By Basil Fernando –
“The victims of enforced disappearances have overall no faith in the justice system, prosecution services, the police or Armed Forces. The chronic pattern of impunity still exists in cases of enforced disappearance and sufficient efforts now need to be made to determine the fate or whereabouts of persons who have disappeared, to punish those responsible and to guarantee the right to the truth and reparation.” – [Preliminary Observations of the UN Working Group on Enforced or Involuntary Disappearances at the conclusion of its visit to Sri Lanka, November 2015]
The existence of a mass grave may come to the notice of the public by many different ways; a statement by a witness made during a court hearing – as in the case of Chemmani Mass Graves: discoveries of some scattered remains of bones by workers when digging a site for constructions purposes, as in the case of the Matale mass grave; or by surfacing of some remains of human bodies as a result of heavy rains or due to any other accidental reasons.
However, what happens after such a revelation does not depend on accidental reasons alone but on very objective factors such as the political will of the government in power in a particular time to uncover the mystery behind such surfacing of a mass grave with the view to ensure that the law is enforced irrespective of whatever political circumstances, the corporation of the law enforcement agencies to do their duties in the investigation into all the circumstances which has led to the making of such a mass grave with the view to prosecute the offenders, and the technical capacities that exists within a particular country to engage in a scientific inquiry into the discovery of the secrets contained in the materials that have been discovered from a mass grave and many other factors.
Sri Lanka is a place where very many mass graves have been discovered as shown in the illustration which mentions 22 sites where mass graves have been discovered. Since the publication of this map, few more places have been added to this list.
Chemmani Mass and the Matale mass grave are the only two instances in which some progress was made in terms of a judicial inquiry to discover their backgrounds, however even in those two instances after the beginning of some initial steps mainly due to expressions of public opinion from local as well as international sources, the entire process has been stopped. Many excuses have been given for such stoppages, which are basically of technical nature.
However, close scrutiny of these circumstances clearly indicate that there are far more serious objections to inquiries into mass graves than those which are merely technical. Those serious objections are based on political considerations which should not have entered into considerations relating to inquiries of those considerations about serious crimes which are possibly involved in the burial of many human bodies in a mass grave.
Thus there are more serious considerations for the failure to investigate into mass graves should be looked into from the perspectives of the nature of the criminal justice that exists in a particular country. Therefore, probing into a mass grave is in fact, scrutiny into the very nature of criminal justice which in the first place made the possibility of the creation of mass graves followed by a prolonged resistance to uncovering the truth which lies behind such mass graves.
When thus, a criminal justice system allows for measures to be approved by a government and carried out by law enforcement agencies, which result in the creation of mass graves. When very detailed micro studies are needed into the uncovering of political and legal measures that has gradually led to the protections written into a criminal justice system, in terms of arrest interrogations and carrying out punishments for alleged offenders. There is thus much more to be discovered, through studies in the legal process that enables the creation of mass graves, than what the remains of dead bodies and other materials that may be discovered in a mass grave.
A close scrutiny is likely to reveal that a very political process that made the possibilities for circumventing the protections of individuals contained in a criminal justice system that also later prevents the proper inquiries into the mass graves.
What this implies is that the study of the mass graves, must be considered only as a sub-branch, of the studies into enforced disappearances. What made a government directly or indirectly approve the removal of measures for the protection of individuals which are contained in any legitimate criminal justice system, in order to enable enforced disappearances of persons? This question is much wider than a study into merely a particular mass grave. The factors that enable the possibilities of enforced disappearances need to be studied in the first place when trying to understand what is in a mass grave and the reasons for serious obstacles being created for engaging in any real judicial and forensic inquiry into the remains that are found in a mass grave.
There were many occasions at which large scale disappearances took place in Sri Lanka, a rough sketch of such disappearances is indicated in the box given below: for more details please see Phenomenon of disappearances in Sri Lanka by Mr M C M Iqbal.
