In a country that has achieved so much in literacy, education and social development, is it not indeed unfortunate that “White Van” has frightened the entire nation? Appearance of a white van assures a disappearance of some one. If you Google or do any other internet search (or any media that is not controlled by the Government) on Sri Lanka, “White Van” resembles the Defence Authorities of our country. Are we not ashamed of it?

“White van operation” is the most used mode of enforced disappearances in Sri Lanka at present. Enforced disappearance violates a range of human rights including the right to security and dignity of a person, right to a legal personality, humane conditions of detention, right to fair trial, right to a family life and when killed, the right to life. The disappeared person is often tortured and in constant fear for life, removed from the protection of the law, deprived of all their rights and is at the mercy of the captors. Do you respect these rights seriously? What would you do if you or a family member experiences abduction?

Disappearances are not new to Sri Lankan post-independence history. Between 1970’s and now, there were several insurgencies in the country and most of the disappearances were observed during those insurgencies. The present trend, however, is different. At present, there is neither an insurgency nor an emergency in the country, but disappearances do take place. Under whatever the circumstances, there is no legal, social or any other justification to forcefully abduct a person and destroy him/her. In this article I attempt to analyze a few key governance issues revolving around the “white van culture” in Sri Lanka.

Present trend of abductions

A cursory glance at the recent abductions are mainly twofold; firstly, abductions of “criminals” (as the government called them) and secondly, abductions of dissenting voices. Let me deal with them briefly in order.

In recent years, several hundreds of suspects who had been lawfully taken into custody in the South were later found dead. In explaining these deaths, the police had an identical version on each one of them that those suspects were taken to a place to recover “weapons” where the suspect suddenly tried to grab a gun from a police officer and that the police had to shoot the suspect in self-defence! We all know that when hardcore criminal suspects are taken out, they are always handcuffed and guarded by officers who can physically handle him. In my view, this utter falsehood of “attempt to escape” can sustain only in a country where there is a total breakdown of internal supervision of police action. It also suggests that government has a policy to destroy “suspects” without following a judicial process. The danger is not just that; rather the judicial organ of the State becomes irrelevant for serious criminal offences, because the Executive handles them on their whims and fancies.

That concerns lawfully arrested “suspects”. What about the others? Abductions of criminals and destroying them came in when the cell deaths in police custody became too much to be explained; or when political authorities preferred a sophisticated method of dealing with “identified individuals” without being answerable to anyone. For this to happen, there needs to be a trustworthy special group or groups of law enforcement officers who are assured of total impunity. Secret detention places are also needed. Judicial experience all over the world shows that highest officers of the defence authorities must be either directly involved in such abduction operations or must approve the exercise directly.

The second category of abduction is to destroy the “Dissenting Voices” (who democratically challenge the government). While there are many examples, the recent trend started with the abduction of certain journalists. In particular, the abduction of Poddala Jayantha gave enough evidence of the motive of the abduction – non-criminal but he was a powerful dissenting voice in Sri Lanka, who organized the media against suppression. Like other similar abductions, the government did not honestly investigate into the incident; rather used state propaganda to discredit Jayantha. A man who wanted to stay in Sri Lanka was thus forced to live in exile.

Many dissenting voices faced white van abductions more recently and the list is not short by any means. Recently, two activists (named Kugan and Lalith) working against abductions were abducted in Jaffna on 9th December 2011 –while they were organizing events to celebrate Human Rights Day the following day in Jaffna. Media Minister Keheliya Rambukwella admitted that the two persons were in custody but did not disclose where they were detained. Now the law enforcement authorities are denying the arrest! Then came the abduction of Kumar Gunaratnam and Dimutu Attygalle. All these four persons belong to a JVP breakaway group now called the “Frontline Socialist Party”. Even though the track record of the JVP, particularly during the 1989-90 period is undoubtedly atrocious, the JVP came to the democratic political main stream – just like many other armed groups. Then emerged the JVP breakaway group, challenging the undemocratic moves of the regime somewhat effectively, compared to other opposition parties. There is no doubt that the government is jittery about any powerful opposition challenging the government’s credibility, particularly when a group of past JVP activists were involved. However, that cannot justify abductions of unarmed political activists. If they have violated the law of the land, then the government has the full lawful authority to deal with them according to the law.

Whose White Vans are They?

I shall begin with the efficiency of the law enforcement authorities of the country. As a practicing lawyer for nearly 25 years, I can assure the readers that our intelligent services and police investigators are capable of busting any major crime in the country, if there is no political interference. I cannot recall a single case of “NORMAL" abductions which were not solved. Sri Lankan law enforcement authorities have successfully dealt with crimes from well planned murders to crime networks beyond territorial jurisdiction. However, law enforcement authorities have failed to solve a single “White Van” abduction. Why? The capacity/ability is one thing and integrity is something totally different.

The three prominent recent White Van episodes give us an indication as to who is presently capable of doing these. Kolonnawa UC Chairman (unsuccessful), Kumar Gunaratnam (successful but released) and Methias Chandrapalan, abducted from the judicial custody (whereabouts not known yet) are the three examples.

