(I) In our terms of reference Your Excellency
has required us to report on
"the relief, if any, that should be afforded to
Parents, spouses and dependants of the persons alleged to
have been so removed or to have so disappeared".
(vide: Paragraph (g) of the Warrant)
(II) Accordingly, in Pursuance of our Mandate we have
identified the following broad areas as necessitating relief
measures:
(a) Recovery Of Compensation
(b) Property Related Matters
(c) Employment Related Problems
(d) Inheritance and Succession
(e) Bank and Housing Loans
(f) Release of Moneys in Frozen Accounts
(g) Problems Relating to Civil Status
(h) Other Related Matters
(i) Problems of Emotional and/or Psychological and
Economic Rehabilitation
(III) In the ensuring paragraphs we have recommended
relief measures based on specific problems faced by members
of affected families during the period under consideration
which will be referable to one or more of the bound subject
headings enumerated above.
1. Payment of Monetary Compensation.
(i) In September 1988 the Ministry of Rehabilitation and
Construction had inaugurated a scheme which came to be known
as the "Payment Compensation to Most Affected Persons
(MAPs)" According to the Ministry's circular No.
M/R and R/UAS/MAP/1, dated 26.09.1988. compensation would be
paid in respect of "Deaths that may have occurred or
injuries sustained as a result of ethnic violence, terrorist
activity, related security operations and consequent civil
unrest, since 24th July 1983."
However, a decision made by the Cabinet on November 22,
1989, effectively denied the benefits of the above scheme to
a large number of affected families. The Cabinet decision was
as follows:
The Cabinet was informed that claims of compensation were
made even in respect of dead terrorists on the basis that
they were killed due to terrorist action. It was decided that
when considering claims for compensation on deaths due to
terrorist action, care should be exercised to exclude
terrorists being paid compensation."
(ii) This decision had resulted in an endemic
discriminatory practice to the detriment of the well-being of
the dependents of disappeared persons. The processing of
applications for compensation was handled by Government
Agents/Divisional Secretaries. No precise definition was
given as to the meaning of a "Terrorist", and as
such, these officials had to depend on police clearance to
ascertain whether the missing persons were engaged in
terrorist/subversive activities. Thus, the ipse dixit
of the police had come to replace judicial determination
which surely must rank as being obnoxious to the Rule of Law.
Assuming they were terrorists, it would still be morally
incorrect to victimize the innocent members of their
families. we expressed the view in one of our Interim Reports
that this discriminatory practice cannot be justified in any
way as it amounted to a segregation of a certain section of
society as "terrorists by relationship".
We are happy to note that Your Excellency's government has
rectified that social injustice in that Compensation is now
being paid to all affected families during the period under
consideration without reference to or such payment being
non-conditional upon clearance by the police that the
disappeared person was to be regarded as a
terrorist/subversive or not.
(iii) However, we note two shortcomings (one procedural
and the other substantive) even in regard to the present mode
of payment of compensation.
(a) It was our experience that, the scheme of payment
though implemented fairly consistently in certain districts
of the Southern Province, has not been effective in certain
other districts coming within the Commissions jurisdiction.
Accordingly, we recommend that a realistic time-frame be set
up with the objective of completing the payment of such
compensation in all the districts as a matter of policy and
priority.
It should be noted that the overwhelming majority of the
disappeared persons' families belong to low-income groups,
and as such, the sudden disappearances of their family
members - most of them were the bread-winners of the
family - left them facing a very difficult financial
situation. Under these circumstances they need a helping
hand, and therefore, compensation has become a very vital
issue in their struggle for survival. It has also become
established practice that the state takes the responsibility
for the breakdown of law and order in a given situation by
compensating affected families.
Payment of fair and adequate compensation is an urgent
necessity. This will be a tremendous financial burden on the
government in the present context but it is the appropriate
method of acknowledgment of the principle that the entire
society should share the responsibility of helping out these
affected families. In this context, We recommend the
introduction of a new tax, similar to the Defense Levy, not
only to generate sufficient funds for this purpose but also
to create an awareness that in a national calamity such as
this, society as a whole should come together and make a
commitment to solve the problems of these affected families.
