by Sunday Times, Colombo, March 5, 2023
The Sri Lanka Army has been ordered to produce in court before March 22 three former LTTE cadres who had surrendered to the Mullaitivu army camp in the last stages of the war in May 2009.
The order was delivered by the High Court of Vavuniya following three writs of habeas corpus (you have the body to submit, or answer) filed by three wives.
In the hearing last Thursday, the petitioners alleged that their husbands had surrendered to the army on May 18, 2009 during the last phase of the war and that they are missing, and since presumed to be victims of enforced disappearance, while in the custody and control of the army.
A writ of habeas corpus is a remedy available to compel the body of a person who is illegally or improperly held in official, or private custody, and to discharge or deal with such person according to law.
The army commander, the commander of the 58th Brigade and the commanding officer of the Mullaithivu army camp were cited as respondents.
The applications were filed on behalf of Ponnambalam Kandasamy, Sinnathurai Sasitharan alias Elilan and Rudrakumar Krishnakumar. The court directed the Mullaithivu Magistrate’s Court, which has jurisdiction related to the area in which the incident took place, to hold an inquiry and file a report to the High Court. It took nine years for the inquiry to end and the final verdict to be delivered.
During the inquiry, petitioners testified about their sufferings and the torment they underwent throughout the final phases of the war since they were displaced from their homes and also explained the circumstances that led to the disappearances of their loved ones. Petitioners said aerial bombing and shelling targeting civilians caused heavy loss of life.
Major General Chanakya Gunawardena, the commanding officer of the 58th Brigade was called by the Attorney General to give evidence on behalf of the Army. He was the only witness tendered by the army to represent the position of the respondents and to counter the claims of the petitioners.
He denied that any person was arrested or detained. However, in cross examination the witnesses admitted that there were persons who surrendered to the Mullaitivu army on 17th, 18th and 19th May 2009 and that the military personnel manning the camp had a register of those surrendees.
The court ordered that the said register be produced in court.
Maj Gen Gunawardena, however, produced only the register prepared by the Commissioner General of Rehabilitation and blatantly defied the order made by the court by failing to produce the register prepared by the military at the time of actual surrender.
Counsel said there was overwhelming evidence that the corpus in all the cases were last seen in the custody and control of the Sri Lanka Army. Parties made written submissions in addition to oral submissions.
Delivering the order, High Court Judge Ramanathan Kannan said the court was satisfied on the evidence given by petitioners that the corpus had surrendered to the Sri Lanka Army represented by the respondents and that therefore, the respondents are accountable for producing those who surrendered to them.
Senior lawyer K.S. Ratnavale with Ms. G. Ranitha and Mathunchala Ketheeswaran appeared for the petitioners. Senior State Counsel Abeywickrama appeared for the respondents.