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CHAPTER FOURTEEN - A SUMMARY OF RECOMMENDATIONS

I. Relief Measures

1. Payment of Monetary Compensation :

(i) Expeditions payment of fair and adequate compensation be made to dependents of disappeared persons within a time-frame in all the districts. Such payment should cover dependents of employees of the public sector, corporations and other state-owned institutions. The idea of introducing a new tax similar to the Defence Levy may be considered in order to generate funds for this purpose.
(ii) A scheme to provide monetary assistance to affected families who had suffered loss and damage to property be initiated. A forum be created to receive complaints of successors of disappeared persons.
(iii) Legislative provision be made exempting whatever amount paid as compensation from being made the subject matter of a civil claim and seizure.

2. Homelessness :

(i) A swift remedy for the homelessness by settling such families on state-owned land, preferably in the area of their residence prior to the displacement, and the provision of financial assistance in the construction of a house.
(ii) The allocation of state land for cultivation - the permit to the land and house to be in the name of the female head of the household.

3. Land :

(i) A state-lands alienation scheme to regularise the unauthorised occupation of state lands by members of families of disappeared persons. Those who have been dispossessed be restored to possession of the lands in question or be given alternate lands after due inquiry.

(ii) A forum be created to receive complaints of successors of disappeared "Ande" cultivators with a view to restoring to them their rights and a scheme to re-locate affected families of disappeared "ande" cultivators who have been "constructively dispossessed in consequence of government projects.

 

4. Employment :

(i) Subject to consideration of the implication of constitutional provisions, particularly article 12 of the constitution unemployed youth of affected families be considered on a priority bases for recruitment in government employment.

(ii) The relevant Ministries and/or Provincial Ministries to consider applications for transfers by widowed mothers to work at places in close proximity to their homes.

(iii) A right to seek re-instatement or compensation in lieu thereof be given to the next of kin (who had been engaged in ascertaining the whereabouts) of disappeared persons whose employment had been terminated on the ground of vacation of post.

(iv) Members of affected fisher families be given assistance through existing self-employment schemes and other forms of assistance.

5. Vocational Training :

(i) Vocational training be provided to members of affected families and they be accommodated within the existing training schemes provided by the government.
(ii) Advice, training and counselling on savings to be provided.

6. Employment Emoluments, Insurance and Bank Loans :

(i) The employers of disappeared persons be required to release employment emoluments lying to the credit of disappeared persons to the heirs on furnishing proof of disappearance.
(ii) Steps to ensure the release of money in bank accounts and moneys due on life insurance policies to the heirs of disappeared persons.
(iii) Steps to ensure relief for members of affected families in respect of repayment of bank loans.

7. Public Relief :

(i) Schemes to provide public relief loans to indigent families.
(ii) A scheme to be arranged to maintain mentally or physically handicapped members of devastated indigent families.

8. Death Certificates :

(i) Difficulties encountered in securing death certificates in respect of disappeared persons be addressed by suitable amendments to the Registration of Death of persons (Temporary Provisions) Act, No.2 of 1995.
(ii) A Public Administration Circular to be issued to the district registrars of marriages and deaths regarding their powers to issue death certificates.

9. Emotional Rehabilitation :

(i) A counselling Service set-up for the purpose of emotional rehabilitation of members of affected families.
(ii) Equip the community to assist in emotional rehabilitation. A scheme for the sensitization of personnel attached to the educational, health, rural development and other services be initiated.

10. Children :

(i) A scholarship programme be introduced to meet the needs of school chilren of the families of the disappeared persons. This could be integrated into the many scholarship programmes administered by the Ministry of Education.
(ii) Psychological trauma of children (some were eye-witnesses to the violence practised on the parents), needs to be addressed.

11. Returned Detainees :

(i) The Human Rights Commission should be requested to advise the government "in formulating legislation, administrative directive and prodders" for the protection of the fundamental rights of the Returned Detainees as a category.

12. General:

(i) Legislative measures be taken to address the foregoing issues if they cannot be dealt with by administrative action.
(ii) Legal advisory bureau:
A Legal Advisory Service Bureau be set up to provide legal assistance to members of families of disappeared persons and in general to deal with and take appropriate action in respect of the problems of affected families.
(iii) Monitoring Committee:
A committee be appointed to monitor the implementation of the aforementioned recommendations.

