Our terms of reference require us to inquire into and report on

"the legal proceedings that can be taken against the persons" held to be responsible for the involuntary removals or disappearances during the period under investigation"

(vide: paragraph (e) of the warrant)

1. The Alleged Perpetrators

1. The persons whose names appear in lists sent under separate cover are those who were named as perpetrators by the witnesses and where we found the information and material upon which the allegations of the witnesses was found to be prima facie credible. As a rule we took into consideration the surrounding circumstances such as antecedent threats or warnings received by the corpus and/or his family, searches of the place of residence of the corpus or his office or place of work; nature of interrogation preceding the involuntary removal; political, social and other involvements of the corpus etc; Apart from the fact that as a general rule we looked for evidence of a corroborative nature, a factor which weighed with us was eye witness accounts of named perpetrators whether they belonged to state agencies, state agencies acting in collaboration with para-military groups, individuals or combinations of any two or more of the aforesaid groups and alleged subversives.
2. Where the witnesses were able to identify only the particular police station or security services camp to a sufficient degree where the allegation was against state agencies or state agencies acting in collaboration with para-military groups we have named the said police stations and camps.
3. Consequently, we have left out from the said lists names of alleged perpetrators where we found the evidence to be based on hearsay not supported by other evidence (whether circumstantial or otherwise) or surmise and where after probing we found the political and personal motives sought to be imputed could not be substantiated.
4. The reasons for and the objective in sending the said lists under separate cover we have addressed in Chapter Two (ante) of this Report.

02. We are fully conscious and mindful of the feelings and concerns of the complainants who came before us Vindictam Spirantes in a committed and emotional quest crying for justice to bring to book those whom they believed had been responsible for the extra-judicial treatment meted our to their loved ones, an opportunity that had been denied to them for several years. Accordingly we recommend that the following measures be taken towards the realisation of that objective.

2. Proposed Legal Proceedings

I. The Conduct of Police Investigations

We recommend that investigations be carried out (with a view to instituting penal proceedings) through a special unit of the Police under the direct supervision of an officer not below the rank of Deputy Inspector General in respect of the persons named in the lists sent herewith (under separate confidential cover). Several years have passed since the alleged occurences. Members of affected families have waited patiently all that while. Given the number of incedents that may have to be investigated the proposed special unit must be assigned only this task until its completion.

Liability of Individual Perpetrators

II. Criminal Liability

This section will discuss certain aspects relevant to the ascertainment of the legal liability of a person once the Attorney-General has filed charges based on the final outcome of the police investigations considered in I above.

1. The present Penal Code is the same law that was prevailing at the time of the relevant incident. The offences on which criminal liability could ensue are analysed in the Chapter on 'The Indictment' in the Special Report on the Disappearances of Embilipitiya School Boys ¹. The Emergency Regulations it has been judicially observed several times by the Supreme Court, did not displace the criminal law consisting of the Penal Code and the Code of Criminal Procedure Act. ² The Emergency Regulations set up distinctive procedures which have to be proved to have been adhered to in order to constitute conformity with the constitutional requirement of 'conformity with procedure established by law ³. It is upto a particular respondent to prove conformity with the required procedures.
   
2. Trials - In accordance with the over-riding need to restore respect for law and a culture of human rights we recommend that there should be no change in the present law and practice that the forum for the discussion on criminal liability should always be the courts of law (Not Special tribunals).

Evidentiary requirements of the general law must apply. ⁴ If detention is established, however, a shift in the presumptive burden in light of an absence of explanation from the person charged, should prevail.

3. Principles of procedural fairness which include the principle of 'audi alteram partem' and the right to legal representation should always be applicable.
   
4. The Prosecutor.- This Commission recommends that an office of an independent human rights prosecutor ⁵ be created under the Constitution. this should be an independent institution similar to the Commissioner of Elections and the Auditor General, with funds provided by Parliament.
   
5. Access to State records.- In 1994, Your Excellency by Presidential Directives at the Commission's request, required all officers in charge of Police Stations to preserve the Books of the Police Stations maintained in the relevant period. This Commission recommends that these Books should be handed over to the office of the Independent Human Rights Prosecutor. In the initial period of our inquiries we have come across regarettable instances of scarce heed being paid to Your Excellency's direction. The situation however showed a marked improvement within an year which we take to be a welcome sign that the requisite changes and enforcement of discipline at the intra-departmental level had commenced in the Police. We have found both Police Books and Medical Records to be valuable sources of information.
   
6. Non-availability of A Defence of 'Due Obedience'.- We recommend that no defence of due obedience is to be entertained. As stated earlier all the offences constituted by the acts in question were already well established offences under the law.
   

