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This argument was the same one used in the late 1980s under the pretext of suppressing the activities of the Janatha Vimukthi Peramuna (People's Liberation Front), or JVP. The number of disappearances as a result of these "certain measures" has been officially listed at more than 30,000, with some observers claiming that the true number is even higher.
The extent to which detention in army camps can degenerate is demonstrated by the infamous case of the Embilpitiya schoolchildren, where 31 secondary school students disappeared inside the local military camp over a period of several months in 1989 and 1990 after being taken into custody due to a private complaint by a school principal. No documentary evidence was kept in the military records of these arrests and detentions, although the parents testified that their children were kept inside the detention centre for a considerable period of time.
Two emergency regulations that made large-scale disappearances possible at the time gave powers to law enforcement officers above a particular rank to dispose of dead bodies without any reference to any judicial authority and to detain people outside places of detention authorized under the normal law. By allowing these two emergency regulations, the government at the time gave a license to torture, carry out extrajudicial killings and dispose of bodies.
Such laws are a sinister ploy designed to allow activities which are otherwise illegal, such as torture and killing. In recent decades in many places around the world there have been many such sophisticated strategies to erase all legal responsibility for illegal arrests, detentions and anything that may follow thereafter. Implied in such a process is the right to arrest arbitrarily, detain without any safeguards and to erase any records relating to these matters.
The re-emergence of such a situation should be frightening to the citizens of a country which has seen such violent events in the past. Under the present circumstances, the emerging situation could be even worse, for the hysteria that has been generated over ethnic considerations could make any ethnic Tamil a vulnerable victim of this process.
Disappearances in the 1980s showed the entrenched habit in the country for people to write anonymous petitions against their rivals, with false information being one of the causes of the disappearance of many people, including children. From the total number of disappeared people in the South, about 15 percent were victims below the age of 19, according to the reports of various commissions on enforced disappearances. Furthermore, given the manner in which emergency regulations are now being used to arrest and detain political opponents, there is nothing to prevent these military camps from being used to suppress political dissent within the country. With prominent politicians already arrested, with more facing detention and senior journalists facing arrest or death threats, it would not be surprising if this were extended to many others with the expansion of emergency powers.
The psychological climate is such that raising a public outcry if such arrests, detentions and other violent acts occur would be an uphill task. The judicial process has become even more retarded in recent decades. In this environment, the possibility for families or others to seek an effective remedy through the courts is extremely limited.
Perhaps to appease public concern relating to the re-emergence of this traumatic experience in which the military enjoys police powers, the government engaged in some propaganda exercises on April 24 stating that the presidential instructions regarding the rights of the Human Rights Commission of Sri Lanka (HRCSL) relating to the detention of people should be respected by the police and the armed forces.
These instructions, issued on July 7, 2006, have no legal validity though, which is demonstrated by the fact that they did not prevent the increase of abductions and disappearances that occurred after their promulgation. The mere reiteration of such instructions is unlikely to have any effect, other than being a public relations exercise and an argument to appease the international community that some measures have been taken to dilute the rigor of these emergency regulations. What was not pointed out, however, is that the HRCSL does not have the capacity to intervene inside the military camps to monitor the treatment of those detained there.
Under these circumstances, the international community should exert pressure on the government to desist from granting police powers to the military that in the past have resulted in gross abuses of human rights, which, in reality, amounted to crimes against humanity under modern international law. Though the violent experiences of the late 1980s did not result in bringing Sri Lanka before international justice, it would certainly be very difficult for the country to avoid such a predicament if it happens again under the glaring publicity that modern communication systems have now made possible.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