Under the law in Sri Lanka there are protections against suspects of crime given by way of constitutional guarantees as well as provisions of criminal procedure law. Article 13(1) of the Constitution forbids illegal arrest, Article 13(2), illegal detention, and Article 11 absolutely prohibits torture. The law relating to arrests was the same as the law in Britain which was succinctly summarised by the great British jurist, A V Dicey in the “Introduction to the study of the law of the constitution” (All Souls College, Oxford, 1885) as follows;
“The right to personal liberty as understood in England means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification. That anybody should suffer physical restrain is in England prima facie illegal and can be justified (speaking in very general terms) on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the Courts to stand his trial or because he has been duly convinced of some office and must suffer punishment for it. Now personal freedom in this sense of the term is secured in England by the strict maintenance of the principle that no man can be arrested or imprisoned except in due course of law i.e. (speaking again in very general terms indeed) under some legal warrant or authority and, what is of far more consequence, it is secured by the provisions of adequate legal means for the enforcement of this principle. These methods are twofold; namely, redress for unlawful arrest or imprisonment by means of a prosecution or an action, and deliverance from unlawful imprisonment by means of the writ of habeas corpus”. (Introduction to the study of the law of the Constitution, 10h edition, London, Macmillan, 1959, with an introduction by E C S Wade Q.C., pp. 207-08)
The entire substance of the legal provisions contained in the above quote was displaced in Sri Lanka in order to enable the occurrence of enforced disappearances.
The protection of personal liberty which is an absolute principle was relativized by creating the possibilities of withdrawal of a personal liberty at the hands of security personnel. In order to do this, one of the first steps was to replace the need for arrest under the legal provisions by allowing abductions instead. Thus a security official acting on behalf of the state was given the right to abduct. Abduction is a criminal offence in Sri Lanka. However, abductions by security officers under the pretext of the prevention of alleged terrorism was legalised.
A security officer who thus abducts a person had no duty to justify his actions. Thus the burden of proving legitimacy of an arrest by any person acting on behalf of the state was thus removed. Once the duty of justifying an arrest was virtually removed, there was no legal technique by which the state could supervise the legality or illegality of an arrest.
Thus what really took place by way of allowing abductions in the place of arrests was to legitimise arbitrary arrests.
Once the arrest could be made outside the law then the doors are closed to monitor the detentions of persons so ‘arrested’. In normal circumstances a person who is arrested needs to be produced before a court, within 24 hours which later extended to 48 hours. However, there is no possibility for ensuring any such production of persons before a Magistrate when the arrest is in fact denied. Thus in terms of arrests and detention the abducted person becomes a legal non-entity.
Under the normal law the purpose of arrest is to conduct investigations into an alleged crime. However, obligation for investigations is removed when the person is treated as a legal non-entity, and thus a person could be detained for whatever reason and no further investigations need to be conducted.
When the security agencies that makes these arrests have the obligation to investigate it is also expected to keep records of such investigations. Therefore, when a statement is taken it would be transmitted in writing and kept as an official record. Whatever questioning that is being conducted, and the answers that are given are also transmitted into writing and maintained as an official record. However, in the instances when an ‘arrest’ is made with the view to cause an enforced disappearance all the obligations for keeping official records are suspended. Thus, no record of what transpired since the ‘arrest’ would be available. In that way the possibility of any judicial inquiry as to the legitimacy of what has taken place by way of interrogation is also being removed.
Under normal law, deciding on the guilt of a person is entirely a judicial function. Only a judge has the power to declare a person guilty of an offence and to prescribe any punishment. However, all such powers are being transmitted through security officers when the aim of the ‘arrest’ is to commit an enforced disappearance. The security officers are thereby given judicial functions and judicial powers. What is more is that such functions could be exercised without keeping any kind of official record.
