By Ruwan Laknath Jayakody –

Ruwan Jayakody

They are phantoms and apparitions condemned to the Nacht und Nebel (night and fog) of memory – the disappeared, ceasing to exist as persons but existing as nonpersons or Orwellian unpersons, denied access to the human bondage of their flesh and blood, exiled to an erasure as a certificate of absence, a document issued as a face saving gesture by an apathetical Government to be clutched by needy hands for the purpose of establishing identification, to be used in order for the families of the disappeared ones to get things done: victims of disappearances which were forced, enforced, involuntary and unjustified. They are either among the dead, the bodies dumped, plonked and jailed in some memory hole of Mother Earth or the scattered remains and traces encountered along a vanishing trail providing sustenance to and for gluttonous scavengers, or if alive, as a habeas corpus, damned to a life of earthly hell, their bodies conditioned as a site of grotesque pastiche and hideous parody, the withered gaunt skin a dirty black emaciated wilt pockmarked by the scars of hate. In the case of those falling into the latter category, enduring violence, physical and psychological, rituals of cleansing at the hands of their captors or would be assassins, is and becomes merely a way of living and simply surviving. Such is the accursed lot of The Others who have been relegated to the lost and not been found.

Enforced disappearance constitutes the violation of the basic rights (fundamental and human) relating to life, liberty, personal security, health, legal personhood, the equal protection of the law, access to legal counsel, a fair trial, the presumption of innocence, the freedom from arbitrary arrest (including being taken into custody without being informed of the charge/s against one) and detention, and the freedom from torture, cruel, inhumane and degrading treatment and punishment.

In Sri Lanka, the missing persons including cases and complaints of enforced disappearances are in the five figure range and include cases which are being investigated, closed and concluded, resolved, unresolved, gone cold, under study due to the lack of clarification, unverifiable due to investigators running into a blank wall, discontinued (abandoned searches), where persons are presumed dead or declared dead in absentia, and historical cases, and elsewhere of the officially missing and unofficially missing, of illegally cremated bodies recovered from excavations and exhumations of mass graves, of corpses in unidentified, unmarked graves, of bodies whose whereabouts remain shrouded in uncertainty or are unknown, of persons incorrectly believed to be dead owing to being absent for a lengthy period or other such circumstances, staged disappearances, faked deaths and cases involving the fraudulent reportage of the missing, amongst others.

These incidents occurred during the brutal insurrections and the bloodier counterinsurgencies of the 1980s involving the then Governments and the Janatha Vimukthi Peramuna, the murderous three decade civil war and armed conflict and the terrorism of the Liberation Tigers of Tamil Eelam, and the post-war State sponsored terror of the authoritarian and totalitarian regime of the dictator, former President Mahinda Rajapaksa and the notoriously reliable killing machines in the form of the white van phenomenon masterminded by former Defence Secretary Gotabaya Rajapaksa and alleged extrajudicial activities including summary executions carried out by the State’s armed forces, the security establishment and forces, and the military (the Army, Navy, Air Force) and its personnel (soldiers including officials and heads), the intelligence agencies and services (and surveillance apparatuses), the Police including the secret Police (including custodial killings during interrogations and investigations), pro-Government paramilitary groups, State death squads, unofficial armed groups, agents of the Government, and the militants (the Tigers). Most recently, a former Navy Spokesman was arrested on charges of alleged involvement in the disappearance of several youths, the malefaction of enforced disappearance.

The International Convention for the Protection Of All Persons from Enforced Disappearance Bill is a piece of enabling legislation presented by the Government of Sri Lanka (GoSL) {Sri Lanka being a dualist country} to give effect to the obligations under the namesake International Convention which the incumbent GoSL acceded to, signed and ratified, thereby becoming a State Party to the said Convention. The Bill purports to ensure the right to justice of victims of enforced disappearances and also to provide reparation to such victims.

Offences recognized as coming within the scope of the Bill include enforced disappearance, wrongful confinement, kidnapping and abduction {all the offences mentioned here come under Section 3 of the Bill}, and aiding and abetting/conspiracy {Section 4 of the Bill}, all of which are crimes which according to the Bill apart from being non-bailable, grants the relevant law enforcement authorities the power to arrest suspects sans warrants and conduct investigations sans judicial permission obtained in prior {Section 5 of the Bill}, and are punishable upon conviction by the Colombo High Court or a High Court with the jurisdiction in the Western Province {Section 6 of the Bill} by way of a term of imprisonment (maximum 20 years), a fine (maximum Rs 1 million) and compensation (maximum Rs 0.5 million) {Sections 3 and 4 of the Bill}. Further, interference with and influencing an investigation, the latter also by means of the application of pressure; the intentional or unintentional failure on the part of officers responsible for the official register to record particulars in relation to the deprivation of liberty of a person; intentionally recording inaccurate information; the refusal to provide information; and the provision of inaccurate information, are all enshrined as offences under Section 17 of the Bill and are punishable by a term of imprisonment (maximum seven years) and a fine (maximum Rs 0.5 million).

