Atty. Kumarage is the legal counsel of the Organization of Parents and Family Members of the Disappeared (OPFMD) and vice president of Lawyers for Human Rights and Development (LHRD). An unslackening scholar, he received his MA and LLM degrees from the University of Colombo. A person with a jolly disposition, he claims that all rice-eating people are nice.
For the first time in Sri Lanka, an enforced disappearance occurred in 1958 during a state of emergency declared by the government to quell the first pogrom against the Tamils conducted by the majority Sinhala community which opposed an agreement between the government and the Tamil political leaders.1 Two disappearances occurred during that period—a person by the name of Arlis Silva, a Sinhalese from Gandara in the deep south of the island and the other named David Silva from the south western coastal town of Beruwala -thirtyfive miles south of Colombo. Both of them disappeared after being arrested by the police under the dreaded Emergency Regulation (ER), under which thousands of Sri Lankans disappeared in the years that followed.
Since 1971, up to the first three years in the twentyfirst century, Sri Lanka (which was once a model democracy) was ruled under the so-called national security laws which paved the way for the suppression of the rule of law and all civil and political rights contained in the Universal Declaration of Human Rights.
Disappearances in large numbers occurred during the socio- economic rebellion of an organization of Sinhalese youth called the Janatha Vimukthi Peramuna (JVP / People’s Liberation Front) in the southern region of Sri Lanka in 1971. Again the police and armed forces personnel killed hundreds of young people extra- judicially. Most of them disappeared, never to see this world again. Disappearances became a phenomenon for the first time in Sri Lanka after the JVP revolt which was brutally crushed by the coalition government composed of the Sri Lanka Freedom Party (SLFP) and two left-of-center parties led by Mrs. Sirima Bandaranaike—the mother of the present President Chandrika Kumaratunga. Political activists of the genuine left were also harassed and kept in detention for long periods. About seventeen thousand (17,000) persons disappeared during this period. Foreign human rights organizations were also not allowed to visit the country to monitor the massive violations perpetrated by the agents of the state.
The United National Party (UNP) government led by J.R. Jayawardene which came to office in 1977, defeating Sirima Bandaranaike’s government, was an expression of overwhelming anger and rejection of the suppression of peoples’ rights by her regime.2 However, the new dispensation became even more repressive. The new government adopted a new Constitution3 which introduced for the first time an executive Presidential system, concentrating universally unprecedented powers in the President.
The new regime also shed the people-friendly welfare system of the government provided to the people since British rule and opened the door for neo-liberal economic policies granting constitutional protection to foreign investors. The welfare system based on food and other subsidies were withdrawn, and the International Monetary Fund/ World Bank (IMF/WB) dictated structural adjustment policies which were greatly harmful to the people were implemented instead.
Resistance to the repressive economic policies did not manifest as a united people’s campaign against the government because by that time, the polity had been divided on racial lines by opportunistic politicians and the majority Sinhala business community to achieve their personal goals. All peaceful attempts of the Tamils to win their due rights by democratic means including peaceful protests were also crushed by all centrist governments. The response to this attitude of the governments was the creation of the militant youth movement of the Tamils called the Liberation Tigers of Tamil Eelam (LTTE) which decided to meet force by force.5 The separatist rebellion launched by the LTTE in the 1980s intensified and spread from the north to the northeast of the country. Government forces, in turn, became increasingly violent. What resulted was a pattern of arrests under the cover of the national security laws resulting in extra-judicial executions and disappearances.
At the same time, the JVP launched their second uprising against the UNP government. Then came the horrendous incidents of human rights violations that occurred between 1987 and 1991. It is not officially estimated by any organization or the government as to how many persons disappeared or extra-judicially killed during the said uprising. Non-governmental organizations claim that over sixty thousand (60,000) persons disappeared between 1987 and 1991.
