Sri Lanka judge denounces victims of disappearances as “fictitious persons”

A judge in Sri Lanka's war torn north has denied families of the disappeared in the Mannar mass grave case – the largest mass grave discovered in Sri Lanka – representation in court.

Mannar Magistrate Manikkawasakar Ganesharajah ruled Tuesday that counsel appearing for the victims in the case do not have a legal standing to do so. He however allowed the Office of Missing Persons (OMP) to stand in the dispute. The Attorney General’s Department is conducting the inquiry.

400 Habeas Corpus

In his ruling Ganesharajah said, “There is no locus standi either in criminal procedure or settled case law for attorneys appearing on behalf of fictitious persons called victims, who are staging politically-coloured theatrics on the platform of justice.”

More than 400 Habeas Corpus cases have been filed by relatives of the disappeared who strongly believe that their loved ones taken away by the military during the war are among those buried.

Counsel for the families of the disappeared, disputed the magistrate’s ruling. Speaking to the media, lawyer V. S. Niranjan, said, “Following the C14 dating of the skeletal remains – after the report was received – the Mannar magistrate said (lawyers) could not appear for fictitious persons.”

Indicating that the next stage of the Mannar mass grave legal process would preclude lawyers for the families of the disappeared Niranjan said, “Exhumations will take place on the 16th and 17th without the lawyers looking after the interests of the families of the disappeared.”

The mass grave – the second discovered in the Mannar District since the civil war came to an end – was uncovered in June 2018 when land near the Sathosa cooperative offices was being excavated by builders. 332 bodies were exhumed, including 28 children. Families of the disappeared who have formed the Association of the Relatives of the Disappeared with a presence in all eight districts in Sri Lanka’s Northern and Eastern provinces, fearing some of the remains might be of their disappeared loved ones, intervened in the legal process.

Disputed carbon dating

As questions emerged on the size of the grave and the appearance that some of the dead might have suffered trauma, six sets of skeletal remains were sent to the US laboratory Beta Analytics, for radiocarbon dating. The laboratory dated the remains to a period between 1499 and 1719.

Beta Analytics findings was rejected by an independent expert assisting the exhumation. Raj Somadeva, professor of forensic archaeology at the University of Keleniya, said that carbon 14 dating alone was insufficient to conclusively determine the date of the burial site. He is to issue a separate report analysing the soil and other materials found in the grave.

Attorneys for the victims also responded to the Beta Analytics report stating the radiocarbon dating of the skeletal remains was not the only one way to determine the age of the site. In a press statement released in March 2018 they said, “[t]here are several more tests, which may also have to be referred to experts for analysis and Report. Only on receipt of the reports of all such tests that any meaningful conclusion could be reached as to the age and position of such skeletal remains.”

When the Mannar courts resumed sittings on 11 February this year, it was noticed that the door of a room in the Mannar magistrate’s court where some of the exhumed materials were stored for safe keeping, was forced and windows open, leading to fears that there was an attempt to tamper with evidence.

While Ganesharajah has briefly explained the reasoning behind his order, there has been criticism that Sri Lankan judges do not care sufficiently for the victim. In her 2016 report on Sri Lanka, UN special rapporteur on the independence of judges and lawyers, Monica Pinto says, “Generally, judicial proceedings do not consider the victim, especially criminal proceedings. All judicial actors should have the victim in mind when working.”



Journalists for Democracy in Sri Lanka

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