By Aruni Jayakody

 The Vavuniya High Court has upheld the rights of families of the missing and disappeared to be legally represented and participate in the investigation into the suspected gravesite at the Mannar Sathosa building. This is an important recognition of the rights of the families and the crucial role they play in advancing investigations into suspected gravesites.

Mannar case

Since March 2018, under the supervision of the Mannar Magistrate, an investigation has been underway into the suspected gravesite at the Sathosa building in Mannar Town, from which hundreds of skeletal remains have been recovered. From the outset at least three families of the disappeared participated and were legally represented in the proceedings.

In February 2019, radiocarbon dating of selected bone and teeth samples from the site revealed that they may be several centuries old. Upon receiving the results, the Mannar Magistrate issued a temporary order halting the excavations and requested that the investigation team submit a report providing an analysis of the excavated human remains, man-made finds, the results of the carbon dating and other court ordered tests.

However, a report has still not been submitted by the investigation team and the magistrate has not issued an order based on the findings of the investigation team.

A report from the investigation team containing an analysis of the complete evidence generated during the investigation is important because it ensures that any orders made by the magistrate are based on credible interpretations of the evidence.

In the Mannar case, it is particularly important as lawyers representing the families have challenged the conclusive nature of the carbon dating results – whether the samples that were sent for carbon dating were sufficiently representative of the entire site and if some of the man-made finds recovered from the site have been accurately interpreted.

In March 2020, the counsel for the Attorney General submitted that given the results of the carbon dating, the families of the disappeared do not have standing to appear in the investigation. The Mannar Magistrate accepted this submission and ruled that families do not have the right to participate in the investigation. In response the families had filed an application in revision to the Vavuniya High Court challenging the decision of the Mannar Magistrate. The Vavuniya High Court had issued a stay order halting the investigation until the matter of participation of the families was determined.

Decision of the Vavuniya High Court

The judgement of the Vavuniya High Court has not yet been released. According to media reports on February 22, 2022 the Vavuniya High Court rejected the order of the Mannar Magistrate and recognized that families of the disappeared were entitled to participate and be legally represented as per the Code of Criminal Procedure Act, the Judicature Act and the Assistance to and Protection of Victims of Crime and Witnesses Act. The Vavuniya High Court also lifted the stay order and ordered that the investigation continue and that a progress report be submitted to the court every two months. The court further ordered that in addition to the families, the public and the media should be permitted access to the site.

Significance of the decision

The decision of the court is significant in several respects. First, it underscores the crucial role the families of the disappeared play in advancing investigations into suspected gravesites. In most criminal investigations the identity of the victims and their family members is clear at the outset of an investigation. If a criminal investigation begins with a deceased victim, often the soft tissue of the person as well as their clothes and jewellery are intact, making the process of identifying the person more straightforward. However, in the context of investigations into suspected gravesites where the remains are unidentified, the identity of the victims or their family members are not clear at the outset. And unlike in ordinary investigations, progress cannot be made without the participation of the families.

In suspected gravesites the remains may be found completely skeletonized and mixed with other remains. In some investigations, including in the Mannar case, the volume of remains can be very high and may be discovered in built up areas next to roads and settlements, which can add to the level of complexity. To identify the remains, materials recovered from the gravesite must be compared with personal and biological information of the deceased victims. The families are often not only the best but also the only sources available to provide the relevant information to facilitate the identification of the remains.

Second, ensuring access to the investigation not just by families of the disappeared but also the public and members of the media can help to raise awareness and facilitate transparency to the investigation. Direct access can help to build the confidence of the families and the public of the willingness and ability of the state to conduct effective investigations.

Third, the decision could make an important contribution towards securing the right to truth of families of the disappeared. Under international law and the Enforced Disappearances Act (section 14(1)) families have a right to know the truth regarding what happened to their disappeared loved ones. Although the scope of the right under the Enforced Disappearances Act has not been interpreted yet, under international law the right to truth includes the right of families to know of the progress and to directly participate in an investigation. Given that investigations into human remains are always conducted before a magistrate, the only way families can be meaningfully informed of the progress of an investigation and participate is by being party to the proceedings.

Fourth, the participation of the families in investigations into suspected gravesites can contribute towards upholding the dignity of the dead and ensure the orderly return of the remains to the families. It can grant families the opportunity to mourn the dead and pay their respects in accordance with their religious and cultural traditions.

The recognition of the rights and the crucial role of the families is an important victory in the Mannar Sathosa case and it may be possible to invoke it to advance other investigations into suspected gravesites. There are several investigations into suspected gravesites that are ongoing and numerous others that have been laid aside. Through direct participation and their legal representatives families can revive these investigations, monitor their progress, present avenues for advancing the investigation and provide vital information that may assist the investigation. It may also be possible to cite the rights and the role of the families to advance investigations into suspected gravesites that have not yet been excavated. If the families believe that the remains of their missing or disappeared loved one are buried at a particular location, they may report such information to the police and participate in the investigation that assesses the site and determines whether an excavation is required.

