Legal Assistance

Journey towards truth seeking – Habeas Corpus (writ) applications

Since 2013, CHRD has been filing writ applications in various courts in the Northern province on behalf of the family members of the following names who had disappeared. The applications were filed in respect of families whose loved ones had disappeared during the final stages (May 2009) of the war when crossing over to the no fire zone from the battle zone.

The said families were brought from Vavuniya and Kilinochchi where their sons / husbands / next of kin had surrendered to the Sri Lankan army during the cross over and to this day their whereabouts are unknown.

A total of 24 writ applications were filed on behalf of surrendees of the final statges of the war. The petitioners cited the General Officer Commanding, Mullaithivu Sri Lankan Army and the Commander of the Sri Lankan Army as respondents in their applications claiming relief from the honourable Court for their family members taken captives by the Sri Lankan Army to be released.

These applications of habeas corpus were supported by attorneys-at-law K.S. Ratnavale, V. Puvitharan, Anton Punithanayagam, Mangaleshwary Shaker and T. Vinothan.

The incident occurred when the families were displaced from Kilinochchi due to heavy fighting between the government forces and the LTTE. When it was no longer possible for them to remain in the area during the final push by government forces the families decided to enter government controlled territory on May 17, 2009.

These families along with thousands of others approached Mullaithivu Army camp at night; public announcements were made by government forces, calling all LTTE cadres to surrender to security forces with promise to grant amnesty to all surrendees. Following this announcement, the men in the five families surrendered to Sri Lankan security forces along with several thousands of others in the presence of Rev. Fr. Francis Joseph on 18th May, 2009. The said Christian priest and three other priests who were facilitating the surrender between army officers and the families due to language barrier have also reportedly disappeared.

Complaints were made to ICRC, Sri Lanka Human Rights Commission and the police and military police, Defence Ministry etc., in this regard. However, the Sri Lankan government, the armed forces and the Ministry of Defence have consistently denied that the military were in anyway involved in the disappearance of persons in the last phase of the war including the surrendees. Gen. Sarath Fonseka, under whom the Sri Lankan forces concluded the war, had given an interview to the Sunday leader that he was aware that the LTTE surrendees who surrendered to the army holding white flags had been killed on orders from the top. The General however, retracted the statements he uttered in the interview in the Sunday Leader due to an uproar from the Southern electorate on the eve of the Presidential elections held in 2010 at which he was candidate.

It is apt to mention that the families of the victims have been receiving threats from anonymous persons asking them to withdraw the cases.

CHRD have also made submissions to the UN Working Group on Enforced and Involuntary Disappearances (UNWGEID) of the above cases as well as each every complaint received on disappearances.

On 17th February 2016, the Mullaitivu Magistrate M.S.M. Samzudeen ordered the commander of the 58 division of the Army to submit to the court before April 19, 2016 a list of LTTE cadres and others who surrendered to the security forces during the final stage of the war in the Wattuwakkal area in Mullaitivu. The Magistrate gave this order when the Habeas corpus case filed by the relatives of the surrendees was taken up for hearing. The commander of the 58 division informed the court that a list of those surrendered to the security forces was available at the Mullaitivu Camp. The case which was filed in the Vavuniya Court in 2013 was later transferred to the Mullaitivu Magistrates Court. Attorney R.S. Ratnavale appearing on behalf of the petitioners said this was the first time the government or the army made a statement of the surrender of LTTE cadres to the Mullaitivu Army Camp. The relatives of these surrendees had initially filed 13 cases in this connection at the Mullativu Court. Despite objection by the State counsel for the submission of the list, the Judge ordered to submit the list of surrendeees to court on April 19, 2016. After failing to submit a list on the said date, the General Officer Commanding (GOC) of the 58th Division of the Sri Lanka Army, Major General Chanakya Gunawardena, failed to show in court on May 21, 2016. Therefore, the case postponed to July 14 2016.

CHRD has been working on the traumatic issue of disappearance since 2000. In 2004, CHRD filed 45 habeas corpus cases at the Jaffna High Court on behalf of the disappeared in Navatkuli, Kaithady, Ariyalai, Pasaiyoor, Gurunagar of Jaffna peninsula. This was an outcome of a fact finding mission consisting of CHRD lawyers and OPFMD members that visited Jaffna in 2003, where 160 applications from families of the ‘disappeared’ during 1996/1997 were received. Initially our lawyer Mr. M. Remadious has filed 45 Habeas Corpus cases at the High Court Jaffna. All 45 cases were granted leave to proceed at the Jaffna and Chavakachchery High Court. It is apt to mention in 2007 the Magistrate of the Chavakachcheri Magistrate’s Court stated that there was substantial evidence to prove security forces were behind many enforced disappearances which took place in 1996 in the Jaffna Peninsula. Out of the 45, 24 persons were arrested on the same day being 19/7/1996 in a cordon and search operation conducted by Lt. Col. Duminda Kepetiwalane, who was at that time the Commander in Cahrge of the Navatkuli Army Camp.

The 45 habeas corpus the cases were transferred to the Anuradhapura High Court from the Jaffna High Court due to request made by the respondents. Initially first 23 cases were taken up and it is apt to mention, although transferring of cases proved advantageous for the respondents, families of the disappeared showed much interest and traveled to Anuradhapura despite the prevailing security situation. As only one respondent turned up for the hearing, the judge ordered to send notice to the others. Thereafter, remaining (24-45) cases were taken up and notices were sent to all the respondents. The phenomenal factor was that each case was given special attention and taken up individually. The cases were progressing well. A total of 22 cases were taken up on May 6, 2009 and remaining cases were taken up June 3, 2009 at the Anuradhapura High Court. Since the petitioners didn’t turn up, the case was dismissed in late 2010.

Families have not received any compensation and are no closer to learning the truth about their disappeared loved ones.

For more information on CHRD’s work on disappearances please read Enforced Disappearance in Sri Lanka: Lessons from CHRD’s advocacy