(b) Re: Public Servants and Employees of Statutory
Institutions and Corporations.- It should be noted that
the above-mentioned scheme ("Assistance for Most
Affected Persons) has not covered victims who served as
employees in the Public Sector, Corporations, and other state
owned institutions. They were handled by their respective
employers in terms of circulars issued by the Ministry of
Public Administration or under their own schemes. However,
the decision of the Cabinet (referred to above) to exclude
"Terrorists" from the compensation scheme had an
impact on determining compensation in respect of public
servants (e.g. Government Teachers), Corporation employees
and employees of other Statutory Boards (e.g. employees of
the National Water Supply an Drainage Board). Accordingly, we
appeal to Your Excellency to give necessary instructions to
the public Sector, Corporation and other Statutory
Institutions to do away with the requirement of "police
clearance" regarding payment of compensation to the
surviving members of those disappeared employees. We also
recommend that the same rationale be adopted in regard to the
granting of pension rights, WOP benefits and other employment
emoluments.
(c) The underlying rationale in the payment of
compensation being the acknowledgement on the part of the
state of its failure to enforce the Rule of Law we see no
justification to draw a distinction between "a
terrorist" (as labeled by the police and not found to be
so judicially) and "an ordinary civilian" done to
death by 'terrorists' Consequently, we see the need to pay
compensation to the dependents of all disappeared persons
irrespective of the label attached to them. This indeed
should instil in the whole community a sense of commitment at
national reconciliation.
2. Need to Exempt Compensation from Civil Claims and
Seizure.
Whatever amount paid as compensation to the dependents of
the disappeared persons should not be liable to be made the
subject of any civil claim. We came across cases in the
course of our investigations where creditors of the
disappeared persons had sought to claim from the dependents
of the disappeared persons debts owed to them out of the
compensation money already paid by the state. In the
creditors eyes the compensation in the hands of the
disappeared debtors' dependents was in the nature of an
inheritance to which the dependents had adiated. In this type
of case there were all the trappings of future litigation, a
luxury, most (if not all) the complainants in this type of
case could ill afford.
Accordingly, we recommend that legislative provision be
made exempting whatever amount that is paid as compensation
by the state from being made the subject matter of any civil
claim and seizure.
3. A Scholarship Programme for Minors.
From the perspective of the future well-being of the
country, children can be considered the most adversely
affected persons in the families of missing persons. The
sudden disappearance of parents has affected not only their
emotional security but also their economic stability, which
has direct bearing on their education. Some are finding it
difficult to continue their studies in the midst of economic
hardships. To ease the situation, it would be advisable to
introduce a scholarship programme whereby a monetary
allocation may be granted annually or biannually towards the
purchase of educational material. This could be integrated
into the many scholarship programmes administered by the
Ministry of Education. It should be mentioned here that a
large number of missing persons were unmarried, and
therefore, the number of school going children involved is
not very large. We would estimate this number to be around
5000 (Year 1 to G.C.E. (A/L) in the three provinces that came
under our purview.
4. Vocational Training
The suffering of the affected families cannot be
compensated by monetary grants alone. Besides minor
children, missing persons have left behind spouses, adult
children, and other dependent siblings. These families
have now become female-headed households, but the wives
find it difficult to maintain their families as they are
not adequately skilled and gainfully employed. Even the
adult children of the missing persons families are mostly
unemployed.
Some form of redress should be made available to the
spouses and the youth left behind in missing persons families
through some of the many training schemes and job
opportunities provided by the government. Some families who
came before us personally expressed their desire to benefit
from such programmes.
At this stage we are unable to formulate a comprehensive
scheme regarding vocational training. However, we would like
to highlight the fact that vocational training to the needy
members of the affected families is a vital need that
requires serious attention. It goes without saying that
vocational training is a national need and opportunities
should be made available to all the needy people. However,
since these families have already suffered due to the sudden
disappearance of one or more of their children, it is quite
justifiable to give them special consideration. The Ministry
of Labour and Vocational Training, and also the
Apprenticeship Training Institute should be able to
accommodate a substantial number of needy people in their
existing programmes.