The government was able to ruthlessly crush the second rebellion of the southern youth using the Emergency Laws and the Prevention of Terrorism Act6 which was hastily enacted to crush the LTTE. While the second uprising of the JVP occurred in the south, the LTTE’s separatist struggle escalated in the north and northeast of the country and intensified their campaign by shifting from guerilla warfare to a traditional war against the enemy.
The government’s security forces, police and paramilitary squads started a campaign against suspected members of both the JVP and LTTE. The capture and kill campaign was even directed against the political opponents of the government as well as personal enemies of individual strongmen of the government. Incidents of extra-judicial assassinations, disappearances and torture escalated dramatically. The parliamentary and presidential elections were held in 1989 and 1990 respectively during the JVP rebellion and the corollary state of emergency, wherein the incidence of disappearances increased phenomenally, reaching alarming levels. Most of the persons who disappeared later were taken into custody either under the PTA or Emergency Regulations which violated all internationally accepted human rights standards.
The Organization of Parents and Family Members of the Disappeared (OPFMD) was formed by a group of activists and members of some families of victims during the heat of the horrendous massacres perpetrated by the state in all parts of the country. They faced many challenges including threats to their own lives, but no force could deter their campaign. The OPFMD mobilized forces in the country against the mass killings and disappearances while drawing the attention of the international community which showed a total deafness towards the pogroms perpetrated by the Sri Lankan state. International pressure began to be felt by the government and the degree of the massacres abated slowly. The campaign organized against disappearances became a campaign to defeat the government which perpetrated those massive violations of rights.
The People’s Alliance (PA) government was voted into power by the majority of the people of this country, mainly trusting the promise given to them that they would uphold the rule of law and probe all cases of enforced disappearances and extra-judicial killings committed under the previous UNP regime. These promises greatly influenced the PA’s electoral victory. But another campaign had to be launched by the OPFMD and other fraternal organizations to get the victorious government to fulfill its promises to the people.
But their actions within their tenure in office did not show that they were serious about fulfilling the key promises made to the traumatized people of Sri Lanka. The PA government even recruited to its fold a minister of the former government who was allegedly involved in the killings of the Embilipitiya school children and many others in the Ratanpura District.
After much pressure and persuasion from the various local and overseas human rights organizations, the PA government set up three Presidential Commissions of Inquiry into Involuntary Disappearances of Persons. But it was organized on a territorial basis only after 1 June 1988.
The United Nations Working Group on Enforced or Involuntary Disappearances (UNWGEID) declared in 1992 that Sri Lanka, with approximately 12,000 documented cases of involuntary disappearances, had the highest number of recorded involuntary disappearances in the world.7 But human rights organizations including OPFMD estimated that about 60,000 persons had disappeared or extra-judicially executed since 1983. Thousands were also detained, sometimes incommunicado.
The Report of the United Nations Working Group on Enforced or Involuntary Disappearances (UNWGEID) released on 5 April 2000 states, among other things, “Sri Lanka remains the country with the second largest number of non-clarified cases of disappearances, many of the missing persons allegedly traced by the authorities seem not to correspond to with the disappeared persons submitted by the Working Group.” Although a considerable number of criminal investigations had been initiated in relation to disappearances which occurred over fifteen years ago, only a very few alleged perpetrators have actually been convicted.
The Commissions received about 30,000 cases. All Commissions submitted comprehensive reports in September 1997, however, without having finished their work. The investigation of some 10,136 remaining complaints out of the old cases was entrusted to a fourth Commission appointed on an island-wide basis with full powers; but its mandate prevented them from inquiring into new cases. All in all, about 4,000 perpetrators were identified, about 500 of them have been indicted and only a very few of them have been convicted. None of the senior officers identified have been prosecuted.
However, nearly around 16,000 further cases of disappearances that had not been reported to any previous Commissions were brought to the notice of the new All-Island Commission. However, due to the inadequacy of the mandate of the Commission, it did not entertain them. These cases have not been probed by any Commission of Inquiry up to this day.
