Mothers
of disappeared giving vent to their grief and anger
The Presidential
Commissions of Inquiry appointed to look into the involuntary removal of persons
in the country between 1988 and 1990 were singled out for Presidential criticism
recently over SLRC. Appointed in 1995, they were taken to task by President
Chandrika Kumaratunga on the basis that they had delayed in concluding their
work.
The commissions sitting for close to two and a half years had the unenviable task of recording immense number of complaints under considerable financial constraints, in their geographically defined three areas of the country.They submitted their final reports to the President in September 1997.
Last Monday, the interim reports of all three Commissions were made public.The reports call for immediate action in setting up an independent unit within the Police Department to handle investigations into the cases of those implicated in evidence given before them.It is emphasized that this is the first and most vital step in proceeding in law against those implicated.This week , The Sunday Times looks at the reports of the Commissions and reiterates their question "When will this step be taken ?"
When in 1995, a grieving mother testifying before the Western Zone Disappearances Commission broke her self imposed calm and cried " We had no one to turn to.The government was deaf, the Opposition absent, the police drove us away like dogs.The JVP killed, the Army killed.....", she summed up the feelings of the hundreds and thousands of others like her who appeared before similar commissions.Their interm reports made public last week catalogues the shame of a country caught up in a barbarism, the effects of which continue to date.
All three reports of the commissions appointed in 1995 to inquire into involuntary removals in the country from 1988 to 1990 give graphic details of the personal trauma undergone by many in that era of terror. Said another mother, an agricultural labourer, 58 years old, whose only son had been abducted and since disappeared." I consulted 55 soothsayers.I kept the paddy that my 19 year old son had earned in order to feed him with new rice when he came home.As it is now, I can't even give an almsgiving for him"( file WC 114 )
The temple and the hospital, traditional symbols of refuge and help became associated instead with the destroyer."Even our temple had been turned into an Army camp" added another parent.( file SM 345 ) "When we found our brother with gunshot injuries, my husband took him to the Government hospital and remained in the ward with him.But the army abducted my brother from the ward, and there is no news of him since." said a sister, vividly describing how doctors and medical staff became passive bystanders.( file SG I24 )
Other stories are even more horrific " After the disappearance of my son, my wife has become insane.She now chases after children on the street, crying out our son's name." testified a husband emotionally. ( file 2092 ) " I saw my son's headless corpse thrown on the road.I am not in my right senses since then " said a mother (file 7922)
The Western Zone Disappearances Commission stops short of publicly naming several members of the forces and the police implicated on the basis that as the evidence against them was entirely exparte ( ie according to the evidence of the accuser alone) , it was felt that it would be contrary to fairplay to name them
" We are not ready to be a platform for unjustified attack on anybody, including the police and the armed forces " the Commission says.
Meanwhile, the report of the commission appointed to look into disappearances in the Central, North Western, North Central and Uva provinces is bolder.It contains some astounding revelations regarding the existence of several torture chambers or places where persons removed had been confined and systematically tortured, including St Sylvester's College, Kandy and the YMCA camp at Welimada.Senior police officers have been named as being responsible for disappearances.It is pointed out that the premises at St Sylvester's College, Kandy had been used during this period as a detention camp by the Counter Subversive Unit which came under the control of the then Superintendant of Kandy, Luxman Seneviratne, presently SSP Kandy Division.Commisioner T.Suntheralingam has stated that evidence disclosed that about 1,000 persons were detained in this camp and systematically tortured before being taken away and killed. (Complt No CEN/KND/152) A number of Members of Parliament, both central and provincial have also been implicated in the torture and removal of persons.They include former UNP Minister A.M.S. Adhikari, H.G.P. Nelson, then Chief Minister of the North Central Province G.D. Mahindasoma and politicians Upali Samaraweera and Ravindra Samaraweera, both nephews of former Chief Minister of the Uva Province, Percy Samaraweera.
Slightly different but no less harrowing accounts of mass disappearances in the North and the East record the security services as being responsible for 90% of removals of persons with the LTTE and other militant groups given responsibility for the rest.Here too, several junior army officers have been named.Many of the incidents appear to have taken place in broad daylight, and in full view of witnesses, as contrasted to removals in the other parts of the country which had taken place more in secret.Two incidents are mentioned in detail by the Commission, the first being the arrest of about 80 people in 1990, from the Tricomalee Base Hospital where some were patients and from the Mac-Heyser Stadium where the people were asked to be present in the course of a cordon and search operation conducted by the Army.Evidence is noted of witnesses who were arrested during the Mac-Heyser Stadium roundup and who volunteered to give evidence in camera about what happened to detainees taken to Plantain Point Camp thereafter.Their evidence details the needless cruelties and indignities inflicted on the detainees and outright killing of some of them whose bodies were then thrown into the jungle.
