An Exceptional Collapse of the Rule of Law: Told through stories by families of the disappeared in Sri Lanka ISBN 962-8161-06-7 Published by Asian Legal Resource Centre (ALRC) and Asian Human Rights Commission (AHRC) 19th floor, Go-Up Commercial Building 998 Canton Road, Kowloon, Hong Kong Tel: +(852) 2698 6339 Fax: +(852) 2698 6367 Email: [email protected] Website: www.alrc.net / www.ahrchk.net / www.disappearances.org and Families of the Disappeared 555 Colombo Road, Kurana – Katunayaka, Sri Lanka Tel: +(94) 314870308 Email: [email protected] October 2004 Researched by Moon Jeong-ho Bruce Van Voorhis Edited by Shyamali Puvimanasinghe Printed by Clear-Cut Publishing and Printing Co. B1, 15/F, Fortune Factory Building 40 Lee Chung Street, Chai Wan, Hong Kong CONTENTS vii Mass murder and Constitutional insanity Basil Fernando 1 The killers’ list The disappearance of S. A. Chaminda Luxman Senanayake 7 Body under the bridge The disappearance of Warnakulasuriya Arachige Don Peter Michael 11 Torture chamber at the law faculty The disappearance of B. Hemantha Ajith Chandrasiri 16 Gamini is no more The disappearance of Handunkutti Pathiranehalage Gamini Sugathasiri 23 Murderers among us The disappearance of A. G. Sudath Premasiri 28 Burning bodiew for a wedding service The disappearance of Herath Mudiyanselage Ranjith, Neil Chandraratna and D. G. Wijedasa 36 What we have lost is lost completely for a lifetime The Embilipitiya disappearances 61 Betrayed by a friend The disappearance of Girambe Gedara Samarasinghe 65 The ominous van without number plates The disappearance of Galapita Gedara Karunananda 68 Crying for justice The disappearance of Ajith Rohana Gunathilaka 72 Life is priceless The disappearance of Abeygoda Gedara Gunawardana 74 Broken promise The disappearance of J.H.A. Amarapala and Sunil Jayawardhana 76 The void that can never be filled The disappearance of M. Luxman Gunawardhana 78 Memories are unmade by these The disappearance of S.A. Samantha Kalyana Senanayake 80 Tormented over brother’s loss The disappearance of S.A. Leelarathna 83 Adding stigma to trauma The disappearance of W.P. Lalith Wijerathna and W.P. Ranjith Wijerathna 85 I lost hope… The disappearance of H.U. Biyal Somarathne 87 Footsteps for Josephine The disappearance of Shiranta Peris 89 An abrupt end to Amitha’s promising future The disappearance of Amitha Jayalath 91 Corpse on display for 24 hours The disappearance of Yaman Gedara Jayasooriya 94 To whom can we complain? The disappearance of Upul Nishantha Kumara 97 Amma, amma The disappearance of Urakote Gedara Janaka Saman Kumara Siriwardana and Urakote Gedara Chaminda Srinath Weerasinghe (Rev. Chandima) 100 The glitter and the gory The disappearance of Santha Kumara 102 A life is more precious than money The disappearance of Rajaguru Brakmanage Samannatha and Rajaguru Brakmanage Ananda Rajaguru 105 Tell-tale pair of shoes The disappearance of Lichchowi Nisanthe Weerasinghe 109 A bloody mistake The disappearance of Kammalarange Sitragedara Wasanthe Gamini Abewickrama 111 Danushka is not my brother! The disappearance of Kossinna Gamarallage Ranasinghe 115 I cannot believe anyone anymore The disappearance of Hettiwatte Gedara Sunil Rajarathna 117 The police had become stooges of the government The disappearance of Kiripitige Shelton Fernando 123 Disappeared, but still alive in their minds Moon Jeong-ho 128 The pain has not disappeared Bruce Van Voorhis 133 Photographs of the victims and their families Appendix 139 Asian Legal Resource Centre Proposal for UN to Study the Exceptional Collapse of Rule of Law in Sri Lanka 152 New York, 21 September 2004 – UN Secretary-General Kofi Annan’s address to the General Assembly 157 Enforced or involuntary disappearances in Sri Lanka 161 Disappearances in Sri Lanka 167 Draft International Convention on the Protection of All Persons from Forced Disappearance 187 Human Rights Committee finds Sri Lankan Government has Failed to provide an effective remedy for a family member of a disappeared vii Introduction Mass murder and constitutional insanity By Basil Fernando Oversimplified explanation Several attempts have been made to explain the large-scale disappearances that took place in the south of Sri Lanka from 1987 to 1991, conservatively estimated to have taken the lives of over thirty thousand persons, most killed after their arrest by the police or armed forces. While some explanations have been in the form of official reports of Commissions on forced disappearances, others have come from international agencies such as the UN Working Group on Enforced or Involuntary Disappearances. Individuals have also offered explanations via books and articles. Virtually all of these documents explain the disappearances as a consequence of a civil conflict, or ‘war’ between a group of insurgents known as the Janatha Vimukthi Peramuna (JVP, or Peoples’ Liberation Front) and the security forces. While this explanation is convenient, it fails to arrive at a proper analysis of the political situation that developed after the July 1977 elections, which continues to this very day. Some major changes