Journalist Eknaligoda case needs to be a landmark for justice

Last week the Colombo Permanent High Court Trial-at-Bar ordered to remand nine suspects who had previously been released on bail in the case concerning the enforced disappearance of journalist Prageeth Eknaligoda in 2010. They belong to the Military Intelligence Unit of the Sri Lanka Army and had been arrested during the Yahapalana administration.

Since President Gotabaya Rajapaksa assumed office in November 2019, cases concerning military personnel have been intentionally derailed or stalled. In this regard the order given by the Special High Court is welcome for those who still believe that the Sri Lankan judicial system can deliver accountability for cases concerning its military and law enforcement arms.

The Attorney General (AG) has charged these nine defendants with “kidnapping or abduction with intent secretly and wrongfully to confine Prageeth Eknaligoda in Girithale, Habarana and Kottawa on or around 25 January 2010 and the murder of the journalist.” Despite Sri Lanka signing on to the International Convention for the Protection of All Persons from Enforced Disappearance (UNCED) in 2016 and enacting domestic law ratifying this convention through the CED Act of 2018, to this date no one has been indicted for the crime of enforced disappearance. 

The AG’s indictment under the penal code provisions on kidnapping, abduction and murder does not recognise the separate and continuous crime of enforced disappearance which does not have statutes of limitations or legal requirements such as finding a dead body. According to international law, the crime of enforced disappearance is continuous if the individual remains ‘missing.’ The victims of this autonomous crime which include the families of the missing person have an explicit ‘right to truth’ which is not necessarily guaranteed to victims of kidnapping, abduction or murder. Even if these persons are presumed dead their families have a right to know the circumstances of their deaths and those responsible. 

Further the crime of enforced disappearance also acknowledges the role of the State in the crime. The crimes of kidnapping, abduction, holding to ransom, murder, etc., can be carried out with any individual, but the crime of enforced disappearance has a specific element of State involvement. Therefore, the lack of acknowledgement of the crime itself is problematic in this case concerning Eknaligoda. It has also not acknowledged the principle of chain of command and has not indicted those who ordered the crime rather than focusing only on those who carried out the crime.

Just as in the case of the killing of journalist Lasantha Wickrematunge and the assaults on Keith Noyahr, Upali Tennekoon, Namal Perera, Podala Jayantha and many other journalists where the military intelligence units are accused of the crime, the motive for such crimes and those who ordered the crimes are ignored. These were clearly politically motivated actions and the link to the political motive was through the then defence secretary and current president Gotabaya Rajapaksa. Ignoring this significant factor would only dilute the potency of justice. 

The magnitude of enforced disappearances is unprecedented in Sri Lanka. The country has the world’s second-highest number of cases registered with the United Nations Working Group on Enforced or Involuntary Disappearances. The Government’s own commissions of inquiry have registered over 46,000 disappearances in the south during the 87-89 period and 23,000 in the north and the east. A further 15,000 are estimated to have disappeared or extra judiciary killed in 1971. Sri Lanka must address this ugly legacy if it stands any chance of moving forward as a civilised nation. 

In this regard it is imperative that the State acknowledge the crime of enforced disappearance which is part of domestic law since 2018. It is also necessary to ensure the expeditious, transparent and independent conduct of judicial processes and bringing to justice all those responsible, including those higher up in the chain of command. The Prageeth Eknaligoda case with all its flaws, still can be a start to a long process of addressing a crime that has plagued this country for over 50 years and may offer some hope to prevent such State-sponsored crimes in the future.