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| A mother at the hearing |
Brito Fernando
The Presidential Commission investigating
disappearances of persons in the Northern and Eastern Provinces during the
period 1990-2009 held the first public hearing in Kilinochchi district in
January 2014. Following the completion of the first phase of the public hearing
in Kilinochchi with approximately 150 cases, the second public hearing session
was held in the Jaffna district from 14th to the 17th February
2014. Similar to the case of Kilinochchi, this was regarded as the first phase
of the public hearing for the Jaffna district and more phases of such public
hearings will be held in near future for the district which is comprised of 4
geographical zones[1]. During this first
phase of the public hearing held in Jaffna district, total of 244 complainants
from 3 DS divisions were invited to provide testimonies. During the 4 days
hearing, while majority of the complaints were against the Sri Lanka Military,
complaints against EPDP, LTTE and Karuna group were also heard by the
Commission.
Tamil print media extensively captured the two notable complainants
who provided testimonies during the hearings held in the Jaffna district; while
the first day’s hearing began with the testimony from the wife of Mahendrarajah
alias ‘Rehan’, Head of the Medical wing of the LTTE, wife of Mr. Yogaratnam
Yogi appeared in front of the Commission on the 16th February 2014.
Day 1 (14th
February 2014):
Location: Divisional
Secretariat, Valikamam East (Kopay)
Number of Grama
Niladari divisions covered: 10[2]
Total number of
invitees: 66
Total number of
completed hearings: 48 (as per the staff member of the Commission) / 41 (as per
the observer from the civil society)
Day 2 (15th
February 2014):
Location: Divisional Secretariat, Chavakachcheri
Number of Grama
Niladari divisions covered: 13[3]
Total number of
invitees: 59
Total number of
completed hearings: 48 (as per the staff member of the Commission) / 41 (as per
the observer from the civil society)
Day 3 (16th
February 2014):
Location: District
Secretariat, Jaffna (Kachcheri)
Number of Grama
Niladari divisions covered: 4[4]
Total number of
invitees: 67
Total number of
completed hearings: 54
Day 4 (17th
February 2014):
Location: District
Secretariat, Jaffna (Kachcheri)
Number of Grama
Niladari divisions covered: 4[5]
Total number of
invitees: 52
Total number of
completed hearings: 26
General
observations:
1) Selection and communication process of the
cases appeared front of the Commission:
Similar to the
experiences in Kilinochchi, system of selecting these 244 complainants remains
unclear. According to a staff member of the Commission, as of the records on
the 17th February 2014, approximately 2000 – 3000 complaints from
Jaffna district have been registered with the Commission. Out of the 15 DS
divisions in the district, the 1st phase of the public hearing has
focused only on 3 DS divisions[6];
and among the total of 435 GN divisions of Jaffna district, the Commission has
selected the cases from 31 GN divisions.
However, not all the GN divisions belonging to these 3 DS divisions have
been completed; for e.g., out of 31 GN divisions of the Valikamam East (Kopay)
DS division, only 10 GN divisions have been mapped out; in addition, even
within the selected 10 GN divisions, not all the complainants who registered
their complaints before the 31st December 2014 have received the
official acknowledgement letter from the Commission and not those all who have
received the acknowledgement letters were selected for the hearing by the
Commission. Some of the family members have not received the invitation letters
on time which have ultimately prevented them from attending the public hearing.
It is also worthwhile exploring the reasons as to why those who were invited by
Commission, but yet did not attend the hearing; general assumption relates to
two concerns on this regard, either the invitation has not reached on time or
fear of any possible threats after submitting oral testimonies. In short, it is
very clear that not all the family members / relatives who have submitted their
complaints to the Commission have received the official acknowledgement
letters. Similar to the experiences in Kilinochchi, many families possessed
double acknowledgement letters which might be the outcome of the cases where
each family member has submitted the complaint on behalf of the same victim
though different modes which would have ultimately duplicated the complaints
made to the Commission.
