91. When he met with the Attorney-General, the Special Rapporteur requested information about any follow-up action taken with regard to certain cases and was told that the Government had taken action to investigate several incidents of human rights violations that occurred in the country. In this regard, the Special Rapporteur was provided with information about the following well-known cases.

92. Embilipitiya case. Between 1 August 1989 and 30 January 1990, 25 schoolchildren from Embilipitiya Central College and nearby schools were abducted from their homes and places of residence. They disappeared thereafter. The Criminal Investigation Department (CID) was called in to investigate the matter in 1992. It was revealed during the investigations that the abductors were army personnel from the Sevena camp at Embilipitiya. The CID forwarded their notes of investigation to the Attorney-General who indicted nine suspects in the High Court of Ratnapura. The first accused is the Principal of Embilipitiya Central College, the second to sixth accused are army officers, one of them a brigadier; the seventh to ninth accused are ordinary soldiers. The second accused is the son of the first accused. The indictment contains 83 charges in relation to the abducted students. The trial commenced on 22 January 1996 and is still continuing. The Special Rapporteur was told that this case was due to be concluded during the course of 1997.

93. Kumarapuram and Mailantenna incidents. These cases relate to the killing of 24 villagers and 35 villagers in February 1996 and August 1992, respectively, in Trincomalee and Batticaloa districts. In relation to both incidents, investigations commenced promptly and several army personnel were arrested. In the Kumarapuram incident an identification parade was held at which seven army personnel were identified by witnesses. Proceedings were pending in the Magistrate's Court of Trincomalee, but the Magistrate refused to entertain the proceedings for reasons of territorial jurisdiction. On the advice of the Attorney-General, proceedings were transferred to the Magistrate's Court of Mutur where 101 charges have been filed against 7 suspects, who remain in custody. In relation to the Mailantenna incident, 21 army personnel have been committed for trial. The case has been transferred to the High Court of Colombo, which was due to hear the case on 17 September 1997. The suspects remained in custody.

94. Alauwwa, Bolgoda and Diyawanna Oya incidents. Investigations have been conducted by the CID following the discovery of 21 partly decomposed bodies in Alauwwa (5 bodies), Bolgoda (11 bodies) and Diyawanna Oya (5 bodies) during the period 31 May 1995 to 14 August 1995. The investigations have not as yet produced any evidence relating to the murder of the 21 persons or the disposal of their bodies. According to the initial findings of judicial medical officers, the cause of death was either strangulation by ligature or drowning. By the external appearances of the bodies, the investigators have concluded that they were persons of Tamil ethnicity. Hence, they have started to collect information relating to disappearances (if any) of Tamil persons during the relevant period. Information has been collected relating to the disappearances of 15 persons.

95. Thereafter, the investigation has taken two directions. Investigators have collected material relating to the disappearances of these 15 persons. In certain cases, evidence of abduction has been collected. There is no evidence indicating that any of the 15 persons are still alive. Investigators have also attempted to ascertain whether any of the 15 persons were amongst the 21 bodies found. Photographs of the bodies and personal effects found with the bodies have been shown to relatives and friends of the 15 persons, but no identifications have been made.

96. As the next step, the 21 skulls were sent for forensic analysis to the University of Glasgow in the United Kingdom, together with photographs of 14 of the missing persons mentioned earlier, to conduct facial reconstruction and video superimposition of these skulls using, amongst other things, the photographs. The analysis was not able to identify the skulls with certainty, mainly due to the inability to undertake DNA analysis. It is being considered whether further material could be obtained in order to undertake such an analysis.

97. Based on the investigation's findings, 22 suspects have been arrested by the CID. All but one were police officers who, at the time of arrest, had been attached to the Special Task Force headquarters in Colombo.

98. Rape and murder of Krishanthi Kumaraswamy and three others in Jaffna.

This incident took place on 7 September 1996 at a security checkpoint manned by a group of military personnel. Prompt action was taken by the police upon receiving the complaint and at the conclusion of the investigations 11 suspects, consisting of 8 army soldiers and 3 police, were arrested, produced before the Magistrate and placed in remand custody. It was decided by the Attorney-General to grant a pardon to two suspects who were not directly involved, on condition that they testify against the others.