The findings of all the Commissions of Inquiry have been published as sessional papers and there are far-reaching recommendations contained therein to be implemented by the government. It must be said, even with trepidation, that the enthusiasm manifested by the authors of the Commissions of Inquiry is not to be found in the implementation of their recommendations.
After the LTTE unilaterally ended the peace talks with the government in April 1995, several cases of disappearance were reported in the capital of Colombo and the eastern region of the country. The number increased dramatically when the armed forces regained control over the Jaffna Peninsula from the LTTE. There were 78 in 1995, 623 in 1996, and 92 in 1997 reported cases of disappearances from the Peninsula. In 1998 and 1999, the number has come down to 4 and 2 respectively. This could rise at any time considering the re-escalation of the internal conflict.
No independent Commission has been appointed to probe the cases of enforced disappearances that occurred under the PA regime. However, a special Board of Investigation into the disappearances in the Jaffna Peninsula was appointed in 1997 which investigated a total of 2,621 complaints and traced more than 220 disappeared persons and identified a number of perpetrators. Its findings have not so far been published.
In the meantime the Human Rights Commission of Sri Lanka, under powers vested in it under section 11(b) of the Human Rights Commissions Act No. 21 of 1996, appointed a Committee to inquire into the complaints it had received regarding disappearances and removal of persons from their residences in Jaffna, Kilinochchi and Vavuniya Districts during the period of 1990 to 1998.
This Committee was mandated to investigate among other things, whether the persons in the list provided by the Guardians’ Association were those who were arrested and made to disappear from the North. The Displaced North Muslim Organizations, and the complaints pertaining to this period received by the Regional Office of the Human Rights Commission in Jaffna as per letter dated 15 December 2002 sent by the Regional Coordinator in Jaffna, have been involuntarily removed or had disappeared from their places of residence during the period mentioned in the complaints. All the circumstances pertained to the alleged involuntary removals or disappearances, the present condition and whereabouts of the persons alleged have been so removed or to have so disappeared and the evidence available for identifying the person or persons responsible for these alleged disappearances and the findings based on such evidence. The Committee, after a long deliberation and several fact-finding trips to the Jaffna Peninsula, submitted a summary of a Report at a meeting held in Colombo where they confessed that they were not able to ascertain the most important aspect of their mandate ( i.e. finding “evidence available for identifying the person or persons responsible for the alleged disappearances”) due to the non-cooperation of the Army. It is regrettable that a state institution like the Human Rights Commission of Sri Lanka was not able to procure the assistance of the Sri Lankan Army in their inquiry.
In September 1996, a student in a Jaffna girls’ school was gang-raped and murdered, together with her parents who went to a checkpoint in a Jaffna town to rescue her. The accused army officers were tried and convicted and sentenced to death by the High Court of Colombo. One of the accused in that case came out with a sensational revelation that army senior officers attached to his camp killed several hundreds of Tamil persons who were in their custody and buried their bodies in areas closer to the army camp in the Araly area. After much hesitation and being ordered by the Magistrate of Jaffna, the government took steps to take the soldier and probe the truth of his story. The exhumations, done in the presence of a forensic expert and other state officials, found the remains of several persons. But at present, all proceedings in that connection have been shelved.
A group of lawyers from the Center for Human Rights (CHRD) and the OPFMD visited Jaffna and met the members of the families of persons who disappeared in the Jaffna Peninsula and collected information on the disappearances of their loved ones. Based on the said information, the CHRD has filed fifty habeas corpus petitions in the High Court of Jaffna against some officers of the Army and the inquiries are still pending. These applications also relate to some of the complaints that the Committee appointed by the Human Rights Commission was mandated to inquire into were met by the non-cooperation of the Army.