2) Confusion over ‘New applications’:
During all 4 days
of the hearing, the Commission continued to categorize a set of individuals as
‘new applicants’; the message given to the public was that there were
approximately total of 750 cases were registered freshly during each day of the
hearing and these new complainants were immediately provided with an
acknowledgment letter and verbally informed that the Commission will
communicate to them later about the public hearing date for their cases.
However, as per the Civil Society observer, apart from approximately 25-30
complainants, all other individuals possessed the official acknowledgement
letters already though they did not have the specific invitation for the public
hearing. Hence, the official classification of ‘new applicants’ remains
contradicting; the data on this regard is as follows:
As per the staff member of the Commission
|
As per the Civil Society observer
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considered as
NEW applications
|
Those who
already posses the official acknowledgement letter, but did NOT possess the
invitation for the public hearing
|
Those who
registered their complaints for the FIRST time
|
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DAY 1
|
103
|
116
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No records
|
DAY 2
|
170
|
Approximately
169
|
Approximately 6
|
DAY 3
|
244
|
Approximately
251
|
Approximately 6
|
DAY 4
|
Not stated
|
Approximately
270
|
Approximately 8
|
3) Additional data verification:
All three
categories of attendees were requested to fill in a form by the Commission
(Annex 1); as the form was in English language, the staff members of the
commission, programme assistants, development officers and other staff members
of the relevant DS office assisted the family members in this process. The
reason quoted by one of the staff member of the Commission, was that this form
allows the families to provide further and very specific information regard to
the incident and or the victim which will enable the Commission to undertake
relevant follow-up actions in the future. This was the key record sheet along
with the individual supporting documents which was included in the individual’s
case file submitted to the Commissioners during the hearing and to the State
Counsels upon the completion of the oral testimony to the commission. Recalling the initial form issued by the
Commission last year in facilitating the submissions of complaints, one of the
key critic emerged was that under the question on the alleged perpetrators,
there was no specific option of ‘Military’ was stated on that form though
majority of the complaints were against the Military forces; however, in the
current form, question No 9 which tries to identify the perpetrators, do state
‘Army’ as well as an option to be selected by the complainants.
4) Nature of the allegations:
Based on the
total number testimonies provided (approximately 215) during the 4 days of the
public hearing, complaints have been made against the Sri Lankan Military
forces, Sri Lankan Navy, LTTE, EPDP and Karuna's group; some testimonies
indicated that the abductions were caused by ‘un-identified’ individuals as
well. Majority of the allegations were related to the abductions held in Jaffna
during 1996-1997 and 2006-2008 period while considerable number of cases
related to the last phase of war were also presented. Based on the most
accurate recordings of an observer representing the civil society, the
following statistics would provide a general idea in regard to the allegations
forwarded by the complainants:
5) Nature of the questions and Translation:
Despite the
individuality of the cases, the Commission continued to raise a standard set of
questions focusing on the basic details of the complainant and the relationship
to the victim, the date of the incident / disappearance of the victim, basic
information in regard to the actual incident caused the disappearance, and
finally almost all the cases ended up with questions related to current
economic status of the family. Of course, in some of the cases where the complainants
had concrete facts on the abduction / arrest, specific questions on the nearby
military camps, exact locations of arrest and the name of the officers who have
been met by the families were also raised and recorded by the Commission
members. Cases which had facts about the follow-up / search process were
undertaken by the family, were raised with specific questions about the
follow-up actions taken, including the name of the military commanders who have
been met by the family members during the follow-up process. Two of the common
questions were, ‘Did your Son / husband had any links to the LTTE? And ‘Did the
LTTE ask your child / husband to join the movement?’
Based on various
questions raised by the members of the Commission, the observers and some of
the family members expressed concern over the basic contextual knowledge of the
3 members of the Commission. On the other hand, some of the questions seems to
have agitated the individuals who provided testimonies; for e.g. after
clarifying the fact that during 2006 military was controlling the district and
the curfews are imposed by the military, the follow-up question was ‘How do you know military abducted your
Son?’; the way in which the complainants provided feedback to similar
questions indicated mixture disappointments and anger; probably, possibilities
are such that either the questions was simply raised as part of the routine
despite the fact that whether a specific question is relevant or not or the
commission wanted to get maximum information from the complainant with regard
to the suspected perpetrator. If it was the latter case, it would have been
more sensible if the questions were formed in a different manner. Commission has also shared a sample set of
detailed questions with the Legal Aid Commission suggesting that if necessary,
Legal officers also could use this set of questions as a guide (Annex 2).
