Last Revised 12.6.19

In 2015,    the UN Human Rights Council in Geneva approved a Resolution titled   Promoting reconciliation, accountability and human rights in Sri Lanka”. (UNHRC Resolution 30/1). Sri Lanka’s     Yahapalana government supported the Resolution.   This Resolution included inter alia,  provisions  to establish an  Office  of Missing  Persons  and  an  Office  for  Reparations ,   to sign and ratify  the  International  Convention  for  the  Protection  of  All  Persons  from  Enforced Disappearance, This essay looks at these three provisions.

Pt 1 OFFICE ON MISSING PERSONS.

The Office on Missing Persons Act, No. 14 of 2016” was passed in Parliament on 12th August 2016. This Bill was not referred to Supreme Court. Instead it was rammed through Parliament, disregarding objections of the Joint Opposition.  It went through all three readings very quickly within just 40 minutes, amidst the shouts and protests of the Joint Opposition, said the media.

Mahinda Rajapaksa observed the government forcibly passed the Office of Missing Persons Bill after giving Parliament less than 40 minutes to debate it. The better part of that time was spent in arguing whether that Bill should be taken up for debate at all because the government had pledged not to take it up on that day. Sittings were suspended for a time, and the Opposition was deprived of its time to speak on the Bill.  The original plan was to have a two day debate and hold a vote at the end. This was not done. It was suggested that the House should go on debating till 9.30 p.m. This was rejected.

The Joint Opposition refused to accept the OMP Bill as properly passed saying it was passed against the Standing Orders of Parliament. Only a bill passed in accordance with the Standing Orders could be accepted as a proper piece of legislation.  Also, they said a Bill cannot be deemed to have been passed when more than half of the MPs were standing on the floor of the house. Even government MPs were not in their seats.  Government claims 2/3 majority for the Bill but is unable to state the number of votes, reported the media.  When asked at a press conference    whether he could reveal the number of votes the Minister concerned had side stepped the issue. 

Section 21 of the OMP Act empowered the OMP to receive funding from any source, local or foreign. This was amended on 22nd June 2017 by a unanimous vote in Parliament. This removed a key paragraph that had explicitly allowed the OMP to enter into independent financing arrangements with external sources.  OMP could have received funding from foreign governments, international NGOs and even from pro-LTTE Diaspora organization, using this, said critics. On the other hand, many victims groups and analysts saw   the amendment as seriously compromising the independence of the OMP because it would now be entirely dependent on the government for finances.

Nisha Biswal, Assistant Secretary of State for South and Central Asian Affairs, and Atul Keshap, US ambassador to Sri Lanka hailed the new Act. Biswal said it was a historical step in the pursuit of justice, reconciliation and accountability. National Peace Council issued a statement that the OMP bill was a good thing.

The OMP was to be run by a seven member Commission, whose names were decided by the 10-member Constitutional Council,  The OMP Act says that if the President fails to appoint members within 14 days of the Constitutional Council’s nominations, the nominees will be automatically appointed. President Sirisena therefore had no alternative but to appoint the persons recommended though he had his reservations about them. They were appointed for three years. The Chairman was Saliya Pieris, President’s Counsel. The Sri Lanka Treasury allocated Rs 1.3 billion in the 2017 Budget for its operations.

The salaries of the members of the Office would be determined by Parliament and will be paid out of the Consolidated Fund. Payments to the Chairman will include a monthly allowance of Rs 100,000, a monthly telephone allowance of Rs 10,000 and an official vehicle with a monthly quota of 225 litres of fuel. For the other members of the OMP, a monthly allowance of Rs 75,000, a monthly telephone allowance of Rs 8,000 and a monthly transport allowance of Rs 25,000 to a limit of 350 km or, a transport allowance of Rs 50,000 for a distance over and above 350 km, depending on the distance from the residence to the office, will be paid.

Critics did not greet the OMP Commissioners with admiration. All the ten members of the Constitutional Council are Yahapalanites and hence all members of the OMP are also Yahapalanites, observed Chandraprema. The danger in a lot like that exercising the powers vested in the OMP should be obvious, he said. Given the present composition of the OMP, can one even begin to imagine the implications this will have for the country, he added.

But Jehan Perera, National Peace Council, said the government needs to be commended for having established the OMP and for having appointed credible members to be its first commissioners. Apart from the former legal head of the army, the members include well respected human rights activists of long standing who have worked to uphold human rights in a non-partisan manner in the face of violations by successive governments.

The Act specified that members of the Office must be persons with previous experience in fact finding or investigation, human rights law, international humanitarian law. This meant that the appointees will for the most part be representatives of western funded NGOs, said critics. Looking at the people who have been appointed to the OMP that seems to be so, said Chandraprema. A howl of protest has already arisen in this regard.

Manohara de Silva pointed out that the seven appointed members could delegate the work to others who need not be even Sri Lankans. Foreigners can be appointed as officers and staff of the OMP as well.  OMP was free to establish committees, divisions or units and can delegate its power to them.

