Focus on Rights
An ill deserved pat on the back

By Kishali Pinto Jayawardena
Sunday Times 31 October 1999

One cannot help but be bewildered by Foreign Minister Lakshman Kadirgamar’s claim to the visiting UN Working Group on Enforced or Involuntary Disappearances last week, that there has been a “drastic reduction” in the incidence of disappearances since the Kumaratunga administration assumed office.

Taken further, the Foreign Minister’s statement reads even more fantastically. That the Kumaratunga administration’s directives to the armed forces to distinguish between the LTTE and the people, to act within the framework of the law and to ensure that no person would be allowed to act with impunity, had been the direct driving force behind this “drastic reduction”. Minister Kadirgamar indeed admits only one exception to this pattern of “drastic reduction” cited as a “brief period” in mid 1996 in the Jaffna peninsula, which the government was “deeply concerned about and was committed to get to the bottom of, as evidenced by the Krishanthi Kumarasamy case and the Chemmani case”.

While this self- congratulatory pat on the back must be treated with the indulgence it deserves, what precisely are the statements that we are making here? The Foreign Minister’s claim to a numerical superiority over the UNP government of the previous era, in the totting up of the number of disappearances recorded is, of course, an idle exercise in a post 1994 “non JVP” era. Quite apart from this, it begs a number of questions. For instance, can this “deep concern” over the 600 disappearances in Jaffna, estimated to be the highest in the country since 1991, be satisfied by a mere citation of the Kumarasamy case and the Chemmani investigations, strategically important though they may be?

In the first place, the Jaffna disappearances were not confined to 1996 but were also evident in the succeeding years, as in 1997 when 100 cases of disappearances were reported mainly from Jaffna, Batticaloa, Mannar and Kilinochchi.

It was in 1997 that President Kumaratunga promised relatives of those ‘disappeared’ that a Commission of persons comprising representatives from the Tamil community, legal personalities, members of the clergy and respected members of society (not including politicians) would be appointed to look into these disappearances. Up to date, no such Commission has been appointed and the possibility is that with the recent negation of the Chemmani “mass” graves, the whole question of accountability for these disappearances would also be allowed to lapse.

Again, the Foreign Minister’s claim is that impunity has been denied for errant security forces acting under the PTA and ER, on the initiative of the government. On the contrary however, problematic provisions relating to the absence of any or minimum safeguards relating to conditions of detention, admissibility of police confessions to senior police officers, and doing away with the normal procedure in relation to deaths in custody in respect of inquests, postmortem examinations, disposal of bodies and judicial inquiry remain.

Though indictments have been filed against an estimated 486 officers in connection with disappearances of individuals, the process of bringing these indictments have been agonizingly slow and have not had any evident deterrent effect on the forces. More indeed has been accomplished by the single-handed efforts of the Supreme Court in dealing with cases of unlawful arrest and detention brought before it. The Court has laid down a strict regulation of procedures to be followed in the making of detention orders, the keeping of persons in authorised places of detention and powers of search consequent to arrest. Findings by the Supreme Court against particular officers have however not been taken further at departmental level. On the other hand, findings made by Presidential Commissions of Inquiry appointed to look into politically motivated killings of the previous regime have led to disciplinary action against selected police officers, resulting ironically in those police officers successfully challenging those findings in court on the basis that they had been denied fair treatment.

Meanwhile, the National Human Rights Commission is, as customary, put forward by the Foreign Minister as an example of the bona fides of the government. Again, this begs a fundamental question about the efficacy of the Commission.

As Amnesty International commented somewhat diplomatically in its 1999 report on “Sri Lanka; Torture in Custody”, “the HRC has been slow to make a significant impact on the human rights situation in the country”. In reality, the HRC has proved lamentably incapable of fulfilling its role as a powerful rights monitor.

Basic safeguards provided by the Human Rights Commission Law protecting civilians against arbitrary action of state officers are not adequately policed by the Commission.

One significant example is the rule that the Commission be notified of all arrests within 48 hours which is rarely observed, while no prosecutions or disciplinary action has been taken against officers violating this rule. The Commission itself has yet to make its first annual report public. In April 1999, the Government announced its intention of increasing the budget of the HRC from Rs 14,235 million to Rupees 25.1 million “to support the planned expansion of scope, intensity and the focus of the Commission’s activities”.

Irrespective of this projected expansion of it’s functioning, whether the Commission will prove its ambitious mandate remains questionable.

Apart from the above, the bypassing of the recommendations of the three commissions appointed to look into pre 1991 disappearances is unequivocally the most powerful reason why this trumpeted commitment of the Kumaratunga administration in putting into effect a new culture of human rights protection is suspect.

The reports of the three Commissions suggested a number of welfare measures for the kith and kin of the disappeared. The report of the Commission on the Western, Southern and Sabaragamuwa Provinces in particular included a number of very practical relief measures relating to the emotional and economic rehabilitation of the spouses and children of those affected, payment of adequate compensation, the release of monies in frozen accounts and measures to minimise problems that relatives face when trying to reclaim land lost during that time.

The Commission made the rather provocative suggestion that a new tax similar to the defence levy be imposed to raise sufficient funds for the payment of compensation.

In addition, it was recommended that a panel of lay visitors be established for each area and persons on this panel be given the authority to speak to detainees, check the conditions of detention and coordinate with national human rights groups. Such a step, it was suggested, would re-establish community based forces and procedures that the citizen can turn to when faced with misuse of state power. For this same purpose, the setting up of a Citizens Advisory Bureau was recommended to help bereaved persons solve problems such as EPF dues, obtaining death certificates, the settlement of property matters and so on.

The Commission further suggested that a Wall of Reconciliation be erected whereon would be inscribed the names of all those who died in that period in an acknowledgment by the State that what had happened to these people was wrong, regardless of whichever government committed the abuses.

None of these welfare cum reconciliatory measures have been implemented so far. Payment of compensation to those affected has been halting and intermittent amidst complaints of insufficient funds and reports that the payments have not been even handed due to political influence. Up to late 1997, only some 5,991 claims were settled while applications for compensation in this respect reportedly numbered 15,995.

The whole problem raises some very crucial questions. While it is true that penal action against police officers mentioned in these reports have to be undertaken cautiously and on the basis of sufficient evidence against them, the non implementation of basic welfare measures that would have lessened the continuing agony of a traumatised “ghost population” in the South is almost impossible to rationalise.

In the end result, the Kumaratunga administration has to be undoubtedly given its due in terms of individual markers of accountability such as the Kumarasamy case and the Chemmani investigations. However, its sincerity in terms of erasing a prevailing climate of impunity for disappearances in Sri Lanka remains a long way yet from being realised.

Courtesy : SUNDAY TIMES - 31, October 1999