5. Emotional Rehabilitation
(1) After the disappearance of our son, my wife has become
insane. She now chases children crying out our son's name.
I saw my Son's headless body thrown on the road. I am
not in my right senses since then. (A mother who gave
evidence)
My husband's burnt body was on the road. I worshiped
him and came away. My heart wished to bring him home, but
no one would assist me.
(2) The foregoing illustrations reveal the traumatic and
agonising experience the members of the affected families
have had to undergo in dealing with the fact of
disappearance. Any welfare scheme should take into
consideration not only their economic problems but also their
emotional rehabilitation.
The Commission has come across several incidents of
suicide involving not only females but also males. A
mother of twins had committed suicide a few weeks before
the scheduled inquiry into the disappearance of her
husband. Her husband as well as her father had been
abducted by the security forces and both had disappeared
subsequently. In a letter written to the Commission
earlier, she had pleaded:
You will be blessed, if you can find my husband.
In another case, an engineer (a son of an agricultural
labourer) was abducted and disappeared subsequently. His
father drowned while picking lotus for pooja, and
then his younger son also committed suicide.
3) Sri Lanka in the recent past has undergone several
traumatic experiences - two insurrections in the South and
three Ealam wars - with disastrous consequences on the
social psyche of the nation. People take it for granted that
our culture is capable of absorbing all these shocks. Culture
has its own limits. We saw how emotionally shattered people
were when they came before the Commission. These people
urgently need emotional help.
(4) Accordingly, we recommend that, the Educational
services and Health Services plan out put and into operation
a scheme for the sensitization of all their personnel to the
need to be alert to this aspect; and to setting up of a
referral scheme whereby affected children or adults needing
attention may be referred to the counselling services. We
also see the need to mobilise the mass media to make the
public aware of the emotional aspects of this phenomenon,
including the likely repercussions to society as a whole, if
these aspects continue to remain unaddressed.
6. Employment Emoluments Such as Unclaimed Salary, E.
P. F. Gratuity Lying to the Credit of Disappeared Persons
(i) The next of kin have not been able to secure the
release of moneys lying to the Credit of disappeared persons
primarily due to lack of evidence of death. Sometimes the
employer has regarded the "disappeared persons" as
employees who had kept off work without prior notice with the
attendant consequence of regarding them as persons who had
committed an employment offence.
(ii) In this type of case we recommend that on the basis
of our findings that the employee concerned has been
"disappeared" the respective employers be required
to deposit these moneys with the appropriate authority
(Commissioner of Labour if the employee was attached to a
private establishment) or with the relevant Divisional
Secretariat within the jurisdiction in which the corpus was
residing at the time of the disappearance, to enable the
heirs of the disappeared persons to secure the release of
those moneys upon furnishing proof of their right to claim
the same.
(iii) In order that conflicting claims by heirs be avoided
the Grama Niladharis of each division may be required to
maintain lists of such claimants.
(iv) We would like to mention here that, during our
tenure, in consequence of our requests the following
institutions and establishments responded positively to
resolve the dilemma faced by the next of kin of some of the
disappeared persons.
(i) Seemasahitha Talangama Janatha Seva Pravahana
Sevaya
(ii) Seemasahitha Homagama Janatha Seva Prahahana Seveya
(iii) M. P. R. Jont Venture, Mulatiyana, Matara
(iv) Surveyors Department, Hambantota
(v) Lanka Electricity Co.
(vi) Ceylon Electricity Board
(vii) Namunukula Plantation Services (PVT), Limited
(viii) Ministry of Education and Higher Education
7. Release of Moneys Lying in Bank Accounts of
Disappeared Persons
As the law presently stands upon death of a bank account
holder the account is frozen and it forms part of the estate
of the deceased which would require testamentary proceedings
in Court subject to Monetary Considerations as laid down in
the Civil Procedure Code. Attempts on the part of dependents
(generally spouses and children) of disappeared persons to
secure the release of such moneys lying to the credit of such
disappeared persons had proved futile for the following
reasons :
(a) Lack of evidence of death (only an alleged
disappearance)
(b) In terms of Banking Law and Practice refusal on
the part of the bank to pay off money lying to the credit
of X to Y.