Dayan Jayatilleke     observed that OMPs were set up in Latin America for persons missing under military juntas. OMPs were also set up for mediation between governments and guerillas.  The situation in Sri Lanka is completely different. Sri Lanka is a democratic state with democratically elected government whose legitimate army fought a war strictly within its borders against a secessionist army and won an outright victory. Nowhere in Asia, in the aftermath of such a war has a mechanism such as the OMP been set up concluded Jayatilleke. This OMP must be viewed together with war crimes charges, hybrid courts, and purges of the armed forces as interlocking components of Resolution 30/1, said G.L.Pieris.

The ‘Missing Persons’ to be examined by the OMP were limited to those connected with armed conflict, political unrest and civil disturbances. Section 27 of the Act said, Unless the context otherwise requires, in this Act -missing person” is a person missing in connection with the conflict which took place in the Northern and Eastern Provinces or its aftermath, or is a members of the armed forces or police who is (ii) in connection with political unrest or civil disturbances; or (iii) as an enforced disappearance as defined in the International Convention on Protection of All Persons from Enforced Disappearances”.

The OMP Act equates terrorists and the armed force when it comes to ‘missing persons’, said critics. When this was pointed out, Jehan Perera maintained that ‘both are human beings and therefore have to be treated equally’. Palitha Senanayake comments. This was the type of thinking that these NGO’s with their propaganda attempted to instill in the ‘educated and international’ segment of the Sri Lanka society in the name of humanity, he said. This deranged thinking, treated the subversives who perpetrated crimes against humanity with kid gloves. 

The Office of Missing Persons (OMP) is no office” at all,   denounced critics.  OMP is a quasi judicial body just one step away from a fully fledged war crimes tribunal. It can receive statements, examine witnesses, issue summons and hold hearings.

 OMP can summon any person in Sri Lanka before it. Anyone who refuses to cooperate with the OMP will be treated as contempt of court and punished by the Court of Appeal as though it were an offence against the Court of Appeal.  OMP is equated with the Court of Appeal   for this purpose, observed critics.

An OMP officer can enter without warrant and investigate, day or night, any place of detention, police station, prison or any other place where a suspect is said to be detained, make inquiries and retain any documents or objects. Government bodies at all levels including the armed forces and intelligence services are mandatorily required to render fullest assistance to the OMP. All local authorities ranked below the OMP. Information gathered by the OMP can be referred to the relevant law enforcement or prosecuting authority.

 The OMP had great immunity. Nothing that the OMP does can be called into question by any Court of law except the Supreme Court under Articles 126 and 140 of the Constitution. However, as the OMP can withhold information under Section 15 of the Act, there will be no practical use in moving even the Supreme Court against the OMP said analysts.  The Official Secrets Act and the Right to Information Act will not apply to the work of the OMP, either.

All officers of the OMP, including those to assist it have been granted complete immunity from civil and criminal liability for any act or omission on their part or the contents of any report they may publish. No court, not even the Supreme Court can order any officer of the OMP to submit to courts any material communicated to him in confidence. Not even Supreme Court of Sri Lanka can penetrate this fog of secrecy, said G.L.Pieris 

The OMP is empowered to entertain complaints not only from relations and friends of missing persons but from any interested party, both local and foreign. Obviously, the pro-LTTE Diaspora organizations   will be heavily involved in the OMP, said Chandraprema. OMP can also initiate an inquiry on the basis of a secret complaint. This means that anyone can charge anyone else in secret at the OMP, observed analysts.

The OMP Act allows the OMP to admit as evidence any statement or material, disregarding all criteria laid down in the Evidence Ordinance. OMP can admit matters contrary to the Evidence Ordinance or matters considered inadmissible in civil or criminal proceedings. This is a gross travesty of natural justice, said G.L.Pieris. Disregarding the Evidence Ordinance will result in the safeguards available to any accused in this country being denied to those brought before the OMP. 

OMP can   arrive at ‘findings’ relating to serious crimes like abduction and murder without any of the routine safeguards available to suspects in ordinary courts. They can admit any kind of evidence in building up a story against a person which could cause serious damage to the reputation and career of that person. A person can be removed from the armed forces because a ‘case’ would have been built up against him in the OMP without safeguards of the Evidence Ordinance,

I do not think  Yahapalana or the OMP   has any intention of prosecuting anybody in Sri Lanka, they will get the information  and then prosecute abroad, because our government has agreed to universal jurisdiction, said  Manohara de Silva. Once the OMP makes an allegation against an individual in a report, a foreign country can ask for his extradition, to be either tried in that country or handed over to an international criminal tribunal for prosecution.

Lastly, if a person who is declared missing is found, the OMP need not announce the fact. If a missing persons is found, if he so wishes he can remain missing, as unless he agrees, his relatives will not be informed.  The missing person   may be hale and hearty and living abroad, observed critics.