II. Women

1. Rape/sexual assault in custody to be recognised as torture; reversal of the burden of proof in cases of custodial sexual abuse; the award of punitive damages following conviction for custodial sexual abuse.
2. Judicial Medical Officer (JMO) to be trained to detect sexual abuse
3. Counselling services to be made available to the victims of sexual abuse both while they are in custody and after they are released.
4. Assistance/training on home based self employment for women; advice, training and counselling on savings to be provided.
5. Formulation of development plans both at the centre and periphery taking into account the phenomenon of female-headed families.
6. The special needs of vocational training, employment and financial assistance of female-headed families to be addressed through the appropriate body, e. g. the National Commission on Women or a Special Committee set up for that purpose.
7. Encouragement of active political participation of women.

III. Legal Proceedings

1. Police Investigations: Police investigations by a special unit under the direct supervision of an officer not below the rank of Deputy Inspector General.

2. Issues Relevant to the Ascertainment of Criminal Liability:

(i) Fora: The courts must always be the arbiter of criminal liability.
(ii) Evidence: Evidentiary rules must be that of the normal law. However, once detention is established, burden to shift to person charged in the absence of and explanation.
(iii) Procedural fairness: Principles of procedural fairness including the right to be represented must prevail.
(iv) Prosecutor: An office of an independent Human Rights prosecutor to be established.
(v) Access to records: Relevant police records to be handed over to Human Rights prosecutor.
(vi) Due Obedience: No defence of due obedience to be entertained.
(vii) Amnesties: The nomination of a special committee to advise whether a participant deserves amnesty in view of his full disclosure (inclusive of command structures) Reports of all three Disappearance Commissions to be made available this committee.
(viii) Intermediate Steps: Transfer of persons against whom allegations are made; interdiction after disciplinary inquiry or criminal proceedings commence, or attempts at interference or obstruction of investigation (including threats to lawyers); such attempts at interference also to be a basis for further investigations.
(ix) Punishment:

(a) Imprisonment
(b) loss of promotions
(c) future promotions and advancement to be affected
(d) restitution to complainant where perpetrator has been unjustly enriched at complainants expense.
(e) compensation to be in addition to punishment - not as a substitute.

(x) Chain-of-command liability to be clarified by the Supreme court. In the exercise of it's jurisdiction under Art. 129 of the constitution.

3. Assistance to families in litigation.
(i) A legal advisory (assistance) bureau be established to entertain, process and institute Habeas Corpus Applications; and in respect of returned detainees.

Fundamental Rights Applications in respect of incidents during the period under consideration.
(ii) Legislative provision be made enabling a petitioner who has obtained a judicial order for compensation on the basis of personal liability in habeas corpus and/or fundamental rights applications to recover the same in separate civil proceedings if not paid within a stipulated time. The liability of the perpetrator to be extended to his estate.
(iii) Where any person is found guilty for involuntarily removing or disappearing another, the dependents of the victim be given the right to institute civil proceedings to claim damages on the basis of the order of the Criminal Court notwithstanding the provisions of the Prescription ordinance.

4. Time limits and Locus Standi in fundamental rights applications.- Art. 126 (2) of the constitution be amended to enable petitioners to overcome the problems of delay and Locus Standi.

5. International standards for reliefs.- An ad hoc committee be appointed to study and make recommendations in the light of the Judgement of the Inter-American Court of Human Rights in Aloeboetoe etc. v. Surinam.

6. General.- Legislative Package be provided incorporating the aforesaid recommendations and the recommendations with regard to reliefs above as an acknowledgment on the part of Your Excellency's Government of the trauma experienced by a large number of our society be they ordinary citizens, members of families of armed services or police, members of families of suspected subversives or members of families of politicians.

IV Preventive Measures

1. Maintenance of a written record.- Record of Arrests, Detentions, and Transfer to be maintained simultaneously with the vent.

2. Duty to inform.-

(i) The nearest police station to be immediately informed.
(ii) Weekly list to be submitted to the District Secretary by arresting authority with particulars.
(iii) The Magistrate to be informed of the arrest within 24 hours
(iv) Magistrate to be informed of any change in the place of custody including any transfer out of the Magistrate's jurisdiction or release from custody.
(v) A written record of such information to be maintained at place of detention/Police station/District secretary/Magistrate's Court.

3. Receipts of arrest.- A receipt of the Arrest to be given by arresting officer to a family member or friend of the person arrested/copy of Receipt to be given to the detainee.

4. Detention.-

(i) To be at authorised places of detention only.
(ii) A receipt to be issued to detainees with particulars of detention.
(iii) A right to Communicate with relatives be recognised and be implemented.
(iv) Registers of detention to be maintained; including detention at temporary camps.
(v) Particulars of detainees held at temporary camps must be entered in the registers of the main Army Camp/Police station as well.
(vi) Officers-in-charge of places of detention to send weekly lists to the Pradesheeya Sabha Secretary; Pradesheeya Sabha Secretary to maintain a register of same.
(vii) Aforesaid provisions to be elevated to constitutional rights.

