by Centre for Policy Alternatives, Colombo, March 2023
CPA Elusive-Justice-and-Emblematic-Cases-in-Sri-Lanka-March 2023
INTRODUCTION
Bhavani Fonseka
In February 2023, victims who had filed habeas corpus cases
in the High Court in Vavuniya had a small victory in their case
with the judge making an order for the military to produce their
family members who had surrendered to the military in 2009.1
Such an order is important amidst multiple setbacks in the
victim’s search for their missing loved ones. Nearly 14 years after
their surrender, families continue to struggle to get answers with
the small victory in Court being a testament to the perseverance
of victims and their lawyers. The litigants in Vavuniya are one
of many who have engaged with the Sri Lankan criminal justice
system in the search for answers to what happened to their loved
ones and in the pursuit of justice. As with many cases and the
experiences of victims, multiple setbacks are faced with justice.
The State’s response to violence is characterised by denials and
with different tactics used to delay justice processes. Victims
have also had to face multiple indignities when searching for
answers and for justice ranging from denial to intimidation to
1 ‘Court orders Army again to produce surrendered LTTE members’,
<https://english.theleader.lk/news/3832-court-orders-army-again-to-
produce-surrendered-ltte-members#:~:text=A%20court%20has%20
once%20again,the%20failure%20to%20do%20so> accessed on 12 March
2023
10
harassment and surveillance. Despite this, many victims have
persevered in the struggles, from filing cases to vigils to protests
to some taking the cases internationally. In several instances
they have had to face mounting challenges to mourn their
dead that has included the ban on memorials and events that
remember the dead and the destruction of cemeteries of former
combatants. The varied tactics used by the authorities targeting
some victims, refusing to recognise their loss and their efforts
at finding the truth and justice has contributed to a ‘hierarchy
of grief ’.2
Yet, despite the efforts to delay justice and deny past abuses, the
perseverance of the victims in their pursuit for justice has seen
decades long agitation and mobilisation by victim communities
that has resulted in the formation of the Mothers Front to
other initiatives including families in the north continuously
protesting for over 2000 days amidst threats, intimidation and
other challenges.3
These efforts have been complemented by
sections of civil society who have kept the issue of human rights
and the need for justice alive with agitation, litigation, advocacy,
memorialisation, documentation and other efforts. Efforts such
as the annual events to remember enforced disappearances, the
2000 days of activism by families of the disappeared and the
Justice Walk in Batticaloa are some of the efforts at the
2 Judith Butler, Precarious Life: The Power of Mourning and Violence
(Verso 2004); Judith Butler, Frames of War: When is Life Grievable? (Verso
2010)
3 Chulani Kodikara, ‘”What is the Question?” The Matter of Surrendees
and Gotabaya Rajapaksa’s Response’, (Groundviews October 2019)
<https://groundviews.org/2019/10/17/what-is-the-question-the-matter-of
surrendees-and-gotabaya-rajapaksas-response/> accessed on 11 August 2021
11
community level that has kept issues alive, a reminder of the
continuing struggles faced in the pursuit of justice.
Sri Lanka’s cycles of violence have had a devastating impact
in the lives of thousands across the island, with violations
documented over the decades exposing extra judicial killings,
enforced disappearances, abductions, sexual violence, torture,
displacement and other forms of violence that has impacted all
communities. Documentation also highlights allegations faced
by multiple actors linked to the State and non-State actors and
the successive Governments who were pressured to initiate
investigations with limited to no progress with such efforts. The
cases that did progress through the criminal justice system is
due to the perseverance of victims, their lawyers, civil society
and others. Their perseverance in keeping attention on the
violations and pressure to get to the truth and justice has had
an impact with a few cases proceeding to trial and subsequent
convictions of perpetrators.