 It was pointed out that the workload of OMP would reduce substantially in the event missing/dead persons are found to be alive. International organizations and the USA accused Sri Lanka army of killing Kathiravelu Thyapararajah in the second week of September 2009. On May 06, 2014, he was arrested by the Tamilnadu police in Dhanushkodi together with nine others, attempting to enter India without valid travel documents. Australia issued a new passport to Kumar Gunaratnam under the name Noel Mudalige. Jesuthasan Antonythasan, who was listed among the disappeared, starred in the film Dheepan” which won an award at Cannes film festival in 2015.

Here is further information on the validity of this ‘Disappeared’ data. The US State Department Country report on Human rights, 2007 gave a list of 335 disappeared.  Government of Sri Lanka  looked at this list and  found that 5 names had been duplicated, 6 had left the island, 4 were traced  and they included a couple who had eloped,  4 had died,  3  were under arrest. 6 were Sri Lanka security personnel who had been killed by a LTTE bomb. Their names had been altered to resemble Tamil names.  One disappeared person was actually an NGO.  106 cases listed in this document had not been reported to the police. The US embassy was asked to provide more information, which it did not do. 

The first meeting of the OMP and the relatives of the missing was arranged by an NGO, Families of the Disappeared”, of the Right to Life” movement.  Commissioners met with the family members of the disappeared.  The OMP thereafter held outreach sessions in Jaffna, Mannar Matara, Mullaitivu and Trincomalee in 2018.  These meetings followed a set pattern. The Commissioners first met with families of the disappeared, then they met with civil society organizations and activists working on disappearances.

The introductory meeting of the OMP in Jaffna was disrupted by protestors while the introductory meeting in Kilinochchi was entirely scuttled, reported Jehan Perera. The protestors in the North took the position that they had no confidence in the OMP and instead demanded an international investigation as the only way to secure truth and justice for the victims. They objected to the inclusion of a former Major General of the army among the seven members of the Commission. A battlefield commander of the Sri Lanka army would dominate the OMP and suppress the truth.

However, at the public meeting in Jaffna which was eventually held over the opposition of the protestors, it was revealed that this Commissioner, a former major general of the army, was the head of the division which pursued internal legal processes against delinquent army personnel. The Commissioner was a woman and was Tamil.  When they got to know this, the families of missing persons directed all their questions and hopes at her, said Jehan.

The OMP Commission issued an Interim Report in August 2018 after six months of work. Individuals suspected of having committed enforced disappearances and related offences are being permitted to remain in positions of power, said the report, especially within the armed forces and the police, where they can influence the progress of an investigation. There have been instances where members of the armed forces, who were willing to provide information on disappearances, were subject to harassment.

The OMP notes with concern that in at least one case, an officer of the armed forces who is a suspect in an on-going court case relating to abductions and enforced disappearances has neither been suspended nor removed from exercising the duties and functions of his office. It is reported in at least one case an officer has been granted a promotion within the armed forces, whilst the case against him is still pending. Such suspected officers should be suspended from exercising the duties and functions of their office, said the Interim report.

The most immediate issue the missing persons’ families are undergoing is the economic hardships.  This cannot wait until a final reparations scheme is devised, said the OMP.  OMP proposes a debt-relief programme, housing development programme, educational support programme, vocational training and livelihood development programmes to the family members of the missing/disappeared.

Families of the missing or disappeared should be a separate priority category within the existing housing programmes of the Ministry of Housing and the introduction of a scholarship scheme under the Ministry of Education for the children of the missing or disappeared in the form of a monthly allowance of Rs. 2,000 to cover essential educational expenses required for the completion of their primary and secondary education. These families should be included in a priority category in a debt relief programme that would either write off debts such as micro finance loans or in a financial aid programme or loan scheme.

OMP    suggested a monthly living allowance of Rs.6, 000 to the surviving spouse, child/children and/or surviving parents of a missing or disappeared parent who has no permanent income, until the final preparations are provided.   Also an employment quota of 1% to family members of the missing/disappeared when vacancies in the public and semi-governmental sectors are filled.

 A lot of publicity was given to this subject of ‘Missing Persons’ around this time. Family members of disappeared persons across Sri Lanka came together and shared their stories of struggle and suffering on the International Day of the Disappeared in September 2018. ” Hundreds of family members attended this OMP event, but some observed that such acts of solidarity and remembrance can only go so far. We have commemorated disappearances for many years. Commemorating is not enough. The government should take concrete action. The OMP is the last hope for us.”

 Sri Lanka has one of the world’s highest number of disappearances, with a backlog of between 60,000 and 100,000 alleged disappearances since the late 1980s, said Amnesty International . Amnesty International has called on the Sri Lankan government to provide information to the families of the disappeared, with detailed lists and information of persons who surrendered to the armed forces in the final phase of the war.

Amnesty International’s report, “Only Justice can heal our wounds”, was launched in April 2017, at a meeting with families of the disappeared in Mannar. The report tells the story of relatives, many of them women, who have spent years searching for truth and justice. Sri Lanka will not break with its violent past until it reckons with the cruel history of enforced disappearance and delivers justice to as many as 100,000 families who have spent years waiting for it, the report said. The authorities have failed to investigate these cases, identify the whereabouts or fate of the victim, or prosecute those suspected of the crimes.