5. Magistrate to be required to visit all places of detention once a month. A record of the Magistrate's monthly visits and comments to be maintained at the place of detention.

6. The Prison Rules to apply to all detentions.

7. All records, lists and registers to be available for perusal by lawyers, courts, and persons/organisations with a legitimate interest in the information.

8. Release.-

(i) Must be through courts to the families, and family members must sign the record of release.

(ii) The Magistrate's Courts and the Pradeshiya Sabha Secretary must be informed of release.

9. Failure to abide by the regulations.-

(i) To result in a disciplinary inquiry conducted by an inquiring officer from outside the services to which the alleged defaulter belongs.

(ii) The non compliance including a judicial finding to be entered in the officers service record, and be taken into account with regard to promotions, increments and other features of advancement in service.

(iii) Failure of refusal to perform the acts envisaged above per se be declared to be a cognisable offence, and such acts to be followed by prosecution.

(iv) Recognise criminal liability of officials with chain-of-command responsibility.

10. Right to private plaint.- First complainant or an aggrieved person be given the right to file private plaint.

11. Habeas Corpus investigation.-

(i) Enlargement of the Magistrate's Court's Jurisdiction in Habeas Corpus Applications as well as retention of present powers.

(ii) The High Court's Jurisdiction of ascertainment of liability to be retained.

(iii) Special division of the Magistrate's Court, Colombo to be established to deal with the 330 Habeas Corpus Applications still awaiting attention, and new notices to go out to the petitioners from the Court of Appeal in respect of these applications.

12. Alternative structures.- The elimination of alternative structures of command within the police force and Grama Niladhari system as a prerequisite for prevention.

(i) Requisite qualifications for police officers and Grama Niladharis to be identified and all future recruitment and promotions of all officers to be decided on the basis of the qualification and record of past performance.

(ii) Training programme in investigations for all police officers.

13. Police lay-visitors panel.- A system of a Police Lay-Visitors Panel for each police area to be set up.

14. Citizens Advisory Bureaus.- Citizens advisory bureaus to be set up at district level.

15. Security of Public Figures.- Security of public figures to be provided by a special security coordination division of the police, these officers to be subjected to the command and supervision of superior officers in the service and be subjected to periodical transfer.

16. Right of petitioners to be represented by Human Rights Task Force and Prosecution by the Independent Prosecutor.

17. Constitutional right be declared in any person to petition the Supreme Court through HRTF regarding unauthorised places of detention.

18. Principle 34 of the UN Body of Principles.- Principle 34 of the UN body of principles for the protection of all persons under any form of detention or imprisonment be incorporated in the constitution.

19. Human Rights Commission to be empowered to deal with complaints against Police/Army personnel.

20. An Office of an Independent Prosecutor.- An office of an independent prosecutor to be establish to institute prosecutions, with legislative safeguards to insure independence.

V. Habeas Corpus Applications

1. A State Aided Legal Aid Services.- A state aided legal aid services for petitioners for a writ of Habeas Corpus in this category of cases of disappearances would be a public acknowledgment of the break-down of law and order that enabled such disappearances to be staged with impunity.

2. Discourage Breach of Rules.-
(i) This Commission recommends a vigorous prosecution of those responsible for disappearances.
(ii) Severe disciplinary punishment be meted to government officials who have failed to take adequate measures to prevent disappearances.
(iii) Indemnity Act must not cover acts which are grave offences or a violation of rights of persons.
(iv) Human Rights records of members of armed forces and the police should be taken into account in the consideration of promotions.
(v) Members of these Forces under investigation for involvement in cases of disappearances should be suspended from active duty until disciplinary inquiries are completed.

3. Jurisdiction.-

(i) Reforms of both the law and the administration of the law, required to enable speed of response. The opportunity to invoke this jurisdiction no sooner a situation of unacknowledged custody arises, is the first requisite.
(ii) Enlargement of the Magistrate Court's jurisdiction to empower the Magistrate to receive the affidavits of the petitioner and his witnesses, to register the petition and forward to the High Court [or the Court of Appeal as the case may be), plus the empowerment of the Magistrate to entertain the petitioner's application that he ( the Magistrate) visit the place of alleged unacknowledged detention.
(iii) The High Court (or the Court of Appeal as the case may be) to continue to be the ultimate arbiter on the issues of responsibility and compensation.

