Your Excellency has mandated this Commission
under Section (f) to report on
"The measures necessary to prevent the
occurrence of such alleged activities in the future"
The objectives of the recommendations set out
- The restoration of mutual confidence
amongst citizens inter-se, and between citizens and the
- The strengthening of the underpinnings of
a just and democratic society
We are mindful that our recommendations should
have relevance and be meaningful to citizens living in all parts
of Sri Lanka. Priority must be given at all times to the
avoidance of situations of disappearances arising. The security
forces and the police are necessary adjuncts of a state. They are
required for the protection of the state and the protection of
the citizens of the state. The average citizen looks to them for
protection. The tragedy of Sri Lanka lies in the distortion of
relationships between the citizens and the security forces
including the police, which has resulted from the acts of both
politicians and subversives.
II. Provisions Relating to
Arrest, Detention and Transfer
The following recommendations shall be
applicable to All arrests, detentions and transfers, irrespective
of whether they take place under the usual provisions of law or
the extraordinary provisions under the Emergency Regulations and
the Prevention of Terrorism Act.
1. The Duty to Record Arrests, Detention and
Transfer.- All arrests, detention and transfers must be
recorded, simultaneous with the event.
2. The Duty to Inform.- The nearest
police station should be informed forthwith.
There shall be a concommitant duty on each
police station to maintain a register of such notifications. The
information to be recorded at the Police station must contain the
following particulars :
- Name of informant and other particulars of
Rank, Regiment, Army camp/Police station.
- Time and date when the information was
- Full particualrs of the transaction
informed i.e. place, time, purpose, etc.
- Name and address of relatives, as supplies
by the detainees.
Information to District Secretary :
Additionally, there shall be a duty cast on officers in charge of
the police station or the Army camp which was the arresting
authority to submit to the District Secretary weekly a list of
persons arrested, detained or transferred with particulars
including such person's permanent address. There shall be a
concommitant duty on the District Secretary to maintain a
register of such information received which will be available to
relations, lawyers or other persons/organisations with a
legitimate interest in such information.
3. The duty to produce before the Magistrate
within 24 hours.- The requirement that all persons taken into
custody be produced before the Magistrate within 24 hours, wich
was a long-standing salutary feature of our law, was rendered
inoperative in respect of the many persons in detention under
Emergency Regulations and the Prevention of Terrorism Act, with
many adverse consequences, some of which have been examined by
the Supreme Court in the exercise of its fundamenatl rights
jurisdiction. The 24 hour rule shoule be re-ubtroduced without
The Magistrate must be informed of any change
in the place of custody, transfer out of the Magistrate's
jurisdiction, and release.
The Magistrate's Court shall maintain a
written record of such productions, which will be available at
the Magistrates Courts.
4. The duty to issue A Receipt of the
Arrest.- The arresting officer must give at the time of
arrest to a family member or friend of the person arrested a
Receipt of Arrest. This receipt must contain the name of person
arrested, date, place, officer arresting, with rank, place of
intended detention. A copy of this Receipt of Arrest is to be
given in writing to the detainee himself.
- All detention must be at authorised places
- All places of detention must maintain
registers of detainees, irrespective of whether the place
of detention is
"Permanent"/"Temporary": whether it
is maintained by Security Forces/by the Police.
Particularsof Detainees held at temporary camps must also
be entered in the Registers of the main Army Camp/Police
station to which the officers concerned belong.
- All officers-in-charge of places of
detention must send to the Pradesheeya Sabha Secretary
weekly, lists of persons in detention, to be entered in a
Register of Detention to be maintained by him.
6. Visits by Magistrate of places of
detention.- The Magistrate is required to visit all places of
detention once a month. A record of the Magistrate's monthly
visit and comments, if any, and of any special visit made by the
Magistrate pursuant to his Habeas Corpus Jurisdiction
1 must be
maintained at the place of detention as a Record available for
persusal by lawyers, Court, and persons/organisation with
legitimate interest in the information.
7. Conditions of Detention.- The Prison
Rules shall apply, including the right to communicate with the
8. Release.- Release from detention must be
- Through Courts or
- To the families.
When release is to the family, a family member
must sign the record of release. The Magistrate's Court and
the Pradesheeya Sabha Secretary must be informed, including
particulars of the person to whom the detainee was released.
III. The effect of a
failure to abide by Rules regarding Arrest/Detention/Transfer
1. A failure to abide by the above regulations
shall make the officer concerned subject to a Disciplinary
Inquiry which shall be conducted by an inquiring officer from
outside the service to which alleged defaulter belongs.
2. The failure to abide by these regulations
shall be entered in the officer's service record if proved.