In such cases we recommend that Act No. 2 of 1995 be
amended or transitional legislation be enacted legalising the
release of money lying to the credit of persons who have been
found by the Commission to have disappeared upon the
production of a death certificate by the heirs of the
disappeared account holder.
8. Moneys Lying In the W. O. Fund
Some of the witnesses who came before us were not aware
that a release of these moneys could be obtained upon
furnishing a copy of the death certificate and the WOP number
to the Director of Pensions. This focuses once again on the
need to establish a legal services unit at Divisional
Secretariat level to assist these persons to secure such
moneys.
9. Recovery of Moneys on Life Insurance Policies
Since the enactment of the Registration of Deaths
(Temporary Provisions) Act, No. 2 of 1995, beneficiaries of
life insurance policies held by 'disappeared' persons have
been able to secure on the production of a death certificate
in terms of the Act a release of Moneys due on the said
policies from the Insurance Corporation without the
requirement of a formal proof of 'death'. However, we came
across cases where it was alleged that private insurance
companies had not acted in the same way. It may well be that
the provisions of the Act are not wide enough to compel
private insurance companies to overlook the terms and
conditions of the policies which might include conclusive
proof of death. We recommend that your Excellency be pleased
to seek the Honourable Attorney-General's view on this
matter.
10. Employment Related Problems of Next of Kin of
Disappeared persons
In some instances next of kin of disappeared persons
(generally father or brother of the disappeared person had
kept off their work places since they were engaged in trying
to ascertain the whereabouts of their disappeared next of
kin. Consequently, their employment had been terminated on
the basis that they are deemed to have vacated their posts.
We recommend that the employer (whether government,
semi-government or private) be required to re-instate the
employees whose employment had been so terminated (or to make
a compensatory payment in lieu of reinstatement in addition
to other statutory employment entitlements recognised by
existing principles of labour law). However the duty to
re-instate would be conditional upon the applicant being
required to establish at and appropriate inquiry that the
effective cause of absence from work was the fact that the
employee had been engaged in ascertaining the whereabouts of
his next of kin. We would like to note here the commendable
step taken by the Mahaweli Authority of Sri Lanka in
re-instating a person falling into the category contemplated
above, after due inquiry on the lines suggested by us above.
11. Unauthorised Occupation of State land-Need to
Regularise
In several cases we found that the dependents of
disappeared persons were exposed to the risk of being evicted
or had already been evicted from state lands they are
presently or had been in unauthorised occupation. Political
Motivation, personal enmity, and sometimes the absence of a
permit or deed were identified by as the causes for their
plight. Given the fact that most of the persons exposed to
this fate are female spouses of disappeared persons, (forced
to fend for themselves besides maintaining their children
sometimes with as small a monthly income as ranging from Rs.
400/- to Rs. 800/- owing to the enforced disappearance of the
bread-winner in the family), the misery that would visit them
is not difficult to envisage if they were to be rendered
homeless. In fact, our investigations revealed that in some
cases this calamity had already struck some, mothers and
children being compelled to live in temporary abodes at the
charity of friends or sometimes in places of religious
worship. We have already highlighted in our earlier interim
reports this problems of the female-headed family. We urge
Your Excellency to regard this as a matter of grave urgency
and to implement a state lands alienation scheme to
regularise the present unauthorised occupation of state lands
by the category of persons under consideration. We also
recommend that those who have already been dispossessed of
the lands they had been in occupation consequent upon the
enforced disappearance of their bread-winner and owing to any
one or more reasons envisaged above be given back those or
other alternative lands after due inquiry by the Divisional
Secretary of the Administration Division within which the
land in question is located. We would like to mention here
that, some Divisional Secretaries have already satisfied his
compelling need by responding to our request and making
arrangements for such families to secure or permits or deeds
in respect of state lands for their occupation. Mention must
be made here of the Mahaweli Authority in this context.
12.A Stipend to Maintain Mentally or Physically
Handicapped Members of Devastated Families
There were a few cases where the complainant's (generally
mother or wife corpus) lament was that the only source of
income was the industry of the disappeared corpus which
helped to maintain his mentally or physically handicapped
siblings. In these cases we recommend that a reasonable
stipend be arranged for the devastated families through the
Department of Social Services after an appropriate inquiry
conducted by the said department or the relevant Ministry.
