The issue of enforced disappearances is among the highlighted topics of the discussion of human rights abuses in Sri Lanka. While about 1,000 disappearances were reported in 2006, already by April, 2007 around 300 cases have been cited.
A situation of this magnitude has found some response from the United States where Ambassador Richard Boucher, the US Assistant Secretary of State for South and Central Asian Affairs is quoted to have expressed serious concern about violations of rights in Sri Lanka both by the LTTE and the government. Mr. Boucher stated:
“Building democracy and building stability we think are part of the same thing. We are not looking to change governments, we are looking to help governments achieve the institutions that can support democracy, the education systems, the information systems, the rule of law, election commissions, anti corruption commissions, things like that, that really can make a democracy stable in the longer term. That sort of democratic stability in the longer term, that is what we are trying to achieve,” he said. (Sunday Leader April 15, 2007)
Even a casual study into forced disappearances since the 1970s which, when put together far exceed the number of disappearances in any other country, would clearly indicate that the relevant governments were unwilling and incapable of bringing this situation under control.
In the process of using the law enforcement agencies and armed forces to act freely to control terrorism the entire criminal justice system in Sri Lanka has suffered an enormous set back. The criminal investigation machinery of the country has been so affected by long years of interference into its proper functioning that now the state simply does not have the capacity to cause proper criminal investigations into serious crimes and gross human rights abuses including forced disappearances. The government does not to deal with the problem of the incapacity of the criminal investigation machinery, but instead engages in public relation measures such as the appointment of various commissions and now they are even talking about the appointment of an ombudsman.
Within the criminal justice framework of Sri Lanka it is not possible for any commission or an ombudsman to do what the countrys Inspector General of Police cannot do through the use of the criminal justice machinery which is under his control. It is the incapacity of this machinery of criminal investigations that needs to be investigated and redressed. The questions of stability and democracy that Ambassador Boucher has raised cannot be addressed without first dealing with the collapse of the criminal investigations machinery in Sri Lanka.
This is not a new position that the Asian Human Rights Commission is taking up. As far back as 1998 we wrote of Disappearance of persons and the disappearance of a system. Our position expressed then remains even more valid today under a situation of the continuous degeneration which deprives the people in all areas of the country the protection that the state is under obligation to provide by maintaining an efficiently functioning criminal investigating machinery.
We reproduce below the publication made in 1998 exposing the link between the disappearance of persons and the collapse of the criminal justice machinery in Sri Lanka:
Disappearances of persons and the disappearance of a system
The Sri Lankan Final Report of the Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces (the Commission Report) among its recommendations mentions the need for a training programme in investigations for all police officers (pp. 80, 174). Besides this, the Commission Report recommends that Police-Lay Visitors Panels be instituted for each police area and Citizens Advisory Bureaus for each district level (pp. 80, 174). Obviously these are measures recommended to reverse the consequences caused to the law enforcement machinery by processes that made large-scale disappearances possible in Sri Lanka. (It must be noted that even politically related disappearances are not past events, as several hundred disappearances have been reported in the country quite recently.)
In fact, the law enforcement mechanism has collapsed. Extra-judicial killings are no longer a phenomenon that merely relate to insurgency investigations, but have subtly entered into criminal investigations as a whole. In many parts of the country there are complaints of so-called self-defence killings, shootings of fleeing suspects, and the like. Complaints about the lack of or inadequate investigation of, serious crimes have also become common. It is also no exaggeration to state that bribery in criminal cases has reached epidemic levels.
The present situation is a byproduct of the large-scale disappearances that were achieved through loosening all the hard knots that keep criminal investigations tied to the rule of law and the elementary norms of human decency. The set of Emergency Regulations used at the time of mass disappearances removed limitations from the powers of law enforcement officers. As a result, Sri Lanka lost the human resources necessary for law enforcement: i.e., a group of law-abiding law enforcement officers committed to observing an extremely high degree of caution, while also being skilful in the detection, prevention, and investigation of crimes. In the past, although the Sri Lankan achievements in developing such a professional group of law enforcement officers had their limits, they were considerable. These hard-earned habits of professional behaviour were undermined in order to encourage law enforcement officers to engage in illegal arrests and detention, torture and killings.
Control of the behaviour of law enforcement officers is usually achieved through various forms of supervision in which departments deal with law enforcement and ultimate supervision rests with the courts. The set of Emergency Regulations used at the time of these disappearances was designed to remove such controls. One control removed was judicial supervision of post-mortem inquiries; this allowed for the easy disposal of bodies. What logically followed were executions without judicial inquiries. Law enforcement officers thus got the freedom to deal with crime in any way they liked. The Emergency Regulations removed the most fundamental checks necessary to maintain a proper law enforcement mechanism.
