Parents complain to CA of Govt’s failure to compensate for son’s disappearance

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 is 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 is under an obligation to provide adequate compensation to the family for the violation suffered by their son.

They cited Treasury Secretary Dr. P.B.Jayasundera, 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 Upaly Abeyrathne. The Court fixed the matter for 16 March for further submission of 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. Deputy Solicitor General Shavindra Fernando appeared for the respondents.

Petitioners’ son Thevarajah disappeared after abduction by members of the Army on 23 June, 1990 during military operations at a garage in Trincomalee where he was employed as a qualified motor mechanic after a training undergone at the Youth Services Council of Sri Lanka. Petitioners claim that the victim son was the only breadwinner of the entire family.

Aggrieved parents brought to the notice of the relevant government authorities, agencies and officials about 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 25 October, 1999 brought this to the notice of the UNHRC which concluded that -

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

(ii) the Commission therefore concludes that the Sate party is responsible for the disappearance of his son;

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

(iv) the State party has itself acknowledged that the arrest of his son was illegal and prohibited activity. Not only was there no legal basis for his arrest, there evidently was none 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 it 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 and whereabouts, the Commission considers that the petitioner and his wife are also victims of violation of Article 7 of the Covenant

Having noted that, by becoming a party to the Optional Protocol, the State party has recognised the competence of the said Commission to determine whether there has been a violation of the Covenant and pursuant to the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the right recognised 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 17 December 2008, however even thereafter, no step was taken by the State and Treasury Secretary to pay their compensation due the them, the petitioners alleged.