99. On the basis of the available evidence, the remaining suspects were charged in the Magistrate's Court of Jaffna under section 357 of the Penal Code for the abduction of Krishanthi Kumaraswamy, and under section 296 for committing the murder of Krishanthi and the three other persons. The case was transferred from Jaffna to Colombo upon the Attorney-General's application. However, giving due consideration to the nature and the circumstances of the offences involved, especially being mindful of the fact that the offences were committed by military personnel against civilians resident in the northern region of the country, a decision was taken by the Attorney-General to forward a direct indictment against the accused to the High Court of Sri Lanka and to have the matter placed for hearing before a trial-at-bar. This course of action will ensure an expeditious consideration of the matter by three judges of the High Court of Sri Lanka. Further, a trial-at-bar will also prevent the matter being heard by a jury, which could aggravate communal tensions. It would be noteworthy to mention that this is an extraordinary step, taken in order to expeditiously mete out justice, and is only the fourth such instance in Sri Lankan legal history.

100. The indictment is against the following eight army soldiers and one policeman: R.D.S. Rajapakse (corporal), J.M. Jayasinghe (soldier), G.P. Priyadharshana (reserve police constable), A.S. Priyashantha Perera (soldier), W.S. Wijayananda Alwis (soldier); D.D. Muthu Banda (soldier), D.M. Jayatilleke (corporal), D.V. Indrajith Kumara (corporal), A.P. Nishantha (soldier).

B. Human Rights Commission

101. The Human Rights Commission of Sri Lanka (HRCSL) was established by Act No. 21 of 1996 and is vested with monitoring, investigative and advisory powers in relation to human rights. It has been set up as a permanent national institution to investigate any infringement of a fundamental right declared and recognized by the Constitution and to grant appropriate relief. The powers of the Commission are said to be wider than those of the Supreme Court and will complement the existing national framework for the protection of human rights. There are no time-limits for filing a complaint before the HRCSL, unlike under the 1978 Constitution.

102. The Commission is made up of five members: three Sinhalese, one Tamil and one Muslim, who were appointed in March 1997. The Commission is headed by retired Supreme Court Judge O.S.M. Seneviratne. The other members of the Commission are:

Dr. A.T. Ariyaratne - Head of Sarvodaya (a humanitarian NGO)

Prof. Arjuna Aluwihare - Former Chairman, University Grants Commission

Mr. T. Suntheralingham - Retired High Court Judge

Mr. Ahmed Javid Yusuf - Former Sri Lankan Ambassador to Saudi Arabia

The appointments were made by the President on the recommendations of the Prime Minister, in consultation with the Speaker and the Leader of the Opposition in Parliament. It should be noted that the opinions of Tamil and Muslim political parties were also sought.

103. The Special Rapporteur was told when meeting the members of the Commission that they were still in the process of recruiting staff to perform legal and investigative functions. Members of the Commission mentioned their difficulties in finding suitable candidates, particularly lawyers. They attributed this difficulty to the fact that they were not proposing adequate salaries. At the time of his visit, there were 7 investigative staff members in Colombo and 33 based throughout the country in Ampare, Kalmoun, Batticaloa, Trincomalee, Vahuniya, Malake and Anrathapura. With regard to Jaffna, the Commission faced some difficulties in opening its office, due to difficulties in recruiting staff. All the employees of the Commission benefit from immunity from prosecution in the course of their functions.

104. Section 14 of the Act provides that the Commission may on its own motion, or on a complaint made to it by an aggrieved person or group of persons, or by a person acting on behalf of an aggrieved person, investigate an allegation of the infringement, or imminent infringement, of a fundamental right of such a person, and where appropriate provide for resolution through mediation or conciliation (sect. 15 (2)).

105. According to section 15 (3) of the Act, where an investigation conducted by the Commission discloses the infringement of a fundamental right, the Commission may recommend to the appropriate authorities that prosecution or other proceedings be instituted against the person or persons infringing such fundamental right. Alternatively, it may refer the matter to any court having jurisdiction to hear and determine such matters. The Commission may also make such recommendations as it may think fit, to the appropriate authority or person or persons concerned, with a view to preventing or remedying such infringement or the continuation of such infringement. The Commission also has the power to order costs where necessary.

106. The HRCSL is also vested with the power to monitor the welfare of detained persons by regular inspection of their places of detention. In order to facilitate this function, all arrests and detentions under the Emergency Regulations, and the Prevention of Terrorism Act must be reported to the Commission within 48 hours of arrest. Wilful failure to report an arrest or detention will attract penal sanctions under the HRSCL Act. Members of the Commission have free access at all times to all prisons of the country, but the Special Rapporteur does not know whether visits could be undertaken without notice.

107. The Act also envisages that the Commission may establish subcommittees at provincial level to exercise certain powers which are delegated by the Commission. This would help create greater awareness of the availability of redress by the Commission and provide easier access to the Commission.