Although the removal of controls was easy, effective re-imposition of these controls is not, it is easy to remove the Emergency Regulations. The chief executive or the legislature does this by means of a simple declaration. However to re-introduce controls to the same officers who have become used to operating without them is no easy task. The behaviour of a good watchdog that had been prevented from tasting blood can never be the same after the dog has tasted it. In a country that does not make a priority of incurring all the expenses necessary for human resource training and providing attractive conditions for law enforcement officers, the re-creation of an orderly law enforcement system will remain a formidable task. Nevertheless, the delay in achieving this task poses a continuing threat to the society.
A greater danger is that even the memory of a rational system of law enforcement may be lost. Alleged criminals may be at the mercy of law enforcement officers. Contract killings may take place with varying degrees of consent on the part of the law enforcement officers. Corruption may become the deciding factor in the treatment of persons who seek recourse in the law Politicians may exploit the situation and may themselves become compromised as a result.
Under these circumstances the Commission Report recommendations for training programmes in investigation for police officers are quite welcome and even laudable. However such measures are wholly inadequate to deal with the situation now prevalent in the law enforcement machinery one in which the internal structures of proper supervision have collapsed. Any attempt at finding solutions must be with realising the enormity of the problem and with understanding the structural issues gone wrong in the law enforcement machinery.
The social philosophy on the basis of which disappearances were encouraged: The need to maintain order, with or without law
The situation of instability and insecurity prevailing in the country during the last three decades, particularly during the last decade, has given rise to a consensus that order has to be maintained with or without law. The underlying assumption is that the law itself could be an enemy of order. According to this way of thinking, certain provisions of law restrict the powers of law enforcement officers to deal with disorderly conduct by some persons or groups. It follows that the perceived restrictions need to be removed and that, once freed from such restrictions, the law enforcement officers may return order and stability to society.
This way of thinking is usually regarded as realistic. The maintenance of order through legal means is considered unrealistic for the following reasons, among others:
- The country cannot afford to have well-functioning law enforcement machinery and must therefore be resigned to defective machinery;
- Too much insistence on law may discourage law enforcement officers from carrying out their functions even to the extent that they are doing them;
- As corruption and abuse of power are facts of life in the country it may not be a wise policy to fight too hard against them; and,
- As the insistence on law may lead to conflict, it may be necessary to restrict such agencies that insist on observing the rule of la such as the judiciary
These and other similar considerations form the basis for encouraging practices such as killing under certain circumstances.
The country now has the lessons gained by the experience of testing the practices ruthlessly launched on the basis of such a social philosophy. Instead of bringing about order, these practices have confounded the situation a thousandfold. Ironically, the worsening of the situation may reinforce this same philosophy It is like the situation of a creditor who gives further credit to a debtor in the hope of regaining his earlier loans.
The recovery of the system
After the Cultural Revolution, the Chinese realised that their societys existence had been threatened. The slogan Rule of Law as against the Rule of Man was developed at the time. Since then, for over twenty years the Chinese have constantly struggled to rebuild a society based on the rule of law. Despite many setbacks and such cruel incidents as the Tiananmen Square killings, they have made enormous gains. Even with regard to Tiananmen Square, the killing of about 400 persons evoked tremendous adverse protests, which the disappearance of tens of thousands of persons in Sri Lanka failed to evoke. An impressive attempt to build a system based on law is taking place in China, despite the difficulties in developing such a system in a vast country with over a billion people.
Addressing the issues of developing the rule of law and of repudiating past practices remains a fundamental challenge to all persons who wish to help the system recover from the damage suffered in its great fall. A serious crisis in a system of law enforcement can also bring about the dangerous consequence of a changing mentality among persons who have been beneficiaries of the system. They may shed their loyalty to the system because it has become ineffective. They may adjust their minds to the new situation.
It is only through the efforts of those engaged in various activities relating to social change that the situation can be saved. Political thinkers, social critics, jurists, judges, journalists, those who deal with moral and ethical matters and organisations including NGO5 need to help create a social fabric upon which the society can develop.
The Interim Report of the Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces contained the following recommendation:
Finally we recommend the creation of a Wall of Reconciliation wherein are inscribed the names of all who have disappeared or died in this tragic period of our countrys history.
Your Commissioners consider this recommendation to represent a very important aspect of national reconciliation. This Memorial Wall which will contain names denoting all sections of the Sri Lankan people, will be a symbol of our essential unity to future generations a place to which everyone in this country could come and pay respect to those lost to us.
This may be useful, as have been similar monuments in Cambodia, such as the Genocide Museum located in a school transformed into a Khmer Rouge interrogation centre) and the Killing Fields (the location where these prisoners were later taken, executed and buried). Beyond providing an opportunity to pay respect to the dead and preserve their memory such a wall can act as a reminder of the enormous crisis we face as a society and of the need to develop civilised ways to emerge from this situation,
(Initially published as an article by Basil Fernando, the Executive Director of the AHRC in the Sunday Observer, it was reproduced in several publications).
For recent articles on forced disappearances please see http://www.hindustantimes.com/Search/Search.aspx?q=PK%20Balachandran&nodate=1and http://www.island.lk/2007/04/16/features2.html