3. A Criminal Prosecution.- the failure
or refusal to record arrests, detentions and transfers by the
police and the security forces and to record complaints of
abductions by the police if followed by an involuntary
disappearance shall be declared a cognisable offense by Act of
Parliament. A criminal prosecution shall take place.
4. A Right of Private Plaint.- The
failure to record arrests, detentions and transfers coupled with
the refusal to record complaints or involuntary removals or
disappearances as it happened in the period under review lie at
the root of the phenomenon under consideration by us. It is a
frontal attack at this root that requires attention. With this
objective in mind we recommend that the failure or refusal to
perform the acts envisaged above per se be declared acts
entailing penal consequences. Further, We are of the view that,
in the event of the Police failing to institute proceedings
against those personnel contemplated above whether at the
intervention of the first complainant or any other person or
institution having locus standi to do so the first
complainant or any other person having locus standi to do
2 (as recommended
by us) must be given the right to file a private plaint. The
recognition of an appropriate agency as contemplated above as
having locus standi to institute proceedings may serve to
translate into practical terms the concept of the community
concern in respect of the failure on the part of state agencies
on whom public trust has been reposed.
IV. The Enlargement of the
Jurisdiction of the Magistrate's Court Fora in Habeas Corpus
The Writ of Habeas Corpus is a main plank in
the prevention of disappearance from custody. First and foremost
is the requirement of speed of response: The opportunity to
invoke this jurisdiction no sooner a situation of unacknowledged
custody arises, is the first requisite. The following
recommendations are designed with the objectives of enabling a
disappeared person's family to move with promptitude in a
case of suspected disappearance.
(i) Enlargement of the Magistrate Court
Jurisdiction in HCA matters.- Your Commissioners recommend
the enlargement of the jurisdiction of the Magistrates Court to
empower the Magistrate
To receive the affidavits of the petitioner
and his witness register the complaint
To entertain the petitioner's
application that the Magistrate visits the place of
Forward to the High Court the affidavit and
the note of visit etc.
The existing jurisdiction to record evidence
once a matter is referred to the Magistrate Court by the High
Court will continue.
The High Court shall continue to exercise
jurisdiction in respect of the declaration of responsibility and
compensation as at present.
(ii) A Special Division of the Magistrate's
Court, Colombo.- It is advisable that a special Division of
the Magistrate's Court Colombo should be established in
order to deal with the more than 330 Habeas Corpus Applications
to the Court of Appeal since 1988 which still await attention. It
is important that notices should go out anew to the petitioners
from the Court of appeal in respect of their applications.
2. Executive Control of the Police and
Security forces.- It has been brought to the notice of this
Commission that an award of compensation against an official
found responsible in a Habeas Corpus Case does not get reflected
in his service record. Your Commissioners find this to be a very
unsatisfactory situation. We accordingly recommend that Your
Excellency as Commander in Chief of the Security Forces makes a
direction that henceforth a finding of responsibility in respect
of a disappearance by way of a judicial award in a Habeas Corpus
Application shall be entered in the service record of the officer
concerned, and consequently be taken into account with regard to
promotions, increments, and other features of advancement in
service. We consider this to be a necessary measure in order to
emphasise to superior officers the need to control, and
ultimately create a culture of accountability in, the security
Your Excellency will doubtless ensure that
these requirements are made applicable in the case of the police
3. Penal Measures on Evidence of a Lack of
Public Accountability.- Criminal prosecution must also follow
when there is evidence that "disappearance" is a
euphemism for "death". The indictment filed in The Case
of the Disappeared Embilipitiya School Boys
4 is an indication
of the grave charges that can be framed under the criminal law.
Officials with Chain-of-Command responsibility
who order or tolerate "disappearances" by those under
their command should incur criminal liability.
The Court of Appeal has already made award
against officials with chain-of-command responsibility who had
been found responsible in Habeas Corpus Applications.
VI. The need to dismantle
"Alternative Structures of Command" and the prevention
of their coming into existence
The elimination of alternative structure of
command within the Police force and Grama Sevaka system is a
prerequisite for prevention.
Senior Police officers have described to this
Commission how an alternative structure came into being in the
Police of officers junior in rank and rapidly promoted through
political patronage who were used by politicians for their own
ends. Enormous amounts had been paid illegally as
"rewards" in contravention of the provisions of the
Police Ordinance; and officers against whom the Supreme Court has
made order for the payment of compensation for breach of
fundamental rights had been further "rewarded" by these
amounts being paid by the state, accompanied by a total absence
of the recovery of these amounts from the person concerned. In
this context we recommend:
- The institution of disciplinary action
against miscreants, including legal action, in the near
- The identification of rules as regards the
requisite qualifications for police officers and Grama
Sevakas by a committe set up for that purpose,
accompanied by the promulgation of a rule that future
promotions of all officers will be decided on the basis
of the possesion of the requisite qualification plus his
record of past performance, with new recruitment to be
strictly on the basis of the requisite qualifications.
