Sri Lanka: court to rule on disappearance victims right to representation in Mannar

A court in northern Sri Lanka halted the judicial inquiry of the country’s largest mass grave, in order to decide on the family members of disappeared Tamils’ right to participate in the legal proceedings.

The Vavuniya high court judge, siding with the relatives of the disappeared, issued a two-week stay order on proceedings in the Mannar magistrate court over the mass grave discovered in Mannar town. In a revision application, counsel for the relatives of the disappeared petitioned the high court for a stay because the Mannar magistrate’s court had ruled earlier that since relatives of the disappeared were “fictitious persons,” their counsel lacked standing to represent them in court.

In his order Vavuniya High Court Judge R. Kannan said, “This court believes that there is a possibility that if exhibits exhumed from the grave are sent for testing without the petitioners’ representatives being present in court, it could affect the interests of the petitioners.”

In his ruling on March 10 March, Mannar Magistrate Manikkavasagar Ganesharajah had argued to the contrary: “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.” The victims he was referring to were relatives of the disappeared.

Ganesharajah however said in his ruling that the Office of Missing Persons (OMP) and the attorney general’s department had standing to appear in the matter.

In the revision application, counsel for the relatives of the disappeared named the OMP and the attorney general’s department as respondents.

Disputed dating of remains

The Mannar mass grave – the biggest in Sri Lanka, containing 332 bodies including 28 children – was discovered in June 2018 when builders were excavating land near the Sathosa wholesale cooperative offices in Mannar town, in north-western Sri Lanka. 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.

Six sets of the skeletal remains exhumed were sent for radiocarbon testing to a U.S. laboratory Beta Analytics. A report of the laboratory unsealed in the Mannar magistrate’s court in March 2019 dated the remains to a period between 1499 and 1719.

When proceedings resumed in March 2020, Ganesharajah gave a ruling on who had standing or right to represent interested parties in court. His ruling agreed with counsel appearing for the government who objected that attorneys representing the victims had no standing because according to the report by Beta Analytics the remains were 300 years old. Disputing this, the relatives of the disappeared filed a revision application in the Vavuniya high court.

In his order of 13 March, Kannan said that Ganesharajah’s ruling depriving the victims of representation in court was made under Chapter 30 of the code of criminal procedure (CPC), which said if there was no victim in an inquest of death, that person could not be represented in court. However, Kannan’s order continued, counsel for the victims had filed their case in the Mannar magistrate’s court not as a inquest of death under Chapter 30, but as under Section 124 of the CPC, which was on procedure to be adopted by the magistrate in an investigation.

Inquest or inquiry

Section 124 of the CPC states, “Every Magistrate to whom application is made in that behalf shall assist the conduct of an investigation by making and issuing appropriate orders and processes of court …”

“The question now is whether the action in the Mannar magistrate’s court is an inquest of death or an inquiry CPC’s Section 124,” writes Kannan.

In December 2018, investigators had concluded that the Mannar mass grave is the site of a crime scene.

Kannan approaches the issue by applying Section 41 (1) of the judicature act that states in a legal action any party, or anybody with standing or interest, or anyone who desires to have standing or interest in the action may be represented in court.

In his order Kannan’s continues that petitioners in the revision application were persons from the region or adjacent regions of the mass grave site whose relatives had disappeared. “On that basis, from the time they became aware that skeletal remains were being exhumed, they sought that their interests be represented in the investigation. Hence, they demand that they have a right to participate in the proceedings.”

The high court judge concluded that when lawyers appearing on behalf of the petitioners stated that exhibits associated with the case had not been examined fully, the court had to find out if the petitioners would need representation in court for their interests to be safeguarded.

Kannan concluded that since he was satisfied that a prima facie case to re-examine the ruling of the magistrate had been made in the revision application, proceedings in the Mannar magistrate’s court be suspended for the duration of the inquiry.

He also said that in keeping with the request of the petitioners he was granting them relief by ordering a two week stay.





Journalists for Democracy in Sri Lanka

  • JDS is the Sri Lankan partner organization of international media rights group, Reporters Without Borders (RSF). The launching of this website was made possible by the EU’s European Instrument for Democracy and Human Rights (EIDHR), of which Reporters Without Borders is a beneficiary.