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Report: Presidential Commission of Inquiry into Disappearances: Public hearing in Jaffna, 14-17 Feb 2014

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 (14thFebruary 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 (15thFebruary 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 (16thFebruary 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 (17thFebruary 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
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
No records
Approximately 169
Approximately 6
Approximately 251
Approximately 6
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 18thFebruary 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 17thFebruary 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


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