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
(vide: paragraph (e) of the warrant)
1. The Alleged Perpetrators
- 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.
- 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.
- 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
- 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.
- 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
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.
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
- 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.
detention is established, however, a shift in the presumptive
burden in light of an absence of explanation from the person
charged, should prevail.
- Principles of
procedural fairness which include the principle of 'audi
alteram partem' and the right to legal
representation should always be applicable.
- The Prosecutor.- This Commission
recommends that an office of an independent human rights
created under the Constitution. this should be an
independent institution similar to the Commissioner of
Elections and the Auditor General, with funds provided by
- 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
- 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.
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.
- 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.
- 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.
- Punishment after
Conviction of Individual Perpetrators
(i) The loss of promotions, and
(ii) Further prospects of promotions/advancements.
- 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.
- The award of compensation should be a
part of the punishment, never a substitute.
- 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.
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
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
- 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.
- 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:
- 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.
- The prevalent climate made access to legal
advice and assistance a practical impossibility.
- Even if access could be had to legal
advice and assistance there were financial constraints
and sheer illiteracy.
- 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.
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
IV. Civil proceedings Against Perpetrators
Against Whom There Are Judicial Findings
- 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
- We recommend that:
- 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
- Immediate legislation be enacted to give
effect to the aforementioned proposal.
- 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.
- 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.
- Delictual (Tortious) Proceedings Against
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
- 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
- In as much as we are mindful of the
provisions of Section 9 of the Prescription
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.
- 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
15 on 10th
September, 1993 in Aloeboetoe etc. v. Suriname.
- 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
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.
1. q. v.
2. See Chapter Ten "Emergency
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.
- Whether individual liability should attach
only to State offenders?
- Whether individual liability should attach
to State offenders and private individuals?
- 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
9. See 'Habeas Corpus Applications'
in Chapter Ten.
10. Constitution of Sri Lanka Art, 129.
11. See further on Habeas Corpus Application
12. See further, Chapter dealing with Habeas
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:
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 -
17. See for example, Gamethige v. Siriwardena
(1988(1) SLR 384 per M. D. H. Fernando, J.)
Posted on 1999-01-01