SRI LANKA: Six years after Chemmani exhumation: Inquiry commission needed to review attorney general’s department

FOR IMMEDIATE RELEASE
January 5, 2005
AS-002-2006

A Statement by the Asian Human Rights Commission (AHRC)

SRI LANKA: Six years after Chemmani exhumation: Inquiry commission needed to review attorney general’s department

Pending indictments being filed at a high court, the case of the Chemmani mass graves was called before a magistrate’s court this week to remark upon its progress. Six years after the exhumation of the graves however, the police were only able to tell the court that as there have been no instructions forthcoming from the attorney general’s department, they have been unable to proceed with the case.

The exhumation of the Chemmani mass graves, four kilometers from Jaffna, occurred after a soldier, Somaratne Rajapakse, revealed during a court hearing that there were ten grave sites in Chemmani. At the time, there was concern that the exhumation was purely a publicity stunt in response to the considerable international and local pressure following this revelation. The exhumation was initiated ten months later and since then, no serious action has been taken to prosecute the perpetrators.

The exhumation was conducted by a team of forensic experts led by Professor Chandrasiri Neriella under the supervision of the then district magistrate, M Elamcheliam. Families of the disappeared, international monitors and representatives of human rights groups, including Amnesty International, observed the exhumation.

The Asian Human Rights Commission (AHRC) understands that after the exhumation, the forensic experts submitted their reports to the attorney general’s department and steps were also taken for DNA identification of some of the uncovered remains. As a result, two of the bodies were positively identified.

Under any other justice system, the next step would be the filing of indictments at a high court. Six years after the exhumation, the Sri Lankan justice system has kept the case pending in a magistrate’s court with no indictments being filed. Furthermore, the office of the attorney general, the agency responsible for such matters, has given no reason for the long delay in the proceedings. This situation raises radical concerns regarding its accountability and responsibility.

The Sri Lankan attorney general’s department has previously also failed in its duties to promptly and effectively prosecute perpetrators of serious crimes. This failure is particularly noticeable when senior military or police officers–including on the basis of command responsibility–may be implicated, as is likely in this case. The Embilipitiya case of 48 school children having disappeared after being taken by the military is a particularly dismal failure of the attorney general’s office. Over 30,000 disappearances in the south of Sri Lanka, as well as other disappearances in the north and east have also not been prosecuted, despite serious recommendations to do so made by UN and other agencies. In the case of the Bindanuwewa massacre, the senior officers who held command responsibility were not even charged, resulting in the acquittal of the other accused. These cases indicate that the attorney general’s department seems to take limited measures to address crimes under political pressure, which fall short of prosecution when senior military or police officials are involved. In this way, the department responsible for enforcing the law and ensuring justice is instead sanctioning impunity for the perpetrators of rights abuse.

Yet another failing of the attorney general’s department is the prolonged delays in justice found throughout the country, an issue the AHRC has raised previously. These delays in court trials as well as due process amount to a clear betrayal of justice. Being primarily responsible for criminal prosecutions, the attorney general’s department cannot escape its duties by blaming other agencies for the delays. In the case of Chemmani in particular, the responsibility for the lack of progress in the last six years lies solely with the attorney general.

Protection of the rule of law is firmly linked to effective prosecution; when effective prosecution does not take place, the rule of law does not exist. The absence of the rule of law will result in a system and structure of anarchy. Modern social structures are founded on proper police investigations and effective prosecutions by the responsible state agencies. When these agencies fail to carry out their proper functions, division and conflict increases within the society, reaching a point where cooperation and harmony is impossible. Sri Lanka has been at this point for awhile now. 

It is therefore time that the Sri Lankan government, the opposition and civil society organisations including the media, reviews the role of the attorney general’s department, with the aim of eliminating practices that deepen lawlessness and safeguard impunity. Agencies such as the UN Human Rights Committee and the Committee against Torture have made numerous recommendations regarding rule of law and fair trial in Sri Lanka, particularly in cases where the alleged perpetrators are state officers. These recommendations must now be seriously reviewed and implemented, to stem the further degeneration of the country’s justice and legal system.  

In this light, the AHRC calls for the establishment of a commission of inquiry, headed by senior members of the judicial and legal professions, as well as other imminent persons, to review the work of the attorney general’s department. Such a commission should further make recommendations for the department’s development as an agency that can effectively contribute to law enforcement and human rights protection in the country. In the meantime, the AHRC also urges for the attorney general’s department to immediately initiate effective legal proceedings on the basis of the Chemmani exhumation.