One is the gang rape and murder of Krishanthy Kumaraswamy
and subsequently the murder of her mother, brother, and
neighbour who went in search of her.4
This case resulted in
a conviction of military personnel.5
Another case known as
the Embilipitiya case involved the enforced disappearance and
killing of schoolboys from Embilipitiya in the South in 1989-
1990.6
Nearly a decade after the incident, several were convicted
4 Kumari Jayawardena & Kishali Pinto-Jayawardena (eds.) The Search for
Justice: The Sri Lanka Papers (1st edn, Zubaan 2016)
5 Somaratne Rajapakse others v. Hon Attorney General [2010] 2 Sri LR
113
6 Discussed in detail in the chapter authored by Mirak Raheem, “Addressing
12
of the gruesome disappearance and murder of the schoolboys.7
Both these cases progressed during the early years of then
President Chandrika Bandaranaike Kumaratunga’s presidency
where agitation by victims and civil society opened the space for
justice in Sri Lanka.8
Despite the few cases resulting in convictions, other cases did
not have the same success. In the case known as the Vishvamadu
is an example where justice remains elusive to the victims. In this
case, after several delays, four soldiers were convicted of a gang
rape and sexual assault9
but were subsequently acquitted by the
Court of Appeal.10 Further setbacks with justice are seen when
the Executive provided a Presidential pardon to a convict. In
what is known as the Mirusuvil massacre, an army Staff Sergeant
was convicted for the massacre of eight civilians, including two
children, that occurred in 2000. After several delays with the
trial, the accused was convicted in 2015 with the conviction
affirmed by the Supreme Court in 2019.11 In 2020, a Presidential
the Missing Elements of Justice for the Disappeared in Sri Lanka: Investigating
Unmarked Gravesites and the Identification of Human Remains”
7 H.C. Case No. 121/1994, High Court of Ratnapura, High Court Minutes,
23 February 1999; International Commission of Jurists, Authority without
Accountability: The Crisis of Impunity in Sri Lanka (ICJ 2012) 168-169
8 Chulani Kodikara, ‘An interview with Prashanthi Mahindaratne: The
Krishanthi Kumaraswamy Case’ in Kumari Jayawardena & Kishali Pinto
Jayawardena (eds) The Sri Lanka Papers (Zubaan 2016)
9 P. Shantha Subasinghe and Others v. Hon. Attorney General (the
Vishvamadu Case) (C.A Case No. 250-252/2015; H.C. Jaffna Case No.
1569/2012)
10 See case note later in the publication; Also, Danushka Medewatte,
Neloufer De Mel, Sandani N. Yapa Abeywardena & Ranitha Gnanaraj,
‘Conjunctures of Silence: Aphonias in the Prosecution of Conflict Related
Sexual Violence in Sri Lanka –the Vishvamadu Case’ (2022) The Gender,
Justice and Security Hub
11 Sunil Ratnayake v Attorney General (Mirusuvil Case) (HC Colombo
13
pardon was given to the convict, with it demonstrating a new
setback in the pursuit of justice in Sri Lanka.12
The above are some of the cases that progressed to the trial
stage. Many others faced setbacks with investigations and
inquiries with no immediate prospect of proceeding to a trial.
Cases such as what is known as the Trinco Five massacre, ACF
massacre and the Navy 11 abductions are some of the well-
known cases that have faced setbacks at the investigations
stage.13 Several others have faced similar predicaments with
documents contained in the publication demonstrating the
numerous setbacks faced in the criminal justice system. These
cases are identified as ‘emblematic cases’ for the numerous
setbacks faced in the pursuit of justice in Sri Lanka.14
Many of these cases and agitation by victims and civil society
have been in a context where those challenging the State is seen
as a traitor and vilified for their efforts of uncovering the truth.
Efforts over the decades have been countered by the State and
1092/2002; SC. Appeal No. 19/2003; SC 01/2016)
12 Fundamental rights applications are presently before the Supreme Court
challenging the presidential pardon in this matter (SC FR 105 & 101/2020). See,
interview with Mr. Ratnavale & the chapter authored by Kushmila Ranasinghe,
“Dystrophic Justice? A Comparative Analysis of the Legal Proceedings Related
to the Bindunuwewa and Mirusuvil Massacres”
13 See the timeline in the publication for more information & the chapter
authored by Bhagya Samarakoon, “A Tale of Two Governments: An Overview
of the Lack of Will to prosecute in Several Emblematic Cases”
14 Emblematic cases are identified as cases that face multiple challenges in
the Sri Lankan criminal justice system. For more information, see, the timeline
in the publication & Bhavani Fonseka, ‘Emblematic Cases Expose the Long
Road to Justice in Sri Lanka’, (Just Security February 2021) <https://www.
justsecurity.org/74866/emblematic-cases-expose-the-long-road-to-justice-in-sri-lanka/>
accessed on 12 November 2022
14
nationalist forces who have used terms such as ‘sovereignty’,
‘threats to the motherland’ and ‘saving the war hero’ to push
back on efforts at accountability. These campaigns have had
an impact in creating confusion and apprehension among
the public, fuelling misconceptions that justice can threaten
Sri Lanka’s sovereignty and stability. What is often ignored or
misunderstood is the fact that accountability for past abuses can
address impunity and strengthen the rule of law. Unwillingness
to address accountability will continue to fester a climate where
alleged perpetrators feel their conduct is acceptable and they are
entitled to continue with their abusive practices, thus, legitimising
certain practices. In Sri Lanka, rather than facing accountability
for their actions, they were promoted to key decision-making
positions.