- A traning programme in investigations is
urgently required for all police officers. The long years
of recruitment and training of recruits as assistance to
the military in border villages has resulted in a police
force sadly deficient in the requisite skills in
invistigation. Further, there was the sad spectacle of
arbitratiness and an over-dependence on unreliable
"informers" in the counter-subversive exercises
in the south. It is essential that the reminder goes out
to all levels of Police Force that they are valuable and
indispensable only if they re-dedicated themselves to the
proper police functions of investigations, public
relations and the maintenance of law and order.
VII. A system of a Police Lay-Visitor'
Panel for each Police Area
It is necessary to reestablish the
community-based forces and procedures to which the citizens can
turn when faced with a possible misuser of police powers state
power. Such community-based structures have a valuable part to
play in the spheres both of monitoring and of prevention of such
misuse. A Panel of Lay-Visitors for each police station area
could serve this function.
- to speak to detainees
- to check conditions of detention
- to check records of tire police station
in respect of a detention
- to liaise in the presentation of
complaints to the police station
- to liaise with the SSP/DIG of the area
- to accompany persons to the police
stations when requested to do so
- to make complaints themselves in a
representative capacity, inclusive of impending problems
- the coordination at local level with
the Human Rights Task Force(HRTF) could be an aspect of their
work with importance for the restoration of Law and Order
VIII. Citizens Advisory Bureaus
A System of Citizen Advisory Bureaus located in
the vicinity of every district secretariat would be a valuable
aid to the whole community for advise on various matters. In the
context of disappearances specifically, such a system is required
for the assistance of bereaved persons on where to go and what to
do obtain the requisite assistance.
IX. The Elemination of the
Possibility of the Maintenance of a "Private Army" at
The maintenance of a considerable number of
armed personnel as security guards etc, of a politician at state
expense was a feature of the period under consideration. In
requires to be dismantled immediately. Persons selected by the
politicians were given the rank and emoluments of an Army
Officer. They were paid by the Army, armed by the Army, but not
controlled by the Army of employed in the Army's function of the
protection of society from its enemies. These
"soldiers" saw their role rather in the sphere of
moving against personal enemies, acting for personal benefit or
moving against the opponents of the politician concerned.
The security of public figures should be
provided by a special security coordination Division of the
Police officers attached to this division should be subjected to
the command and supervision of superior officers in the service.
All officers should be subjected to periodical transfer
X. The Manifestation of the
requisite Political Will: The appointment of the three
Commissions on Disappearances in Nov. 1994 is an important
manifestation of the political will to come to grips with the
problems which the Commission has found to exist.
A further development lies in The Presidential
Directives of July 1995 to the armed forces and the police
requiring that :
No person shall be arrested or detained under
any Emergency Regulations or the Prevention of Terrorism Act. No.
48/1979 except in accordance with the law and proper procedure
and by a person who is authorised by law to make such arrest or
order such detention, and (that) every member of the armed forces
and of the Police shall "Assist and facilitate the Human
Rights Task Force".
These regulations go on to specify that :
- the person arresting shall identify
himself by name and rank;
- the person arrested should be informed of
the reason for the arrest; and
- a document acknowledging the fact of
arrest should be given to a close relation or be recorded in
the Police Information Book.
It is time now to harness civil society in the
implementation of these provisions.
With these paramount considerations in mind we
make the following recommendations additionally.
- the need to introduce consititutional
- the need to enlarge the Human Rights
- the need to create the office of the
Independent Human Rights Prosecutor
A The need to introduce Constitutional
We recommend the following additions to the
safeguards guaranteed by the constitution on arrest.
- A constitutional right in the person
arrested to Communicate with a relative or friend and a
corresponding duty on the arresting officer to afford
reasonable facility to do so be recognised and declared.
- A constitutional right in the person
arrested to have issued to his relations with copy to him
self a document acknowledging the fact of arrest
inclusive of date and place, and particulars of the
arresting authority inclusive of name, rank and place of
work, and a corresponding duty on the arresting officer
to issue such document or to report to the nearest police
station within 24 hours the fact that the document was
not issues and the reasons therefor, be recongnised and
- A constitutional right in any person to be
represented by the Human Rights Task Force or a similar
body in bringing to the notice of the Supreme Court the
existence and location of a place of detention which has
not been published in the Gazette to be a place
authorised by the Secretary, Defence, in an application
to have the place declared as being an unauthorised place
of detention by the Supreme Court
- A constitutional right in a person
detained in such a place of detention to be represented
by the Human Right Task Force or a similar body to prefer
and indictment through the intervention of the proposed
off ice of public prosecutor against any persons or
person alleged to have been respossible for the setting
up of/or continuation of such place of detention.
