‘A Sociological Exploration of Disappearances in Sri Lanka’ by Jane Thomson-Senanayake, reviewed by JESSICA FERNANDO

In the words of one of the family members of Sri Lanka’s disappeared, ‘We can’t open our mouths and tell you in words all that we have gone through.’ Over the past few decades there has been a discourse building on what happened to Sri Lanka, a country once considered an example for the region as a democracy functioning under the rule of law. How did the rule of law system collapse? How did disappearances become an established political tool?
Anybody interested in the country and willing to enter the necessary debate would be well-served by reading A Sociological Exploration of Disappearances in Sri Lanka by Jane Thomson-Senanayake .

In this book, an adapted doctoral thesis researching the period between 1971 and 2002, the author tracks the recent political history of Sri Lanka, including the establishment of its socio-political system based on patronage and how successive political regimes have subverted the legal institutions in the country, and illustrates key reasons for the Sri Lankan system’s state of collapse.

This book is an important contribution to the debate on Sri Lanka, both locally and internationally. One reason is that the author approaches Sri Lanka’s complicated political history with an even hand and provides an unflinching and fair narrative of history that even opposing parties can rely on. When dealing with disappearances, and the trauma suffered by an entire nation-state denied adequate redress, history has gone largely unwritten. As the author notes, even the knowledge of where some of the mass graves are will continue to die with local inhabitants.

Neither redress nor reform

In line with much of the current discourse, the author focuses on the underlying structure that facilitated the use of disappearances: ‘Under the pretext of nation building, the 1978 constitution created a virtual dictatorship by curtailing the independence of the judiciary, parliament and administrative apparatus in favour of executive interference.’ Further, ‘[u]nder the alternative state apparatus, death squads and paramilitary groups were empowered to carry out disappearances on behalf of their political masters. The entire state apparatus became complicit in the practice and its concealment.’

This study shows how a democracy that functioned under the rule of law was destroyed, as its framework of governance and governing institutions were undermined. One of the key institutions tracked is the police force.

The use of the police to commit disappearances has altered the functioning of the entire institution. Thomson-Senanayake shows how the 1971 emergency regulations changed the exercise of the powers of arrest, detention, and the possibility of obtaining bail. Police were given the power to arrest without a warrant. They were allowed to detain persons for 15 days without trial and had no duty to report that the detention was taking place. Orders for further detention were supposed to be signed off by a magistrate, but most were not. The safeguard against forced confessions was removed and statements made in police custody were made admissible in court as evidence. The writ of habeas corpus was suspended and the courts’ power to grant bail was removed. The lawfulness of a detention order issued by the Defence Minister could not be challenged in court. Through a fundamental abandonment of checks and balances, decisions about arrest, detention, and bail were removed from the purview of the courts and placed under executive control. Another power put into the hands of the police was the power to dispose of bodies, without adhering to any requirements under normal law; neither an independent inquest, nor the issuance of a death certificate or any other record of death was needed. There was no requirement to even record the identity of the deceased. The only legal requirement under the emergency regulations was to dispose of the body. The role of the magistracy was reduced to rubber-stamping. While the emergency regulations were later revoked, the change in the role of the police had taken place. As a result, in Sri Lanka nowadays, there is a common understanding about the real behavior of the police and the subservience of the judiciary. The idea of having investigations and a court settlement to disputes, affirming the legal rights of citizens, has virtually disappeared.

Through an analysis of the ways in which the legal system was undermined, the author sheds light on the abandonment of the concept of law enforcement. This study is part of a global paradigm shift in understanding violence in the lives of the poor. The Asian Human Rights Commission has written for decades about the collapse of legal institutions, a situation that leads to a state of complete insecurity for the citizenry and impunity for state perpetrators. Studies such as the Phantom Limb: Failing Judicial Institutions, Torture and Human Rights and Narrative of Justice in Sri Lanka , a compendium of 400 experience of police torture, show how these institutions actually function. There is a system operating in ways far different from that prescribed by law. Gary Haugen and Victor Boutros, in The Locust Effect , write about violence being facilitated by the lack of law enforcement. Haugen has stated that ensuring access to proper law enforcement should be part of the Millennium Development Goals.

These initiatives to study the collapse of the rule of law follow the legacy of such great works of global thought as The Gulag Archipelago by Aleksandr Solzhenitsyn in that they show, through cases and analysis, the structure of the underlying system of control used by the state against its citizenry. Arrest, detention, the use of force, and other key elements of law enforcement have changed from their technical, written, and legal meaning into tools of oppression.

By looking at how the governing institutions, including law enforcement and the judiciary, were thoroughly undermined by both ‘legal’ and extra-legal methods – through emergency regulations and the 1978 Constitution, as well as by the state ensuring complete impunity to state agents who committed disappearances and other atrocities – this study shows how violence has become an entrenched part of the Sri Lankan experience.
At no stage has there been an attempt to undo this damage – either through redress or reform – and, as a result, the possibility of reoccurrence is high. The ultimate problem left is the same as that which Solzhenitsyn pointed out: abysmal lawlessness.

In fact, rather than pursuing any attempt to improve the situation, the State has assumed a duty to protect the perpetrators. As torture and extrajudicial killings have become entrenched practices, the State has been protecting the perpetrators in order to protect itself. The State retains lawlessness for its own survival. There is no room for any kind of redress or protection for victims or witnesses. That is the real deadlock nobody seems to be able to break.

‘Not even a person, not even a word. No one said “go on.” There was no encouragement.’

In 87 excerpted interviews, family members of the disappeared speak about their crises. Many of them, especially young wives whose husbands were disappeared, have been exploited. Each of them has suffered symptoms of acute trauma. Some relatives, including many fathers of disappeared children, committed suicide. In 1995, Sri Lanka had the highest rate of suicide in the world.

One consequence of disappearances is the deprivation of the capacity to fully mourn the victim. The absence of the physical body means that the rituals of burial and almsgiving cannot be followed. The lack of proof of death keeps hope alive in the minds of the family members and accepting that their loved one has most likely been murdered can lead to feelings of guilt. Other members of their communities often fear associating with them in case they too are victimized.

As carefully explored by the book and illustrated in the following poem by Basil Fernando, the family members of the disappeared have not received redress and, in that absence, often turned to fortune-tellers or witchdoctors to ask about the fate of their loved ones.

Witch doctor’s joy

He died
He was killed
We know
But we pretend not to.

What is that?
We have heard
It is beautiful

As we have not seen it,
We do not know if that is true

It is wrong to forget,
And there is nothing
We can do even
If we remember

Except to light a candle
And tell God.

The witchdoctor awaits us
Of the dead one
Is the witchdoctor’s interest
All that is left?

Judges look away
When they see us.
Those who know us
Move away, looking down.

Only the witchdoctor
Awaits us with joy.

Jessica Fernando is a law graduate based in Hong Kong. She has been involved with the work of the Asian Human Rights Commission throughout her student career. Her research interests include constitutional law and criminal justice.