Questions of substantial justice arising out of the Bindunuwewa and Embilipitiya massacres and the continuing need to transform systems of accountability in Sri Lanka comprise the common thread of analysis in this Issue of the Review.

It publishes, in the first instance, the recent Supreme Court judgement on the massacre of twenty seven detainees (and the injuring of fourteen others) at the Bindunuwewa Rehabilitation Centre on 25th October 2000, which resulted in the acquittal of the villagers as well as the accused police officer on guard duty at that time.

The legal saga of the Bindunuwewa massacres commenced with the serving of indictments against thirty one local residents and ten police officers in March 2002 on a varying range of counts from belonging to an unlawful assembly with the common object of causing hurt to the detainees to murder and/or attempted murder in prosecution of the common object of the unlawful assembly.

Out of these, eighteen villagers (of whom nine were local residents) and nine police officers remained accused at the conclusion of the trial. The Trial-at-Bar convicted three villagers and two police officers.

Appealing to the Supreme Court thereafter, the convictions of the three villagers, (1st to 3rd accused-appellants) and the 4th accused-appellant police officer who was on guard duty at that time were set aside by a Divisional Bench. At an earlier stage of the appeal, the 5th accused-appellant police officer had been acquitted, on the application of the prosecution, of all the charges preferred, due to the insufficiency of evidence against him.

Unquestionably, the case points to differing judicial perspectives in regard to the application of facts as to what transpired at Bindunuwewa on the day in question as applied to the law of unlawful assembly in particular.

The two competing versions are further complicated by perspectives emerging from the report of the Presidential Commission of Inquiry appointed in March 2001 to inquire into the Bindunuwewa massacres which found grave dereliction of duty on the part of the seniormost police officers in charge at that time. These officers were not indicted in the consequent court proceedings with indictments being served only against their junior officers (the 4th and 5th accused).
In so far as the responsibility of the indicted accused police officer on guard duty at that time was concerned, the High Court had ruled him criminally responsible on the basis that he had the ability and the means by way of troops to control the situation, which he did not employ.

Judicial thinking in this regard appeared to be implicitly (though not explicitly) in consonance with Article 28 of the Rome Statute establishing the International Criminal Court in 1998 which impute responsibility where a commander either knew or should have known that such crimes were being committed by forces effectively under his or her command and failed to take all necessary and reasonable measures to prevent the commission of the crimes or to have them investigated.

In this instance however, while the senior officers had not been indicted, the factual position in respect of their more junior police officers present at the scene of the incident varied. Considering this evidence in setting aside the conviction, a Divisional Bench of the Supreme Court preferred the strict view that the insufficiency of evidence in respect of the illegal omissions or positive (illegal) acts on the part of the accused police officer precluded criminal liability.

The first paper by Alan Keenan contains a detailed and keenly argued critique of the prosecution strategy employed in the case as well as the judicial reasoning thereon both at the High Court and at the Supreme Court. His comprehensive analysis also covers the examination of the Report of the Presidential Commission of Inquiry and asks several devastatingly unanswered questions in regard to various stages in the legal process.

Following the Supreme Court acquittals, he calls for at the very minimum, disciplinary hearings to be held against the police officers responsible. He argues that in default thereof, the lack of the imposing of any sanctions of whatever kind would have serious impact on the historical responsibility of the Sri Lankan State in regard to what occurred at Bindunuwewa.

The second writer, Basil Fernando, posits the discussion within a broader framework of accountability for rights violations arising out of the conflict in the South as well as the North. Central to his analysis is the Embilipitiya massacre in the late 80s where forty eight Sinhalese school children were killed as well as the Binudunuwewa massacres.

He looks at issues common to both incidents through the eye glass of a father of a child who was ‘disappeared’ at Embilipitiya and who, upon being interviewed decades later, expresses the opinion that “the overall failures of accountability that made the Embilipitiya massacre possible definitely contributed to the massacre at Bindunuwewa”. Poignantly, this interviewee is convinced that this country has not changed much, and the circumstances that cruelly snatched his son still prevails, even more than fifteen years later.

Fernando contends in this context that, while it may be claimed that at least ‘some justice’ was achieved for the victims of the Embilipitiya massacres through the court, (as contrasted to the Bindunuwewa victims), this was only a pitiful measure of the substantial justice due as of right to them.

Essentially, he discounts the racial paradigms that to his mind, governs most of the discussions on accountability, arguing that to do so would cruelly alienate victims in the South who have suffered equally during the past decades of conflict, as well as render the discussions of limited value.

Instead, he pleads for a fundamental analysis of human rights abuses, which, while recognising the part that race plays as an aggravator of abuse, strives to find common answers to pervasive questions of accountability that are outstanding to all racial classes of victims in all parts of the country.

In the default thereof, he observes as follows;

Unless there is a system of justice that functions at least at basic levels of credibility, no political process can be transformed to deal with the basic issues of human rights abuses – regardless of whether the affected group is Sinhala, Tamil, Muslim or other. It means that a discourse purely based on the politics of ethnicity without reference to the functioning of the justice system and institutions cannot bring about a breakthrough in the tautological reasoning involved in such political discourses.

His warning aptly underlines the theme of this Review

Kishali Pinto-Jayawardena