“There is no community in Sri Lanka that remains untouched by the trauma of enforced disappearance. Most people in the country suffer the absence of a loved one or know someone who does. They have waited years, and in some cases, decades, to learn of the fate of their relatives. Until justice is delivered to these victims, the country cannot begin to heal, let alone move towards a more promising future,” said Salil Shetty, Amnesty International’s Secretary General.

Amnesty International has focused attention on those taken away by the army. AI has called on the Sri Lankan government to provide information to the families of the disappeared, with detailed lists and information of persons who surrendered to the armed forces in the final phase of the war.

Amnesty International  said according to surviving family members, more than 100 cadres of the LTTE, who surrendered to the Sri Lankan army near the Vadduvaikkal Bridge in Mullaitivu at the end of the war in May 2009, have subsequently disappeared. One group of surrenders was led by Father Francis Joseph, a Catholic Priest who was disappeared thereafter. According to family members who witnessed the surrenders, they were transported from the site by the army in a convoy of buses: their fate and whereabouts since then remain unknown. They claim to have last seen their family members in the custody of the 58th Division of the Sri Lankan Army.

Minoli Salgado  conducted a workshop on Writing Truths: The Power of Testimony, In September 2018. Jehan Perera attended this workshop. As part of the workshop methodology, the participants were asked to share a story of a war victim that they had heard from the person sitting next to them.  Sitting next to me was a female and she told me this story of a mother who had lost her daughter, said Jehan. It was the last days of the war in May 2009. About a hundred youth in an area were rounded up by the Sri Lankan military and put into a bus. The daughter of the woman was one of them. The mother got onto the bus along with another mother. They were permitted to travel for a while but at a certain point they were offloaded and the bus went on. They never saw their children again.

Jehan Perera says the Tamil people are united  on  the position that those who are families of victims who went missing have a right to know what happened to them, especially those who were handed over by their families to the Sri Lankan security forces and disappeared thereafter. Political opponents of the government have been alleging that the OMP is meant to find evidence against the Sri Lankan security forces and take them to international war crimes tribunals and The Hague. They have accused the government of betraying the security forces.

Pt 2 INTERNATIONAL CONVENTION FOR THEPROTECTION OF ALL PERSONS FROM ENFORCED DISAPPEARANCE, ACT NO 5 OF 2018,

The  UN  International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) is an international human rights instrument of the United Nations and intended to prevent forced disappearance defined in international law, crimes against humanity. The text was adopted by the United Nations General Assembly on 20 December 2006 and opened for signature on 6 February 2007. It entered into force on 23 December 2010. As of September 2018, 98 states have signed the convention and 59 have ratified it.

 This Convention makes Enforced Disappearance carried out by state agencies into a crime and provides mechanisms to ensure individual criminal responsibility for these acts. But enforced disappearance by non-state actors are excluded. This means that non-state agents can evade international criminal responsibility for acts of enforced disappearance, said analysts.

Sri Lanka signed the International Convention for the Protection of All Persons from Enforced Disappearance on December 10, 2015 and it entered into force in June 2016. Article 2 of ICPPED stated  “For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or those supported by the State, followed by concealment of the whereabouts of the disappeared person. There are no exceptions. ‘Enforced Disappearances’ cannot be justified even in an emergency, observed Ladduwahetty.

The Convention is applicable   therefore only to State Actors, which means that this is aimed only at the armed forces. Any arrests, prosecutions, requests for extradition or handing over to international criminal courts of Sri Lankans by interested foreign governments will only apply to Sri Lankan armed forces personnel or other agents of the State. No action will be taken by any foreign country against LTTE members, because ICPPED does not include non-State actors.

Article 10 of this Convention makes it clear that any State in whose territory a person (who can be a citizen of any other member state) suspected of having committed an offence of enforced disappearance is present, can take that person into custody.  In other words, any person suspected of causing enforced disappearances can be arrested in the home state or any other member state.

 According to Article 11, after making an arrest in that manner, the member state concerned can take one of three alternative courses of action – (a) extradite that person to another country in accordance with its international obligations, (b) prosecute that person under its own laws or (c) hand him over for prosecution to an international criminal tribunal whose jurisdiction that member state has recognized.

Article 13 says states that any member state may request the extradition of a person suspected of being responsible for enforced disappearances in any other member state and all member states must respect such requests for extradition. Because Sri Lanka is now a signatory to the International Convention for the Protection of All Persons from Enforced Disappearance, the provisions of Articles 10, 11 and 13 form a part of our obligations under this Convention. 

 Article 32 enables any member State to complain to the 10-member ‘Committee on Enforced Disappearances’ in Geneva that Sri Lanka is not fulfilling her obligations under this Convention and the Committee can investigate such complaints. Put together, this means that foreign countries which are members of the ICPPED will have complete jurisdiction over Sri Lankans who are alleged to have carried out enforced disappearances in Sri Lanka.

