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
(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
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
(ii) The relevant Ministries and/or
Provincial Ministries to consider applications for transfers
by widowed mothers to work at places in close proximity to
(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
6. Employment Emoluments, Insurance and Bank
(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
(ii) Steps to ensure the release of money in bank accounts
and moneys due on life insurance policies to the heirs of
(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
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
(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
(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.
(i) Legislative measures be taken to
address the foregoing issues if they cannot be dealt with by
(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
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
3. Counselling services to be made available to the victims of
sexual abuse both while they are in custody and after they are
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
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
(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
(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
(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
(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.
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
(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
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
(i) To be at authorised places of detention
(ii) A receipt to be issued to detainees with particulars of
(iii) A right to Communicate with relatives be recognised and be
(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
(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
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
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
(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
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
12. Alternative structures.- The
elimination of alternative structures of command within the
police force and Grama Niladhari system as a prerequisite for
(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
(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
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
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
(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
(v) Members of these Forces under investigation for involvement
in cases of disappearances should be suspended from active duty
until disciplinary inquiries are completed.
(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
(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
(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
(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.
(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
(iv) Arrestee and accompanying persons be informed of the
identity of the arresting officer.
(i) Detention at an authorised place of detention only.
(ii) Adequate publicity be given to the authorised places of
(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.
(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
(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
(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
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
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
(ii) Establish a Human Identification Centre
(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
(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
Finally 542 complaints received by this
Commission remain to be investigated.
On this 3rd day of September, 1997, at Colombo
Manouri Kokila Muttetuwegama
S. S. R. B. D. A. Amal Jayawardane
B. J. P. de Almeida Guneratne
Posted on 1999-01-01