On the 27th October the day for the disappeared will be commemorated by the Families of the Disappeared and Right to Life together with the Asian Human Rights Commission. The monument for the disappeared was established at Raddoluwa Seeduwa, near Negombo in the year 2000 as a symbol of the disappearances which have become a common phenomenon in Sri Lanka since the early 70s.
Disappearances have been occurring on a large scale in the south, north and the east of the country and during this years commemoration family members of the disappeared will gather near the monument to pay respects to the dear ones who have been lost, perform religious ceremonies and also hold public gatherings to discuss issues of accountability relating to these disappearances. A number of organisations such as the Law Society and Trust, INFORM, CPD, the Civil Monitoring Commission, the Association for Disabled ex-Service Personnel, the Neelan Tiruchelvam Trust and the Meepura Newspaper have also officially joined in.
Perhaps on this occasion a number of salient features of disappearances in Sri Lanka need to be recaptured:
Disappearances are, for the most part, preceded by abductions the structuring of disappearances is designed in such a way to as to deny liability. Those who conduct an abduction, which is the first step in a series of actions that lead to a disappearance, disguise themselves and also use vehicles which cannot be easily recognised. In this way the legal obligations relating to arrest are circumvented. Any arrest, according to law, has to be carried out by officers who can be identified and who are obliged to reveal their identities. Some instructions to law enforcement agencies have gone to the extent of requiring the arresting officers to give a receipt of arrest. They are also required to fax details of the arrest to the higher raking police officers and the Human Rights Commission. The law enforcement officers are expected to travel in their official vehicles with are clearly identified. Only law enforcement officers authorised by their immediate superiors are allowed to carry out arrests. However, abductions are often done without following any form of written authorisation by superiors and often persons who are do not belong to the law enforcement agencies also carry out abductions with the direct or indirect approval of some officers of these agencies.
Abductions are not reported to courts there are very strict regulations relating to the production of persons before court within the times stipulated by law. In the case of persons who are abducted with the ultimate purpose of making them disappear, no such reports are made to courts. This again demonstrates deliberate design in dealing with disappearances.
The places of detention are kept hidden under normal law places where persons may be detained is clearly demarcated. To hold persons in a place other than an authorised centre of detention amounts to a criminal act. However, when persons are arrested for the purpose of making them disappear they can be kept in a place of the choice of the persons who engage in such activities. When law enforcement officers engage in such activities it implies that the higher authorities are authorizing them to do so. Thus, this also indicates a clearly designed activity that takes place with the approval of higher authorities.
No written records are kept under normal law there are clear legal provisions requiring the police or military officers who make arrests to make detailed notes about the arrest, detention and interrogation. Higher authorities are expected to examine these records and to take appropriate steps on the basis of the information provided in these records, either to take legal action against the suspects or to release them. The higher authorities also bear responsibility to ensure proper medical attention is given to the suspects.
Killings in custody every disappearance in which a law enforcement agency is involved directly or indirectly is a killing in custody. It is a violation of the law as well as the international law as provided for in the Geneva conventions. It is a murder with deliberate intention as the entire process is organised in a way to culminate in the killing of the arrested person while in the custody of a law enforcement agency. Once again, the higher authorities of the law enforcement agency, whether it be the police or the military, are responsible for each killing. They are complicit in designing the process of such killing and also the carrying out of the killing.
Illegal disposal of bodies disappearances imply not only killings but also the secret and illegal disposal of bodies. Once again the whole process of illegal burials is part of the design of disappearances. Thus, in this process too, the higher authorities of the particular agency bear responsibility. To claim ignorance of such a well designed process at the very least amounts to culpable negligence.
There are also some disappearances which have been carried out either by terrorists or criminals. In these activities the law enforcement agencies do not bear direct responsibility for the act. However, they and the state bear responsibility for their failure to prevent such crimes and to take effective action to investigate, arrest and prosecute the offenders.
State responsibility large scale disappearances, as they have been happening in Sri Lanka continuously since 1971, can only occur when there is political approval for such activities by the regime in power. Law enforcement agencies engage in such acts. Thus, it can be said that those involved in serious breaches of the law do so only when they have the assurance that those who hold power will ensure that no investigations or prosecutions will take place. This assurance has become the cornerstone of the relationship between the political regime and the police and military during this long period.
There is today an entrenched political and legal culture in which firm undertakings not to investigate or to prosecute disappearances and other gross abuses of human rights remain a foundation stone. It is an unwritten code that politicians will do all that is within their power to stop investigations into allegations of disappearances and other related matters. The operation of the criminal justice system takes place only outside the boundary of this agreement between those in power and the police and military.
It is this agreement to ensure that investigations into these matters will be prevented that has created the obstacles to the local criminal investigation system to the extent that it has become dysfunctional. The officers of the Criminal Investigation Division (CID), who, being propelled by their professional obligations try to undertake investigations into this forbidden territory, put themselves at serious risk. The numbers of persons whose careers within the investigation field have suffered serious setbacks, either due to their lack of understanding of the rules of this forbidden area, or due to their defiance of these rules in the pursuit of the best traditions of their profession, are many. An entire psychology within the criminal investigation machinery in the country has become completely twisted due to these experiences. Today investigations into cases where state agencies are involved would be considered an act of great disloyalty to the police and the military.
