Why investigations into mass graves have failed so far

by Basil Fernando

Sri Lanka is a place where very many mass graves have been discovered.

The Chemmani and Matale mass graves 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 interest from local as well as international sources, the process has stopped. Reasons given for such stoppages are basically of a technical nature.

Close scrutiny

However, close scrutiny of these circumstances clearly indicate that there are far more serious obstacles to investigations into mass graves than those which are merely technical.

Those ‘obstacles’ are based on political considerations which should not be factors in inquiries about serious crimes which may possibly be involved in the secret burial of many human bodies in a mass grave.

Seemingly, the criminal justice system has allowed for measures to be approved by a government and carried out by law enforcement agencies which result in the creation of mass graves.

Thus, we need to uncover the political and legal measures that have gradually led to the protections being written into a criminal justice system in relation to arrests, interrogations and punishments for alleged offenders.

A close scrutiny is likely to reveal that the very political process that enabled the circumventing of the protections of individuals contained in a criminal justice system, also, later, prevents the proper inquiries into the mass graves.

There were many occasions at which large scale disappearances took place in Sri Lanka. For more details, see ‘ Phenomenon of disappearances in Sri Lanka’ by 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. The entire substance of the legal provisions was removed in Sri Lanka in order to enable the occurrence of enforced disappearances.

The protection of personal liberty, which is an absolute principle, was relativised in the name of ‘national security’ 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 covert arrests instead. ‘Abduction’ is a criminal offence in Sri Lanka.

However, security officers were legally allowed to secretly arrest and detain people – the very nature of the ‘arrest’ being no more than a clandestine abduction.

Covert

A security officer who thus covertly ‘arrests’ a person had no duty to justify his actions. 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 was extended to 48 hours. However, there is no possibility for ensuring any such production of persons before a Magistrate when the actual arrest is not admitted by the authorities. 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.

When the security agencies that make these arrests have the obligation to investigate, they must also keep records. Therefore, when a statement is taken or questioning conducted, there must be an official record. However, in instances when a covert ‘arrest’ is made, all the obligations for official records are suspended.

In that way the possibility of any judicial inquiry as to the legitimacy of what has taken place by way of interrogation is also removed.

Under normal law, only a judge has the power to declare a person guilty of an offence and to prescribe any punishment. But, when the aim of the ‘arrest’ is to commit an enforced disappearance, such powers are transmitted through security officers who are, in effect, given judicial functions and judicial powers. Such functions could be exercised without keeping any kind of official record.

Under the normal law, the manner in which a punishment prescribed by a judicial officer is to be carried out is also determined by legal provisions. If the death sentence is prescribed, the conduct of an execution is laid down by other laws and regulations. When security officers carry out a covert ‘death sentence’ which they themselves have prescribed, they are not under obligation to follow any legal procedures or to maintain a record.

When a death sentence is carried out by proper legal authorities they must 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.

However, when the security officers are to dispose of bodies they are under no obligation 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 of the suspects. However, when the security officers carry out covert 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.

Cheka

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, we have two jurisprudential positions. One is the fundamental principles of criminal justice where every interference into the liberty of a person has to be legally justified by the state. The opposite principle is that of the Cheka, where the state can authorise its agent to act without any reference to law.

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.

The 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.

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?

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.

Such escape is not possible because a criminal justice system cannot be restored to its former position 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. 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. 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.

We 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. Every mass grave is a symbol of the grave yard of criminal justice in Sri Lanka.