Kolonnawa UC Chairman’s brother was first abducted and he went missing. Then a White Van group came to abduct the UC Chairman himself. The assailants (in plain clothes) were apprehended and handed over to the police. It was later revealed that they were from the defence establishment. Their identities were established and even published in the media. But nothing happened! Government first said that the group (white van operators) was from the military engaging in an operation to arrest army deserters. As far as I am aware, arrests of deserters are made ONLY by uniformed Military Police officers with police assistance. There was no genuine investigation into this incident and what the media reported later was that a senior DIG “rescued” the white van crowd at midnight from the police. If so, why did a DIG get involved in rescuing a set of criminals who committed or were attempting to commit a crime? In an interesting coincident, the Officer in charge of the police station was transferred!

Judicial history of our country has not seen an abduction of a suspect in the custody of the jail guards (while walking from one court to the other). Chandrapalan, a suspect in a drug case, was abducted at gun point by a white van group in the presence of lawyers and the relatives of the suspect. This happened around 12 noon in the main court complex, which is known for good security arrangements and where all movements are closely monitored. No serious investigations took place on this. Who can abduct a person from judicial custody in Sri Lanka? Answers are probably not difficult but public do not want to openly give an answer in fear of white van reprisal.

Take the abduction of Kumar Gunaratnam and Dimutu Arttygalle. This raised a series of contradictions of the government’s version. They went missing on 6th April 2012 and were released “through police” on 10th April. The most interesting announcement came on 10th early hours from the Police spokesman who said on TV that “a person called Noel Mudalige believed to be JVP dissident Kumar Gunaratnam, had surrendered to the Dematagoda CCD police station last night and requested to go to Australia and the government has made arrangement to send him to Australia and he is awaiting departure at the Bandaranaike International airport.” If the version of the police is true, any foreigner who wants to return to his/her own country can go to a police station when an air ticket will be bought at government expense and he/she will be sent!

Brilliant! Is the government expecting us to believe this? Here again we cannot see (or expect) any reasonable investigation. Later, the Police spokesman said that they are conducting further investigations to “contradict the position of the JVP breakaway group and tell the country the correct position.” This is more serious than the offence itself. What motivates a police investigation – to solve the crime or to white wash a government?

We have seen the government alleging “international conspiracy” whenever they cannot explain their questionable actions and that is generally a good indication to measure the government’s involvement. See what the Acting Minister of Media said on this occasion:

“Certain people are tarnishing the country’s image by leveling false and baseless allegations against the government in connection with the abduction of two members of the newly formed Frontline Socialist Party… The intention of such fabrications is to denigrate the state in the eyes of the world and to inconvenience it”.

The conduct of a criminal (after committing a crime) is a relevant fact that is useful to see the complicity of the suspect to a crime. Let us keep this simple test in mind here and consider the government as a suspect. In all these white van abductions, there is identical response from the government. Initially it is denied. Then say the police are investigating into the matter. This is followed by the government propaganda team (both in state media, private media and sponsored journalists) discrediting the “abductees”, while diverting attention from the crime of abduction. Then we see police getting involved in an unusual exercise of finding evidence to “contradict” (that there had been in fact an abduction). Finally, someone comes out with a theory of “conspiracy” without any real material to justify such an allegation. In the absence of a genuine and transparent investigation into the abductions, let me pose the question to the reader; do not these facts suggest the complicity of the government?

Some Common Features from Notorious Countries

Sri Lanka is not the only country that grapples with the menace of abductions. Motive for abductions may vary depending on the group of abductors. In many notorious countries, there are “enforced abductions” for religious conversions, extortions, conscriptions, rivalries and so on. But here I discuss only the abductions involving state authorities. In countries where the state officials are involved in enforced disappearances, there are some common features. The case studies on abductions from those countries give an indication of at least following six features:

1. The state institutions (including parliament and judiciary) are generally corrupt and not at all poised to deal with the crime of disappearances/abductions. In fact, the law enforcement agencies do not believe that abduction is a crime. Abduction network is protected by the political/military leadership.

2. The government with or without its para-military arms run a series of secret detention places, outside the legal scrutiny. In many instances, the military give them physical security.

3. The police, military and supervision bodies are under one single authority and they are generally linked to the political Head of the State. They do not have any resource constrains for criminal operations.

4. Though the disappearance operations are well planned under an organized state authority, it often goes out of control. Thus, there may be some abduction that is not authorized by political or military leadership.

5. Abductions can sustain only where impunity is guaranteed and therefore, abductors are fully satisfied of the track record of the political leadership in guaranteeing “impunity” to them.

6. Even the notorious regimes do not want exposures on abductions. Whenever evidence emerges of the government’s involvement, they usually eliminate possible critiques. Or else, it would brand the critiques as “traitors conspiring against the country”. Usually, those regimes have strong propaganda machinery and sophisticated intelligent network to identify and discredit those “traitors”.

Testing the White Van with Governance Tools

Whether Sri Lanka has above common features is a matter for the reader to decide but let us look at our own experience with White Vans.

