Focus on Rights

Late justice for the disappeared

By: Kishali Pinto Jayawardene

The periodic deciding of habeas corpus applications by the country's Court of Appeal with regard to individuals who 'disappeared' in 1988/1989 come as a constantly uneasy reminder of what happened not so long ago and indeed, what may well happen again at whatever explosive point in the future. For those of us who care, that is.

Despite disappearances commissions, ceremonies of reconciliation and plaques issued in memory of those forty thousand or even sixty thousand unfortunates who died during that period, it is inarguable that a system which manipulated these happenings still exists irrespective of change of government and hopes of a brave new world. While this is so on one hand, we as a people have allowed the immensity of what happened to vanish deep into our national psyche without any sense of collective shame. Instead we accept weary rationalisations and a collective shrugging of shoulders by political parties then and now which, more than anything else, mocks each individual life that was snuffed out then. Truly, this is where the outrage lies.

For K. Chandrawathie Gunewardene who late last month, obtained Rs 100,000/= as exemplary costs from the OIC of the Meetiyagoda police station after the Court of Appeal found that the latter was liable for the "disappearance" of her husband in 1987, at least now there is official acknowledgement that her husband died in official custody and that a high officer of the State was liable for his death. This, in itself, would have been immense relief. In his judgement, Justice Hector S. Yapa, President of the Court of Appeal accepts familiar reasoning in habeas corpus applications. The arrest and detention of Jayasena, Chandrawathie's husband fell into the category of cases where a person who had been arrested and detained by the authorities, disappeared thereafter. Jayasena, a trader in Colombo, had been arrested and taken first to the Galle Police Station from which he was handed over to the Meetiyagoda police. He was detained there for three months where his wife had visited him and noticed that he had been subjected to severe assault. Subsequently, he had disappeared. The habeas corpus application in question was filed in 1988 itself and inquiry held by the Chief Magistrate, Colombo who found that OIC Meetiyagoda Rohana Jayawardene was directly responsible for the disappearance. Objection of the OIC that even though Jayasena had been brought to the Meetiyagoda police station during that period, he had been released after questioning was not upheld by Court. It would have been easy for Jayawardene to deny any knowledge of Jayasena once he had been allegedly "released". Since a long time back however, the Court of Appeal has proceeded on the basis that an unconcerned refusal of the knowledge and whereabouts of persons who have disappeared by officers of the state who have taken them into custody will not do. In one particularly noteworthy decision in 1994 when three mothers went before court against the disappearances of their sons by the OIC Dickwella in 1988 without any basis whatsoever for their arrest, then Court of Appeal judge Sarath N. Silva J. embarked on comprehensive reasoning as to why such a denial would not suffice.

"The Rule of Law, freedom and the safety of the subject would be completely nullified , if any person in authority can cause the disappearance of an individual who has been taken into custody and then blandly deny to this Court having jurisdiction to safeguard the liberty of the subject, any knowledge of the whereabouts of such individual. The process of habeas corpus…………cannot be reduced to a cipher by a person in authority, who yet continues to wield authority by falsely denying the arrest and custody of an individual whose freedom the writ is intended to ensure." the Court of Appeal said.

It is interesting that in the Dickwella case, the Court of Appeal specifically referred to the fact that the Supreme Court, in an earlier application, had authoritatively ruled against restrictive interpretations of the power of the Court of Appeal to refer a disappearance for inquiry to a court of the first instance. The Supreme Court, in a 1988 determination by Mark Fernando J. decided that this power cannot be said to lie only where the Court is satisfied that the individual is in the custody or within the control of any of the respondents. Instead, the power of referral can be exercised despite the respondents denying taking an individual into custody or having such person in their custody or control. In the view of the Supreme Court, the constitutional provisions giving the Court of Appeal jurisdiction in respect of habeas corpus applications was intended to "safeguard the liberty of the citizen" and thus demanded a liberal construction.

Proceeding from this point, the Dickwella judgement considers Indian case law as well as jurisprudence of the Inter American Court of Human Rights and the thinking of the United Nations based Human Rights Committee to articulate vital rights based principles in the issuance of writs of habeas corpus. The Court goes on to assert that some affirmative action is necessary where an obvious disappearance of a person in custody is met by a false denial of such custody by a person in authority. In this context, the petitioners, in the Dickwella case, were awarded exemplary costs of Rs 100,000/= each, a princely sum in those days.

It is this judicial reasoning that has since then, been followed in subsequent habeas corpus applications, the most recent being the Court of Appeal in its January 2001 judgement relating to the application filed by K. Chandrawathie Gunewardene where the sum awarded was again Rs 100,000/=. Similarly, costs were ordered to be paid personally by the Respondent, non payment of which would result in contempt of court. The IGP was meanwhile directed to consider the proceedings as information of the commission of cognisable offences and to take necessary steps to conduct proper investigations and take steps according to law. Perhaps in appropriate cases, the State should also be ordered to pay costs of an equal severity, given the fact that it is the actions of the State that are in issue in these instances.

One cannot however but be compulsively appalled at the length of time that has lapsed between the incidents in question and final relief. In this most recent case, the application was filed in 1988 itself, more than thirteen years ago. Moreover, this is not an unusual occurrence. As remarked by a team of observers from the International Commission of Jurists who visited Sri Lanka in 1997, habeas corpus applications "take years" to be disposed of, regardless of the fact that in most jurisdictions, they are treated as a matter of utmost urgency. Examining this problem, the observer team points out that a tougher attitude should be taken towards adjournments. Equally, the inquiry process by a court of first instance is cited as being a considerable factor for the delay and it is recommended that, in appropriate instances, the Court of Appeal conduct the inquiry itself instead of referring it for inquiry and report.

Delay notwithstanding, it is of commendable note that judicial interventions of the appellate courts in these instances have consistently recognised the need to ensure accountability where persons have disappeared while in the custody of the State. This is all the more important in the absence of any provision in the fundamental rights chapter of our Constitution enabling individuals to come before the Supreme Court against the disappearance of persons. For traumatised survivors confronted with an unsympathetic and frankly uncaring state, this is indeed, the very minimum relief that could be given.