Hulftsdorp Hill

19th April 1998

Such an episode will never occur

By Mudliyar

Continued from last week

Joseph Michael Perera

We continue with the Batalnda Com mission report. 'Even in Courts of Law specially in family disputes, members of the family, husband against wife, children against parents, brothers against brothers and sisters try their very best to discredit each other by digging up the past and going into their pedigrees, to show what a disreputable person the witness is. That is why the law in its wisdom has laid down procedure to be followed in recording evidence. An experienced Judge will know to apply the rules and regulations and to sift evidence and allow what is relevant to the matters under the investigation and reject what is not relevant.

In the present day it is not only politicians but even Judges and religious dignitaries are being openly criticized and slandered in highest places. What is the remedy? Are we to stop the investigation because of such allegations.

In recent times, Civil Rights movements have expressed grave concern over discussions [including derogatory comments] on the conduct of Judges being made quite independent of the removal procedure of Judges.

This is contrary to convention that the conduct of Judges should not be discussed except on a substantive motion for their removal.

The so-called "mudslinging" has gone further and there is a tendency to impute political bias little realizing that almost all the judges who are sitting as Commissioners were appointed as Judges by the President of the former Government.

If one is to go through the bio-data of all the Judges from the inception of our legal system, one will find most of the Judges who were appointed were either sometime or other were in active politics or very closely related to politicians. But no one will question their integrity and are highly respected in this country and elsewhere.

Most unfortunate aspect of this allegation is that Judges have no way of countering such allegations.

Thus the Judges who have to decide on human rights and fundamental rights violations themselves have no forum to alleviate the violations of their own human and fundamental rights.

Here, I think it would be very appropriate to quote the remarks made by Joseph Michael Perera, a former Minister and present MP. who was a witness before this Commission.

At the end of his evidence when the Commission asked him whether he has anything further to say, he highly commended the appointment of this Commission in his own words which are as follow:

"iajdußKs m,uqfjka ud ia;=;sjka; fjkjd .re jßksYaphldr;=uka,dg fus wjia:dj ug ,nd°u .ek ud jsYajdi lrkjd "We think the above is an appropriate reply to the allegations made about bias and "mud slinging"

"We are of the view that it is not inappropriate to record our displeasure of the organized behaviour of the unruly crowd who were gathered in the Court premises and the attitude and behaviour of some of the lawyers which we consider disreputable.

They tried to make this Court house where the Commission was sitting a political forum and indirectly to show their strength by which they may have thought they could have some bearing on the decision of this Commission.

"We as Judges who are trained in the law and practice and the niceties and decorum of the Court procedure wish to state that "Fiat Justitia Ruat Coelum" [let justice be done though the heavens should fall].

What we have stated in this report are based only on admissible evidence which are relevant to the matters in issue according to the terms of the warrant.

Many countries in the world or rather many governments in many countries delve into the sins and omissions of the past administration's activities specially about the possible involvement in clandestine torture and executions.

Nuremberg trials, Truth and Reconciliation Commission of South Africa are such examples.

In Sri Lanka also, judicial activism rebounds to the credit of it's judiciary at all levels in the spirit in which the Constitution and human rights are safeguarded.

In our investigations, we looked into only credible accusations that there were direct and indirect links with the death squads that supposed to have killed or tortured suspects at Batalanda Housing Scheme. Attempts made to justify authoritarian action towards its agencies by raising the JVP bogey must be resisted. The need to make States accountable in the exercise of power and privilege is a universal value of human rights.

According to article 2 of U.N. Code of Conduct for Law Enforcement Officials, in the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold human rights of all persons. The human rights in question are identified and protected by national and international law. Among the relevant international instruments are Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, The declaration on the Protection of all Persons from being subjected to torture and other cruel, inhuman or degrading treatment of punishment.

The above provisions are enshrined in article 11 and 13 of our Constitution.

Under Article 3 of the U.N. Code of Conduct of Law Enforcement Officials, such officials may use force only when strictly necessary and to the extent required for the performance of their duty. The use of force by law enforcement officials should be exceptional.

It implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force beyond that may be used.

According to Article 5 of the same Code, no law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances such as a State of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

According to that Code, torture means any act by which severe pain or suffering, whether physical or mental, as intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or third person, information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or incidental to lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.

Article 6 of the U.N. Code requires that law enforcement officials shall ensure the full protection of the health of persons in their custody and, in particular, take immediate action to secure medical attention whenever required.

When one considers the above provisions the Government and its agencies must be bound by the same laws that binds the individuals.

Torture, cruel and degrading and inhuman treatment is a common practice in the course of Police investigations and is tolerated by the Governments and some sections of the community.

They are of the view that the inability of investigators to investigate competently is the reason for adopting such methods.

The evidence led before us clearly establishes the fact that the executive was covertly patronizing armed squads, which were engaged in killings, kidnappings and torturing aimed ostensibly to restore "law and order" but in many instances the real aim was to intimidate and suppress political opponents.

The purpose of this Commission is to expose and report of such happenings and make the community at large aware that human rights cannot be disregarded even in times of emergency.

People should be made aware that the tendency to abuse power add to commit excesses is to a large extent attributable to effective lack of accountability for such actions.

Collection of evidence of torture, kidnapping and disappearances and their exposure itself may to a certain extent deter such actions tomorrow.

Appointment of Commissions to investigate the misdeeds of past administrations is not a new phenomena.

In many countries from Nuremberg trials to the recent Truth and Reconciliation Commission of South Africa one can clearly discern a trend in appointing such Commissions.

In Sri Lanka too from earliest times since independence to present day Commissions of Inquiry – e.g. Walter Thalgodapitiya Commission had been appointed to investigate and report on past administrations or the conduct of officials.

Unfortunately, it seems from the various suggestions and allegations made before us by the learned Counsel and certain witnesses, that such investigations should not be made about VIPs or high officials, especially about matters done under extraordinary circumstances.

But they themselves elsewhere virtuously pledge the cause of human rights. They seem to think that even if Commissions are to be appointed they should be manned by persons to their liking.

Are they looking for a cover up for their own personal benefits rather than exposure of past misdeeds?

They seem to be more interested in ''justice'' to suspected collaborators rather than "injustices" caused to the victims and their families. Death and destruction to the ordinary citizens, seems to have little or no impact on them.

If they are so interested, they should assist such investigations rather than trying to show how clean they are by show of force and public demonstrations etc.

Here we like to stress the fact that we always have and will arrive at conclusions only on admissible evidence, according to accepted legal principles and not by looking at the strength of the followings one has among the people. We will never be overawed by such gimmicks.

It was revealed from the evidence led before us that the reasons for the appointment of this Commission was the media exposure of certain activities at Batalanda Housing Scheme and the clamour made by the victims and their families.

Although some wanted to paint this investigation as a witch hunt, none of the main witnesses were challenged other than to show that such actions were necessitated due to extraordinary situation that prevailed during the period. It nearly led to a state of anarchy.

However, whatever the situation was, a responsible Government has to react to any situation in accordance with the Rule of Law. Governance has to be in accordance with accepted and legally valid norms. Law enforcement has to be in accordance with the relevant laws.

Hence, no amount of provocation by the JVP, should have given way for the Government of day to authorize and direct 'extra judicial' activity, as a form of reaction to the JVP.

It is noted with regret that, the then Government had infact resorted to extra judicial methods to curb the spate of terrorism perpetuated by the JVP. The terrorism of the JVP was met with State Terrorism.

In that process, not only were actual terrorists eliminated, but also a host of other innocent youth, who had not been responsible for any illegal activity , were either harmed or murdered.

This period also witnessed Politicians of the ruling party getting actively involved in Police activities, and in certain instances even directing the Police. The "Batalanda Affair" is one example for what happened during the aforementioned period.

It is hoped that, such an unfortunate and despicable episode will never occur in Sri Lanka.

Outside Politics

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