Random thoughts on Embilipitiya students' disappearances

by Justice P.H.K. Kulatilaka

I had glimpses of the unholy circumstances in which a large number of utterly helpless children who were still cradling in the warmth of the 'bringing forth and bringing up' process by their mothers had been abducted and made to disappear. The brutal human vultures should have known that the tenderness of the heart of a mother cannot be destroyed by causing the child to disappear.

One might query why ponder upon the happenings of the bygone days. These inhuman doings cannot be forgotten with a cynical sneer while those poor mothers, fathers, brothers and sisters of the children who were made to disappear are still languishing in pain of mind.

I along with my brother judge [now deceased] heard the appeal case relating to the student disappearance in Embilipitiya during the height of the Southern insurrection. I presided over the Criminal Division of the Court of Appeal then. The proceedings of the High Court ran up to 17,500 pages and judgement was contained in 1,750 pages.

A number of President Counsel, and Senior Counsel with their juniors appeared for the accused. A very Senior Human Rights Counsel appeared for the aggrieved persons. A team of State Counsel led by a prominent Dy. Solicitor General appeared for the Attorney General. They made 53 days of submissions.

One of the accused appellants was acquitted during the hearing. In respect of the others their convictions and sentences were affirmed and the appeal was dismissed. Leave to appeal application to the Supreme Court was refused.

Suriyakanda

While reading a review of the book titled Eliyakanda Torture Camp written by Rohita Munasinghe I was tempted by the reference to the mass grave digging on the mist clad summit of Suriyakanda which came to be dubbed as 'the Mountain of Death'. Exhumation was done at the behest of some MPs who were in the opposition then and the Chief Minister of the Western Province.

It read, 'The skeletal remains of over one dozen schoolboys from Embilipitiya Maha Vidyalaya, abducted, tortured, murdered and buried were found in a deep pit. Bootlaces used to truss up the victims were still there. The exhumation proved to be a tedious task. Dusk was falling with a thick blanket of the enveloping the mountain top'.

These findings speak to the most unusual and inexplicable circumstances under which the Embilipitiya students disappeared. The High Court record did not contain a reference to such skeletal productions. Even if such details were found it would not have any bearing on the decision of the case.

The gravest charges levelled against the accused at the High Court Trial was committing the acts of abduction or aiding and abetting to abduct 25 identified persons in Embilipitiya area in order that such persons may be murdered or may be disposed of to be put in danger of being murdered an offence punishable under section 355 read with section 113[b] and section 102 of the Penal Cide. [The emphasis is mine]. The High Court found the accused alleged of committing this offence guilty as charged.

Conscience

What was troubling my conscience then at the time I heard the appeal and even afterwards was as to why they were not indicted for committing murder. The proved evidence that convinced the learned trial court judge to find the accused guilty of the aforesaid charge would have enabled him to consider whether they were guilty of murder as well.

It is decided law now, the mere fact that the body of the murdered person [corpus delicti] has not been found is not a ground for refusing to convict the accused person of murder in view of the surrounding circumstances. Vide Law of Evidence of Ceylon by E.R.S.R. Coomaaraswamy, First edition page 7. A civic minded citizen might think whether there was no evidential burden as against a legal burden for the abductors to explain away what happened to the children they pocketed. The stark truth is that these innocent young ones never came back alive or dead to their beloved parents.

It may be that for very good reasons the prosecutors did not indict the accused for murder. It may be that because there was evidence that some students were seen inside the camp after they were abducted and the prosecutors did not have sufficient evidence which would have been either suppressed or lost owing to passage of time to establish charges of murder against a particular person or persons. So the perpetrators of the crime must be still at large. Anyhow that chapter had been closed and is only part of the crime history.

Victims

No one alleged or took up the position in the High Court or the Appellate Court that the victims had committed any act of terrorism or any criminal act against the government. They were not captured in confrontation with the armed forces. There were no complaints that any of the student victims had ordered boycotts, work stoppages and protests at gunpoint, not even pasting of posters against armed forces. The victims were grade 10,11 and grade 12 school boys. That is why this unfortunate episode should be singled out. It was unimaginable and weirdly.

Apparently there had been student unrest at Embilipitiya M.V over a love affair involving the son of the accused appellant principal and a girl studying in the same school. Students had been divided into two camps. Evidence was that the accused Principal had planned to get rid of trouble makers. That was the motive for the accused principal as alleged and proved by the prosecution.

What made the men in uniform to take orders from the principal [1st accused appellant], a laymen?

Prosecution

The prosecution version was that 'to achieve that end he got the support of men in uniform stationed at Sevena Camp situated very close by, about 200 yards away from the school'. There was no doubt that he was at the bottom of it.

It is pertinent to mention that of the accused appellants except the first accused appellant principal all the others were army men. What pricked my judicial mind was what persuaded these men in uniform to help this laymen accused principal to get rid of these innocent young ones. What was the motive that led them to abduct these innocent school boys and made them to disappear so that they never came back alive to their fold. Anyway the proof of a motive is not an ingredient of the crime.

Apparently, the man whom the men in uniform had been seeking to get orders was the accused principal. When one of the parents complained to the principal that his son was abducted the former had made a telephone call to someone saying ' Hello, Mr..did you go anywhere last night? Did you find the staff? Did you take the stuff to the beef stall? Did you bring....? I'll come to the camp in the evening'.[utterance made in Sinhala]. Right thinking readers will understand what was meant by these words. There had been occasions when the accused principal had threatened the students saying

'Do you want to get dumped at Tekka-kele' [said to be a jungle area in the Uda-walawe forest]. The accused principal proved to be a man of iron nerve.

To be continued