Sunday Times 2
Unidentified bodies: The case for dignity and reform
View(s):By Mirak Raheem
Recent weeks have seen a disturbing trend of unidentified bodies appearing in different locations, including five bodies washing up on the shores of the Western Province in the last 30 days. Little information has been provided by the investigating authorities regarding the cause of death or the identity of the victims. That this is taking place against a backdrop of a spate of killings and a crackdown on the Aragalaya has triggered fears of a return to the patterns of violence witnessed in Sri Lanka’s brutal and bloody past.
Even while we wait for the authorities to provide information and speed up investigations with regard to these incidents, we need to take cognizance of the specific obstacles to the identification of unidentified bodies in Sri Lanka, particularly the legal framework governing this process.
Sri Lanka lacks a specific law to address the issue of unidentified bodies
Challenges in the Sri Lankan context
A spate of unidentified bodies is by no means a new phenomenon. Sri Lanka has faced both natural and man-made disasters that resulted in mass fatalities and unidentified bodies. The large-scale conflicts — the two JVP insurrections and the civil war — resulted in widespread killings and disappearances, where countless bodies, some mutilated or burned appeared in prominent places across the country.
As a country, we have to confront a troubling legacy where the State has repeatedly proved itself unable to respond to the overwhelming challenge of identification of victims. This legacy continues to cast a deep long shadow as the state has largely failed to provide answers to the many thousands of families of the disappeared still searching for the truth. Investigations of individual mass graves, such as the Sooriyakanda one, have resulted in excavations and investigations but, in most cases, have not led to the identification of the majority of victims. Limitations in forensic capacity along with the political will and inter-agency cooperation have been significant obstacles in the investigation and identification process.
Beyond these specific contexts of mass disasters, this dire legacy extends to more ‘normal’ circumstances. There are situations where bodies once found are not claimed and identified by any member of the public. This may be due to a variety of reasons, such as the person being homeless and alone, or occur in specific contexts such as an elderly person who due to amnesia goes missing and cannot be traced by their family. Until quite recently unidentified bodies were disposed of by local authorities without a uniform practice of recording vital details that could assist in later identification.
System change beyond legal reform
In modern societies, it is the responsibility of the state to oversee the management of the dead and ensure that their dignity and rights are upheld. Sri Lanka lacks a specific law to address the issue of unidentified bodies, so it is dealt with under provisions of the general law, an approach inherited from the colonial era. There has been no systematic reform to keep up with developments in law elsewhere or to respond to the specifics of mass disasters in Sri Lanka. Engaging with Scene-of-Crime Officers and JMOs on investigations into cases of unidentified human remains highlighted a lack of communication between key investigation agencies and an absence of clear procedures. One such operational challenge cited was that they were not always able to observe the body in situ and as soon as possible after discovery. Rather than leaving decisions about appropriate procedures to the discretion of individual Officers in charge, inquirers, magistrates, or Judicial Medical Officers, it is vital that good practice is codified so as to ensure consistency and accuracy across all cases.
While there are a number of important technical measures to be taken, such as the provision of suitable training, the existing challenge of human identification requires a ‘system change’. In its 2018 Interim Report, the Office on Missing Persons recommended: “in order to guarantee proper identification of human remains, expedite ongoing reforms to the legal framework pertaining to inquests into deaths and related protocols, and ensure a multidisciplinary coordination system between institutions responsible for search, recovery and identification” (page 16). The reform of law is essential. However, it is critical that the process for doing so is not purely a legalistic exercise but one grounded in the real world of praxis. As such it can also enable further reform to address related gaps in practice, capacities and the overall system, including in forensic anthropology and related sciences.
In this regard, the process for drawing up the draft Law on Inquests into Death offers a crucial stepping stone. Although the process can be critiqued for limitations in engaging victim groups and those working with them, the drafting process involved diverse stakeholders, including legal, judicial forensic pathologists, medical practitioners and representatives from funeral societies. The draft law was drawn up by a committee appointed in 2014. Co-chaired by Professor Ravindra Fernando and Yasantha Kodagoda, the committee presented it to then Justice Minister Thalatha Athukorala in 2019. It was not presented to the cabinet.
This draft law addresses some key gaps and loopholes in existing laws and processes; in particular, it fleshes out the procedures required to ensure greater uniformity and specifies the relevant duties and obligations of state actors. For instance, the law sets out a series of measures to be taken by the magistrate, including the adoption of a multidisciplinary approach, where different experts are called on to provide analyses and these are integrated into a single report to conclude the identification process. By setting out four categories of inquests, the draft law also addresses a broad range of scenarios, ranging from mass fatalities in disasters to cases of individual unidentified bodies where no crime has been committed.
This law identifies a number of standard operating procedures, rules and best practices to be drawn up, including protocols for how to communicate with bereaved families. The drafting of such processes could also serve as the basis for cross-agency collaboration. As such, it sets out a more comprehensive framework for the management of the dead, for example by making postmortems mandatory and ensuring responsibility to identify all victims. There are, however, specific aspects of the draft law that need to be reviewed and revised, including how the issue of missing persons and bodies, as opposed to unidentified bodies, is addressed.
This proposed legislation is several decades too late. Further delays to review and then enact this proposed law will only serve to obstruct ongoing efforts by practitioners to build on good practice and to ensure that the dignity of the dead and the rights of the living are protected.
(The writer served as a commissioner of the Office on Missing Persons from 2018 to 2021)