In their reports, the Presidential Commissions on Disappearances have found that disappearances are the result of a well-orchestrated practice carried out by the state, which includes the initial design of lifting all legal obstacles that impede disappearances by way of:
- carefully drafted Emergency Regulations;
- planning and executing abductions ( arrest with intention to kill);
- establishing detention centers;
- training and instructing personnel to torture, kill and dispose of the bodies;
- the maintenance of mass graves; and
- general instructions to erase all records and to protect the perpetrators.
These well-founded facts pose a great challenge to the international community. The findings of the Commissions emphasize the special character of the crimes committed by the state which uses its power to violate the law rather than uphold it. In all Commissions, the narrations by thousands of humble petitioners of voluminous cases of abductions and disappearances bore powerful testimony to the fact that what we are looking at was an orchestrated phenomenon and not a series of isolated events explicable in terms of “excesses” by individual transgressors.
The Final Report of the Fourth All-Island Presidential Commission on Disappearances has been published as a sessional paper.8 It has also taken into consideration the findings of the three earlier Zonal Commissions in its conclusions and recommendations.
It is worth including some of the highlights of the Final Report. It states on the heading “Conduct of Investigations by the Police.” It is imperative and accordingly recommended that the police investigations be done in accordance with the recommendations of all Presidential Commissions with regard to the perpetrators of disappearances of persons and not be done on a case-to-case basis. The investigation needs to be done in such a manner as to give the victims confidence in their impartiality. In response to the recommendations of the earlier Commissions that the independence of the investigation be safeguarded, a Disappearance Investigation Unit (DIU) has been set up under a Deputy Inspector General of Police of the Criminal Investigation Department (CID).It is recommended that the DIU be well-equipped and provided with all logistical support. It must be stated with regret that this recommendation has gone into deaf ears and the DIU is in a state of inactivity.
“A special unit named the Missing Persons Unit has been established in 1998 at the Attorney General’s Department to advise on investigations and to conduct prosecutions in cases of Disappearance by 1 January 2000…The establishment of this Unit, while underlining the special problem of prosecuting cases of disappearance, suffers from drawbacks, in that the prosecutor is the Attorney General who invariably is the representative of the State, either as prosecutor or respondent in judicial proceedings. In this instance the present arrangement makes the Attorney General the representative of the victim, and prosecutions are conducted on the basis that the crimes were acts of errant officials…This again highlights a problem of the public perception of a conflict of interest, in that the victims are very much affected by the awareness that the State Officers are investigating into complaints against Officers of State. This problem could be obviated by empowering the Human Rights Commission to have a prosecuting arm.”
OPFMD wishes to respectfully disagree with the view expressed by the Commission in that the Human Rights Commission too is still dependent on the office of the President for its sustenance and further, it has not been able to dispense just and equitable solutions to hundreds of victims of fundamental rights violations even within their mandate. The inability of the Committee appointed by the Human Rights Commission to inquire into the cases of disappearances in the Jaffna peninsula and to procure the attendance of the officers of the Sri Lankan Army is another case in point. A third point is that the government had to appoint a Committee to Inquire into Undue Arrests and Harassment (CIUAH) that occurred in 2001 to inquire into complaints by Tamil civilians against harassment by security forces, a function that is well within the powers of the Human Rights Commission.
Only the establishment of an office of a Special Prosecutor to inquire and prosecute cases of disappearances would be the solution. There is a provision in the draft Legally Binding Normative Instrument for the Protection of All Persons from Enforced Disappearances which is being discussed by an inter-sessional Open-Ended Working Group on elaborating the said Instrument in Geneva under the auspices of the United Nations Commission on Human Rights.
It must be reluctantly mentioned that a delegate of the Sri Lankan government failed to attend the said Working Group meeting despite the request made by the OPFMD representative who attended the meeting. He was told by the Sri Lankan Mission in Geneva that it was not of that importance for them to attend the meeting in that they had other more important matters at hand. This shows the degree of non-importance that the present Sri Lankan government attaches to the question of disappearances .Eradication of all causes of enforced disappearances and the punishment of perpetrators of disappearances was one of the principal pledges made by the present government which contributed to their electoral victory in the 1994 general elections and the subsequent presidential election.
