we showed that this was not only incorrect in principle but was in itself a threat to Human Rights, there were threats to our lives. And as they were in a position to carry them out, these were not idle threats either.32 

See Further post. 

9. The Minister of State for Defence on the Government's Policies 

Finally it is the responsibility of this Commission to place on record the words in Parliament of the Minister of Defence. 

A. On 25.01.90 speaking in Parliament in the debate to extend the Emergency, the Minister stated as follows: 

I know that there are abuses black sheep in the Police Department and the Forces, but by and large the Services and the Police are highly disciplined and they have done a good job for all of us - not only for us, but for all of us. I am concerned about the abuses and I am personally following up the action that is being taken against the culprits. I have asked for a list of name of persons in the Army, the Navy, the Air Force and the Police who have been accused of murder, extortion, rape, robbery and connivance with the JVP. I will follow up action until they are punished and put in their places. No, matter who they are, no influence will be tolerated. 

We are in the process of cleaning up the local Mafia. That is why we want the Emergency Extended for a little more time to finish up all this also. You cannot do these things under the normal law. It takes a lot of time. By the time my good friends who are lawyers take time to solve these things the match will be over (Interruption). We have finished the first eleven and the second eleven. Now we are tackling the under fourteen fellows.33 

1. There is no record of follow-up action against any person in any Army, Navy Etc. in respect of the series of acts that constitute a disappearance. 

2. "We have finished the first eleven and the second eleven. Now we are tackling the under 14 fellows" is seen to have an almost literal meaning. Not a single leader of the JVP was brought to trial after the arrest of thirteen out of fourteen Members of the Polit Bureau in the period November-December 1989. None of them are alive.

3. The incidents attributable to the State Forces continued after December '89.

THE FOLLOWING IS A CHART: SEE PAGE 43, TOP FOR ORIGINAL

Security Forces Etc.

July-Dec '89 Jan-June '90 July-Dec '90 Jan-Jun '91
3052 811 349 58

 The number of incidents reported to this Commission alleged to be at Security forces' hands for the period Jan. to Dec. 1990 is 1160. 

Presumable these were the second eleven and under fourteens referred to by the Hon. Minister?34

B. In the debate on the extension of the Emergency April 1990, the Leader of the

Opposition raised the question: 

The Hon. Minister for Defence always keeps saying the match is over and normalcy is restored, what is the necessity for this Emergency? 

The Minister for Defence said: 

In regard to the continuation of the Emergency, we have still a few criminals and murderers masquerading, Yesterday we caught a youth aged 19 yrs who confessed to me about 70 murders. There are 9 others in that gang. We after these criminals who have got used to murdering. They must be rid from society and the police are doing that.35 

Just 6 weeks later this "most wanted Youth" was alleged to have "escaped from custody".36 

S. N. Silva J. 

After notice issued from this Court an affidavit has been filed by V.T.S. Chief

Inspector setting out the circumstances with regard to the arrest of; the said persons. According to the affidavit, on 28.12.89. the said two persons and two others were being taken by a party of Police officers to be detained at the detention camp at the Race Course, Colombo. On the way at a place called Koskandawila Junction the four suspects escaped from the custody of the Police officers while the officers were engaged in changing a flat tyre of the vehicle in which they were travelling. 

According to the affidavit to PS, sub-Inspector of Police, on 1.2.90. he went with a police party in order to conduct a raid in the Pitipana area (coming within the Homagama Police Station) At Rukmalgama he was few people running into the jungle. At that state the police opened fire and later they found the four bodies of the persons who are said have escaped from custody on 28.12.89. These bodies have thereafter been disposed of under the Emergency Regulations.  

I direct the learned Chief Magistrate of Colombo to hold an inquiry without delay, into the matters contained in the petition and the affidavits filed in these two applications. In particular the learned Magistrate will inquire into the following matters. 

1. The circumstances in which the two persons on behalf of whom these applications have been filed were arrested by the Police and detained. 

2. The circumstances in which the two persons and two others escaped from the police custody on 28.12.89. In this regard the learned Magistrate will record the evidence of every officer present in the vehicle at the time of the alleged escape and if possible make his observation as to the place from which the persons are said to have escaped. 