4. Enforcement of Award.-

(i) Respondents be required to deposit the sum of award in court or a secured bond duly hypothecated pending appeal.
(ii) The obligation to pay the award be available against a respondent's assets and, it he has died, against his estate.
(iii) The fact of an award by court against an officer in charge of camp/station which has been found to be responsible should go into his service record and thereby affect career prospects.

5. General. -
(i) Publicity to given to the availability of the remedy of Habeas Corpus and the support services available from the Bar Association of Sri Lankas/Legal Aid Commission/Movement for Development and Democratic Rights(MDDR) and Lawyers for Human Rights and Development (LHRD).
(ii) Contributions from state funds to legal aid organisation.
(iii) Instructions to Commanders of Forces to co-operate with the Courts.
(iv) Courts of first instance to be identified wherever possible as most accessible to the petitioner i.e. the Magistrate's Court.

VI. Emergency Regulations

1. General.-
(i) The utilisation of the powers under the state of emergency to be minimised.
(ii) A monthly scrutiny of each regulation by a committee of members of parliament to take place prior to the debate on the extension of the emergency,
(iii) Contents of regulations to be given wide publicity.
(iv) All the regulations which are applicable at a given time be made available in one place.
(v) Regulations to be in clear language and drafted under the supervision of the Legal Draftsman.

2. Arrest.-
(i) Specify the situations under which arrests without warrants can be made and whom the arrest can be made by.
(ii) Arrestee be informed at the time of arrest of the reasons for the arrest.
(iii) Reasons be recorded by the arresting authority as soon as practicable.
(iv) Arrestee and accompanying persons be informed of the identity of the arresting officer.

3. Detention.-
(i) Detention at an authorised place of detention only.
(ii) Adequate publicity be given to the authorised places of detention.
(iii) Detainee to be handed over to the prison authorities as soon as possible.
(iv) Members of armed forces to hand over detainees to the nearest police station.
(v) The reason for the order, and maximum period of detention to be recorded in the Detention Order.
(vi) Detention to be in remand custody from date of charge.
(vii) Prison Rules be made applicable to conditions of detention.
(viii) The detainee to be produced before the Magistrate within twenty four hours of the arrest.
(ix) The secretary to the Ministry of Defence to issue orders for a maximum period of one year and on renewal (if any) be required to state the grounds therefor.
(x) Magistrate be empowered to require the Secretary to provide supplementary information regarding the Detention Order when inquiring into the extension of the Detention Order.
(xi) A procedure for records to be maintained.

4. Notification.-
(i) The arrest and detention of a person must be notified to the Human Rights Commission/Human Rights Task Force, the local Magistrate and the local administrative service within 24 hours of the arrest including notice of changes in the place of detention.
(ii) Issue of receipts to members of the family of the detainee and/or a person elected by the detainee be strictly monitored.
(iii) Register of all persons detained under emergency regulations to be maintained at the District Secretary's office and regularly updated.

5. Consequences for Breach of Rules.-
(i) Disciplinary inquiry, suspension, and/or termination of service.
(ii) Where a violation amounts to a criminal offence, Attorney General/Proposed Independent Prosecutor to initiate prosecutions.
(iii) Attorney General must cease to represent persons charged of violating the Fundamental Rights of persons.

6. Inquest proceedings.-
(i) Emergency regulations must not remove the need for an inquest before the disposal of the bodies of the deceased.
(ii) The bodies of the deceased must be returned to their families.

7. Unauthorised Detention Camps.-
(i) To be dismantled immediately on identification.
(ii) Complaints regarding unauthorised detention camps to be investigated by an independent committee appointed for that purpose.

VII. Excavation of Mass Graves

1. It would be undesirable to disinter Mass Graves until requisite skills exist.

2. In this regard, it is necessary to :

(i) Develop training in the requisite skills with the assistance of international agencies such as the UN Human Rights Committees Working Group on Enforced and involuntary Disappearances.

(ii) Establish a Human Identification Centre (HIC) to,

(a) Train forensic pathologists and scientists in all aspects of identification.
(b) Provide modem state of the art techniques, including DNA profiling, computerised facial reconstruction and photo comparison, video superimposition and anthropometric analysis.

(iii) In the meanwhile, information should be collected as to the existence of Mass Graves, and record location/date/agency involved/identity of bodies alleged to be in the said Mass Graves. Accordingly, an appropriate authority for this task be identified.

VIII. Complaints Remaining To Be Inquired Into

Finally 542 complaints received by this Commission remain to be investigated.

On this 3rd day of September, 1997, at Colombo :

Manouri Kokila Muttetuwegama
Chairman.

S. S. R. B. D. A. Amal Jayawardane
Member.

B. J. P. de Almeida Guneratne
Member.

Posted on 1999-01-01



remarks:1


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