Meanwhile, what of those abducted by the Tigers ? One particular case is where an enterprising lady who was fluent in her Tamil had travelled to Jaffna and gone to Pt Pedro camp where her husband was in detention.
".....she managed to beard the tiger in its own den.She had then pleaded with the LTTE camp commander to release her husband. According to her, their reply was that the LTTE prisoners in government custody ought first to be released for the LTTE to respond by releasing their prisoners." the Commission stated.
It is further pointed out that real large scale arrests started in June 1990 when LTTE talks with the Government broke down, and the LTTE attacked and took over all the police stations in the Eastern Province.Involuntary removals between June 1990 to May 1991 is estimated to amount to 670 out of the entire total of 809 for the Trincomalee District from 1988 to 1995.The Commission thus comes to a finding that the security forces overreacted to the LTTE overunning the Eastern Province.
All three Commissions suggests a number of measures that could be taken to bring those responsible to brook.Running like a particularly unsavoury thread through the evidence of witnesses as documented by the Commissions, is the involvement of the then Government, as a structure, in the incidents of involuntary removals.
" A hallmark of the incidents covered by our mandate is the absence of follow up by the state's investigative agencies even when such incidents were brought to their notice at that time........in the few incidents where statements were recorded by the police, consquential action was not taken." the Western Zone Disappearances Commission says.It is emphasized that recruitment in this period had been on the basis of and with a view to the control of political opponents, not the control of crime.Enormous amounts had been paid illegally as "rewards" in contravention of the Police Ordinance.Officers against whom the Supreme Court had made order for the payment of compensation for breach of fundamental rights had been further rewarded by these amounts being paid by the State, with the individual officers getting off scot free.Senior police officers had reported to the Commission how police training in investigation had come to a standstill during this period.
" Police inaction is one of the main reasons why there arose a complete breakdown in the law and order system of civil administration" states the Commission, going on to reject the general defence suggested by some police officers that " subversive activities had to be met by counter subversive measures"
A number of recommendations have been made both by the Central and Western Zone Commissions as to what action could be taken against those implicated in evidence before them.It is emphasized that investigation into their cases be handled by a special unit of the police, consisting of handpicked officers known for their impartiality.All persons implicated ought either be interdicted or transferred out of the province in question untill the conclusion of the inquiry.Suspension of eligibility to promotion ought to be automatic.
The Central Zone Commission has pointed out that there are cases where the names of persons responsible were not mentioned, but there is evidence indicating that the person removed was seen or confined in a police station or army camp.In such cases, the Commission has recommended that the officer in charge of such body ought to be held responsible for the disappearance.
In the case of this Commission in particular, a team of handpicked officers had been appointed in 1996 to investigate specific cases, but had been unable to proceed far due to lack of resources.Deploring this, the Commission issues a cryptic warning
" It should be remembered that persons whose loyalties are in doubt can place obstacles in the way of effective investigation "
In a later report, Chairman of the Commission T. Suntheralingam reiterates " There appears to be very little progress in implementing our recommendations" One such recommendation was that Officer in Charge of the Anamaduwa Police Station ASP Indran who is now attached to the Sri Lanka Police Reserve Headquaters be sent on compulsory leave as he had been implicated in attempts to intimidate witnesses testifying against him.While the Commission concedes that it might not be opportune to send military personnel invoved on compulsory leave due to the ongoing war, it states that these same considerations do not apply in the case of police personnell.
Thus is it that a Catch 22 situation has become apparent with the President in a somewhat incautious burst of anger, accusing the Commissions of delay over SLRC in the now famous interview session, while the Chairman of one Commission at least, is on record in notifying the chief executive that swift action on its recommendations have not been forthcoming.
The comments made by the President was in the main, focussed on legal action that should be taken against those officers implicated.Judging by her sympathetic response to the woes of the mothers of the disappeared in Jaffna who met her recently, it appears to be quite probable that such action would in fact be instituted, once legal officers of the state give the neccesary go ahead.The question remains however whether setting into effect reforms within the police structure is not equally if not the more vital of the two.For this, the responsibility would rest on the chief executive, and the chief executive alone.
Meanwhile, that legal action is not the only response to lessening the travails of those left behind is a point made very strongly by all three Commissions.In its report, the Western Zone Commission has in particular made very specific recommendations relating to other measures that could be taken.It is recommended that a panel of lay visitors should be established for each police area.Persons on this panel could speak to detainees, check conditions of detention and coordinate with national human rights groups.This is said as being neccesary to reestablish community based forces and procedures which the citizen can turn to when faced with misuse of police powers. For this same purpose, a Citizens Advisory Bureau is suggested to help bereaved persons solve problems such as EPF dues, obtaining death certificates, the settlement of property matters and so on.It is in this same spirit of healing that the Commission has recommended an amnesty for all those who confess to their participation in the killings.