108. Section 29 (1) of the founding legislation stipulates that the State will provide the Commission with adequate funds. It would have been preferable if the word Parliament had been used rather than State, so as to better serve to ensure the independence of the Commission. In contrast, the salaries of the Commission members are determined by the Parliament, as provided for in section 8 of the Act.

109. Section 31.1 of the Act raises another concern regarding the autonomy of the Commission. The section permits the Minister to make regulations "... in respect of any matter which is required by this Act to be prescribed ....". Thus, the authority to create regulations which will affect the Commission rests with one person. Such a provision, when worded in such broad terms, reduces the independence and autonomy of the members. Subsection 2 further permits the Minister to "... make regulations prescribing the procedure to be followed in the conduct of investigations under this Act". One of the most important functions of a national institution relates to its power to initiate investigations upon receipt of a complaint from an individual, but again the Minister has the authority to prescribe the procedure regarding investigations. Subsection 3 provides that any regulations which the Minister makes come into force on the date that they are published in the Official Gazette, unless a later date is specified. It is only afterwards that the regulation is brought before Parliament for discussion. Moreover, subsection 4 is unclear as to when the regulation should be brought before Parliament, stating only that it should be "... as soon as convenient after its publication in the Gazette ....". The regulation will be rescinded should Parliament withhold its approval. Thus, a regulation which may not succeed in obtaining the approval of the Parliament will remain in force until such time as it is convenient to bring it before the Parliament.

110. The HRCSL has received complaints of human rights violations. It has also had a number of visits from Colombo-based diplomatic missions. The HRCSL subsumed the duties and functions of the Human Rights Task Force (HRTF) on 30 June 1997. At the date of the visit of the Special Rapporteur, no cases of extrajudicial executions had been reported to the Commission.

C. Commissions of Inquiry into Involuntary Removal and Disappearances

111. While in Colombo, the Special Rapporteur met with the President and other members of the Commissions of Inquiry into Involuntary Removal and Disappearances. He was briefed about the activities of the Commissions as follows.

112. Three commissions were appointed by the Sri Lankan Government in January 1995 to inquire into and report on involuntary removals and disappearances from 1 January 1988. This mandate expired on 31 May 1997. Each commission had jurisdiction over a geographical area, namely, the north-east, central and south-west zones. Each commission was responsible for examining the evidence available to establish the allegations, the present whereabouts of the persons concerned, the identity of the persons responsible, the legal action which could be taken and the relief, if any, which could be afforded. It was subsequently ruled that cases of abduction or involuntary removals followed by death also fell within the ambit of these commissions.

113. The commissions submitted interim reports to the President containing the names of the persons responsible for the disappearances, where such evidence was available. The Presidential Secretariat reported that the findings of the reports were forwarded to the IGP for further investigation by a special team, where such investigation was necessary for further legal action. The IGP has also been directed to take action, where appropriate, against offending police officers.

114. On 3 September 1997, the commissions presented their final reports to the President. It was intended that both the interim and final reports would be published and action would be taken on their recommendations, including by initiating prosecutions in those cases where the commissions had found prima facie evidence. However, the final reports have not yet been published and the Special Rapporteur is not aware of any follow-up undertaken by the Government to the findings and recommendations of the commissions. This is particularily important since the commissions can only identify the persons responsible but cannot initiate the necessary legal process required to bring offenders before the courts.

 D. Drafting of a new constitution

115. When he met with the authorities in Sri Lanka, the Special Rapporteur was told that the Government was engaged in a process of constitutional reform. The text of 18 chapters of the draft new Constitution of the Republic of Sri Lanka was given to the Special Rapporteur.

116. The fundamental rights under the draft constitution are wider in scope than those in the present Constitution, thus bringing the new Constitution into line with the International Covenants on Human Rights. The Fundamental Rights chapter of the draft constitution introduces a number of new rights not contained in the old chapter, the most important of which are the right to life (art. 8); the right of an arrested person to communicate with a relative or friend (art. 10 (4)); the right to retain legal counsel (art. 10 (5)); the right to be told the reasons for arrest and a 24-hour limit of custody prior to production before a judicial officer (art. 10 (6)); the right to reasonable bail (art. 10 (7) (a)); and the right to be charged or released without unreasonable delay (art. 10 (8)).

117. Government representatives told the Special Rapporteur that the text of the draft new constitution will be submitted to Parliament. In order to be adopted, it will require a two-thirds majority in Parliament and also the approval of the people in a referendum.