The High Court of Vavuniya on 23rd February delivered order in the remaining three cases of writ of Habeas Corpus ordering the Respondents Sri Lankan Army to produce the Corpus in Court. The Corpus in the cases are the husbands of the three Petitioners. The petitioners alleged that their husbands had surrendered to the Army on the 18th of May 2009 the last phase of the war and that they are missing ever since presumed to be victims of enforced disappearance while in the custody and control of the Army.
Writ of Habeas Corpus is a remedy available to compel the body of a person who is illegally or improperly held in public or private custody and to discharge or deal with such person according to law. The Army Commander, the Commander of the 58th Brigade and the Commanding Officer of the Mullaitheevu Army Camp were cited as Respondents in the Petition.
The said applications were filed in the High Court of Vavuniya which directed the Magistrate Court of Mullaitheevu within which jurisdiction the incident happened, to hold inquiry into the matter and file report to the High Court. It took nine grueling years for the inquiry to be concluded and final verdict delivered.
In the course of the Inquiry the Petitioners testified of their sufferings and torments they underwent having been displaced and uprooted from their permanent dwellings in Kilinochchi due to the intensity of the war. Petitioners stated that aerial bombing and shelling targeting civilians brought heavy loss of lives, and that those attacks were carried out by the Sri Lankan military. Cross examined by the Deputy Solicitor General appearing for the Respondents, the Petitioners were emphatic that air attacks and bombing and shelling were carried out by the Sri Lankan military and not by the LTTE. In a desperate attempt to save their own lives, thousands of villagers trekked down towards safe areas and that they had to pass places such as Vattakkachchi, Tharmapuram, Viswamadu, Puliampokkanai, Ananthapuram, Suthanthirapuram, and finally to Mullivaikkal, resting for a few days in each place and on being attacked, moving to another location. Petitioners recounted that Suthanthirapuram was declared as No Fire Zone by handbill notices thrown from airplanes. However, when they reached the so called No Fire Zone, the civilians assembled there were bombarded by the Sri Lankan Air force wreaking havoc and killing numerous people. Finally they reached Mullivaikkal and were led into a narrow path wide enough only for one person to move, barbed wired on both sides finally leading into a vast area that looked recently cleared in order to accommodate large convergence of people.
Announcements were made in Tamil that every person who had been in LTTE even for a day should surrender and that they will be released after inquiry. Trusting the said announcements the families reconciled themselves to let their loved ones to surrender. There were thousands of people, amounting to few lakhs in number watching the surrender including some Christian priests facilitating the surrender. It is axiomatic that even the priests including Rev. Fr. Francis Joseph were among those enforced disappeared. Petitioners further stated in evidence that it was the last time that they saw their husbands who were led into and loaded CTB buses by the Sri Lankan military personnel.
Petitioners also stated in evidence that they complained to the Sri Lanka Human Rights Commission, ICRC, the Police and various NGOs and INGOs. They also gave evidence before the LLRC and the Maxwell Paranagama Presidential Commission on Enforced Disappeared Persons.
Major General Chanakya Gunawardena, the Commanding Officer of the 58th Brigade was called by the Attorney General to give evidence on behalf of the Sri Lankan Army. The Major General was the only witness tendered by the Army to represent the position of the Respondents and to counter the claims of the Petitioners. He denied that any person was arrested or detained. However, in cross examination the witnesses admitted that there were persons who surrendered to the Mullaitheevu Army on 17th, 18th and 19th May 2009 and that the military personnel manning the camp had a register of those surrendees. The Court ordered that the said Register be produced in Court. The witness Major General Chanakya Gunawardena however, produced only the Register prepared by the Commissioner General of Rehabilitation and blatantly defied the order made by the Court by failing to produce the Register which was prepared by the military at the time of actual surrender.
When the matter went back to the High Court of Vavuniya it was urged during submissions by the Petitioner’s Counsel that it was admitted on behalf of the Army that: a) There was in fact a Register with details of those who surrendered on 17th, 18th and 19th of May 2009 in Mullaitheevu Army Camp, b) The said Register was prepared by the military personnel at the spot, c) The Army witness thereafter failed to submit such Register to Court, d) The Register that was submitted to the Court was prepared by the Commissioner General of Rehabilitation and not by the Army.
Counsel further submitted that there was overwhelming evidence that the Corpus in all the cases were last seen in the custody and control of Sri Lanka Army. Parties made written submission in addition to the oral submissions.
Delivering the Order in the said cases, the Learned High Court Judge stated that the Court was satisfied on the evidence given by the Petitioners that the corpus had surrendered to the Sri Lanka Army represented by the Respondents and that therefore, the respondents are accountable to produce those who surrendered to them.
The High Court of Vavuniya issued the Writ of Habeas Corpus prayed for by the Petitioners directing the Respondents—Sri Lanka Army to produce the body of the corpus in Court on 22nd of March 2023.
K.S. Ratnavale with Ms. G. Ranitha and Mathunchala Ketheeswaran appeared for the Petitioners.
Senior State Counsel Abeywickrama appeared for the Respondents.
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