It has been noted that the majority of the families of the disappeared belonged to low income groups, and that therefore compensation has become an important issue to them.The Commission has suggested a new tax similar to the Defence Levy for the purpose not only of generating funds, but also to create national awareness of the calamity that has affected them.In another suggestion, it has been pointed out that a Wall of Reconciliation be errected wheron would be inscribed the names of all those who died in that period. A number of other relief measures relating to the emotional and economic rehabilitation of the spouses and children of the disappeared have also been recommended.
The whole process of dealing with what happened scarcely seven years back is therefore complicated. President Kumaratunga who has demonstrated that she has the political will to bring about a national awareness of past horrors, need be wary of two things.
Firstly, to politicise the issue in that lamentable phase "It happened during the UNP era.It will not happen again" would be the first mistake. Hard on its heels would come the second mistake which would be to respond to the crisis in terms of the law alone.
To do is tempting.It would also be simplistic in the extreme.
Pannambalam:
Acceptable proposals to the Sinhalese majority
The United States branch
of the LTTE will be discussing a reworded and modified Thimpu proposal today
(Jan. 18), according to Kumar Ponnambalam, a friend of the LTTE, and leader of
the All Ceylon Tamil Congress.
The controversial four point charter of demands jointly put forth to the Sri Lankan government by the Tamil groups at the Thimpu talks in 1985, was re-worded and modified by a Sri Lankan academic, with the help of Mr. Ponnambalam, in November 1996, in an effort to make it acceptable to the Sinhalese majority.
The original Thimpu proposal was as follows: 1. Recognition of the Tamils of Sri Lanka as a distinct nationality; 2. Recognition of an identified Tamil homeland and the guarantee of its territorial integrity; 3. Based on the above, recognition of the inalienable right of self-determination of the Tamil nation; 4. Recognition of the right to full citizenship and other fundamental democratic rights of all Tamils, who look upon the island as their country.
Rohan Edrisinha:
Defining self-determination from secession
As modified by Rohan
Edrisinha of the Faculty of Law, University of Colombo, in consultation with Mr.
Ponnambalam in November 1996, the proposal is as follows: 1. The Tamil community
constitutes a people with a distinct language, culture, tradition and identity.
The constitution should recognise the above in order to ensure that the Tamil
people live with dignity and self-respect 2. The Tamil people have for centuries
lived in certain areas and constituted a majority population in these areas. 3.
There must be a substantial devolution of powers in these areas, which is
constitutionally guaranteed and secured. The people must have the right to
determine their own affairs. 4. There must be complete equality particularly in
the areas of race, religion and language.
The two drafts seem to differ in important ways. The term "distinct nationality" has been substituted by "a people with a distinct language, culture, tradition and identity." The term 'Tamil Homeland' has given way to "certain areas in which the Tamil people have for centuries lived and constituted the majority population." The demand for the "inalienable right to self determination" has yielded place to a demand for a substantial, constitionally guaranteed, devolution of power and the "right to determine their own affairs."
The Edrisinha-Ponnambalam document sets forth five other principles. One seeks constitutional mechanisms to provide for effective power sharing at the Centre, and another, provision for an autonomous canton/unit within the North-East region to accommodate Muslim aspirations for a certain degree of autonomy.
The single page document has been discussed in small groups, both in Sri Lanka and abroad among the Tamils. The last occasion on which it was discussed threadbare was at a Consultation held on The Nation State and Self Determination on Nov. 8 and 9, under the auspices of The Centre for Policy Alternatives in Colombo. But "Thimpu" was not a serious matter till the LTTE supremo, Velupillai Prabhakaran, sprang a surprise in his late November Hero's Day's message by demanding a settlement on its basis. Sri Lankan President Chandrika Kumaratunga rejected it. She told a questioner on Rupavahini's Janamandali programme in December, that she did not take the demand seriously as it made no sense. She held that her package gave more to the Tamils than the Thimpu proposal sought to.
But her Minister for Constitutional Affairs, G.L. Peiris, told an audience in New Delhi that the Thimpu proposal had to be considered, given its importance to 'some sections' of the Tamils in Sri Lanka and abroad.
As on date, the proposal has importance, given the LTTE's purported willingness to consider the modified version at a meeting on Sunday.