13. Relief in Respect of payment of Bank Loans
(i) In a large number of cases we found that members of
affected families were in a financially desperate situation,
unable to pay off the loans obtained by the disappeared
persons or by the Complainants themselves (generally wife or
parent of the corpus with the help of the disappeared
persons). These loans had been obtained for a variety of
reasons ranging from housing loans to raising a dowry to give
a daughter in marriage. They also fell into the category of
either 'small' loans) e.g. Rs. 7,500/- in one case obtained
from the Bank of Ceylon, Beliatta Branch) to 'large' loans
(e.g. Rs. 117,307.16 in one case obtained from the State
Mortgage and Investment Bank). Your Excellency will be
pleased to note that, most of these banks have responded
favourably in some measure or other to help out those persons
placed in the said financial dilemma. In the Bank of Ceylon
case referred to above the interest had been waived off and
the heirs of the loaner had been given the right to pay the
Capital amounting to Rs. 7,500/- in twenty-three monthly
installments. In the latter case the property of the loan
applicant was on the verge of being auctioned publicly. At
our request the bank while agreeing to stay the auction had
given the heirs of the corpus (loan applicant or Mortgagor)
an amnesty period of three months to pay the capital
amounting to Rs. 117,307.16 after waiving off all interest
due on the loan.
(ii) While we noted the humane and ready response on the
part of the banks as illustrated above in depicting a spirit
of community concern for the devastated families under
consideration, even those relief measures may be found to be
inadequate in most cases given their indigent circumstances.
We are not unmindful of the conflict faced by the banks in
loan recovery situations, for example, statutory constraints
and answerability to the shareholders. Consequently, in
deciding to waive off interest or allowing long drawn
installment payments, the Board of Directors may be compelled
to act within necessary limits. Accordingly we see the need
for legislative intervention in giving effect to such relief
measures as adopted by the two cases which we have
highlighted above.
14. Relief Measures for Fisher Families
Many fisher families have affected by the events of the
period under consideration. We note that already there is a
scheme at village level to provide assistance to fisher
families funded by the Asian Development Bank. We recommend
that at least one member from every one of the said
devastated families be considered under that scheme on a
preferential basis. The project officers of the respective
areas which have been brought under this scheme may be
directed to collect relevant information regarding these
families as a first step towards recruiting at least one
member for a self-employment scheme and with a view to
providing these families with other forms of assistance.
15. Issue of Death Certificates
(a) Need to Amend Act, No. 2 of 1995
(i) Section 4 of the Registration of Deaths
(temporary Provisions) Act, No.2 of 1995 (hereinafter
referred to as the Act) requires "a report from the
Grama Niladhari of the Grama Niladhari Division in which
the person whose death is sought to be registered, was
last resident, confirming the fact that such person has
not been seen alive or heard of, for a period of over one
year, and any other evidence in support of such
application".
(ii) We came across several cases where although the
applicants seeking death certificates were well in
possession of evidence as contemplated by section 4
as aforesaid, they has sought them on the basis of the
area from which the corpus had been involuntarily removed
or disappeared. This highlights once again the need to
establish a (legal) advisory services unit to assist
applicants to pursue the release of death certificates in
terms of the provisions of the Act.
(iii) Lack of evidence of residence (owing to the name
of the corpus not being listed in the electoral lists or
householders' lists) has posed a problem to applicants
desirous of obtaining death certificates. While in most
cases the Viharadhipathi and/or other village dignitaries
had issued writings confirming the fact of the residence
of the corpus there were some cases where the applicants
had failed to secure that evidence. Since the object of
the Act is to grant the applicant a death certificate
upon proof that the corpus in question being disappeared
and his subsequent whereabouts being unknown we recommend
that the Act be amended to provide for the situation
envisaged above.
