Focus on Rights

In the last column, the constitution of the eight member Presidential Commission of Inquiry, (the Commission), established by the Government of Sri Lanka last year in order to probe into fifteen selected incidents of extra judicial killings and other grave human rights violations, was examined. The Commission will begin sittings in early February.

The point made was very simple; precious little can be achieved by fact finding Commissions of this nature. Instead, what is required are substantive legal changes that relate to the determination of questions of service responsibility as factually and immensely complicated as those relating to prosecutions for extra judicial killings. This week's column takes this discussion somewhat further.

However, rather than limiting the debate to the fifteen cases mandated for inquiry by this Commission, let me put these matters in their historical context. During the past three decades, we have undergone civil and ethnic conflict as a result of which, more than sixty thousand people have died. These killings have occurred both in the North due to the conflict between the separatist Liberation Tigers of Tamil Eelam (LTTE) as well as during the late eighties when there were attempts by the Janatha Vimukthi Peramuna (JVP) to capture the government through armed force.

The abuses that occurred during these periods of conflict were manifold. While the LTTE and the JVP were responsible for countless acts of terror, the counter response on the part of the various Governments was equally ruthless. Many people were simply 'disappeared' by state agents using emergency laws that gave them extraordinary powers or by paramilitaries acting with the knowledge and concurrence of sections of government.

There is no question that these deprivations of life were due to a system that allowed and even encouraged such abuses. A familiar argument of successive governments has limited responsibility to rogue elements within its ranks. One primary factor however gives the lie to this spurious defense.

This is that despite the many thousands of disappearances and extra judicial killings, the Sri Lankan State has been demonstrably unwilling to put into place, specific mechanisms of legal accountability that counter impunity for these perpetrators. Most particularly, we have seen only two successful prosecutions in recent times. Ironically, one case concerned brutal acts of rape and murder of a Tamil schoolgirl and members of her family by soldiers in the North (the Krishanthi Kumaraswamy Case) while the other concerned the no less brutal enforced disappearance of fifty three Sinhalese schoolboys in a remote village in the South (the Embilipitiya Case).

The reason why prosecutions in respect of disappearances and extra judicial killings fall by the wayside is very clear. Present Sri Lankan legal structures, based on old notions of British criminal justice, are wholly unable to deal with questions of service responsibility as factually and immensely complicated as they are in these cases. Let me now illustrate this point in one simple but nevertheless extremely powerful example.

Prior to the Embilipitiya prosecutions, the Western, Southern and Sabaragamuwa Disappearances Commission of Inquiry (the Western Province Disappearances Commission) submitted a Special Report on the Embilipitiya incidents to President Chandrika Kumaratunga on 29.11.'95 which found not only a group of junior officers but the district coordinating military secretary (who was in effective charge of the military for that area) responsible for the enforced disappearances.

However, when the case went to the Ratnapura High Court for prosecution, even though that senior army officer, Brigadier 'Parry' Liyanage was indicted along with the other junior officers, he was acquitted due to the Court holding that no evidence could be found directly linking him to the charges of abduction with intent to kill. (See Application No; 121/94, Judgement of the Ratnapura High Court on 23/02/1999. Some of the junior officers were convicted). What is striking is that the findings of the Western Province Disappearances Commission were not relevant for this prosecution and, in fact, did not appear to have even been cited before the High Court.

As remarked previously in this column, the precise reason for this non-relevance is not difficult to discover; commissions of this nature are purely fact finding and function very differently from courts of law. Standards of proof used in findings of the Commission and in judicial prosecutions differ. Hearsay evidence (unlike in the case of Commission proceedings) will not be admissible for that purpose in judicial proceedings.

There is a very strong possibility that this same pattern will repeat itself in the fifteen cases that would be inquired into by the current Commission of Inquiry. In other words, (and confounding current cynicism) even if the inquiry/investigative process of the Commission proceeds successfully, its findings may well prove to be useless when the matter goes to actual prosecutions in terms of the existing criminal law.

Within this rigid framework of the law, it is no surprise that the most that can happen is the successful prosecution of junior officers. However, senior officers escape unscathed and the system itself (which condones and encourages such actions) remains in place. So we have the paradoxical result that while state appointed Commissions of Inquiry find culpability on the part of state officers, the laxity of the law allows them escape. Practically, in both the Embilipitiya Case and the Krishanthi Kumaraswamy Case, only the junior level officers were successfully prosecuted with their convictions being upheld on appeal.

Even more disturbingly, the law has developed in such a manner that even though the doctrine of command responsibility has not been held applicable to state agents in times of war in the relevant prosecutions, such principles have nonetheless been affirmed in a different judicial context of fundamental rights violations in situations of ordinary law and order. The inconsistency in this differential application of judicial principles has been marked.

The concluding part of this column next week will examine these cases and will urge a different approach to securing accountability in regard to human rights violations as contrasted to a fact finding Commission of Inquiry from which improbable miracles continue to be promised by this Government.