26th October 1997

Disappearances Commission and disappearing reports

By Kishali Pinto Jayawardana

It has been quite some time since glossy pic tures were flashed across the pages of leading newspapers in Sri Lanka, picturing chairpersons of the three Disappearances Commissions handing over their reports to the chief executive. Even the cynics momentarily woke up from their somnolence when the Government announced that they were serious about taking legal action against service personnel named in the reports as being implicated of serious human rights violations.

But promises are easy and memories are short. Whether the reports will be actually acted upon in the presently volatile political climate is anybody’s guess. Commission staff responding to queries continue to insist that the reports would soon be made public as promised. Activists are less optimistic.

“ We plan to launch a protest campaign shortly to pressurize the Government to make these reports public. MPs who are supporting us will be asked to sign a petition urging that some kind of action be taken. The campaign will be taken on from there” says Chandra Peiris who heads the Organisation Of Parents and Family Members of the Disappeared, a particularly vocal rights group which has been fighting for the cause of the disappeared.

Testimony led before the Commissions by kith and kin of the disappeared at the time of hearing did implicate a number of Parliamentarians, one Brigadier, one Major General and two senior police officers. It is understood that the Commissions have recommended further investigation into the behaviour of a number of service personnel and police officers where they have been prima facie implicated of human rights violations. Talk that two high ranking army officials are among those implicated is presently causing some ripples in the forces.

Opinion in the forces itself is divided as to what kind of action should be taken, with some saying that talk of responsibility for past human rights violations will demoralize the forces in the present context of a high intensity war, while others disagree on the basis that some kind of accountability is needed. Memories are revived of what happened in 1995 when one of the commissions on disappearances sent an interim report to the President where the names of some senior officers were mentioned. As talk of legal action circulated, there was a backlash of protest that army officers who were defending the country were being victimised.

Ultimately, the interim report was quietly dropped.

As procedure goes, any person named by the Commissions cannot be charged under the law until such time that the President decides to table the reports in Parliament. The President cannot be compelled to make the reports public. Once the reports are released to the general public, the Attorney General would then be asked to look into each individual case to see whether the evidence is sufficient to take the matter before court. If indeed the Commissions have recommended further investigations in certain cases, their opinions cannot be lightly discounted as many of the Commissioners are themselves former judges and lawyers who would have come to certain conclusions based on accepted legal principles.

The question however is whether the testimonies given by those who testified before the Commission would pass the rigorous standards needed to prove guilt in a court of law. Human rights activists point out previous cases where even clear knowledge that a particular person was involved in disappearances was not found to be sufficient proof. The dismissal of the Wavulkelle case in which there was an eye witness to the abduction and murder of nine young men and women in February 1990 on the grounds of insufficient evidence is looked upon as being one good example.

As human rights activists and the majority of service personnel range themselves on either side of the divide, perhaps talk of legal action alone might mean missing the wood for the trees. What both will have to concede is that something happened during ë88 -í90 that was shameful. Something that led to the death of persons conservatively estimated as being close to 40,000. The fact that some would interpret these deaths as inevitable in a period when the very foundations of organized government was being threatened should in no way excuse some of the excesses that took place during that time. The fact remains that the kith and kin of those disappeared need some recognition that these things happened. Human rights workers point out that many of these families say that they feel that they belong to some kind of a ghost population of people who really do not know what happened, and people who have never had the comfort of being told “Yes, it happened and we are sorry”.

Perhaps, this would be the best place to start. The declaration of a national day of mourning for the disappeared, the erection of a monument in their memory, and public recognition of their deaths would go a long way towards lessening their anguish. Compensation is, of course, an essential part of this process. At present, families of ordinary civilians who were killed are able to claim Rs 50.000 if married, Rs 25,000 if unmarried, and Rs 15,000 if a minor. Applications for compensation from next of kin of the disappeared number 15,995 up to date. Of these only some 5,991 claims have been settled when the Government had stopped payment due to lack of funds. Officials at the Rehabilitation Authority estimate that a further Rs 400 million will be necessary if the remaining claims are to be satisfied. Meanwhile, time for relatives of the disappeared to obtain death certificates without which compensation cannot be paid is running out, as the law under which the certificates are issued lapses at the end of the year. Activists are agitating that the law be extended.

Other measures are suggested to correct the situation

“Even in cases where there may not be sufficient evidence to bring service personnel to trial, it may be possible to consider internal inquiries against them on grounds of improper conduct. At the very least, a principle should be established that the human rights record of any member of the armed forces or police is a critical factor that should be taken into account when promotion is being considered.,” says Mr. Peiris

It is even being urged by other rights activists that some kind of an amnesty might be granted

for alleged perpetrators of rights violations, in an effort to bring the whole issue out into the open. This is on the lines of what is currently happening in South Africa where a fifteen month experiment in national healing is promising amnesty for convicted killers, mostly police and soldiers but also anti apartheid guerrillas if they come out and confess to the killings. There are also those who remain fiercely critical of such a course of action for Sri Lanka on the basis that the terror days are not yet over for us, and that to emphasize reconciliation at this stage would be to fashion a easy way out for human rights abusers who would then not hesitate to commit the same violations again.

In their reports, the three Commissions that sat for two and a half years to look into reports of disappearances in the country have dealt with the question of not only killings by the forces and police, but also executions carried out by the subversives. It is learnt that they have identified a number of areas in which specific action could be taken to help the relatives of the disappeared, quite apart from legal prosecution of those allegedly identified as being responsible. Among these are recommendations that would help lessen the problems that relatives of those affected face when trying to reclaim land lost during that time, and when trying to claim employment benefits and moneys in the bank accounts of those who had disappeared.

That the onus now rests with the Government to do something concrete about the reports of the Commissions now resting in the Presidential Secretariat cannot be more strongly stated. Time is also running out. For long, country representatives defending the government in international human rights fora had held out the fact of the appointment of the three Disappearances Commissions as proof that the government was sincere about its promise to bring past rights violators to brook. In 1995, when Sri Lanka appeared before the Geneva based Human Rights Committee under the compulsory reporting procedure of the International Covenant on Civil and Political Rights, Committee members expressed serious concern about reports of past and continuing disappearances, noting that an effective system for the prevention and punishment of such violations does not appear to exist. According to Foreign Ministry policy makers, Sri Lanka’s fourth periodic report is due to be submitted to Geneva within the next two or three months, which would mean that the Committee might take the report up for consideration next year. If so, Sri Lanka had better have something definite to offer as regards the Commission reports as Committee members are bound to focus on the practicality of measures taken rather than mere promises.

There is also the very real possibility that motivated civil rights groups acting on behalf of disappeared persons might opt to directly petition the Human Rights Committee under the Optional Protocol to the Covenant that Sri Lanka recently ratified. The Committee has already dealt with a number of such appeals from other countries, and has laid down very specific guidelines that a government should follow when its security forces are accused of spiriting away persons during times of terror. The consequences of adverse comments from the UN Human Rights Committee on an issue as sensitive as disappearances in the present context when Sri Lanka is trying to mobilize international public opinion in its favor cannot, of course, be more obvious.

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