3. The circumstances in which the four persons are said to have died in 1.2.90. in particular the learned Magistrate will record the evidence of every police officer who was present at the time and if possible make his observations with regard to the place at which this incident is said to have taken place. 

4. The learned Magistrate will also record the evidence of the Officer who issued the order for the disposal of the bodies in terms of the Emergency Regulation particularly with regard to the observations made as to the injuries on the four bodies and the means of identification.

 1O. Subversive Acts 

"We hid from everyone" Subversive killings in the period 01.01.89. to 31.12.94. as reported to this Commission is 779. 

The overall impact of these acts, as revealed by the evidence, leads the commission to the conclusion that these 779 cases are 779 instance of "Punishment for Dissent." 

i. By 1, January 1988, the second Southern Insurrection was well under way. The stated objective of the Janatha Vimukthi Peramuna (JVP) was to establish a Marxist State including the overthrow by force of the Government in office. However, from the evidence before this Commission we conclude that the impact of the JVP's activities was that of stifling opposition to it.

ii. The number of subversive killings in the period 01 .01.88. as reported to this Commission is 779.

iii. The evidence before this Commission reveals the objectives behind these actions included: 

  1. crippling the administration;
  2. control of community;
  3. punishment;
  4. elimination of competition.

A. Crippling of the Administration 

Among the activities of the JVP were: 

(a) the killing or the disappearance of-

  1. Grama Sevakas, Co-operative employees and other public servants including government teachers; and
  2. elected representatives of the people from local government to parliamentarians and 

(b) arson to state owned or controlled property.

It was clear that this was the JVP's method of bringing the administrative activities in the area under the scrutiny of the Commission to a stand still. 

B. Control of a Community 

During the period under scrutiny, the JVP called for a ban on radios and the government controlled media and insisted on informal curfews, work stoppages and the extinguishing of lamps and electric lights in the night thus heightening the same of isolation in a community. The reaction of the JVP to non compliance to its demands by the community ranged from arson to private property to the killing or disappearance of persons. 

Amongst the persons thus killed or disappeared were youth who had refused to join the ranks of the movement. Some other victims were persons who had refused to provide support in the form of food, shelter or information, which was expected to be available on call from the community. The JVP also engaged in so-called "Cleaning up" operations, establishing their own form of investigation and punishment of crimes. The investigations of the Commission revealed the maintenance of a torture camp in the Ratnapura district by the JVP. 

The activities of the JVP were conducted, very often, with maximum publicity including the public humiliation of suspects of crimes the display of mutilated bodies of victims and a public branding of activities opposed by them and the persons engaged in such activities. The effect of the public nature of these acts was the control of the community concerned. 

C. Punishment 

The JVP asserted "a right to punish" persons who did not comply with their directives or requests or dissented from the ideology and practice of the JVP. The punishment took the form of arson to private property, assault of persons and killings or disappearances and torture. The victims included not only the direct violator of the JVP's directives but also members of their families and their friends. 

Amongst the victims of the Victims of the JVP were police officers, members of the armed forces37 and their families who were targeted as the hurdle to the transformation of the JVP from local based groups to "the ultimate repository of the state power". 

Another group who were victimised by the JVP were persons aligned with the ruling United National Party. 

Persons who exercised their right to stand for elections and the right to vote, were punished and even killed. 

Almost a third of the incidents reported to the Commission took place in the five month period in the run up to the Presidential and Parliamentary elections in 1988 and 1989, which the JVP was opposed to, highlighting this attitude.

 

Subversive Incidents: Aug. '88 - Feb. '89.

TABLE 2

 Time Period Aug '88 Sept '88 Oct '88 Nov '88 Dec '88 Jan '89 Feb '89 Total Mar '89
 Subversive Acts 8 23 27 43 38 42 49 230 21
Security Froces 13 9 22 49 130 52 47 322 52

D. Elimination of Competition 

Many of the incidents reported to the Commission are only explicable in terms of the elimination of competition. The victims of the JVP included local based politicians belonging to opposition parties and in particular to the other Marxist-based parties. 