- Principle 3410
of the UN Body of Principles for the Protection
of All Persons Under Any Form of Detention or
Imprisonment11 be incooporated in the
B. The Need to Amend the Human Rights
- A common and recurrent feature during the
terror period was the lack of responsibility shown by law
enforcement authorities to take action on complaints
regarding 'disappearance'. This lack of action
by the Autorities was seen even after judicial
acknowledgement of 'disappearances' (The cases
of Richard de Soyza and lawyer Liyanarachchi besides many
others serve as illustrations).
- Consequently, as a measure to prevent
future occurrences of this kind of public
unaccountability there is an imperative need for a
separate institutional machinery to entertain and process
complaints against excesses by police and armed
personnel. A first step towards this has already been
taken by Your Excellency's Government in the form of
the establishment of a permanent Human Rights Commission.
However we feel the need to give more teeth to this
Commission so that it can serve the function of a more
effective Human rights Watch, Accordingly we recommend
that the Human rights Commission Act be amended by
creating an independent investigating unit to inquire
into complaints received by the Commission with adequate
powers for that purpose.
In any event the existing agencies with
their jurisdictional limitations (for example, 500
disappearances taking place in different parts of the country
in a short period of time or the phenomenon of 500
disappearances in one part of the country over a year) and
other constraints (complaints to police against police
personnel) are not equipped to handle this type of situation
expeditiously. What is required is a quick, effective and
accountable agency to address the complaint without the need
for an abated healing process through investigations
conducted by Disappearance Commissions long after the event
with attendant political overtones, Indeed, if there is an
inbuilt mechanism to deal with human rights violations
whatever thier magnitude as and if they arise it will serve
as a Human Rights Watch. Such a Human Rights Watch would act
as a deterrent, and is most likely to obviate the need to
appoint ad hoc Commissions in the future.
C. Need to Create an Office of Independent
As a necessary adjunct to the measures
recommended above we feel the need to create an office of an
independent prosecutor with security of tenure (with a supporting
staff) to institute prosecutions once evidence has been collected
by the proposed investigating unit. The existing framework of the
Attorney General's Office is not structured to fill this
need. The Attorney General's function is to mount
prosecutions and represent generally state officers in complaints
against them. This appears to place that office in a paradoxical
position. The sole concern of the proposed independent prosecutor's
office would be to institute proceedings (criminal prosecutions)
where the Human Rights Commission (with the assistance of its
investigating unit) has found sufficient evidence for that
purpose. We also recommend that while the salary of the proposed
independent prosecutor be made a charge on the Consolidated Fund,
the nomination to that office be made by and ratified by a
Majority of the Members of Parliament.
The manifestation of the requisite political
will by the reaffirmation of the state's commitment to human
rights, the reaffirmation of the right to peaceful dissent, free
and fair elections being held at regular periods, and the
commitment to overall development irrespective of race, caste,
religion or region, are an essential and integral part of the
national reconciliation to which Your Excellency has already
committed the state and the people.
1. See Chapter Ten "Habeas Corpus
2. See post, Section on "the need to amend the
Human Rights Commission Act."
3. See further Chapter Ten, Section on Habeas Corpus
4. HC Ratnapura 121/94. See further: in the Report on
the Disappeared Embilipitiya Students, chapter on "The
5. See Indictment in HC Ratnapura 121/94 in the Report
on the "Disappeared Embilipitiya School Boys"
6. See Chapter Ten section on Habeas Corpus
7. See Chapter Seven" "Legal Proceedings"
and annexure on ""the The System of Citizens Advisory
Bureaus in United Kingdom"
8. Presidential Directive issued under Regulation 8 of
the Emergency (Establishment of a Human Rights Task Force)
regulations No: 1 of 1995
9. Regulation 19 (9) of the 1994 Emergency Regulations
provides as follows:
"where any person shall without reasonable cause fail to
issue a document acknowledging the fact of arrest as required by
paragraph (8) or willfully omits to make such an entry as is
referred to in the proviso to paragraph (8), or to report the
fact that the documents was not issued and the reasons
(therefor), he shall be guilty of an offence and upon conviction
after trial before the High Court be liable to a term of
imprisonment extending to two years, and a fine."
Principle 34 provides that:
"when ever the death or disappearance of a detaine or
imprisoned person occurs during his detention or imprisonment,
and inquiry into the cause of death or disappearance shall be
held by a judicial or other autority, either on its own motion or
at the insistence of a member of the family of such a person or
any person who has knlwledge of the case. When circumstances so
warrant, such an inquiry shall be held on the same procedural
basis when ever the death or disappearance occurs shortly after
the termination of the detention or imprisonment. The findings of
such inquiry or a report thereon shal be made available upon
request, unless doing so would jeopardize and ongoing criminal
Posted on 1999-01-01