(iv) There were cases where the corpus had been
removed (and subsequently disappeared) from his work
place (with no record of his residence as contemplated by
Section 4 of the Act) or where he had been
temporarily resident. In such cases affidavits from the
employer of the corpus or the hostel (or boarding) keeper
or landlord of the corpus supporting the application for
a death certificate should entitle the applicant to
obtain the same. In as much as a wide gamut of future
actions of the dependents and/or the heirs of the
disappeared corpora (such as securing the release of
moneys lying in bank accounts, benefits under insurance
policies, employment emoluments or even a contemplated
second marriage of the wife of the corpus) would depend
on the availability of a death certificate we feel there
is an urgent need to amend Act No. 2 of 1995 on the lines
suggested above.
(v) Finally, in this context, we also feel the need to
give adequate publicity to the said Act (with the
proposed amendments if enacted into law) through the
Media, Grama Niladharis and display at Post and Sub-Post
Offices or other conspicuous (public) places in addition
to the setting up of the (legal) advisory services unit
recommended earlier. Such a course of action will address
the problem of the "illiterate applicants".
(b) Hardship caused by Administrative Officers'
Interpretation of the Act - Need to Rectify
(i) A case in point is that of M/S SU, the wife of a
disappeared person residing within a Divisional
Secretariat area in the Western Province who had applied
for a death certificate in terms of the Act. The corpus
had disappeared on 28.12.93. The Administrative Officer
signing on behalf of the Divisional Secretary had
informed her that "since your husband has
disappeared after the period of terror, that is, on
93.12.28., we cannot take action under the Act".
(ii) This administrative action through a purported
construction of the provisions of the Act runs counter to
the clear provisions of Section 2 of the Act. The
statutory time limit imposed by section 8 of the
Act enabling an aggrieved applicant to appeal to the
Registrar General against a decision or determination of
the District Registrar (being one month) is now well
passed.
(iii) An applicant such as the one in this case
demonstrates the problems ordinary people of this country
are faced with. The District Registrar in fact has even
advised the applicant to "institute action under Section
108 of the Evidence Ordinance in Court and obtain a
judgement from the District Court"
(iv) The availability of alternative remedies and
delay are well established discretionary bars to an
application of a 'prerogative' Writ. Even if an applicant
is in a financially stable position to institute such an
application (which is not the case in the illustration
under consideration) these bars could well defeat an
application. SU's case is just one case we came across.
There could be many more.
(v) Accordingly, we would like to make the following
recommendations in this connection.
(a) Immediate Public Action Administration
Circular to be sent to all "District
Registrars" informing them that they are not
empowered to reject an application for a death
certificate under the Act on the ground that the date
of disappearance in his opinion falls outside the
period of terror;
(b) The case of SU highlights the need for the
establishment of a legal advisory services bureau to
advise and assist families facing problems of a
similar nature.
16. Public Relief Loans for Extremely Indigent Families
We have identified 2471 families as deserving immediate
monetary relief in the form of public relief loans. These are
families where the only source of income was the income
earned by the head (Male) of the family. In consequence of
the loss of the breadwinner of the family these families have
been left totally destitute. This focuses attention once more
on the plight of the female-headed family. In some of these
families there are as many as six to eight minor children
whose schooling needs even cannot be met. We would like to
mention here that as a result of our endeavours we were able
to evoke a sympathetic response from some Provincial Council
agencies such as the Ministry of Food, Co-operatives,
Housing, Social Services, Probation and Child Care and Women
Affairs (Southern Province) who readily agreed to approve
small public loans (generally in the range of Rs. 300- per
month) to extremely indigent families as envisaged above. We
would recommend to your Excellency that abroad scheme to
provide relief loans to assist the needs of school Children
of devastated families be initiated.
17. Widowed Mothers Seeking Transfers
(i) There was a considerable number of cases where mothers
widowed as a result of "enforced disappearances"
having to live miles away from their Schooling children by
reason of their palaces of employment. Most of these were
teachers attached to government schools. Their emotional
appeal was to secure a transfer to a school in close
proximity to their village.
(ii) A variation of this theme was where some of the
mothers sought admission of their minor children to the
schools they were presently attached so that, their children
could be with them.