Community activists including bhikkus and trade unionists who were not aligned with them and people who had left the JVP at some point or the other but continued to be held in public regard. Any possible threat to the overall control of the community by the JVP was immediately dealt with.

IMPACT OF THESE ACTIVITIES 

The impact of the activities of the JVP is discussed at length in Chapter Twelve. For the purpose of the issue of responsibility, the Commission wishes to stress the following: 

(i) the persons who were revealed to have felt the impact of these actions were amongst the most disempowered of the Community. 

(ii) communities were isolated into pockets from the mainstream of activity in the country and deprived of the community services which were usually available to them (public transport, schooling, medical attention) 

(iii) the JVP conducted a campaign to eliminate space for dissent.

SOME CASES ILLUSTRATIVE OF THE SPECTRUM OF SUBVERSIVE KILLINGS

Case of PPD of Pattiyawala

PPD was a Grama Sevaka. On a night in March, 1988 he had been abducted from home by subversives. His charred body had been discovered two days following the incident of abduction. In this case the witness, (Mother of PPD) revealed that two of her grandsons also had been killed on the same day. The JVP had threatened the three sons of another Grama Saveka to resign from their posts around the same time

Case of DLS of Nagoda

DLS was an LSSP activist. By the year 1988 he had counted 25 years in politics at Village Committee (Pradeshiya Sabha) level. In April 1988 he had left home to hand over his nomination papers for the Provincial Council elections. On the same night while taking a wash at the well close to his house JVP activists had come and shot him. A few months later DLS died in hospital. Prior to the incident DLS had been under constant threats from the JVP. An year later the elder son of DLS was also killed by the JVP.

Case of PAD and PAL of Makandura 

PAD and PAL (two brothers) were active supporters of a well known political personality 'X' in the Communist Party. (Presently a Provincial Council Minister). On a night in May, 1988 they had been abducted by subversives. Within a matter of ten minutes the inmates of the house of PAD and PAL had heard gun shots. The inmates later recovered the dead bodies. PAD had also been a Branch Secretary of the Communist Party. The families of PAD and PAL had earlier threatened by subversives for working on their paddy fields, during an unofficial curfew. PAD and PAL had been jointly providing for six families who had now been left destitute as a result of their demise. Later another relative of PSD and PAL who had been a UNP supporter had been killed by the subversives.

Case of HPG of Sevanagala 

HPG was a USA candidate at the 1988 Provincial Council elections. He had not been successful at the polls. Shortly thereafter a group of armed subversives had broken into HPG's house. The other inmates of the house had been shuffled into a room and HPG had been forcibly removed. Within a few moments the inmates heard gun shots. HPG had been found dead in a pool of blood.

Case of HGK of Ambalantota 

HGK was a UNP activist and a father of two minor children. His wife was in the fifth months of pregnancy. On a night in October, 1989 an unidentified crowed of persons had abducted HGK from his house. His body was later found hanging from a transformer. His head had been severed. There was a poster near the body which read "Death to the traitors". On the day of the funeral HGK's family had received threatening letters with the warning Do not carry the coffin above knee-level.

Case of ES and EP of Mawarawala 

ES and EP (son and father) had been burnt inside their house on an evening in January, 1989, Earlier seven armed persons (three were named by the wife of EP) had came to the house, forced the five daughters and the witness to leave the house and tied them to trees a little away from the house. The family had watched helplessly as they saw the house was set on fire with ES and EP inside. In or about 1985 the JVP had endeavoured to recruit two other sons of NMS to their Cadres without success. Those two sons had disappeared in 1985.

Case of KAA and DMD of Panadura 

KAA was a candidate of the UNP at the 1988 Provincial Council elections. He had been subjected to threats by the JVP. On a day in February, 1989 both KAA and his wife were killed by subversives. Subversive activities in this area concerned had reached high proportions around this time. Two months after this incident, his sister DMD, a member of the Municipal Council was also killed.

