18 September, 2019

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Shifting The Burden Of Proof On The People

By AHRC –

The killings at Rathupaswela, Weliweriya have brought into sharp focus the crisis of the rule of law in Sri Lanka. The burden of proving the allegation of being killed or otherwise seriously injured by the actions of the military has now been shifted to the people. Meanwhile the people live in fear of reprisals due to being witnesses to these assaults by the military.

It is one of the basic principles that all crimes are crimes against the state. Whether these are crimes by civilians against civilians or state agents such as the police or military against civilians the burden of investigating and prosecuting the offenders lies with the state.

When the allegation is that the offenders are state agents then there is a greater burden on the state to have the allegations properly investigated and to bring the culprits before the courts as soon as possible. Regarding this basic obligation Sri Lanka seems to be the exception. The people themselves are left to prove the crimes committed by the state agents and at the same time they are being harassed and intimidated.

When the allegation is that the state agents engaged in killings and other crimes the state has its own agencies to investigate these matters. The methodologies of such investigations are well prescribed in both the military and police manuals.

Evidence of crimes committed in a military operation can easily be traced by following the prescribed procedures. Those who led the operation know what it was supposed to be about and the rules under which those who participated in the operation had to act. If there were violations it is the duty of those who led the operation to state what the violations were and thereafter to inquire from those who participated in the operation as to how these violations occurred.

It is one of the expectations from those who are state agents that they will reveal to their superiors whatever took place. If even this is not possible the very nature of the relationship between the state and those who conducted the operation and those who participated in it comes into question.

If the state cannot ensure that degree of discipline then it is the government leadership that must hold itself responsible to ensure that the state agents carry out their obligations.

However, what the above cartoon shows is that everything has been turned on its head in Sri Lanka and the people who were victimised are also being pushed to be their own investigators and the prosecutors of their cause.

 *A Statement by the Asian Human Rights Commission

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Latest comments

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    We are left with the Barber Paradox”

    If a barber shaves all those who don’t shave themselves,
    who shaves the barber?

    Perhaps, in this case the UN can be the barber!

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    In other democratic countries,there are independent groups called Special Investigation Units appointed by parliament to probe the conduct of the armed services and police in instances where excessive/unlawful actions appear to have caused injury/distress to citizens.
    We need such Units.
    But our armed services and police have commited many human rights violations,even murder,since independence,and have got away with it.
    Thus there is a climate of impunity among them.
    Politicians depend on them for survival.
    The Militarised State exists though unsaid.
    We have the only army which does not have even Military Policemen.
    Army Courts Martial have been declared to be ‘like any other courts’ by the supreme court,in the case against Sarath Fonseka.
    We are unique in this respect too.

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    Bad joke on the victims and masses. But will they heed. Vote for the regime?

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    Following is seemed to be new to lanken authorities. I myself have met tamils that have just moved out nothern soils after the war. It was not to save their life, but for a better life – economic refugees.

    This man highlighted it below, as if it has been new source data.

    Anyway, silly enough to read this kind of statements from a secretary of defence

    ———————————————————————–

    Some considered missing given new identities, living abroad – Gotabhaya
    August 18, 2013, 10:20 pm

    article_image
    By Shamindra Ferdinando

    Some of those categorised as missing during the conflict were living under new identities abroad, Defence Secretary Gotabhaya Rajapaksa said yesterday.

    Rajapaksa said that Canada had deported a person categorised as missing during the war.

    Responding to a query, the Defence Secretary told The Island that the mother of the deportee had earlier claimed that she wasn’t aware of her son’s whereabouts since the conclusion of the conflict. According to the Defence Secretary, the deportee was wanted in connection with an ongoing court case.

    The Defence Secretary said that it wasn’t an isolated case. “A large number of people categorised as missing here are living in various countries. Some of them are wanted here on terrorism charges. Unfortunately, some foreign governments are not willing to cooperate with us.”

    Rajapaksa alleged that due to lax security, Sri Lankans seeking political asylum overseas had been able to obtain new passports under bogus names. There couldn’t be a better example than one-time JVP frontliner Premkumarumar Gunaratnam being issued with a new passport under a different name, the Defence Secretary said.

    He recalled that the Australian High Commission had acknowledged that the then missing Frontline Socialist Party (FSP) leader Premkumar Gunaratnam used an Australian passport (N 1016123) bearing the name, Noel Mudalige to return to Sri Lanka last September.

    Subsequent inquiries revealed that Mudalige had arrived at the Bandaranaike International Airport (BIA) on Sept. 4, 2011, after leaving Australia the previous day.

    The Defence Secretary also referred to the recent case involving a Sri Lankan wanted here in connection with bank fraud having a British identity.

    A British passport holder of Sri Lankan origin, Logeswaran Manimaran, 37, wanted by the Criminal Investigation Department (CID), for fraudulently withdrawing Rs. 32,871,000 from the Commercial Bank and the Hatton National Bank, was recently produced in Cardiff Magistrate’s court, Wales, under a different name. The British identified the suspect as Manimaran Sadasaramoorthy, 42, of Mitcham, Surrey. He was produced before Judge Martin Brown on July 10 for invading the Swalec stadium pitch during an ICC Champions Trophy match between Sri Lanka and India on June 20.

    The court appearance was made in the wake of Interpol issuing a red notice on behalf of the Sri Lankan government for his arrest. Interpol has identified the suspect as a one-time resident of Polikandy, Jaffna.

    The Defence Secretary alleged that some of those who managed to escape from Vavuniya hospital while receiving treatment under guard, too, had gone overseas. According to him, many LTTE cadres had exploited the chaotic situation at the Vavuniya hospital in the immediate aftermath of the conflict in May 2009 to escape. There could be some hardcore terrorists among the escapees, the official said, adding that Sri Lanka’s efforts to investigate those hiding abroad had failed.

    The Defence Secretary said that foreign governments hadn’t been cooperative, though Sri Lanka on numerous occasions sought their assistance to investigate cases of illegal immigrants.

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    This man on the picture should be compensated by president of the country. If this was the case on the west, for the physical damage he has faced on his face – he would be gotten lacks of Euros.

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    AHRC,

    The processes you enumerate are true for democracies. Sri Lanka is a ‘Thugocracy’. So please don’t waste your time.

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    If we were to follow AHRC’s logic, there would be no need for any investigation in the NE either, since by questioning the military we should be able to get the truth, right? No need to speak to victims and eye witnesses?

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