Those who can be held liable under Section 3 of the Bill include public officers; anyone acting in an official capacity; anyone acting with State authorization, support and acquiescence; and superiors wielding effective authority and control over subordinates (interpreted as those possessing the power to issue orders and having the capacity to ensure compliance).

The acts committed or acts omitted for which they can be held liable for includes – arrest; detainment (kept in undisclosed locations including garages, basements, and clandestine detention camps and centres after forcibly being dragged, taken or spirited away, and includes ghost detainees languishing within secret prison systems); wrongful confinement; abduction; kidnapping; the deprivation of liberty; the refusal to acknowledge the specific acts mentioned herein; the concealment of the fate of a disappeared person; the failure to disclose or refusal to disclose or being unable to disclose by way of lacking a valid excuse, the whereabouts of a disappeared person; being in possession of clear knowledge of one’s subordinates committing or commissioning an offence under the Bill yet consciously disregarding information pertaining to such; “exercising effective responsibility for and control over activities” concerned with any enforced disappearance; and the failure “to take all necessary and reasonable measures” within the power of the superior “to prevent or repress the commission of an offence” “or to submit the matter to a law enforcement authority for investigation and prosecution”. On the question of the accountability of superiors, regardless of the differing standards of proof in civil or criminal cases and notwithstanding the availability of defences such as the plausible deniability of knowledge put forward on the part of superiors and elsewhere the observance of an Omerta or employing a policy or tactic of stonewalling, such does not undo the fact that the doctrine of command responsibility is applicable at all times even in the case of covert ops, and blanket immunity is not afforded to superiors in cases where they are allegedly involved in such.

Sections 8, 10, 11, 12 and 13 of the Bill deal with providing for extradition. Section 8 of the Bill calls on the GoSL to notify any Government of a Convention State or any party appearing on behalf of the said Government which makes a request from the GoSL for the extradition of a person accused or convicted of offences coming under Sections 3 and 4 of the Bill about measures taken with regard to prosecuting or extraditing.

Extradition generally involves a person against whom charges have been brought in one jurisdiction or a person who is convicted in one jurisdiction yet has not completed his/her punishment sentence, being physically transferred by authorities from one jurisdiction to another (between countries including Commonwealth and non-Commonwealth countries, countries which are State Parties to the Convention and countries with which the GoSL has entered into an agreement cum treaty under the provisions of the Bill) for the purpose of prosecution or punishment at the request of the latter (made by the latter seeking that extradition be granted).

For an example, if X who is a national of the country Y, commits an offence under the Bill (which happens to be the law in the country Y) whilst in the country Y and subsequently goes to the country Z or commits one of the said offences whilst in Z, the country Y may make an extradition request from the country Z seeking that X be extradited to Y from Z. In either scenario, regardless of whether X commits the offence in Z or not, if Z recognizes what X has committed as an offence in terms of the domestic law and international legal obligations of Z, then Z may either prosecute X in Z without extraditing X or extradite X to Y or elsewhere. Z may be a State Party to the Rome Statute recognizing the jurisdiction of the International Criminal Court (ICC) while Y may not, the latter is the case with Sri Lanka too. Even if Z is a State Party to the Rome Statute, it can hand over X to the said international tribunal for prosecution for crimes of aggression, crimes against humanity (the Rome Statute recognizes forced disappearance as a crime against humanity in the context where such acts are committed as part of an institutionalized engagement with or generalized practice of widespread or systematic attacks and repression directed at a civilian population and thus the statute of limitations too does not apply), genocide and war crimes, only in the event the jurisdiction is authorized by the United Nations Security Council. Will Sri Lankan citizens charged with committing or commissioning the offence of enforced disappearance be extradited overseas to a country which may be a Convention State or a State Party to the Rome Statute if such request be made by either of the latter – being the turn of the hunters to be hunted down? This remains to be seen.

Section 9(2) of the Bill allows for the Minister in charge of the subjects coming within the purview of this Bill to seek assistance in relation to investigations and prosecutions conducted into offences coming within the purview of the Bill from a State Party to the Convention. The said Subsection extends to obtaining evidence, recording statements, serving processes and conducting searches. The Mutual Assistance in Criminal Matters Act, No. 25 of 2002 is also applicable in this instance. Section 9(3) of the Bill places the granting of such assistance to a Convention country subject to any terms and conditions the Minister in charge of the portfolio deems necessary.

Meanwhile, Section 10 of the Bill seeks to expand the Extradition Law, No. 8 of 1977 to allow extradition in cases where offences recognized under the Bill are concerned and the country to which the individual is being extradited to is a Convention State with which Sri Lanka has prior extradition arrangements. Furthermore, Section 11 of the Bill holds that the Convention would be applicable in situations concerning Convention States with which Sri Lanka does not have existing extradition arrangements.    

