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CHAPTER NINE - RELIEF MEASURES FOR AFFECTED FAMILIES

(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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