UN Working group on Enforced Disappearances (UNWGEID) arrived in 2015   at the invitation of the Government of Sri Lanka  to study the situation and make a report of their visit to the UNHRC. The UNWGEID forms part of the Special Procedures trick imposed on the UN system, said Kamal Wickremasinghe.  This involved the deployment of independent human rights experts or groups of such experts, drawn from vassal NGOs to report and advice on Human Rights issues. UNWGEID said it supported the establishment of an OMP .They said the government must issue clear instructions at all level of the military security and law enforcement forces that all types of threats, harassment and intimidation towards families searching for their loved one must immediate cease, and will be severely sanctioned. 

The Bill known as Enforced Disappearances Bill was brought  to incorporate into the law of Sri Lanka, the provisions of the UN Convention. The Bill was scheduled to be taken up for debate on July 5 and September 19, 2016 but the Government had to defer it due to objections of various groups. The Joint Opposition raised objections to the Bill stating that it posed a threat to the security forces.  The Bill was aimed only at punishing the armed forces with the LTTE getting off scot free for the many thousands of enforced disappearances that they were responsible for. They wanted the Bill withdrawn.

Critics observed that all matters that relate to an enforced disappearance, such as abduction, illegal confinement, murder and the illegal disposal of dead bodies are more than adequately covered by the Penal Code and the existing criminal law in Sri Lanka.

 G.L.Pieris reported that ambassadors of several EU nations had been present at the meeting held in December 2016, to finalize the new Bill. Those present included the British High Commissioner, Ambassadors of France, European Union, Netherlands, Germany, Italy, and Romania. Pieris deplored the fact that the ambassadors of foreign countries were directly involved in the process of drafting legislation which related to the public security of the country.

The Human Rights Commission of Sri Lanka had wanted the Bill to be presented in Parliament

saying that that this legislation is a positive step towards addressing the long history of disappearances in Sri Lanka and stemming impunity for human rights. The Government presented the Bill in Parliament on March 7, 2017.  The Bill was passed and the International Convention for the Protection of all persons from Enforced Disappearance Act no 5 of 2018, came into existence. This Act made Enforced Disappearance committed by state actors into a crime which could be prosecuted in a law court.

The Bill was passed with a majority of 37 votes, obtaining 53 votes in favor and 16 votes against.  A total of 156 members were absent. The Second Reading of the Bill received 53 votes in favor and 19 votes against, and the number of votes against the Bill reduced further at the Third Reading vote, reported the media. The Bill was passed without amendments, amidst disturbances from the Joint Opposition. The JO said that they had not received a copy of the document.

Critics observed that the government passed the Prevention of Enforced Disappearances Act No: 5 when the attention of the whole nation was focused on the Sinhala-Muslim riots that broke out in the Kandy district. They passed this law despite repeated requests from the Mahanayaka Theras and the Karaka Sangha Sabhas of all three nikayas to jettison it.

Chandraprema commented on the provisions of this Act. Section 8 of this Act enables foreign countries to seek the extradition of a Sri Lankan who is suspected, accused or convicted of having caused enforced disappearances in Sri Lanka. When such a request is made, the government of Sri Lanka is obliged to inform the foreign country of the measures it intends taking to prosecute or extradite that person.

Section 14 says (1) Every victim and relative of a victim shall have the right to know the truth regarding the circumstances of an enforced disappearance, the progress and results of the investigation as are carried out by the law enforcement authorities, and the fate of the disappeared person. (2) Every victim and relative of a victim shall, subject to restrictions placed by law, have the right to form and freely participate in organizations and associations concerned with attempting to establish the circumstances of offences committed under section 3 and the fate of disappeared persons, and to assist victims of offences under section 3. (3) Where there are reasonable grounds for believing that a person has been subjected to an offence under section 3, law enforcement authorities shall undertake an investigation, even if there has been no formal complaint.

Clause 21 seeks to give ‘full effect’ to the International Convention Against Disappearances in Sri Lanka. Clause 23 says the Act will override all other written law. the provisions of this Act shall have effect notwithstanding anything to the contrary in any other written law and accordingly in the event of any inconsistency or conflict between the provisions of this Act and such other written law, the provisions of this Act shall prevail.” 

Because Sri Lanka is now a signatory to the International Convention for the Protection of All Persons from Enforced Disappearance, the provisions of Articles 10, 11 and 13 of ICPPED form a part of our obligations under this Convention. When you read Articles 10, 11 and 13 of the International Convention Against Enforced Disappearances together with Sections 8 and 21 of Act No: 5 of 2018 show the gravity of this legislation, said Chandraprema.

the Bill seeks to give foreign countries complete and untrammeled criminal jurisdiction over Sri Lankans with regard to ‘enforced disappearances.’ Foreign countries which are members of the ICPPED now have complete jurisdiction over Sri Lankans who are alleged to have been involved in causing enforced disappearances in Sri Lanka. Any member state of this international convention can get a Sri Lankan extradited to their country, to be prosecuted or handed over to an international criminal tribunal. When a foreign country which has complete jurisdiction over Sri Lankans in that manner arrests a person on suspicion over an offence relating to this convention, and that foreign country also happens to be a member of the International Criminal Court, that person can be handed over to the ICC to be dealt with as they would a citizen of the foreign country that carried out the arrest.