Such practices provided a fertile context for individuals to
operate above the law. It was also against this backdrop that
economic crimes occurred in Sri Lanka. The mismanagement
and policy incoherence of recent years and mounting reports
of economic crimes in Sri Lanka has exposed the democratic
backsliding that is due to authoritarian governance and impunity
in Sri Lanka. These also highlight the link impunity has with past
human rights abuses and economic crimes and why addressing
impunity through accountability and reforms can commence a
process of reckoning and rebuilding.
Present publication
The present publication examines several themes and cases
when looking at emblematic cases and setbacks with justice in
15
Sri Lanka. A common thread among the chapters is the varied
methods used to delay justice and deny past abuses.
Dr. Chulani Kodikara’s chapter discusses the long journey taken
by Sandya Ekneligoda in obtaining answers and justice for the
enforced disappearance of Prageeth Ekneligoda. It traces the
fate of the habeas corpus writ application filed in relation to the
disappearance of Prageeth Ekneligoda, journalist and cartoonist,
in January 2010, by his wife and two sons. The chapter shows
ways in which the criminal prosecution of agents of the State
can become a spectacle of both the working and unworking of
the rule of law in post-war Sri Lanka.
Next is an interview with Sandya Ekneligoda who shares her
experiences in the pursuit for truth and justice and the numerous
setbacks and challenges she, her family and lawyers have faced.
The interview speaks to the resilience of Sandya Ekneligoda
despite the setbacks and her determination to obtain the truth
and justice.
Amra Ismail’s chapter uses eight instances when journalists
were targeted for their professional work and the challenges in
obtaining justice that have entrenched impunity in Sri Lanka.
The chapter examines the reasons for impunity and steps that
can be taken to provide redress.
Bhagya Samarakoon examines how the Governments headed
by former President Mahinda Rajapaksa and former President
Maithripala Sirisena handled allegations of violations and
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its impact. The chapter discusses various tactics at play that
delay justice such as the manipulations of the court processes,
intimidation and harassment of witnesses and victims,
destruction of evidence being some of the factors that have
contributed to setbacks with justice.
The next chapter by Kushmila Ranasinghe looks at two
emblematic cases – the Bindunuwewa and Mirusuvil massacres
and identifies procedural and substantive legal issues which
led to the similarities and differences in the trajectories and
outcomes of these two cases. The chapter also examines the
role of the media and public perceptions with the massacres
and highlights the many setbacks that contribute to why justice
remains elusive.
Next is an interview with senior lawyer, Mr. Ratnavale that
provides a glimpse into the experiences of lawyers who appear
in the interest of victims and the multiple challenges in obtaining
justice. The interview examines several cases handled by Mr.
Ratnavale and team, and ongoing challenges in the criminal
justice system.
The chapter by Sarala Emmanuel, Amara and Saradhadevi
captures reflections of three women in Batticaloa who were
involved in supporting families whose children were abducted
or forcibly recruited by armed groups during the period 2002
– 2008. The chapter discusses the gendered experiences, State
complicity, challenges to accountability, and negotiations and
resistance from women. The paper also explores processes that
17
were important to keep movements and collective spaces going
to continue resistance to child recruitment, abduction, and
disappearance. Finally, the chapter reflects on accountability,
and the meaning of loss at the individual and community level,
and what a broader truth-seeking might look like, more than a
decade later.
The next chapter by Mirak Raheem explores the Embilipitiya
Case where several schoolboys were abducted and disappeared
by local actors and military, and the successful prosecution of
perpetrators. The cases discuss the many hurdles encountered
in the justice system, the possibilities and the limitations of the
judicial system with regards to addressing disappearances in Sri
Lanka and the pursuit in obtaining answers.
The publication contains several emblematic case notes that
speak to developments around these cases. These case notes are
meant to assist the reader to understand the process each case
has taken in the criminal justice system and the setbacks faced.
The case notes are complemented by a timeline of Sixteen (16)
emblematic cases that takes the reader by way of a timeline as to
key events around the respective cases.
Acknowledgements
The work on transitional justice in Sri Lanka and the pursuit
of truth and justice has spanned decades largely attributed
to the perseverance of a range of actors from victims, local
communities, civil society, lawyers, media, and many others. It
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is the relentless work of so many that has kept attention on
emblematic cases and the challenges faced in obtaining justice.
The present publication relied on the previous work done that
assisted in highlighting often long and challenging efforts at
justice. This publication would not be possible if not for the
tireless work of so many who worked on the cases in numerous
ways.