(iii) In these cases we recommend that steps be taken by
the relevant, Ministries or Provincial Ministries to consider
their appeals for such transfers, we would like to mention
here the ready response on the part of St. Thomas Boys
College, Matara where a widowed mother who had failed in her
endeavours to get her minor child admitted to a school to
continue with his education was granted admission at our
request.
18. Relief Through Legal Aid Commission and Proposed
Legal Advisory Services Board
(i) Dependents of some of the "disappeared
persons" had found themselves unable to continue with
pending litigation (mostly minor land disputes) on account of
the financially destitute situation they had been placed in
following the "enforced disappearance". For
example, a son who had been financing the family in a
partition action (going on for as many as twelve years) had
been killed during the period under review. Where we found
that the monthly incomes of these families fell within the
monetary limit of applications entertained by the Legal Aid
Commission we referred the parties to that institution to
seek some relief. However, there were some cases that fell
marginally outside the said monetary limit. In these cases we
recommend that their cases be taken up by the proposed legal
(Advisory) Services Bureau.
(ii) Being mindful of the fact that several years have passed
in these cases and the implications of the provisions of the
Civil Procedure code particularly Section 402 of the
said code, specific provisions may be made in the law
addressing this problem
19. Employment for Qualified Members of Devastated
Families
1. Since several years had passed since the "enforced
disappearances" most of the complainants coming before
us appeared to have resolved within that their loved ones
were no more. Apart from their concern to ascertain those who
were responsible for "the atrocities committed on their
lives" they were also sanguine of obtaining some relief
from the government as "Compensation for such
atrocities." "Change of regime" was an
irrelevancy to them. They seemed to feel almost with a
naturally Hobbesian instinct that "the government is a
continuing institution for us people" One witness (the
brother of a disappeared corpus) reflected thus:
I am a graduate. I have been without a job for many
years. At least if I had a job I could help my widowed
sister to look after her family after 'they' killed my
brother-in-law.
The ring of dissatisfaction in his voice was unmistakable
and indeed representative of the mood of many youth in this
country.
2. Although we are fully aware that, the problem of the
Youth is not confined to members of affected families during
the period under consideration, we recommend that such
members (after a process through which they may be first
identified perhaps at pradesheeya sabha level) be considered
on a priority basis for recruitment in government employment
wherever possible provided the basic qualifications for the
posts contemplated are possessed by them. This would serve as
an acknowledgement on the part of "the state" for
its breath in failing to arrest the spate of extra-judicial
killings and/or enforced disappearances during the period
under consideration.
We would like to add here that, Your Excellency be
pleased to seek the Honourable Attorney General's
advice on the Constitutional implications (particularly Article
12 and its sub-paragraphs of the Constitution) of our
recommendation.
We would like to mention here that a scheme suggested
on the lines above was in operation in 1989 with regard
to the recruitment of trainee teachers.
20. Restitution in Case of Damage to Immovable Property
The evidence revealed that many families had suffered loss
and damage in respect of their houses and property during the
"period of terror". In these cases we recommend
that monetary assistance be given to these families to
rebuild their houses. It was brought to our notice during our
proceedings that the Commissioner (Essential Services), at
the auspices of the Ministry of Shipping had been
implementing a scheme such as what is envisaged above in the
Ampara District for victims of terrorist acts. We recommend a
similar scheme to provide monetary assistance to the families
under consideration irrespective of whether the damage and
loss to property was caused by terrorist acts or state
agencies.
21. Relief Measures for Cultivators
The impact of "enforced disappearances" on
families engaged in cultivation as their main occupation
revealed the following aspects.
(a) The Problem of Ande-Cultivators
(i) In some cases following the disappearance of the
person who had been cultivating land as
'tenant-cultivator' thereof, the owner had taken up the
position that, there had been "willful neglect"
on the part of the tenant cultivator to cultivate the
land. The more imaginative spouses or adult children of
some of the 'disappeared' ande-cultivators who had got on
to the field and attempted to cultivate through a natural
awareness of their legal rights as successors had been
effectively evicted by the owner. The vulnerable position
the tenant-cultivator's family had been placed in
following the disappearance of the principal member had
made the owner's act an easy task. Well over a year had
passed since these evictions and the members of these
families were still wondering how to get back their
rights for the facts in these cases as recorded above
would be sufficient to attract the provisions of the
Agrarian Services Act, No. 58 0f 1979 (as amended by Act,
No. 4 of 1991) to defeat their ande-cultivator rights.