This Bill seeks to enable foreign countries to request the extradition of a Sri Lankan who is suspected, accused or convicted of having caused enforced disappearances in Sri Lanka. Under this law foreign countries would also be authorized to arrest and try Sri Lankans for disappearances that allegedly took place in Sri Lanka and even to hand over persons so arrested to an international criminal tribunal even if Sri Lanka does not come under the jurisdiction of that international tribunal.

The proposed law is an attempt to subject our armed forces to international war crimes prosecutions without using the term ‘war crimes’ and rephrasing it as ‘disappearances’. The use of the word ‘disappearances’ makes this look like an attempt to trace missing persons. But the purpose of this Bill is not to trace missing persons but to hunt down and prosecute those who won the war.

The only ‘disappeared’ persons, whose cases will be dealt with under this proposed law, will be those of the LTTE because the armed forces have already categorized the thousands of soldiers who disappeared as ‘assumed to be dead’. However LTTE combatants who have either died in battle or fled overseas still continue to be categorized as having ‘disappeared’ by all interested parties, said Chandraprema.

Many countries have kept away from this Convention altogether, because of its intrusive nature, observed critics,  Australia, Britain, Canada, China, Russia and Pakistan and United States have not signed this Convention. Denmark, Finland, Ireland, India, Norway and Sweden signed but never ratified it.”  Sri Lanka was therefore signing a convention which other countries were avoiding, observed Mahinda Rajapaksa.

 G.L.Pieris   observed that that the United States, Britain, Australia and Canada, had not signed this Convention. USA’s policy is that no foreign government can try an American soldier. Scandinavian countries which are usually at the forefront of any human rights initiative had signed it in 2007, but never ratified it. India also had signed it in 2007, but had never ratified it. Yet Sri Lanka had signed and ratified this Convention within a few months.

Pieris   pointed out that this Bill would apply to the past as well under Article 13(6) of the Constitution of Sri Lanka. Prof. Pieris charged that this Bill was probably not even drafted here but sent from overseas He said that Clause 23 enables the proposed law to supersede all other written laws in Sri Lanka giving it a status akin to the Constitution.

Pieris said that earlier the controversy was about whether foreign judges should be allowed to serve in a war crimes tribunal in Sri Lanka but that now the government seems to have changed their strategy and instead of bringing foreign judges here, they are trying through this proposed legislation to send our armed forces personnel overseas to be tried by interested foreign governments.

Pieris pointed out that this legislation seeks to circumvent the safeguards in Sri Lanka’s Extradition Law No 8 of 1977. One of those protections was that no person can be extradited for an offence of a political nature.  This protection which is also enshrined in customary international law is specifically taken away and furthermore, through this Act, it becomes possible to send Sri Lankans for indictment to The Hague through a foreign country.

the purpose of this law is to take our war veterans to be tried in other countries.  Allowing our war veterans to be tried in other countries for alleged crimes committed here is worse than being tried by an international criminal tribunal. an international criminal tribunal is a multilateral body whereas another country is a different matter altogether. No one who is prosecuted in the courts of a foreign country or by an international criminal tribunal which is controlled by a foreign country can really expect justice. Such prosecutions are always politically motivated. If the country carrying out the arrest has accepted the jurisdiction of the ICC then any Sri Lankan who is arrested in such a country or is extradited to such a country by our own government can in fact be handed over to the ICC at the Hague. The ICC is the only standing international criminal tribunal.

anyone can be extradited to another state on a mere accusation. Such accusations could originate in Sri Lanka or elsewhere. the Bill has no provision for any procedures that should be followed within Sri Lanka or outside; not even a preliminary investigation, except for what the Minister in charge of the subject decides. The lack of any formal procedures to establish the credibility of the accusation prior to extradition presents ample opportunities for victimization.  Further, this law is retroactive . The Bill can apply to someone who disappeared 10 or even 20 years ago .

The government went out of its way to defend the Bill. The persistent campaign of misinformation that the Yahapalana government  conducted on the matter and the fact that it was presented to Parliament twice despite public protests and the opposition of the Maha Sangha, shows how important this piece of proposed legislation is in the Yahapalana scheme of things, observed Chandraprema. Why was the Yahapalana government so interested in pushing this legislation?

The government made a deliberate bid to deceive the masses by repeatedly claiming that the Bill wouldn’t be retroactive. There was an essay on a website titled “Extradition Clause in Enforced Disappearances Bill is Identical to Section 7(2) of Torture Act No 22 of 1994 .This article sought to argue that Clause 8 of the Bill is identical to Section 7(2) of the Convention Against Torture Act, No. 22 of 1994. The author of this article stated that both documents had a provision for extradition .On this basis, the author of this article argued that there is absolutely nothing to worry about in Clause 8 of the proposed Disappearances Bill because this was a standard Clause and that we have had an identical provision in a very similar statute for over 20 years.