Case of BM of Embilipitiya 

BM's brother-in-law 'X' was a member of the armed forces. BM's was a cultivator family in Gangeyaya, Embilipitiya. The family had been under constant threats from JVP who had demanded the resignation of 'X' from the army. In the middle of the night on a day in February 1989 BM's family had heard several gunshots in the vicinity of their house. BM was not in the house at the time. Later the members of BM's family discovered that BM along with six others had been killed. Thereafter the army had for a period of six months provided the members of BM's family with protection from subversives.

Case of HWD of Buddegama 

HWD a support of the United National Party and an active participant in Youth Affairs in the village. Prior to the 1989 General Elections the JVP had threatened to kill those who would attempt to go to the polls. On a night in April, 1989 when he had been visiting his uncle subversives had abducted HWD from his uncle's Later he had been found killed about quarter of a mile from his uncle's abode. His hands and legs had been tied, teeth broken and several stab injuries found all over his body. HWD's uncles also had been killed on the same day,

Case of DP of Suriyawewa 

DP was a father of four children, He was a cultivator and worked openly for the SLFP at the 1989 General Election defying JVP threats. One night in February subversives had broken into his house. He had been blindfolded and abducted. His wife who was in the fifth month of her pregnancy and the other inmates had been warned not to leave the house. DP was found dead the following morning near his house. His body was riddled with bullets.

11. Conclusion

  • The information and material placed before us impel the observation that the State with allied agencies as well as subversives were responsible for the removals and disappearances that prevailed during the period under investigation. Those families whose members fell victim to the subversive terror as well as families devastated by the counter subversive measures adopted by the State and its agencies will probably continue Vindictam Spirantes. Both these groups however cannot overlook the misery that had befallen the surviving members of all victimised families. In the address of these needs lies the means to bring about a national reconciliation.  
  • In this regard the perception of the members f the public who do not fall into either category would be important in that this perception would be the yardstick to measure community concern in a crisis situation. 
  • National reconciliation necessarily pre-supposes the existence of conditions for commanding public confidence in the existing structures. A failure to hold democratic elections when due, promotion of handpicked police officers particularly when they are found to have transgressed the law by the highest court, and attempting to stifle political leaders of the opposition did not help towards that cause. 

It is unreasonable to expect that the further evidence required for the identification to pin individual liability in the "vertical structures" would be available to the petitioners before us. Only Persons who were within the system itself either decision-makers, participants, or as witnesses to same could provide such evidence. The political dimension of the events in respect of which responsibility is sought to be identified is very clear, however from the few witnesses with personal knowledge of the times who came be fore the Commission. We have analysed their evidence in the foregoing paragraphs. 

The South African Truth and Reconciliation Commission and some Latin American ones have provisions enabling the admission of participation and consequent amnesty, to witnesses who came before the Commission.38 

Finally, on the issue of "Responsibility", a distinction needs to be drawn at all times in the identification of "those responsible" where the State is under the control of a civil government, as in our case, from the situation where the State is in the control of a military regime. Whatever may be said in support of an identification and punishment of a few military leaders in the situation where the state is in the control of a military regime such a limited exercise can never suffice or be condoned in the situation of a state which is under the control of a civil government.

Footnotes

1. U. N. resolution to eliminate international terrorism. 17 February 1995. A/RGS/49/60.

2. Jose Zalaquett, "Confronting human rights violations committed by former governments: principles applicable and political constraints" in Transitional Justice. (ed. by N. J. Krtz). Vo;. 1 (New York, 1995), p.9.

3. Paragraph (d) of the Mandate.

4. This list is not a part and parcel of the Report. See further Chapter on "The Legal Proceedings Regarding Responsibility."

5. Except in the case of Tamils list in Colombo, the subversive group denoted by witness before the Commission ws always the Janatha Vimukthi Peramuna (JVP). This was the case even when the group involved had identified itseld as Desapremi Janatha Vyaparaya (DJV). For a consideration of the case of Tamils lost in Colombo, see Chapter Eleven.
The category "Identity Unknown" it will be noted, is the description given by the petitioners. It would not include "personal enemies," as personal enemies would be within their knowledge, and therefore identified by them as such.
The method of operation favoured by the subversives was one of killing and publicly exhibiting the body. A prompt implementation of the requisite procedures of law by the police and court by way of investigations and inquests tool place in such instances. It can be safely said that the greater part of these 1543 incidents categorised as "unknown" which lacked both these characteristics, would not have been at subversive hands.