(ii) In these cases we recommend that, a forum be
created to receive complaints of this nature and to
provide relief to these families after due inquiry into
their complaints, if necessary even by enacting
legislation in as much as the office of the Commissioner
of Agrarian Services as envisaged in the Agrarian
Services Act is not empowered, as the law stands, to hold
such inquiries and take remedial action.
(b) Occupation Hazard.- Our investigations in the
Embilipitiya District revealed the nature of the problem
faced by the cultivators of those lands. They were faced with
an acute water problem. This was not due to any natural
factors but brought about by a diversion scheme of the
Mahaveli Waters to nurture and sustain "a Mulberry
Project" that had been launched by the State. While we
are fully appreciative of the fact that, it is not our
function to comment on policy decisions of the government of
projects of this nature, we feel an imperative need to
re-locate these families (some of whom fall within the terms
of our Mandate) for although they continue to live on small
plots of high land adjoining the fields that they had been
cultivating, they have been "constructively
dispossessed" from the fields they had been so
cultivating which had been the effective (or sometimes the
sole) means of their livelihood.
22. Establishment of a Legal Assistance (Advisory)
Scheme
The problem areas highlighted above reflect a wide
spectrum. We also made mention of the constraints that may
apply to the existing legal aid Commission. In any event it
is to be noted that the functions of the legal aid Commission
are confined to proposed or pending litigation. The role we
envisage for the proposed legal assistance (or Advisory)
bureau is broader as the problems faced by Members of
affected families as reflected in the foregoing paragraphs
amply demonstrate. Consequently, we feel the need for the
creation of a legal assistance (advisory) bureau to entertain
not only grievances and take necessary steps to enable
Members of victimised families to protect and vindicate their
existing and contingent rights and interests but also to
bring to the attention of the government problems of a
particular and peculiar nature faced by some Members of the
affected families such as claims for compensation by parents
of disappeared Bhikkus; claims for compensation by wives of
disappeared persons but now 'married' for a second time and
conflicting claims for compensation between parents and
spouses of disappeared persons. In this context we would like
to make the recommendation that the Divisional Secretariats
be directed to make payment of compensation without undue
regard to matters of form. A refusal to pay compensation to
the mother of a disappeared corpus who had produced a letter
of authority from the wife of the corpus who had gone abroad
for employment, would be an instance in this regard.
23. A Proposed Legislative Package
We also recommend that a legislative package be initiated
to give effect to some of the recommendations made in the
foregoing paragraphs where it is considered necessary in as
much as there may be some difficulty in implementing some of
them through administrative measures.
24. Monitoring Committee
Finally, we recommend that, an ad-hoc Committee be
appointed by Your Excellency to monitor the progress of
follow up action be taken on the basis of the aforementioned
recommendations.1
IV. Article 19 of the U. N. Declaration of the
Protection of All Persons from enforced Disappearances2
provides that,
The victims of acts of enforced disappearance and
their family shall obtain redress and shall have the
right to adequate compensation, including the means for
as complete a rehabilitation as possible. In the event of
the death of the victim as a result of an act of enforced
disappearance, their dependents shall also be entitled to
compensation..
V. In conclusion we need hardly mention that there is an
imperative need to address the problems faced by members of
the affected families, Even when there is a national calamity
such as floods or some similar vis Major the State
steps in to repair the loss suffered by the victims. A number
of year have passed since the acts complained of had been
committed. The devastation it caused in the lives of so many
people still continues. It is with the awareness that there
people should not be forgotten merely as victims of an
unfortunate period that we have made the foregoing
recommendations. These recommendations acted upon as part of
a reparation package to those affected families will help in
the process of healing and reconciliation.
End Notes
1. Lists of affected families (by reference to the
principal complainant and the area of anticipated relief) are
contained in Schedule 2.
2. Adopted by the U. N. General Assembly without a
vote on 18.12.92 per resolution No. 47/133. 8-D04645
Posted on 1999-01-01
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