Chandraprema had pointed out thatthat Clause 8 of the Bill refers to Sri Lankans whose extradition has been requested by foreign countries due to enforced disappearances. But the 1994 Act refers to foreign nationals wanted in their own countries over allegations of torture, who may happen to be in Sri Lanka. thereafter there were no more well argued articles from the Yahapalana camp on the matter. It appears that since it is not possible to argue the matter out, the best fallback position is to resort to an outright campaign of lies and misinformation, Chandraprema commented.

The Office on Missing Persons (OMP) has recommended amendments to the Enforced Disappearance Act. The Office of Missing Persons has recommended t he suspension of state officials, including members of the armed forces and police who are named as suspects or are indicted in cases relating to abductions and enforced disappearances till the final determination of those cases. It has also recommended to provide adequate material and human resources to law enforcement officers, the Attorney-General’s Department as well as the judiciary to investigate, prosecute and punish perpetrators of enforced disappearances.

Some individuals suspected of having committed enforced disappearances and related offences are being permitted to remain in positions of power—especially within the armed forces and the police—where they can influence the progress of an investigation, continued the report. There have been instances where members of the armed forces, who were willing to provide information on disappearances, were subject to harassment.

Pt 3 THE OFFICE FOR REPARATIONS

The Office for Reparations bill was passed in Parliament in October 2018 with a majority of 16 votes. It received 59 votes in favor, while 43 votes against, following a division called by the Joint Opposition. The UNP, SLFP members in the Government and the TNA voted in favor of the Bill. The JVP MPs were absent. The Joint Opposition together with the ‘SLFP Group of 15,’ voted against.

The Office for Reparations will consist of five members appointed by the President on the recommendation of the Constitution Council and will be answerable to Parliament. Provision has been made for the functioning of regional, temporary or mobile offices as may be necessary, to ensure that reparations are accessible to victims and their relatives. The main Office is to be a situated in Colombo.

The Rehabilitation of Persons, Properties and Industries Authority Act, No. 29 of 1987 would be repealed by the new Bill  and all funds presently lying to the credit of the Authority will be taken over. The Office will also receive such sums as may be voted upon by Parliament and the money received from outside Sri Lanka.

The idea of setting up an Office for Reparations was obviously inspired by the South African example where a Committee of Reparations was set up under the Truth and Reconciliation Commission that came into being after the agreement to end the Apartheid regime in South Africa in 1995.

However the circumstances that led to reparations in South Africa were very different to the situation in Sri Lanka. In South Africa, there was a white minority dominating a black majority. There was genuine oppression in South Africa based on race and the victims who were to be awarded reparations were easily identifiable. This was not the case in Sri Lanka. In Sri Lanka it was a case of armed groups attempting to seize control of a part of the country.

The Office is empowered to receive recommendations as to reparations from the Office of Missing Persons, to receive claims from victims of serious human rights violations for monetary and non-monetary reparations, and also to verify the authenticity of the claims and assess eligibility.  The Office must  also formulate and recommend reparations policies to the Cabinet,   provide criteria for eligibility, also for the  form and quantum of reparations and the prioritizing of the claims.

In formulating policies on reparations, and issuing guidelines, the Office for Reparations is required to consult aggrieved persons, organizations representing aggrieved persons and any other authority, or body of persons, and to have a victim-centered approach. the reference to ‘organizations representing aggrieved persons’ can only mean the various pro-LTTE and independent Tamil Diaspora organizations headquartered in foreign capitals, said Chandraprema.

The Office for Reparations Act applied only to those in four specific situations. These are:  in the context of the war that took place in the Northern and Eastern Provinces, in connection with political unrest of civil disturbances, in the course of systemic gross violations of the rights of individuals, groups or communities of people in Sri Lanka or due to an enforced disappearance.  Jehan Perera noted that  does not exclude the LTTE members or their families from receiving reparations if they have suffered human rights violations.

The Office   also has to provide protection, with the assistance of law enforcement authorities, to victims or their relatives under threat. The term ‘victim’ has been defined to include a person who has suffered a serious violation of human rights or humanitarian law as a result of the conflict in the North and East or its aftermath, in connection with political unrest or civil disturbances or in the course of systemic, gross violations of the rights of individuals, groups or communities of the people of Sri Lanka or due to an enforced disappearance.

Jehan Perera said that at a workshop for community leaders and members of the Youth Parliament in the Ratnapura district, When the Office for Reparations was  discussed, some of the participants said that the Office for Reparations would be compensating LTTE members and their families and this was not an appropriate or just use of national resources. They pointed out that it was an inequitable use of government resources to use funds to compensate LTTE members and their families when the LTTE’s primary focus was on dividing the country.

MP Susil Prem Jayantha questioned in Parliament as to why the Act, then a Bill, had given weight to the people in the North and the East when it comes to paying compensation.   This Bill does not provide for reparation to be paid to those who were killed by bombs set off by the LTTE in Colombo. Don’t they have a right to reparation payments as well?” he asked. 

