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Vavuniya High Court rules families of the disapppeared have the right to legal representation in the exhumation proceedings

2022-02-22

The High Court of Vavuniya recently 22.02.2022 delivered land mark verdict that the Families of the Disappeared are entitled to participate and to have legal representation in the exhumation proceedings that are being held in the Magistrate Court of Mannar in respect of the Mass grave that was discovered at the Sathosa construction site in the heart of Mannar town in March 2018. The High Court Judge Manikkavasagar Elancheliyan declared “I make this pronouncement on the basis of the legal provisions enshrined in the Constitution of the Democratic Socialist Republic of Sri Lanka, the Code of Criminal Procedure,the Judicature Act and the Victims and Witness protection Act No 04 of 2015 which govern the right of citizens to legal representation in the realm of Criminal Law in the country.”

This case was a sequel to an Order made by the Magistrate of Mannar ruling that the Families of the Disappeared and other aggrieved parties are not entitled to participate in the excavation proceedings by themselves or through their lawyers. The said order was made after the State Counsel representing the Attorney General had submitted to Court that the C14 test Report by the Florida Laboratory on the samples taken from the skeletal remains had traced it to belong to a time period 600years past. It was contended by the State Counsel that on an incident purported to have happened 600 years ago, there cannot exist families who could claim that the bones belongs to their kinsmen. Against the said Order, three persons alleging that their family members were subjected to involuntary disappearance by Sri Lankan Military filed a Revision application in the High Court of Vavuniya.

Countering the said order of the Magistrate Court of Mannar, Counsel of the aggrieved parties submitted that the abovementioned report by Florida Laboratory the is not final and conclusive and that there are other segments in the same grave whose samples have yet to be taken. Counsel further submitted that certain articles and artifacts such as pieces of Jewelry, ornaments etc. of recent origin had been recovered from the mass grave. A biscuit packet wrapper belonging to the 1980’s was also found among the skeletal remains. Further a skeleton was found with both hands chained and manacled. Counsel charged that there was no transparency in the exercise of the exhumation as the JMO had prevented the public and the media from observing or reporting on the excavation activities at the site. This was done so that valuable evidence will be shut out in order to prevent blame being cast on Sri Lankan armed forces Counsel submitted.

In his order the High Court Judge observed that in any criminal court a party claiming any right is entitled to legal representation according to Section 41 of the Judicature Act. The Victims and Witness protection Act defines who a victim or aggrieved party is and therefore it is the untrammeled right of a citizen. The Learned High court Judge cited Bandaranayake VS.Jagathsena and Others reported in (1984) 2 SLR 397 which has finally settled the issue of an aggrieved party having the right of representation. Further he observed that the exhumation proceedings which has been stalled for nearly two years has to commence soon and therefore the stay order issued prevention the exhumation activities should be lifted.

Counsel representing the Office on Missing Person submitted that the Office on Missing Person entirely associates with the submissions made by the Counsel for the Petitioner and that the Office on Missing Person has been consistently taken the position that the aggrieved party in any proceeding has a right to be heard and to fully participate in the proceedings.

The learned High Court Judge gave the following orders and guidelines to be observed:

1. That the aggrieved parties have the right to be represented by lawyers and that Counsel for the aggrieved parties shall continue to appear in the proceedings.

2. Stay Order issued by the High Court of Vavuniya be vacated.

3. Public be allowed to observe work on the exhumation site. Ten persons selected by the Families of the Disappeared and the Office of Missing Persons (OMP) be permitted to observe the exhumation from 30 meters of the work done. 

4. The Magistrate of Mannar shall be entirely responsible for the operation and the Magistrate decision shall be final on any matter.