It is not difficult to understand that among the core of the problems of many serious issues in any country lie bad-governance structures. In my view, white van abductions can sustain only in an environment of bad governance. In that context, let me endeavor to demonstrate at least 5 possible reasons, why “White Van” operations do exist in Sri Lanka unabated.

Firstly; the lack of accountability of the law enforcement agencies. All public institutions, inducing the Defense Ministry, are run on public finance and are therefore, accountable to the public. Who are our law enforcement agencies accountable to - public, politicians or “unknown”? The cardinal principle of governance requires law enforcement agencies to be truthful and honest in their dealings. They should only by guided by the law of the land. We all know today that any investigation can be manipulated by the political masters. Impunity is thus institutionalized! Arguably, the law enforcement agencies seem to be only accountable to the political masters and not to the public. There is further confusion as to who a law enforcement authority is, when the police and military are under one and single Minister (President) and Secretary.

Thus there is no check on each other. When there is a confusion of the functions, there cannot be effective accountability.

Secondly; lack of legislative supervision over the Executive. I hold the view that the Sri Lankan Parliament today is an ornamental institution, without sufficient capacity or willingness to respect/protect human rights. There is no Parliamentary Committee on human rights nor are there debates on human rights status of the country. The opposition is confused and one often wonders whether an opposition member is a government member or not. Contrary to acceptable parliamentary norms, almost all Parliamentary Committees including COPE and COPA are headed by Ministers. Minister in charge of Defence is the President. Total Defence budget is not subjected to review by Parliament or its Committees. The secret expenditure of the military are even exempted from the Auditor General’s review (See Financial Regulation 237D). In fact, if the President and the Minister of Finance jointly state that they are satisfied with “any necessary expenditure on services of a confidential nature (the particulars of which cannot be divulged)”, the Auditor General cannot audit such accounts. When the President, Minister of Defence and the Minister of Finance are one and the same person, this exercise becomes a gross conflict of interest; thus no one will ever know how defence expenditure is spent. This can lead to large scale abuse of defence expenditure. On top of it, Urban Development is also part of the Defence Ministry! This total mystification is a breathing ground for cover up any criminal operation of the law enforcement authorities.

Thirdly – Lack of transparency in governmental actions. Sri Lanka does not recognize freedom of information and in fact, the disclosure of information might attract disciplinary actions against public officials under the Establishment Code. The provision of confidentiality has been used as a tool of oppression and as a main source of corruption, for many decades. It is because of this secrecy that the governments can misbehave and cover up. This has been so serious that the officials, let alone the citizens, are unaware of the secret decisions taken by higher officers. Do the public officials have backbones to legitimately question fellow officials or superiors on integrity issues of the institutions today? Since the 1972 Constitution we have seen the decay of independence and integrity of the public service but the present period is undoubtedly the worst. This caters to a wonderful opportunity to “work secret plans for the political masters”.

Fourthly- the weak Opposition is a contributory factor. As opposed to this period (where even the role of the Opposition is distorted), in early part of 1990, the then Opposition took major steps to prevent abductions, whilst an insurgency was on. One move then was to work closely with the UN Agencies to hold Sri Lanka accountable under the international human rights law. The best possible example was the actions effectively performed by the then Opposition MPs, particularly Mr. Mahinda Rajapaksa. Once, Mr. Rajapasa was even arrested at the airport on his way to Geneva to attend the 31st Session of the Working Group on Enforced or Involuntary Disappearances in September 1990. (Read Rajapaksha v. Kudahetti (1992(2) SLR 223). Many political leaders such as Vasudeva Nanayakkara led from the front with the “Mothers Front”. Unfortunately, there is no such political voice against disappearances today. There may be many reasons for this. One reason seems to be the “societal silence” on the disappearance of Tamils for many years and the society was “forced to believe” that abductions were necessary to deal with the LTTE. With that mindset, most of the politicians including some of the parties in the Opposition are now finding it difficult to explain their long silence on abductions. There may be political explanations for this; but suffice it to say, whatever the explanations may be, they have failed in their political duty to challenge the crime of disappearances at the right time.

Finally, the weak civil society and feeble media. We need to ask ourselves whether we have done enough to preserve integrity and peace for the generations to come. When media was attacked, a coterie of government sponsored journalists supported the attackers. Though we have a few professional and fearless journalists, they are simply the exception, not majority. Civil society came under constant attacks by nationalist lobby for political reasons and state resources were frequently used to silence or weaken active NGOs, resulting in a grand opportunity for a despotic ruler.

Is silence the answer? Governance is a dead letter where the public is not concerned about the fundamental freedoms. White vans created such an “oppressed” atmosphere that the public in general are not willing to speak up – obviously in fear of reprisal. This is a clear objective of the oppressor. This reminds me of the words of Steve Biko – the Anti Apartheid hero from South Africa - “The most potent weapon in the hands of the oppressor is the mind of the oppressed”. In conclusion let me ask, are we not experiencing this presently - as a nation?

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* Constitutional and Human Rights Lawyer, Eisenhower Fellow, Senior Ashoka Fellow, former ED of Transparency International Sri Lanka