Similar to the
experiences of Kilinochchi, the quality of the translation services still
remains as un-satisfied. Complainants found challenging to provide a
comprehensive testimony within a very short time as the Commission members and
Translators were rushing through the process. During the first day of the
hearing, most of the cases were given an average time of 20-30 minutes which became
approximately 10 minutes on the last day.
6) Role of the representatives from the AG
department:
The Attorney
General Department was represented by 2 State Counsels (Chamindha Athukorale
and Thushitha Mudalige) from 14th to 16th February 2014
and on the last day, only one State Counsel was presented. Each and every
complainants upon the completion of the testimony to the Commission were
directed to the State Counsels; as per the staff member of the Commission, the
key task of the State Counsel was to gain an in-depth understanding of the case
in order to provide relevant recommendations towards the each case and these
recommendations could vary from conducting further investigation to provision
of compensation based on the nature and facts of the case. As per the feedback
received from the legal officers of the Legal Aid Commission, the questions
raised by the State Counsel were repetitive of the questions asked by the
Commission. The motive of some questions raised by the State Counsels is
unclear; for e.g. ‘Do you have any
relatives residing in abroad?’ This particular question might have
different objectives, and one could be to understand the family’s requirement
for compensation. As per the observation, it seemed that the aim of the State Counsels were
not on finding possibilities of filing criminal charges over the alleged
perpetrators, instead, their questions revolved around trying to identify
persons who would were in need for compensation. However, 'further
investigation' was suggested in some of the cases. On the second day
of the hearing, which was held in Chavakachcheri, two complainants refused to
provide testimonies in public and have provided their oral testimonies in the
presence of just the members of the Commission and the translator. As per the
Legal officers of the Legal Aid Commission, the reason stated by these women
was very much linked their security, especially after the completion of the
oral testimonies as the allegations were against the EPDP: however, Tamil print
media reported that the reason behind this refusal was that these women were
planning to file Habeas Corpus application and hence they were reluctant to
present their case in the presence of the State Counsels.
7) Media:
Apart from the
Tamil media which was attending throughout the four days, Colombo based media
and Charles Haviland from BBC was presented on the first day of the hearing.
One of the reflection from the observers was linking the media presence and the
witness protection; while acknowledging the importance of holding an ‘Open
hearing’ with the presence of media in
addressing the concerns on transparency, concerns were also shared on the
potential of worsening the risks for the witnesses / families who provided
testimonies by publishing extreme sensitive information.
8) Reflections on the individuals who gave
testimonies:
Unlike the
experiences of Kilinochchi, where majority of the cases were related to last
phase of the war period, and hence, the time period of the missing remains 4 to
5 years, four days of the hearings in Jaffna witnessed many families and
relatives of the victims who have been missing for nearly two decades came
forward to provide testimonies on behalf of their family members / relatives.
Jaffna experienced the highest records of abductions during the period of
1996-99 (immediately after Jaffna district came under the control of Sri Lankan
Military) and during the period of 2006 – 2008 (with the formal end of the
Ceasefire agreement / closure of A9 highway on the 11th August 2011
and commencement of the last phase of the war). It was also noted majority of
the individuals who came to provide testimonies were ‘elderly’ women and the
approximate age would be above 50. Despite their current age and the contextual
challenges which would been have faced by them during the above said period in
searching for their loved ones, these elder women yet retained and remembered
all the relevant facts and were very clear in presenting their facts. There
were cases during which one complainant gave testimonies for two victims from
the same family. As predicted, while vast majority of the victims are males,
vast majority of the complainants who attend to provide testimonies were
females. Based on the most accurate recordings of an
observer representing the civil society, the following statistics would provide
a general idea in this regard:
Gender comparison
of the Victims of disappearances:
Gender comparison
of the family members/ Relatives provided testimonies:
9) Cases regarded as ‘out of the mandate’:
It was also
observed that few family members of the victims who were abducted in Colombo
too appeared front of the Commission to provide testimony. However, the
Commission did not undertake their testimonies quoting such cases are out of
the Commission’s mandate. Explanation was given that this particular Commission
is mandated to attend to the cases of the residents in the North and East
provinces and have been abducted / disappeared within the time frame of 10 June
1990 to 19 May 2009.