Long road ahead

Although the recognition of the right to participate and be legally represented in the Mannar Sathosa investigation is an important milestone, a long road lies ahead to ensure that the investigation and others like it are successfully concluded. Sri Lanka has had limited success in identifying human remains excavated from suspected gravesites. This is in part owing to the gaps in the legal and policy framework governing suspected gravesites and challenges in how investigations are carried out in practice, for example, how the remains are recovered, analyzed and identified.

Record of identification is limited

In 1994, in the Embilipitya case, a gravesite containing the bodies of multiple victims was locate but the individual remains of victims were not identified. A few years later, in the Krishanthi Kumaraswamy case, the remains discovered at a gravesite were identified using dhobi marks. More recently, in high profile abduction investigations such as the Navy 11 and the Prageeth Ekneligoda cases, although charges have been levelled against those who may be criminally responsible, the fate of the victims and their whereabouts have not been established.

Gaps in the legal and policy framework

The legal and policy aspects of why we have failed to effectively investigate suspected gravesites have been documented by a range of state mechanisms over the past 25 years. In 1997, the Western Southern and Sabaragamuwa Commission in its final report concluded that “it would be undesirable to disinter mass graves until requisite skills exist” and recommended that a Human Identification Centre be set up with the help of foreign experts, including the UN.

In 2017, the Interim Report of the Consultation Task Force highlighted submissions by the College of Forensic Pathologists that also pointed to lack of forensic science skills, notably forensic anthropology among the Judicial Medical Officers (JMOs) mandated to examine human remains, as well as lack of resources and staff. The Interim Report summarized that “arbitrary procedures, lack of coordination between actors, lack of mandatory involvement of a consultant JMO (rather than the Magistrate) to oversee the process of investigation, lack of appropriate collection, recording and archiving of information related to missing persons and unidentified human remains by the police” as additional challenges. In 2018 in its Interim Reportand in 2020 in its Annual Report to Parliament  the Office on Missing Persons reported similar concerns regarding inconsistencies in the way human remains and other finds from a suspected gravesite are recovered, analyzed and stored, including how the chain of custody is secured. The concerns of Sri Lankan authorities have also been echoed by several UN human rights mechanisms.

Current investigations into human remains are carried out either as part of an inquest or a criminal investigation under the Code of Criminal Procedure Act. Under the Code of Criminal Procedure Act, there is an obligation to report human remains (section 21), for the state to establish the cause of death (section 370(1)) and where necessary carry out a criminal investigation (section 370(3)). These provisions provide little guidance on how to effectively carry out investigations into suspected gravesites. For example, there is no legal obligation to identify all unidentified human remains. Under the Enforced Disappearances Act (section 14(4)), an exception exists for deceased victims of enforced disappearances, in which case law enforcement authorities are required to identify and return the remains to the family; however, the remains in suspected gravesites could belong to victims of other crimes or natural disasters.

The Interim Report of the Consultation Task Force recommended that amendments be made to the Code of Criminal Procedure Act and that a new law be enacted to deal specifically with large scale suspected gravesites. A draft inquest law has been before the Ministry of Justice for several years, which sets out the standards and powers required for investigating suspected gravesites, including for large scale sites resulting from crimes and natural disasters. The draft law also calls for the development of Standard Operating Procedures on multiple aspects of investigations, including on methods of identifying human remains and procedures to be followed when communicating and returning the remains to families.

At the policy level, the Western Southern and Sabaragamuwa Commission recommended that information regarding suspected gravesites be collated. The Consultation Task Force recommended that such sites should be secured and that steps be adopted to improve the capacity to undertake forensic investigations, address staff shortages and improve coordination among relevant stakeholders.

Enacting these legal and policy reforms and ensuring their effective operationalization might only be possible over the long term. An immediate priority could be to support families of the missing and disappeared to meaningfully participate and reap the full benefits of their legal representation. Like the Mannar case, investigations into suspected gravesites are often lengthy, polarizing and can involve security and safety concerns.  Families require financial assistance to cover the logistics of participation and the costs of retaining legal representation. They also require psychosocial support and assistance to address any protection concerns. Moreover, families, their lawyers and other organizations that support the families must be equipped with minimum information regarding not just the legal framework governing an investigation, but also investigative methods and standards, so that their participation is meaningful. Having knowledge of what an investigation is supposed to look like can help families understand why certain steps are adopted and make recommendations regarding how best to carry out a forensic investigation in a manner that protects their interests and ensures their rights to truth and justice.

-This article was originally featured on groundviews.org