The Indemnity Act. No. 60/88 is and ex-post facto legislation. At the time of the commission of the acts in issue all persons concerened were well aware that they were acting outside the law. ⁶

It is anticipated by this Commission that the provisions of the Emergency Regulations which operated at the time of any particular incident would protect a participant in any one of the series of acts leading to the disappearance, other than the ultimate act. We do not recommend any change in respect of this. The compass of the Emergency Regulations may well provide a means of separating minnows from the sharks. The reaffirmation of the principle of accountability in respect of liability for past acts is required for the good of society in the future, but a spectacle of minnows being singled out for prosecution while the sharks go free would be counter-productive in this respect.

7. An amnesty to witnesses including perpetrators who confess to their own participation in human rights violations and give full evidence of the accompanying circumstances.- We recommend that the Human Rights Commission be directed by Your Excellency to set up machinery by way of a Special Committee of eminent persons to entertain and record evidence of and to recommend an amnesty to witnesses from within the structures who within a stated period confess to their own participation in the violation of the Human Rights at issue and give full evidence in respect of the whole incident including orders received, planning for, etc. The Provisions of the South African Truth Commission may be considered a model.

⁷We consider to that this would properly be considered to come within the Human Rights Commission's duty to advise etc. The Reports of all three Commissions should be made available to the Human rights Commission and to the Special Committee set up for this purpose.

8. The position of alleged individual perpetrators while they are under investigation.- Such persons should be transferred out of the area of alleged incidents under investigation. Interdiction however should not take place, until a disciplinary inquiry or a criminal prosecution is instituted.

However, if any alleged attempt-

• to interfere with witnesses
• threats to lawyers
• Threats to petitioners and witnesses
• obstruct investigations are reported, they should not only be the subject of a further inquiry followed by further punishment, but such complaints should be a ground for interdiction as being evidence of unchanged attitude and conduct.

9. Punishment after Conviction of Individual Perpetrators

1. Imprisonment
2. Promotions/Advancements

(i) The loss of promotions, and
(ii) Further prospects of promotions/advancements.

3. Liability to restore to the complainant an unjust enrichment. The allegation of unjust enrichment should be the subject of consideration at the triall, so as to obviate the need for a multiplicity of action. ⁸
4. The award of compensation should be a part of the punishment, never a substitute.

10. Chain-of Command Responsibility.- The concept of chain-of-command responsibility has already been identified and its implications worked out in the Habeas Corpus jurisdiction of the Court of Appeal. ⁹

We recommend that the issue of the accountability of the chain-of-command structures should be referred to the Supreme Court under the constitutional provisions enabling Your Excellency to seek the opinion of the Supreme Court where

It appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain ¹⁰ the opinion of the Supreme Court.

A full bench of the Supreme Court should constitute the division for this matter. It is very important that very clear directions are available for the future, defining the accountability of the chain-of-command structures.

III. Institution of Habeas Corpus Applications Against Named Perpetrators ¹¹

1. The conduct of further investigations as contemplated in the preceding paragraph, possibility of instituting criminal prosecutions consequent thereto, ensuing trials followed by appeals will naturally involve long delays. An application in the nature of a writ of Habeas Corpus on the other hand would not involve and require further investigations as in the case of the proposed penal proceedings.
2. The aspect of delay would not be held as a discertionary bar to a Habeas Corpus Application in the same way as in an application for a prerogative writ or a revision application. The reasons abducted by witnesses for their inaction are:

1. The fear of intimidation and/or reprisal from the persons alleged to be responsible for the acts in question. Most of the alleged perpetrators were/are still in service (police or armed services) or in the village (alleged subversives, political suspects or personal enemies). During the relevant period according to complaints it was inconceivable how anyone could have taken any action against those named perpetrators.
2. The prevalent climate made access to legal advice and assistance a practical impossibility.
3. Even if access could be had to legal advice and assistance there were financial constraints and sheer illiteracy.
4. The expectation that, with the creation of the Presidential Commission, the Commission would be able to afford the relief that had eluded them for so long.

These reasons reveal the nature of the problems faced by most of the complainants who came before us.

Recommendations

An establishment of a Legal Advisory/Assistance Bureau to entertain, process and institute Habeas Corpus Applications in the case arising for consideration during the period January, 1988 and November 1994. Adequate publicity in regard to the establishment of the aforesaid bureau.

III. Having regard to the Rules framed by the Supreme court in terms of Article 136 of the Constitution particularly Rule 3(1)of the Court of Appeal (Appellate Procedure) Rules 1990, we feel the imperative need for the establishment of an adequate legal services system to respond to the problem of the aggrieved persons who were victims of a particular period and climate. It is the nature of this climate and the phenomenon emerging there from that would be required to be explained in response to Rule 3(1) referred to above. An institutional involvement with State patronage on the lines suggested above that a realistic and positive objective could be realised as an answer or explanation to the problem of the times under consideration.

IV. Civil proceedings Against Perpetrators Against Whom There Are Judicial Findings

1. Where the petitioners had been able to successfully overcome the problems highlighted in paragraph II above, in some cases the compensation ordered against the responsible respondents remains unpaid to date. We also see the absence of legal machinery to give effect to and enforce such orders made by court. We have addressed this issue further in a separeate Chapter headed "Habeas Corpus Applications".
   