took place in the political management of the country at this time. They were so far reaching that even today there seems to be a general consensus that the very nature of this political transformation need not be examined too deeply. viii Mass murder and constitutional insanity It began with an election victory of more than a two-thirds majority. The big victory was used as a mandate to completely overhaul the political system of the country and set in place the structures that would guarantee decades of violence far beyond anything envisaged by their instigators. Crazy constitutional experiment: Montesquiean vs. Bokassan models The Constitution promulgated in 1978 created a political system in which the Executive President became the core. This transformation resulted in a Bokassan model—a complete change from the broadly Montesquiean approach of the previous constitutions— which has not yet been subjected to serious examination. Dr. Colvin R. de Silva, the Constitutional Affairs Minister of the former regime, pointed this out immediately after Prime Minister Jayawardene transformed himself into Executive President in the same style as Jean-Bedel Bokassa, President of the Central African Republic from 1966 to 1979. Bokassa crowned himself Emperor in 1977, and renamed the country the Central African Empire. In his essay ‘New-Style President’, Dr. De Silva correctly observed that the example given by Bokassa was the source of the new-style President’s ideal for state control. The similarity between the two situations was not just in the manner of appointment but also in the very substance of the model for governance introduced into the country. The separation of government into executive, legislative and judicial branches remained only in name; the real power lay exclusively with the Executive President. Falsification about the French style The President’s party had secured an overwhelming majority in Parliament. Hardly any opposition to the transformation was possible there. But alarmingly, many legal luminaries joined in chorusing praise for the new Constitution. Political scientists energetically promoted it, saying that now there was a Constitution combining elements of the de Gaullean model with that of Westminster. They saw the Executive President as someone wearing nice clothes and Mass murder and constitutional insanity ix demonstrating the higher aspects of constitutionalism. Hence, the Bokassan face of the Executive Presidency became well disguised. Sri Lanka thereby fell into one of the most primitive forms of governance. With this radical transformation began the nightmares that would bedevil the country in the decades to come. Tragically, the nightmare political scenario has persisted to the present day. However, under the new system the absolute powers of the Executive President have depended on having a Parliament with a two-thirds majority to rubber-stamp whatever he or she wants. In 1977 this was possible, but as the years dragged on it became quite clear that it could not continue to be the case. The Executive President had to preoccupy himself in fighting and eliminating all those who could damage the position he had in Parliament. This also meant suppressing elements from within his own party, which he did through many unscrupulous methods, including obtaining undated resignation letters from members of parliament. He also had to suppress the major opposition, the Sri Lanka Freedom Party (SLFP), which was the next most - established political party. These attacks have been well recorded, and there is much documentation available on them. Need for violence As opposition deepened, the system required the extensive use of violence. Thus one of the most violent periods in Sri Lankan history began to develop. Yet, there was one difference in the Sri Lankan Executive President when compared to Bokassa: the latter declared himself lifetime ruler, whereas Jayawardene was not in a position to do this immediately. However, he clearly had this ambition and scheme. To achieve this end gradually, he had to maintain his party’s majority in parliament. For this purpose he deliberated a referendum in which the people were asked to extend the life of the parliament without an election, creating further confusion and resistance throughout the country. This step could only be taken if accompanied by widespread violence. For this purpose the ruling party itself was transformed into a physical fighting force, which spread into the remote corners of the country. The natural consequence was that anyone else who had x Mass murder and constitutional insanity political ambitions had to organise in a similar manner. The capacity for violence and counter-violence became the means for political organising in the country. The violence, then, was not accidental: when a political model that people have been accustomed to is abruptly transformed into some- thing completely different, its very survival depends on the possibility of maintaining a high state of confusion within which rational debate and rational settling of disputes becomes impossible.