South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

By S.S.Selvanayagam

Parents of a disappeared youth (20) complained to the Court of Appeal against the impugned failure/refusal of the State and the Treasury Secretary to pay compensation in spite of the undertaking given by them.

Aggrieved parents S.Jegatheeswara Sharma and his wife Jessiammah in the Writ petition stated the government acknowledged that the United Nations Human Rights Commission (UNHRC) had found that the State party was under an obligation to provide the Petitioners with an effective remedy, including investigation into the disappearance of their son Thevarajah.

They also stated that the government acknowledged that the said Commission had found that the State party was under an obligation to provide adequate compensation to the family for the violation suffered by their son.

They cited Treasury Secretary Dr P.B. Jayasundara, External Affairs Ministry Secretary C.R. Jayasinghe and the Attorney General as Respondents. The Writ Application was taken up for support before the Bench comprising Justices Sathya Hettige (President) and Upali Abeyrathne. The Court fixed the matter for March 16 for further submissions by the Counsel for the Petitioners.

A.R. Surendran PC with Shantha Jayawardana, V.S.Ganesalingam, N. Kandeepan instructed by Eugine Mariampillai appeared for the Petitioners while Deputy Solicitor General Shavindra Fernando appeared for the Respondents.Petitioners’ son Thevarajah disappeared after abduction by members of the Army on June 23, 1990 during military operations from a garage in Trincomalee where he was employed as a qualified motor mechanic, after a training he underwent at the National Youth Services Council. Petitioners claimed that their son had been the breadwinner of the family.

Aggrieved parents brought to the notice of the relevant government authorities, agencies and officials, the said abduction and disappearance of their son and sought redress from them.

However, they did not receive any redress from any of them and the aggrieved father of the disappeared son on October 25, 1999 brought this to the notice of the UNHRC which concluded that

(i) The State had not denied that his son was abducted by an officer of Sri Lanka Army on June 23, 1990 and has remained unaccounted for since then;

(ii) The Commission therefore concludes that the State was responsible for the disappearance of his son;

(iii) His son was the victim of a violation of Article 7 of the International Convention on Civil and Political Rights (ICCPR);

(iv) The State has acknowledged that the arrest of his son was illegal and prohibited activity. Not only was there no legal basis for his arrest, there was no cause for the continuing detention. Such a gross violation of Article 9 of the Convention can never be justified. Clearly, in the present case, in the Commission’s opinion, the facts reveal a violation of Article 9 in its entirety;

(v) Moreover, noting the anguish and stress caused to the victim’s family by the disappearance of their son and by the continuing uncertainty concerning his fate, the Commission considers that the petitioner and his wife were also victims of violation of Article 7 of the Covenant

Having noted that, by becoming a party to the Optional Protocol, the State had recognized the competence of the said Commission to determine whether there had been a violation of the Covenant and pursuant to the Covenant, the State had undertaken to ensure to all individuals within its territory or subject to its jurisdiction the right recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Commission requested the State to communicate about the measures taken to give effect to the Commission’s findings, the petitioners stated.

Pursuant to the said undertaking given by the Government of Sri Lanka to the UNHRC, on the advice of the Attorney General, the Foreign Affairs Ministry Secretary referred the matter to the Human Rights Commission of Sri Lanka (HRCSL) to make recommendations with regard to the computation of payment of compensation and the quantum thereof, the Petitioners further stated.

Although the HRCSL recommended a total sum of Rs 3,888,000 as compensation to the Petitioners, the relevant authorities have directed the Petitioners to await the conclusion of the proceedings which was pending before Eastern Province High Court wherein Corporal Sarath Jayasinghe Perera had been prosecuted for abduction and causing the disappearance of their son.

The accused Sarath Jayasinghe Perera was found guilty and sentenced to seven years Rigorous Imprisonment by the High Court on December 17 of 2008, however no step had been taken thereafter by the State and Treasury Secretary to pay the compensation due to them, the Petitioners alleged.

Source: The Daily Mirror – 07.03.2011