2. We recommend that:

1. Where there are judicial findings against perpetrators coupled with a judicial order directing the perpetrator to pay compensation on the basis of personal liability as opposed to state liability such amount (if not paid within a stipulated statutory period) be made recoverable against the person against whom such and order has been made in separate proceedings. This provision may be made applicable in the case of Habeas Corpus Applications (subject to final determination in appeal) as well as ni fundamental rights violations cases.
2. Immediate legislation be enacted to give effect to the aforementioned proposal.
3. That the aforesaid proposal be extended in future to all cases where awards of compensation are made personally against a respondent in Habeas Corpus and fundamental rights violation applications.
4. That, the liability of a delinquent respondent in a Habeas corpus or fundamental rights violation application where personal liability has been imposed as the award of the basis for compensation be extended to his estate. ¹²
5. Delictual (Tortious) Proceedings Against Perpetrators

1. The following recommendations will depend on the result of penal proceedings which in turn will depend on the outcome of further investigations envisaged in paragraph I above.

1. In the event of any person (whose conduct has been the subject of investigation during the period under consideration) being found guilty by a criminal court of involuntarily removing or disappearing another we recommend that the disappeared person's dependents be given the right to institute civil proceedings for the recovery of damages.
2. In as much as we are mindful of the provisions of Section 9 of the Prescription Ordinance ¹³ we recommend that legislative provision be enacted making the order of the criminal court the basis for the recovery of such damages and the period of prescription to run only from the date of such order made by the criminal court.

VI. Institution of Applications for Fundamental Rights Violations

(1) As the Constitution presently stands a dependent of an "involuntarily removed and disappeared" corpus may not be entitled to invoke the jurisdiction of the Supreme Court under the Fundamental Rights Chapter.

(2) Consequently, we feel the need for amendments in regard to the provisions of Article 17 and 126 of the Constitution with a view to enlarging the scope of locus standi in fundamental rights applications as contained presently in Rule 44(7) of the Supreme Court Rules of 1990. ¹⁴

(3) Recommendations:

1. That an ad hoc committee be appointed by Your Excellency to study and make recommendations to your Excellency's Government in the light of the Judgement of the Inter-American Court of Human Rights ¹⁵ on 10^th September, 1993 in Aloeboetoe etc. v. Suriname. ¹⁶
2. Specially in the case of the returned detainees we recommend that, they be permitted to make applications in terms Article 11 and Article 13 of the Constitution through the legal advisory (assistance) services bureau proposed above. Although we observe that the time limits contemplated in Article 126(2) of the Constitution have been interpreted liberally by the supreme Court ¹⁷ a special response to cater for the problem of the returned detainess in question may be needed by way of a Constitutional amendment to enable them overcome the problem of delay.

4. A Legislative Package.- In conclusion we recommend that a legislative package be provided incorporating the aforesaid recommendations and the recommendations with regard to relief measures contained in Chapter Nine of this report. It is our view that, this should serve as an acknowledgement on the part of Your Excellency's Government of the trauma experienced by a large number of our society be they ordinary citizens, members of families of armed services or police, members of families of suspected subversives or members of families of politicians.

^ENDNOTES

^1. q. v. Vol II.
^2. See Chapter Ten "Emergency Regulations"
^3. Constitution of Sri Lanka Art 13.
^4. Including the presumption of innocence.
^5. See further: Chapter 8: "the need to create an office of independent prosecutor"
^6. The Indemnity Act requires to be removed from our statute books.
^7. The work of inquiry of the three Commissions set up by Your Excellency in 1994 has pre-occupied us to date. We have not had opportunity to consult between ourselves. For example on fundamental questions of individual liability there may well be differences in the position taken up by the three Commissions.

1. Whether individual liability should attach only to State offenders?
2. Whether individual liability should attach to State offenders and private individuals?
3. Whether individual liability should attack to private individuals who plead 'political action'.
   

^8. The requisite amendments to the procedural law, should form part of the "legislative package" which is the subject of consideration/recommendation p ost.
^9. See 'Habeas Corpus Applications' in Chapter Ten.
^10. Constitution of Sri Lanka Art, 129.
^11. See further on Habeas Corpus Application Chapter Ten.
^12. See further, Chapter dealing with Habeas Corpus Applications.
^13. No. 22 of 1871, LEC, Vol III, Chp: 68
^14. Vide : Gazette ext 665/32 of 07.06.1991.
^15. Series C: Decisions and Judgements No: 15.
^16. In making this recommendation we had regard to the observations made by Dr. A.R.B. Amarasinghe Judge of the Supreme Court in Our Fundamental Rights of Personal Security and Physical Liberty (Sarvodaya, 1995, pp 64 - 65)
^17. See for example, Gamethige v. Siriwardena (1988(1) SLR 384 per M. D. H. Fernando, J.)