Missing persons’ families to observe Mannar mass grave exhumation

  • Vavuniya HC gives order overruling Mannar MC which denied permission

BY Buddhika Samaraweera

The Vavuniya High Court (HC) on 22 February delivered a verdict stating that the families of the disappeared are entitled to participate and have legal representation in the exhumation proceedings that are being held at the Mannar Magistrate’s Court (MC) in respect of the mass grave that was discovered at the Sathosa construction site in the Mannar Town in March 2018.

According to legal sources related to the case, the said order has been issued on the basis of the legal provisions enshrined in the Constitution, the Code of Criminal Procedure (CCP), the Judicature Act, and the Assistance to and Protection of Victims of Crime and Witnesses Act.

The sources also said that this case was a sequel to an order made by the Mannar magistrate ruling that the families of the disappeared and other aggrieved parties are not entitled to participate in the excavation proceedings by themselves or through their attorneys. “The said order was made after the State Counsel (SC) representing the Attorney General (AG) had submitted to the court that the C14 test report by a Florida (the US) laboratory on the samples taken from the skeletal remains had traced it to belong to a time period that was 600 years in the past. It was contended by the SC that in an incident purported to have taken place about 600 years ago, there cannot exist families who could claim that the bones belong to their kin. Against the said order, three persons, claiming that their family members were subjected to involuntary disappearance during the war period, filed a revision application in the High Court of Vavuniya,”  the sources told The Morning

Countering the said order of the Magistrate Court of Mannar, attorneys for the aggrieved parties had submitted that the above-mentioned report by the Florida laboratory was not final and conclusive, and that there were other segments in the same grave whose samples had not yet been taken. The attorneys had further submitted that certain articles and artefacts such as pieces of jewellery and ornaments of recent origin had been recovered from the said mass grave.

According to the sources, the Vavuniya High Court Judge had observed that in any criminal court, a party claiming any right is entitled to legal representation according to Section 41 of the Judicature Act. “The Assistance to and Protection of Victims of Crime and Witnesses Act defines who a victim or aggrieved party is and therefore it is the untrammelled right of a citizen. Further, he has observed that the exhumation proceedings which had been stalled for nearly two years has to commence soon, and that therefore, the stay order issued preventing the exhumation activities, should be lifted,” the sources added.

Meanwhile, the attorneys representing the Office on Missing Persons (OMP) had submitted that the OMP entirely associates with the submissions made by the attorneys for the petitioners and that the OMP had consistently taken the position that the aggrieved party in any proceeding has a right to be heard and to fully participate in the proceedings.

Among the orders and guidelines to be observed from those issued by the Vavuniya High Court are – that the aggrieved parties be allowed to be represented by their attorneys; that the stay order issued by the Vavuniya High Court, staying the proceedings of the Mannar Magistrate’s Court be vacated; that the public be allowed to observe work on the exhumation site; that 10 persons selected by the families of the disappeared and the OMP be permitted to observe the exhumation from 30 metres of the work that is being done; that all sectors such as the expert committees, the aggrieved parties, the State Counsel, and the Police Forensic Archaeology Department continue to perform their functions and participate as before; and that media personnel be allowed to cover and be permitted to collect information every 10 minutes during each hour of work. In addition, the Vavuniya High Court ordered the Mannar Magistrate’s Court to furnish a report on the progress made to the High Court, once every two months.