1. I am Sri Lankan and a registered attorney-at-law since 1980. I have also been a senior United Nations officer. I am also a writer and a poet.

2. At the moment I am the executive director of the Asian Legal Resource Centre (ALRC), which has general consultative status with the Economic and Social Council of the United Nations, and also the executive director of the Asian Human Rights Commission (AHRC), a regional human rights group based in Hong Kong.

3. I am making these submissions in my personal capacity as a Sri Lankan and officially on behalf of the ALRC and the AHRC.

4. I must, first of all, express my highest regard for your commission and the other two commissions for your priceless work on the investigation into the disappearances. I and my colleagues have thoroughly studied your reports. As result of the study we decided to start a web-site on disappearances, and its address is <www.disappearances.org>.

5. The ALRC and the AHRC have also made a submission to the United Nations Working Group on Enforced or Involuntary Disappearances requesting that State Sponsored Disappearances as a crime against humanity. These appeals have had widely been publicised in Sri Lanka and else where. They are attached with this submission as annexes, A1 and A2.

6. The particular submissions I wish to make in this instance are: (1) that a considerable number of disappearances recorded by you fall under the category of State-sponsored disappearances; and (2) that the absence of direct evidence of the actual events leading to each disappearance can be remedied.

7. As regard to the issue of political sponsorship of disappearances, findings recorded in the commissions' reports suffice to support that conclusion. Further legal recognition needs to be given to the fact that the 1982 referendum and the subsequent proscription of several political parties have a direct bearing on the events which led to the disappearances. Without any way entering into the arena of partisan politics, it is now possible for us to say that these events have been widely condemned in the country. These historical developments need to be taken into account in assessing the responsibility for the disappearances.

8. It is the issue of evidence that is of primary importance.

9. In the case of disappearances the problem is not one of absence of persons who were direct witnesses to acts leading to disappearances. The problem is that those persons well aware of the facts do not come forward to give evidence.

10. Some of the persons aware of the facts are:

(a) All police officers not below the rank of assistant superintendents regarding the authorisation of disposal of bodies granted by each of them under section 55ff of the Emergency Regulations. Such authorisation could have been granted only on a case-to-case basis. Therefore, each one of the authorizing persons is accountable for each authorisation granted under this regulation. If no such officer has authorised any of the disposal of bodies, such disposal would not fall under the relevant emergency regulations and therefore such disposal of bodies are in complete violation of the law.

(b) Officers-in-charge of police stations at the relevant time regarding disappearances in their relevant areas. They would have received information regarding all persons killed or disposed of in their police areas. They would be aware of circumstances under which such death or disposal of the body took place.

(c) All the police officers on duty at various police stations at the time.

(d) Officers-in-charge and all other officers attached to places of detention other than police stations.

(e) All others who belonged to the armed forces and were assigned to act as law enforcement officers at the relevant time.

(f) All members of parliament at the time regarding the disappearances that have taken place in their electorates and the circumstances under which such disappearances have taken place.

(g) All the village headmen regarding the disappearances which happened in their localities and circumstances under which such disappearances had taken place.

11. Under our law all persons aware of any crime is obliged to divulge such information. This will apply to State officers with much greater force. Thus, all officers mentioned above can be asked to make an statement under oath (by way of an affidavit, for example) of all the information they possess relating to disappearances and the circumstances under which such disappearances took place. Such a request can be made within the existing law. Such a request can be put forward by your commission directly. The request can also be done by the commission through the heads of the police and armed forces.

12. The State officers are under obligation to divulge information relating to their official duties or any information received in the course of performing such official duties. If any officer claims that such activities relating to disappearances did not fall within official duties, the obligation to divulge them would be greater.

13. Thus, I respectfully submit that the issue of evidence need to be dealt with not as an instance of absence of witnesses but as one where the evidence is deliberately withheld.

14. Your commission in its earlier report had made many valuable suggestions regarding the prosecution of offences. It is respectfully submitted that a very vital problem relating to the prosecution of disappearances is the absence of an investigator into these incidents. Under our criminal procedure it is the police who usually investigate crimes and prosecutions are conducted on the basis of statements recorded by them. The situation greatly differs from the American or even Australian situations where the district prosecutors play a greater role in supervising and guiding the investigations. I have not made any reference to the French practices as they are based on a system which differ greatly from the Sri Lankan system.

15. Any real attempt to prosecute the cases of disappearances must be accompanied by the creation of an office of investigation into the disappearances. Your commission's valuable work has necessarily to be limited to recording of names of persons who have disappeared and the circumstances under which such disappearances had taken place.. Without in any way undervaluing this great work, it may correctly be said that the commission's work does not constitute criminal investigation into the thousands of cases that have come before the three commissions.

16. A suggestion has been made by one of the commissions of the need to appoint a human rights prosecutor. However, the most important issue is not one of prosecution but one of investigations. Without investigations the prosecutions do not have a great chance of success. On the other hand, if proper investigation brings about sufficient evidence, it will be difficult to avoid prosecutions even under the existing prosecution system, which is through the attorney general. It is not a realistic expectation that the department of the attorney general will undertake the investigation of crimes. As the Sri Lankan practice usually separates the two functions - investigations and prosecutions - the need with regard to disappearances is for an independent investigators' office.

17. An independent investigators' office under proper leadership and with necessary resources is required if the prosecutions for disappearances are to become a reality. Such an office needs to be properly equipped with proper forensic expertise. Such expertise exists in the country, and further assistance may be obtained from outside sources.

18. May I further submit that it is not too late even now to begin such investigations. Modern forensic facilities provide tremendous possibilities for investigations even years after the incidents. The Holocaust investigations took over four decades, and investigations in Chile had taken 25 years and may be even longer. In Argentina it took less time due to the presence of a strong political will to achieve proper investigations and prosecutions. What is of importance is to make a proper beginning of a criminal investigation into all cases of disappearances. As the commissions have identified a large number of cases, the stage has now arrived for do such investigations.

19. I very much hope that your commission will make further recommendations with regard to the following matters:

(A). Compelling state officers to divulge information they posses on the all matters relating to disappearances under existing law and /or by making further statutory provisions for the purpose.

(B). The appointment an independent authority to conduct criminal investigations into all cases of disappearances.

May I thank you for this opportunity to place these submissions.

Thank you.

Faithfully yours,

Basil Fernando
Executive Director
Asian Legal Resource Centre

4 January 1999
Date of Submission