Under the normal law, even when a judicial officer exercises the right to judge on the guilt or innocence of a person such judicial officer is obligated to conduct the inquiry into the guilt or the innocence of the person by way of a fair trial . One of the basic rules of fair trial is that such a trial should be conducted in open court. Thus, the inquiry into the guilt or the innocence of the person is done with full transparency and the public have a right to watch such a trial. This way any kind of secrecy is denied even to a judicial officer who is conducting an inquiry into the guilt or the innocence of a person. However, when security officers are conducting the ‘trial’, they are allowed to do that in complete secrecy. Whatever that transpires will be known only to the victim and the security officers involved. In this way, security officers could exercise judicial powers without having any obligation to observe the legal procedures that even a judicial officer is expected to follow.
Under the normal law, the prescription of a punishment, is a function of a judicial officer and this function has also been conducted according to the limits laid down by the law. For example, a penal code or a particular statute creating a particular offence may also describe the maximum punishment that could be given for such an offence. However, when the security officers decide on the punishment they are powers are not limited by any law. They could decide on whatever the punishment in the way they think fit.
Under the normal law, the manner in which a punishment prescribed by a judicial officer is to be carried out is also determined by written legal provisions if the death sentence is prescribed by the judicial officer, the manner in which such an execution can be conducted is laid down by other laws and regulations. The prison authorities and the executioner merely follows those rules. Further every act that they conduct, is also recorded and such records are official records. The security officers that carries out a ‘death sentence’ which they themselves have prescribed are not under obligation to follow any legal procedures or to maintain a record of what they do and the manner in which they carry out their own orders to themselves.
Under the normal law, the state is obliged to provide for an appeal, on any decision of guilt and prescription of a punishment by a judicial officer and this appeal has to be heard also by judicial officers with higher powers and authorities. The appeal Court will examine the legitimacy of the judgment and also the appropriateness of the punishment prescribed. Such an appeal court has power to declare such a judgment wrong and to quash it if they come to the opinion that the judgement has violated the law or has prescribed punishments which are not proportionate to the particular crime alleged to have been committed. This appeal court will also maintain records so that a public record of their reasoning will be available for public scrutiny. However, when the security officers make ‘their judgements’ there is no such obligations. Their ‘judgment’ cannot be appealed against nor are they under obligation to keep any records.
When a death sentence is carried out by proper legal authorities they are thereafter, under obligation to follow the law and the rules regarding disposal of the body. Under normal circumstances the dead body is handed over to the family, of the deceased so that they could carry out whatever rituals they think fit before the disposal of the body. Either by way of burial or cremation. Thus the rights of the family members are being respected even when the state have decided on the capital punishment regarding a person. However, when the security officers are to dispose of bodies they are under no obligation to respect the rights of the family members and to hand over the body to the family for disposal.
Under the normal law, when arrests, interrogations and trials, are being conducted all who are involved are under an absolute obligation to prevent torture or ill-treatment on the suspects. It is an absolute prohibition, which is guaranteed by the constitution. Further, constitutional and penal laws have prescribed serious punishments for those who violate the prohibition against torture and ill treatment. However, when the security officers carry out ‘the arrests, interrogations and punishments’ themselves, they are not obliged to prevent the use of torture and ill treatment. In fact the secrecy with which they conduct their activities assures them that they could resort to any kind of torture and ill treatment.
Above is just a short description of the extent to which the basic laws of criminal justice are being completely violated when the state authorises enforced disappearances to take place. In fact at that point criminal justice ceases to exist. The state has taken upon itself the right to deal with the life and the liberty of a person without any justice. Justice is in fact made into a complete irrelevant consideration when the state through its security officers engages in the activities of conducting enforced disappearances.
Thus very clearly enforced disappearances mean a complete absence of justice.
The question that arises is as to whether the state can arrogate to itself any activity without at the same time subjecting itself to the requirement of serving laws and procedures relating to justice. Can the state under any circumstances declare that it considers justice as an irrelevant concept. The obvious answer is that the state is always under obligation to act justly.
Having considered how legal principles relating to criminal justice is completely displaced by way of enforced disappearances we may ask ourselves as to the principles of which the states act when it authorises causing of enforced disappearances?