The Act provides for the provision of individual and collective reparations for aggrieved persons. Under the individual reparations,” the Bill facilitates any monetary payment or material benefit provided to an aggrieved person, micro-finance and concessionary loans, educational programmes, training and skills development programmes, administrative assistance and welfare services, including psycho-social support provided to an aggrieved person, measures of restitution, including the provision of land and housing and other appropriate measures identified by the Office for Reparations.

Under the Collective reparations,” the Bill facilitates development of infrastructure, educational programmes, training and skills development programmes, community development programmes or services and other appropriate programmes as identified by the Office of Reparations in consultation with affected communities.

Collective reparation also  includes ‘specialized policies on public education’ and ‘memorialization’.  Memorialization has been borrowed straight from South Africa, observed Chandraprema. In Sri Lanka  the memorialization will include LTTE. Memorialization of LTTE is a problematic matter. It is unlikely to be received well by the people who were at the receiving end of this terror said Chandraprema. Similarly, specialized policies on public education’ would suggest portraying the LTTE as heroes of the Tamils in school textbooks. This would be ok in South Africa but in Sri Lanka would be totally unacceptable, concluded Chandraprema.

Any quantum of compensation decided on by the Office for Reparations should accord with reason and be subject to a limit as in South Africa, said Chandraprema. The Office of Reparations law has in fact provided for such limits by providing that in formulating policies on reparations, the reparations already received by the aggrieved persons with regard to the violation of the right in question will have to be taken into account. In deciding the quantum of monetary reparations, the availability of resources, has to be taken into account. It has also been provided that in granting individual reparations which are monetary, the need to restrict such reparations to aggrieved persons who have the most serious grievance and the level of need and the indigence of the aggrieved persons have to be taken into consideration in granting monetary reparations.

However, The Act has specifically provided that “…the receipt of reparations shall not preclude aggrieved persons from pursuing any remedy available in law to such persons, against any person who may have violated the rights of such persons.” That is not right and the government should review this provision. Nobody should be able to claim reparations from the state and then claim damages from real or imagined violators of human rights through civil actions, said Chandraprema.

 The government has in fact gazetted another Bill which enables victims to file civil actions against people they think were responsible for the deaths or disappearances of family members. If a person has been convicted by a court of law of causing the disappearance or death of a person will in addition to any other punishment ordered by the court, also have to pay compensation to the victim. If it has not been established that a person has committed a particular crime, making it possible for any party to initiate court action against someone they think was responsible for the deaths of their next of kin, will be yet another way of harassing armed forces personnel and law enforcement officers, said Chandraprema.

In July 2018, Media reported that  D.M.Swaminathan Rehabilitation, Resettlement and Hindu Religious Affairs Minister, had submitted for the third week in a row, a Cabinet Paper which proposed to pay reparations for families of dead LTTE cadres. He wanted enhanced compensation” paid to Tiger guerrilla ex-combatants who were defeated in the separatist war that ended in 2009 and their next of kin. He said this was based on an LLRC recommendation.  This  Cabinet Memorandum was rejected. The Cabinet Paper had been deferred over the last two weeks but this time, due to continued protests from ministers, it  was stopped for good, reported the media  on 20.6.18.

Swaminathan had  forwarded two other Cabinet memoranda at the same time. Second memorandum related to the payment of special compensation” to Beruwala and Aluthgama families who lost their properties” due to the incidents that took place between June 15, 2014 and June 16, 2014. He had sought Rs 185,962,050 to pay compensation for the affected persons in accordance with the recommendations made by a Valuation Committee appointed by the District Secretary.

The third memorandum is for relocation of families who live in welfare centers in the Jaffna District.” According to Minister Swaminathan, in the Jaffna District there are 34,248 families who were temporarily resettled in their own land up till October 31, 2017 and 721 families are yet to be resettled from 29 welfare centers. In addition, 8,987 families need to be resettled as they are living with friends and relatives in the Jaffna District. I think these two memoranda are still pending.

One cannot but help notice the expeditious manner in which the Yahapalana government had been fulfilling the pledges given to their international masters while taking little interest in fulfilling the pledges they gave in 2015 to the local population such as abolishing the executive presidency and reforming the electoral system, observed Chandraprema.

The names of the Commissioners were announced in April 2019 and the Office for Reparations was due to start functioning htereafter. President Maithripala Sirisena has appointed former Ministry Secretary Dhara Wijayatilake the Chairperson of the Office for Reparations. The other members of the Office for Reparations are retired Lieutenant Colonel W.W. Rathnapriya Bandu, Dr. J.M. Swaminathan, Sellathambi Sumithra and A.A.M Faththeeu. The appointments are effective from April 1.

Whereas both institutions could be expected to achieve a certain degree of success in their endeavors, its work is also hampered due to the fact that of western nations vehemently refuse to divulge identities of LTTE cadre who have been granted asylum and new identities. . Both OMP and Office of Reparation would lose credibility should it be the case that a death certificate is issued and his/her family members granted reparations was to be discovered living in the west. The government will find it difficult to explain such a situation to the general public. (Continued)