In a very strange move that will surprise anyone concerned with the global effort to eradicate disappearances and gross human rights violations, the Human Rights Commission of Sri Lanka (HRCSL), which claims to be the country’s prime agency for the protection and promotion of human rights, officially decided to stop further inquiries into disappearance cases unless an order is received from the government to continue with the inquiries as the findings may result in the “payments of compensation etc”.
The mandate of the HRCSL among other things was to inquire into the infringement of fundamental rights and to make appropriate redress, including the granting of compensation to the victims. The very purpose of the creation of national institutions such as the HRCSL was to create independent bodies to investigate violations of rights and to ensure adequate redress. The board of the Commission has completely abdicated this responsibility and instead has expressly stated that it will cease inquiries into disappearances in order to avoid the payment of compensation to the victim’s families.
In 2006 the UN Human Rights Council adopted the International Convention for the Protection of All Persons from Enforced Disappearances. Under this convention all states are bound to take all steps necessary to prevent forced and involuntary disappearances, to make disappearances a crime within each nation with appropriate punishment considering its heinous nature, pay compensation to the families of the victims and to ensure the state provides facilities for the rehabilitation of these families. The Sri Lankan government also supported the adoption of this document. Over several years from the early 90s the Sri Lankan government has also reiterated before the UN Human Rights Commission and the Working Group on Disappearances that it will investigate all allegations of disappearances and ensure appropriate legal remedies, including the prosecution of offenders and payment of compensation to the families of the disappeared.
Sri Lanka has one of the worst records regarding disappearances in the South which began around 1987. The number of disappearances in the South alone amount to an official figure of over 30,000 but unofficially the numbers are estimated to be around 50-60,000. The disappearances have also constantly taken place since around 1977 until the present day in the North and the East of the country. With the escalation of violence between the armed forces and the LTTE in the recent months there have been further complaints of disappearances from these areas. The decision of the board of the HRCSL under these circumstances will be an encouragement to those who engage in such acts.
Due to strong international and local pressure, particularly from the families of the disappeared the Sri Lankan government had undertaken some measures to inquire into these disappearances. The recent decision of some government agencies is as follows:
(a) Dr. Jayantha Dhanapala, the then Secretary-General of the Peace Secretariat copied to Dr. Radhika Coomaraswamy a letter dated 22nd October, 2004 which he had sent to Secretary/Foreign Affairs to consider a suggestion to set up a Permanent Commission on Missing Persons in Sri Lanka.
(b) On 16th November 2004 the Secretary to the President invited the then Chairperson of the HRC and the Head of the ICRC for a discussion to consider this suggestion. At this discussion the ICRC stated that it had a list of 12,000 complaints of disappearances of persons and wanted Dr. Dhanapalas suggestion be considered in all earnest.
(c) The HRCSL took up the position that there is no need for a separate commission as the powers and functions of the HRC are adequate to deal with such complaints. The attention of the Secretary to the President was drawn to the recommendation to a list of 16,305 complaints of disappearances left unattended by the All Island Commission of Inquiry into Disappearances due to limitations in its mandate and suggested that these too could be referred to the HRC for necessary action.
(d) This position was accepted and following a Board Paper submitted to the HRC on 15th December 2004 the Board approved the establishment of a unit to process these 16,305 complaints. The ICRC had agreed to process their list of 12,000 complaints, exclude those in respect of security personnel missing in action and hand the rest to the HRC.
(e) This decision was conveyed to the Secretary to the President by HRCs letter of 16th December, 2004 and his concurrence was sought and obtained to retrieve the list of 16,305 complaints from the National Archives to which the Presidential Commission had deposited this list.
(f) The Asia Foundation provided the additional funds that were required by the already existing Disappearances Data Base Project to process these 16,305 complaints which eventually boiled down to about 2000 complaints.
(g) The Asia Foundation had agreed to provide funds to inquire into these complaints too as information from these cases too have to be fed into the current data base for scientific analysis of the trends and patterns of disappearances.
These 2000 cases were the subject matter of a concept paper submitted to the board of the HRCSL and the response from the Board made on June 29, 2006 is as follows:
Board does not propose to go ahead inquiring into these complaints for the time being unless special directions are received from the government as the findings will result in payment of compensation, etc.
This decision amounts to the undoing of several decisions of the government agencies as stated above.
The decision of the HRCSL not to proceed with the inquiries received publicity through the Sri Lankan media which also sought the reactions of human rights defenders on this issue (kindly see AHRC-FR-002-2006).
The present decision of the HRCSL is in conflict with its mandate and also fundamentally contradicts its role as a prime human rights protecting institution in the country. It cannot be defended on any legal or moral basis. In fact it is contrary to Sri Lanka’s obligations as a signatory to the ICCPR. The present HRC members, the legitimacy of whose appointments is under question due to them being appointed in contravention of constitutional provisions, has completely turned its character from a human rights protecting agency to an agency that protects the state instead the victims of human rights abuses. The HRCSL must be compelled to publicly abandon its decision not to continue with inquiries into disappearances. It must further be compelled to restart the inquiries and ensure redress to the victim families including the payment of compensation.