At the Nov. 8-9 Colombo seminar, Mr. Edrisinha presented a background paper which argued, with material from across the globe, that self-determination did not automatically, by definition, mean secession. In fact, he quoted chapter and verse to make the point that the UN, while supporting the right to self determination, did not entertain unilateral secession from existing, decolonised states, as a legitimate right. Devolution, regional autonomy, and minority rights were accommodated in an enlarged concept of self-determination to enable the reality of multi-ethnic states to survive.
In the Sri Lankan context, does self-determination mean secession? The Sinhalese say that the Thimpu principles are but a recipe for secession, and others would say that even the modified proposal is but a fig leaf to cover a secessionist intention. But the Tamils don't think so, though Mr. Ponnambalam says that the "possibility of secession is intertwined with the concept of self-determination," and that by explicitly abjuring secession now, he would not like to shackle future generations. But granting the right to self determination and the right to a Homeland, did not automatically mean secession, he pointed out. It could, on the contrary, help preserve the unity of Sri Lanka, he argued.
"The Thimpu proposal will alone keep the country together," he said. Granting the right to self determination was a "small matter" when compared to the cost and the suffering associated with the continuing war, he contended.
To allay fears that the Tamil Homeland was a rigidly defined entity, he drew attention to the fact that in the Thimpu proposal, the Tamil Homeland was not defined. A Tamil Homeland did not mean that the Sinhalese would not be able to live in it. "Not even the most deranged Tamil politician would say that only Tamils can live in the Tamil Homeland," he said. On the en masse expulsion of Muslims from the Jaffna peninsula in the early nineties, he said that the Muslims were expelled for reasons other than exclusivity. "Later, the LTTE apologised to the Muslims," he claimed. Mr. Ponnambalam went on to point out that the LTTE had expelled the Tamils too! (during Operation Riviresa in 1995).
The LTTE today has to battle with the world's reluctance to grant minorities the right to secede from independent states. In his background paper Mr. Edrisinha quotes Antonio Cassese, a prominent international law scholar currently serving as president of the International Criminal Tribunal for the former Yugoslavia, as saying that the principle of self determination is accepted only in so far it implies a right to self government of peoples and not the right of secession. "Thus, as far back as 1945, the territorial integrity of states was held to be paramount," Cassese said.
Artl. 1 (3) of the 1966 Covenants on Human Rights required states to promote the right of self determination in conformity with provisions of the UN Charter, which included respect for territorial integrity.
The 1970 Declaration on Friendly Relations recognised the right of self-determination, but stated explicity that it did "not authorise or encourage any action, that would dismember or impair totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples."
Two UN Secretaries General had set their faces against secession as a right, in view of the fact that few states were homogeneous with no conflicting aspirations. "As an international organisation, the UN has never accepted and does not accept, and I do not believe will ever accept, the priniciple of secession," said U Thant. "If every ethnic, religious and linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security and well being for all would be even more difficult to achieve," said Boutros Boutros Ghali in 1992.
Prof. James Crawford, Cambridge law professor and a member of the UN Law Commission in his "State Practice and International Law in Relation to Unilateral Secession," concluded that self-determination for peoples or groups within an independent state, could be achieved by participation in the political system of the state, on the basis of respect for its territorial integrity. Crawford further states that even when there is substantial support for separation, it is not required to concede independence. In fact, since 1945, the UN has been very reluctant to admit a breakaway state without the express consent of the state from which it had seceded.
Crawford points out that the UN admitted Bangladesh four years after it came into being, and that and only after Pakistan recognised the breakaway unit. The Cambridge don further said that in international law, external assistance to a secessionary movement was tantamount to interference in internal affairs. Writing on Africa, Richard Kiwanuka said that once independence from colonial rule was achieved, no further independence was admissible. The rights of different people would then be treated as "minority rights".
Former Presidential advisor on foreign affairs, Bradman Weerakoon, considers the modifed Thimpu proposal as "inventive" and "worth considering". Pakiasothy Saravanamuttu, Director of the Centre for Policy Alternatives feels that the UNP could consider the modified proposal, as it accords with its own preference for need based or asymmetrical devolution. He believes that the modified proposal can be the basis for a consensus between the ruling PA and the UNP. Given her clout with the southern rural masses, the President could get the people to accept the modified proposal, he felt.
But it is clearly not that simple. The concept of Tamil Homeland, no matter how it is expressed, is unacceptable to many. "The entire country is the homeland of Tamils, Sinhalese, Muslims and others," said Dr. Stanley Kalpage. Few believe that the LTTE will allow Sinhalese into the Tamil Homeland and it is openly said that in case it comes into being, the Tamils will have to vacate the Sinhalese areas. Some wonder if the LTTE's interest in a modified Thimpu proposal reflects its current military weakness, and its quest for legitimacy in an increasingly hostile world.
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