The publication is enriched by the contributions of all the
authors who have shown through their chapters the numerous
setbacks faced in obtaining justice in Sri Lanka. A big thank
you to all who patiently worked on their chapters despite the
unexpected developments in Sri Lanka including the upheaval
of an unprecedented crisis and related developments.
The publication builds on previous work done by the Centre
for Policy Alternatives (CPA) in highlighting the challenges that
contribute to a long list of emblematic cases and impunity in Sri
Lanka. Kushmila Ranasinghe and Bhagya Samarakoon provided
invaluable assistance with research and compiling the timeline
and case notes. Acknowledgements are also due to Senal
Senevirathne for assisting with copy editing the publication
and to Noopura Liyanage for formatting the document. This
publication would not have been possible if not for the support
from Dr. P. Saravanamuttu, Harshini Amarasinghe and other
colleagues at the CPA.
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List of Contributors
Sarala Emmanuel, Amara and Saradhadevi are volunteers
with the Batticaloa Peace Committee (BPC), an informal
collective of citizens, working for peace in Batticaloa, since the
1980s. Through the BPC and together with many community
members, they have supported collective actions for non-violent
resistance and supported the journey for truth and justice of
family members in the face of terrible human rights violations.
Bhavani Fonseka is a Senior Researcher and Attorney-at-Law
with the Centre for Policy Alternatives, with a focus on
research, national and international advocacy, and public interest
litigation. Her work has revolved around assisting victims and
affected populations across Sri Lanka, legal and policy reforms,
and public interest litigation (PIL). She is the editor of the book
Transitional Justice in Sri Lanka: Moving Beyond Promises. She
was an adviser to the Consultation Task Force appointed by
the Government of Sri Lanka in 2016 and a member of the
drafting committee to formulate the National Human Rights
Action Plan for Sri Lanka for the period 2017-2021. She has an
LLB (Hons.) (Bristol), LLM (Denver), and MPA (Harvard). She
was an Asia21 Fellow, Mason Fellow at the Harvard Kennedy
School, and an Eisenhower Fellow.
Amra Ismail graduated from the Faculty of Law, University
of Colombo with a Second-Class Honours (Upper Division)
20
degree and is an Attorney-at-Law. At present, she practices law
in the area of fundamental rights and is a part-time consultant
research assistant at Amnesty International. Previously, she was
a freelance journalist at Daily Mirror and reported on issues
pertaining to human rights, constitutional and legal reforms and
transitional justice. For her reporting in 2017, she received a
merit certificate for the Best Young Reporter of the Year from
the Sri Lanka Press Institute.
Dr. Chulani Kodikara is a feminist researcher and activist.
Her work explores women’s struggles for justice and equality
at the intersection of law, politics, and nationalism with a focus
on Sri Lanka. She is currently an ESRC Postdoctoral Research
Fellow at the Department of Social Anthropology, University
of Edinburgh. She is the author of Muslim Family Law in Sri
Lanka: Theory, Practice and Issues of Concern (1999/2011).
Mirak Raheem is a researcher and activist working on issues
of human rights and transitional justice, with a specific interest
in disappearances. Currently he is the Executive Director of the
Collective for Historical Dialogue and Memory, a specialised
institution working to interrogate, document and preserve
forgotten and neglected aspects of Sri Lanka’s complex past.
Previously he served as a commissioner on the Office on
Missing Persons, an independent state body mandated to
address the issue of disappearances (2018-2021). Prior to
that he served as a member of the Consultation Task Force
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on Reconciliation Mechanisms (CTF) in 2016, tasked to carry
out island-wide consultations to ascertain the public’s views
and recommendations on transitional justice. He obtained his
Undergraduate Degree in International Relations and History
from the London School of Economics and Political Sciences
(UK), and a Master’s Degree in Peace Studies from Notre Dame
University (USA).
Kushmila Ranasinghe holds a BSc. in International Relations
from the University of London, and an LL.B from the Faculty of
Law, University of Colombo. She is presently a Researcher with
the Centre for Policy Alternatives, where she has contributed to
several commentaries, reports and policy briefs on issues related
to governance, accountability, fundamental rights, and gender.
Bhagya Samarakoon is a researcher with the Centre
for Policy Alternatives and has engaged in research for
publications, advocacy activities, and public interest litigation
cases of the Centre for Policy Alternatives since 2021. She is an
Attorney-at-Law and holds an LLB (Hons.) from the University
of Colombo. She has been an Editorial Assistant to the Colombo
Law Review (2018) and won the Walter & Judith Pinto Gold
Medal for Public International Law in 2020 (Faculty of Law,
University of Colombo). She has previously published on the
rights of sexual minorities and on international humanitarian
law. Her main research interests are international law, rights of
marginalised groups, and transitional justice