Clearly when security officers are given the functions of being accusers, the investigators, judges, executioners and also disposers of the dead bodies, they are acting on the same principles by which the Russian secret police – the Cheka were authorised to act. Thus during the periods when enforced disappearances were allowed, those who engage in causing such enforced disappearances acted on the same principles as that of the Cheka. Thus investigations into enforced disappearances is nothing less than inquiries into similar activities as that of the Cheka.
Thus we have two philosophical and jurisprudential positions one is as prescribed by A V Dicey, above, the fundamental principles of criminal justice where every interference into the liberty of a person has to be legally justified by the state. On the assumption that if no such legal justification is possible, the state is acting illegally. The opposite principle is that of the Cheka, where the state can authorise its agent to act without any reference to law. The issue of legality is completely irrelevant when looked at from the ‘Cheka perspectives’.
In Sri Lanka the state on occasions when it authorised enforced disappearances opted to abandon its own criminal justice laws and in its stead, opted to act under the Cheka principles. It is this ominous transition that we are confronted with when studying the enforced disappearances in Sri Lanka.
It is from these considerations that one could expose the limitations of trying to look into enforced disappearances only from a technical perspective which is a perspective from which even international agencies have looked into the phenomenon of disappearances in Sri Lanka. Kind of recommendations that merely insist on the state following its laws and improving its technical capacities to investigate and prosecute enforced disappearances conveniently overlooks the fundamental shift in principles that Sri Lankan state opted to act upon on occasions when it authorised enforced disappearances.
Implications of the above considerations on investigations into mass graves
A simple question that arises when a mass grave is discovered in Sri Lanka, is as to whether it is possible to demand the Sri Lankan state to act within the framework of criminal justice in dealing with such a mass grave when in fact such a mass grave is likely to be a mere manifestation of a state policy which allowed the causing of enforced disappearances. Is it possible for a state to act on the basis of the principles of cheka on the one hand and investigate into the same incidents on the basis of criminal justice principles?
Thus the issue of one of a very fundamental nature, each mass grave raises this fundamental issue. Neither Sri Lankans nor the international community have been able to face this fundamental issue squarely.
The result of not wanting to face this fundamental issue is that of looking for an escape from facing this situation by considering the enforced disappearances as acts of some officers who acted against the law and against the wishes of the governments in power during the time when such occurrences took place. Thus the real circumstances under which such disappearances took place is being overlooked and another ‘reality’ is being created with the hope of rapidly forgetting these incidents with some excuse that something was done anyway.
However, such escape is not possible because a criminal justice system that was displaced in favour of following the principles similar to that of the Cheka, cannot be restored to its former position without facing up to the fundamental transformation that has taken place and without taking steps to abandon the Cheka approach and to replace it once again with a criminal justice approach.
There has not even been a discussion on that fundamental issue. Therefore, finding a solution is not possible when the problem that is to be resolved is itself acknowledged or understood. The result of continuing in this situation is to allow even the loss of memory of a criminal justice system that existed once. As the memory is, itself being lost there is lesser chance of taking any real initiative to restore the principles of criminal justice once again.
When mass graves are looked into as only a part of the overall problem of enforced disappearances then it is not difficult to understand why so much of obstacles are placed against any genuine investigations into a mass grave when it is discovered. The reactions to such discoveries is to find ways to suppress curiosity about the actual meaning of such a discovery and to sabotage all attempts at a proper investigation into such mass graves. It is this that happened in Chemmani and it is also that which was repeated when the Matale mass grave was discovered. Similar sabotage will continue into any other discoveries in the future.
If such responses of denial and sabotage is to be displaced the process of this displacement must begin with the attempt to understand how the basic criminal justice system of Sri Lanka was displaced with a system that follows similar principles as that of the Russian Cheka. This is the first necessary step if we are to come out with any meaningful response which would ultimately have the result of restoring the lost criminal justice system of Sri Lanka.
Every mass grave is a symbol of the grave yard of criminal justice in Sri Lanka.