The political reasons for objecting to any form of monitoring by the United Nations agencies are merely an extension of the rule that exists within the country that these matters should not be subjected to any investigations or prosecutions. However, it is also completely accurate to say that if the state has the will to pull away from this attitude it definitely has the capacity to conduct the investigations. It is common knowledge that in the past Sri Lanka has been able to develop the capacity of its investigating officers to successfully deal with very serious crimes. Investigations into former Prime Ministers Bandaranaikes assassination and investigations into the 1962 attempted coup to overthrow the government of the day are clear examples of the capacity of the Sri Lankan law enforcement agencies to deal with such matters. There are many officers who have now been scattered to various places due to punishment transfers or displacement from their professional roles for many mysterious reasons who, if they were allowed to do so would be able to bring many of the perpetrators of the disappearances of the recent decades to justice. But they all know the reality within their establishment now, which is that there is a forbidden territory about criminal investigations into which they should enter only at their peril.
If a state has the will and the capacity to carry out investigations into gross violations of human rights such as forced disappearances there is no justification for the United Nations human rights agencies to request intervention in order to do such things. However, if the will or capacity is missing to ignore such issues it will be to dishonour the obligations of such agencies by those who hold authority within them. The obligations of the UN agencies to deal with the human rights violations in Sri Lanka arise, not from the incapacity of local agencies, but by the lack of will of the state to deal with these violations.
What the propaganda industry for the Sri Lankan government says against the UN High Commissioners request for negotiations for assistance on this matter is that Sri Lanka has the capacity to deal with such investigations. However, what has been shown by the non-investigations is that the state is deliberately obstructing them, which clearly indicates that the state does not have the will to do so.
Under these circumstances it is legitimate to ask as to the reasons why the political authorities in Sri Lanka have created such a forbidden area relating to criminal investigations. A close study would suggest that this is because the military, which has been used by various regimes for their own purposes, have acquired rights to obstruct any attempt at such investigations. Serious investigations into disappearances are perceived by the political authorities as a possible cause for an enormous rift between them and the military. The political system, which was built since the time the new constitution was made in 1978, cannot survive if serious investigations into police and military conduct take place.
The rough treatment Ms. Louise Arbour, the High Commissioner for Human Rights received in the country, as well as the huge misinformation campaign carried out by the propaganda industry of the government, can only be explained within this understanding that exists between the political leaders of the state and the police and the military. It is in this area that much more research and study is needed if the present obstacles to the protection and promotion of human rights within Sri Lanka are to be successfully countered.
Local people when affected by gross human rights abuses try to make complaints to local police authorities. The Criminal Procedure Code of Sri Lanka has laid down the detailed procedure for the recording of complaints, their investigation and the prosecution of criminal cases. When local people resort to the provisions in the local law regarding forced disappearances and similar types of human rights abuses, mostly done by the police or the military, they discover the hidden agenda that has developed over the last decade not to investigate or to prosecute these matters as explained above. After having exhausted all attempts to find legal redress, when they realise that locally, nothing will happen, they begin to seek help from human rights organisations and others to take these matters to the United Nations human rights agencies. When this happens, the same state that denies them the investigations locally, declares that international agencies need not interfere as there are local legal mechanisms to deal with these matters. Thus the citizen facing these problems has nowhere to turn to. They are deprived of access to local as well as international systems to find a solution to the tremendous wrongs they have faced.
The placing of citizens in this helpless situation without a remedy, locally or internationally is thereafter portrayed as a matter of sovereignty. If the United Nations human rights agencies question the state about complaints of violations by the citizens, they are told not to interfere with the sovereignty of the state. The propaganda industry goes into full swing claiming that these complaints can be dealt with locally. However, those involved in the propaganda industry know full well that nothing, in fact, will be done.
The propaganda industry therefore naturally treats national and international human rights organisations with resentment for exposing and publicizing the narratives about the violations of human rights faced by the local citizens because that makes their job of falsification all the more difficult. They want to silence the human rights organisations and in fact all critics who merely record and publish what the citizens are complaining about. Thus, silencing of human rights organisations is only an extension of the silencing of citizens.
The propaganda industry therefore is not only engaged in spreading misinformation, they are an essential part of the machinery of repression. One arm of the state commits disappearances and abuses of human rights while the political leadership, the other arm, assures and guarantees the police and military that their actions relating to disappearances and other matters will not be investigated. The propaganda industry, the third arm, then takes all efforts to make it appear that either the reports of such abuses are exaggerations or that tough measures are taken locally to deal with such abuses. While those who cause disappearances use physical violence, politicians use political power to authorise such violence and to prevent investigations, the propaganda industry use their pens to silence citizens and anyone who extends their support to the victimized citizens.
This years commemoration of the disappearances should be a day of reflection for anyone who cares for a decent way of life to prevail within Sri Lanka and about the actual reality of repression within the country. It is only when larger numbers of people see through the actual situation that they have been pushed into that they will find means to free themselves from these chains. Even master craftsmen of the propaganda industry will be able to do very little once the citizens begin to see through the means by which they have been not only denied their rights, but also humiliated when they try to find solutions to the problems they face.