10)
Participation of the LAC and Civil Society
Legal officers
representing Legal Aid Commission were present during all four days of the
hearing at the official invitation of the Commission. The Legal officers mainly performed
the role of interpreters for both the State Counsels. However, during the
follow-up inquires undertaken by the State Counsel officials, where ever
needed, the Legal officers of the LAC were given freedom to raise additional
questions as well. On the last day of the hearings, LAC played a role to raise
more specific questions to the complainants separately aiming to undertake
follow-up actions and also tried to stall the rushed process as much as
possible.
11) Presence of the representatives of the
intelligence unit:
Immediately after
the commencement of the hearing on the first day, presence of the officers from
the intelligence unit was noticed within the premises. The presence of two
Military officers has been noticed on the second day hearing which was held in
Chavakachcheri along with the officers from the intelligence unit. It is also
pertinent to mention about the presence of Sri Lanka Telecom; as per the
commission, it was indicated that the task of the SLT was to record all the testimonies which will be transcribed later enabling
the relevant officials to conduct investigations: however, the behavior of an
individual who introduced himself as a staff of SLT remained suspicious.
12)
Additional information:
·
As per the information officer of the Commission, the
commission is in the process of launching an official website and in addition
he stated that the details of the next public hearing are not yet finalized.
·
At the end of the first day’s hearing, during the
media briefing, the respond given by the Chairman in regard to the protection
of complainants remains unsatisfied; the Chairman has basically stated that all
families are welcome to inform the Commission of any follow-up threats faced by
the families.
·
On the last day of the hearing, upon the completion
of the 17th case hearing, the Chairman excused himself from the rest
of the hearing quoting that he was unwell and need some rest.
·
Report by a group of civil society actors from North:
On the 18th
February 2014, approximately 300 families of the victims of the disappeared
residing in Kilinochchi have assembled at the District Secretariat,
Kilinochchi. As per the feedback provided by few women, on the 17th
February 2014, residences of these family members were visited either by a
Grama Niladari official or military personnel or officials who were in civil
dress requesting them to attend a meeting at the District Secretariat on the next
day. Families which have been given such instruction includes those who have
already provided testimonies to the Commission in Kilinochchi last month and
those who have not yet appeared front of the Commission yet. Based on the
telephone conversation with one of the women, it was said that, upon the
arrival at the DS office, as these families were not attended by any officials,
after a long wait, many have returned home though approximately 70 individuals
have continued to stay back who then have been taken to the Harmony centre in
Kilinochchi. Woman continued to state that, at the Harmony centre, military
officials have requested in a very subtle manner to apply for death
certificates. However, as per the
available information, so far none of the family members have moved forward on
this regard. The civil society group is currently following up with some of
these families to obtain further information.
While finalizing this
report, it was also informed that yesterday evening (18th February
2014), the military officials based in Chavakachcheri DS division has requested
the details of those who have provided testimonies to the Commission from few
of the Grama Niladari officials. No further information is available currently,
though this matter is currently being followed up by some civil society
actors.
- Right to Life Human Rights Center/ Families Of the Disappeared
[1] Valikamam, Thenmaratchi, Vadamaratchi & Islands
[2] Irupalai South / East, Kalviyankaadu, Kopay South / North / Centre,
Urmpirai North / West / South / East
[3] Maravanpulo, Chavakachcheri town / North, Sangaththanai, Kalvayal,
Nunanvi East / West / Centre, Maduil Nunanavil, Maduvil Centre / North / East,
Chandrapuram
[4] Jaffna Town East, Jaffna Town west, Navanthurai South, Navanthurai
North
[5] Columbuththurai West, Columbuththurai East, Chunduli South,
Chundukuli North
[6] Valikamam East (Kopay), Chavakachcheri & Jaffna