Most of the Conclusions and Recommendations of the UN Working Group on Enforced or Involuntary Disappearances (UNWGEID), and the Presidential Commissions on Disappearances are yet to be implemented. They can be classified into three categories as follows:
- the conclusions relating to state accountability ( i.e. the investigation and prosecution of those persons or officials responsible for disappearances in the past);
- those concerning the adequacy of the Constitution and other domestic laws to prevent disappearance (including conformity with international human rights law standards); and
- preventive measures, designed to prevent mistreatment and enforced disappearances in the future.
The OPFMD wishes to call upon the Government of Sri Lanka to take prompt action to implement the following recommendations which include those of the UNWGEID, the Presidential Commissions and OPFMD:
Chapter 111 of the Constitution be amended to prevent the restriction of the fundamental rights set out therein beyond what is permissible under the relevant articles of the International Covenant on Civil and Political Rights (ICCPR).
The Prevention of Terrorism Act (PTA) must be repealed as the mere existence of it as an ordinary law of the country is a blatant violation of Article 4 of the ICCPR.
Emergency Regulations promulgated under the Public Security Ordinance (PSO) as well as the rules of practice pertaining to detention should be thoroughly reviewed to ensure that they conform with the provisions of the ICCPR and other international human rights standards on personal liberty, due process and humane treatment of prisoners.
Any person deprived of liberty should be held in an officially recognized place of detention. In addition, police stations and army camps should be removed from the list of officially recognized places for detention.
The government should set up a central register of detainees. All detainees must be registered upon arrest, and any change in the status of detainees must also be registered. A system of issuing receipts to members of the families of the detainees must also be established.
Failure to carry out the legal obligation to immediately inform the Human Rights Commissions of arrest and detentions must be made punishable. The arrested parties must have the power to inform the Human Rights Commission of such arrest.
The Human Rights Commission should be fully overhauled and provision should be made to appoint an independent Human Rights Prosecutor with full powers. It also should have additional powers of monitoring, reporting and investigating human rights violations.
All families of disappeared persons should receive the same amount of compensation without discrimination.
The procedure of issuing death certificates in cases of disappearances should be applied in an equal and non-discriminatory manner to all families.
The government of Sri Lanka should work towards the adoption of a separate Convention for the Protection of All Persons from Enforced or Involuntary Disappearances and vote for it, ratify it and implement it.
The disaster caused to the coastal areas of the country by the tsunami waves on 26 December 2004 has treated both the government and the LTTE equally without discrimination. Areas under the government as well as those under the LTTE have taken a heavy toll. Thousands of people have died and thousand others have been rendered homeless. The massive damage that resulted in the large number of deaths and the displacement of thousands of others will take years to rebuild. Protection and promotion of human rights are essential even in the backdrop of this unprecedented calamity. It should be the bounded duty of the State at this crucial moment of our history to ensure that human rights are honored all over the island and violence should be shelved for ever and peace reached by removing all obstacles to it.
Footnotes
1 Bandaranaike-Chelvanayakam Pact between Prime Minster S.W.R.D. Bandaranaike and S.J.V. Chelvanayakam, leader of the Federal Party (of Tamils).
2 Ibid., Patricia Hyndman. Human Rights Accountability in Sri Lanka, 6 (1992).
3 Sri Lankan Constitution of 1978.
4 Ibid.
5 Broken Palmirah, Rajan Hoole, and documents of the Jaffna University Teachers Human Rights Association appearing in their website.
6 Prevention of Terrorism Act of 1979 as amended by Acts No. 1988.
7 Report of the UNWGEID UN Commission on Human Rights at 38 UN Doc.E/C/N/4/1992/18/Add. 1 (1992).
8 Sessional Paper No. 1, 2001.