Notwithstanding anything in the Extradition Law, No. 8 of 1977, if any party is accused of committing an offence under the provisions of the Bill or is convicted of an offence as per the Bill, such offences would however not be deemed as political offences which have any political character or a connection to a political offence or a political motive, Section 13 of the Bill holds. Section 7 of the said Extradition Law was subsequently amended as the Extradition (Amendment) Act, No. 48 of 1999. In the latter Act, Section 7(4)(b) holds that even if the offence on which the extradition arrangement between the GoSL and the treaty State making the request is based on, is not regarded as a political offence, such an exclusion or exemption does not extend to and include an offence of a political character as referenced in the 1977 text. However, as to what constitutes a political offence remains undefined within the scope of this proposed law and illustrations as to such in other jurisdictions are extremely contentious to say the least.

Elsewhere, only Section 18(1) of the Bill provides for an exception to extradition in the event there is reason to believe that the individual to be extradited is in imminent danger of becoming a victim of enforced disappearance. However, this clause can be deemed as wholly inadequate in relation to addressing the offence of extraordinary rendition which takes place sans due legal process.

It is commendable that as per Section 14(1) of the Bill, the right of the victims or relations of victims “to know the truth regarding the circumstances of an act of enforced disappearance”, the progress of the investigations, the results of the said investigations and ultimately the fate of the disappeared, is recognized.

Also laudable is Section 14(3) of the Bill which compels the law enforcement agencies to commence an investigation even if there is no formal complaint made to them. Further, as per Section 14(4) of the Bill, law enforcement must take all appropriate measures to search and locate the disappeared person, procure the release of the individual if s/he is placed or held in secret detention (according to Section 15 of the Bill being kept in secret detention constitutes an unlawful deprivation of liberty and a confinement sans consent in an unauthorized place of detention), and if the person in question is dead, locate the whereabouts of the remains and return them.

The right of access of relatives of anyone who has been deprived of liberty, which also extends to representatives of those deprived of liberty, attorneys-at-law and the Human Rights Commission of Sri Lanka (HRCSL) is provided for under Section 15 of the Bill along with “the compilation and maintenance of up-to-date official registers or records of” such persons containing essential particulars, which in turn have to be made available to any authority or institution authorized by law in relation to handling such matters. Under Section 16(2) of the Bill, the aforementioned parties including relatives, lawyers and the HRCSL are also to be protected from ill-treatment, intimidation (including threats) or sanction, when searching for information.

The Bill in Section 19 also provides for that information and data of a personal nature is to be used solely in the specific context of searching for a disappeared person, in criminal proceedings relating to offences under the Bill and in the exercise of the right to obtain reparations and further states that the said information and data shall not be collected, processed, transmitted, used, made available and stored in a manner that infringes upon the rights, the freedoms and the dignity of persons.

Regarding the appellate jurisdiction, while anyone with any legitimate interest in a matter coming under the purview of the Bill may invoke the jurisdiction of the High Court by way of a petition, anyone aggrieved by the relief or redress granted or direction or order made by the High Court, may appeal directly to the Supreme Court.

Of procedural aspects of the Bill, Section 18(3) reads, “The Minister may make regulations prescribing the criteria upon which a person may be expelled, returned, surrendered or extradited to another State.” Further, Section 21 of the Bill empowers the Minister to issue guidelines, and general or special directions, required for the implementation of the Convention’s principles and provisions. When taken in context {Sections 9(2), 9(3), 18(3) and 21}, the provisions of the Bill grant an excessively wide ambit to the Minister as opposed to vesting such in a legal authority which can instead be established and vested with powers including those of control, thereby reducing any propensity for abuse or bias on the part of an individual.

Plus, Section 22 of the Bill holds that regulations made by the Minister once gazetted would come into force even prior to eventual Parliamentary approval or disapproval and that in the case of disapproval by Parliament such would not have a prejudicial effect on anything done on the basis of the gazette in the aforementioned interim period between publication in the gazette and voting on the matter in Parliament. These provisions therefore need to be amended to allow for the gazetting of the regulations only following Parliamentary approval.

Finally, Section 23 of the Bill allows for the provisions of the Bill to prevail over any other written law in the event there is an inconsistency or conflict between this and other laws. This should not be the case and thus this clause too should be deleted. The Bill is also silent regarding the matter concerning the period to which the proposed law would be applicable, specifically whether there would be retrospective application. It is recommended that the proposed law should not have a retroactive effect and such offences of the past should be dealt with by way of the laws of the land existing at the time the alleged crimes took place.

The Bill can be reintroduced for debate and vote following the incorporation of the salient points of the analysis, the proposals and recommendations.