6. Either by the security forces or by the subversives.

7. Either the pro-Government political structure or the subversive.

8. This last group of factors was usually associated with the perpetrators being subversive.

9. Usually a killing.

10. Ironically, the very absence of a claim and the very attempt to prevent identification of the body came to be an easily identifiable 'trademark' of the perpetrator.

11. The classification of an incident to be a subversive act of otherwise was on the basis of a Police report. But there were exceptions. E.g.: there are instances where H.E. the President has ordered compensation to be paid although the act in question was not alleged to be a subversive act. But those are few in number, and not a real exception since those decisions were based on the fact that the petitioner had appealed to his personally at the then popular "Presidential Mobile Service."

12. 'Kapee-penena Aya'

13. A practice adopted by both the security forces and subversives in the period.

14. On the basis of the principle of marxist organisationof "Cells" of five.

15. "Puhul Hora Karen Deney." As the parents related to the Commission on an occasion when the commission had found five separate abductees had been taken, the initial denial by the suspect personnel was followed by the boast: "Don't forget not only are the goods are ours, we are also the judges." (Baduth ape naduth ape).

16. This testimony gained touching authenticity from the silent testimonial of their conduct subsequent to the alleged removal or disappearance. An endless trek from local MP, Police Stations to Army Camp, and the despatch of letters of entreaty to an astonishing range of persons believed to be in a position of authority and ale to help, ranging from the President of the republic, the Army Commander, the Inspector General of Police, to the Joint Operational Command, International Committee of the red Cross.

17. See further Chapter Three: "A Statistical Profile"

18. See further on "The Phenomenon of Mass Grave."

19. The WGEID by its mandate, considers only disappearances from detention by Govt. officials, or those acting with the support or permission of the Government.

20. See further Chapter on "Habeas Corpus Applications."

21. See Chapter Six: "Issue of Impunity."

22. Presidential Commission of Inquiry on certain matters relating to the Parliamentary General Elections and Elections to Local Authorities of the Eastern Province and Vavuniya held in 1994. Proceeding of 14.01.96 at 9.45 a.m. Procured in pursuance of this Commission's Power under Section 7 Commissions of Inquiry Act No. 17/1948.

23. August 1983

24. Proceedings of 13.03.97. the last sentence is a reference to the Warrant of the Magistrate in the Richard de Zoysa murder inquest, to produce in court Ronnie Gunasinghe Senior Superintendent of Police.

25. See p. 172 ante and Vol. II Special Report on the investigation into it.

26. Sessional Paper No. 1/96; p. 49.

27. Ibid pp. 52-53.

28. The case filed by the Police in the Magistrate's Court has been laid by as an "Accused Unknown" case.

29. Ratnasara Thero v. Udugampola (1983) ISLR p. 461

30. H. C. Colombo 3718/8. See further: Special report on the Liyanarachchi Case.

31. Mr. Desmond Fernando PC.
Mr. Anil Silva, Attorney at law (Secretary BASL) stated that the assistance of the BASL was sought n respecof 4000 cases occurring in this period.

32. The subversive killings reported to this Commission are a prime example of the attitude of considering as "Rights" only one's own human rights.

33. Hansard Volume 62 column 1249, proceedings of 25.01.90.

34. Corresponding figures of subversives acts reported to the Commission.

Jul.-Dec. '89 Jan.-Jun. '90 Jul.-Dec. '90 Jan.-Jul. '91
326 34 24 1

35. Hansard Volume 64 column 1768, proceedings of 26.04.90 and ibid., Column 805. See further "The case of Sharon" in Chapter Ten of the 'Issue of Impunity.'

36. For a judicial response to an allegation of escape from police custody see HCA 64-65/90.

37. The JVP had made request of all members of the armed forces and the police to resign/abandon their posts.

38. See chapter on "Prevention" for a, consideration of the advisability of a similar provision in our law.

Posted on 1999-01-01



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