By Shivanthi Ranasinghe Courtesy Ceylon Today

The name board, “Office of Missing Persons” (OMP) whose Bill that is now before Parliament, sounds innocuous. One might even assume, it is a government run office in collaboration with an organization like the International Committee of the Red Cross.

An office, where those with missing relatives come and the officials try and match records from a cross section of sources such as police, hospitals, immigration and so on and try to locate the missing persons. After all, the existence of such offices is common after a war and even Sri Lanka has had such offices.

However, OMP is not about connecting the missing with their families. In fact, if a missing person is found alive and well – perhaps living in another country, with another family, under an alias – without that person’s expressive consent, that fact cannot be made public. That fact cannot be made public, even if another (officers or men in the security force) is being subjected to an investigation or a punishment on the alleged disappearance of the person.

Then, what is the purpose of the OMP?

Sounding the alarm

President’s Counsel Manohara de Silva, has sounded the alarm – notably through youthukama.com and veteran journalist C.A. Chandraprema from “The Island”, that the OMP has a most sinister objective that will have far reaching consequences for Sri Lanka.
He explains, “In the UNHRC Resolution Sri Lanka co-sponsored with US against Sri Lanka in September 2015, we have agreed as per the Operative Paragraph four, to establish a Commission for Truth, Justice, Reconciliation and Non Recurrence, an OMP and an Office for Reparations. We have agreed to give each of these mechanisms the freedom to obtain financial, material and technical assistance from international partners.

“Though, this is labelled as the OMP, it will only concern itself with the disappearances of those in the North and East. Abductions or disappearances that might happen in the South do not come under the OMP’s purview. We can’t assume it because the war was fought in the North and East. It is also not mentioned anywhere that the OMP is concerned with war crime investigations.”

Disappearance of Ekneligoda

It is indeed strange as in the list of irregularities the Sri Lankan military is accused of the much speculated disappearance of Prageeth Ekneligoda takes prominent place. However, it is speculated that his fate was sealed in the Girithale Camp. Thus, the Ekneligoda case cannot be taken up by the OMP.

“How can the North and East have a different law mechanism to that in the South? But it’s obvious that this is the design of the OMP,” continues Counsel de Silva. “This gives rise to the justified question as to who drafted the Bill. Is it the relevant authoritative Parliamentary entities or the Tamil diaspora?

“It would’ve been logical to create the OMP as an extension of the Police Department or the Attorney General’s Department. Then the officers would be responsible for the Sri Lankan Government and can be made to face the consequences of their actions. Also, for a genuine investigation on the missing persons, we don’t need foreign aid or assistance.

Independent

“Instead, it is to be incorporated by an Act of Parliament. Not only are they independent of the Police Department and the Attorney General’s Department, their findings – no matter how questionable they might be – will have the recognition of a body that has been established by an Act of Parliament.”
Shamindra Ferdinando also flags the OMP as he reports that according to former Media Secretary Charitha Herath, despite the Right to Information Act, the OMP “wouldn’t obviously be answerable to Parliament or its oversight committees”. Attorney-at-Law Jagath Liyanaarachchi of Transparency International Sri Lanka that was also at the helm with other civil societies to bring the RTA to Parliament admits, “RTA couldn’t be used to obtain information in respect of operations undertaken by the OMP.”
“The OMP is to comprise seven members appointed by the Constitutional Council. According to section 11(a), they will largely be guided by agreements with various persons and organizations to carry out tasks pertaining to OMP. The OMP can have various units and divisions headed by persons not appointed by the Public Service Commission.

Pro-LTTE organizations

“However, there’s no provision in the Bill to say that they have to be Sri Lankans. OMP may even delegate their powers to pro-LTTE organizations. They in turn may exercise the OMP powers and enter military and intelligence establishments and access their documents and objects. It’s entirely possible because it’s said OMP can send a “specified person” to conduct searches. However, there’s no interpretation given to who this “specified person” might be. But according to the Bill, the OMP officers may enter any premises at any given time, which will seriously strain national security.”
Chandraprema notes, “the so-called ‘civil society’ representatives on the CC are either representatives of NGOs or are close to the ruling parties. It’s not difficult to imagine what kind of people the CC would appoint to the OMP.”
Counsel de Silva agrees, “Seven out of the ten CC members are representatives of the Prime Minister and the Leader of the Opposition. They are all working to a certain agenda. When they were introducing the latest amendments to the Constitution, they were looking at the present leaders.
National government
“They were planning from the beginning to have a National Government, in which to appoint Sampanthan as the Opposition Leader. So, they took the President’s powers who was elected from all districts and empowered Ranil Wickremesinghe and Sampanthan, who together only represent two districts. That’s why we have a chronic situation today, where Sampanthan becomes the Opposition Leader, even though his alliance got far less seats than the Joint Opposition. Otherwise, normally the government would be represented by the two major parties.

“Funnily, according to the Bill, findings of the OMP won’t have any civil or criminal liability. Then, why have all these investigations? What are they then planning to do with their findings?”

“When we co-sponsored the UNHRC Resolution,” he explains to Chandraprema, “we actually accepted UN Human Rights Commissioner’s report requesting other nations to try Sri Lankans suspected of war crimes under universal jurisdiction. OMP officers can seize documents and other evidence from military installations. However, there’s no way to confirm or verify that the evidence is actually from these installations. So, they can even introduce bogus evidence. As the evidence produced by a body established by an Act of Parliament, there’ll be no way we can distance from it.”

Universal jurisdiction

“They may however circulate their findings to the UN and elsewhere,” warns Counsel de Silva. “If they think that a crime has been committed, they can report it to a “relevant authority” which again is unspecified. Also the Bill doesn’t specify that the findings should be presented to a court of law. My view is that because we have agreed to a universal jurisdiction, they’ll collect the necessary information to prosecute abroad. Then, there’s no need for a Hybrid Court.”

This opinion must be considered alongside the PM’s recent move to obtain a ruling from Speaker Karu Jayasuriya to overrule a Supreme Court judgment. In 2006, the SC in the landmark judgment, Nallaratnam Singarasa v Attorney General, ruled that Sri Lanka’s accession to Optional Protocol I of the International Covenant on Civil and Political Rights ( ICCPR )needed two third majority in Parliament and a referendum in order to become a law.
This is an interesting case. In 1980 Sri Lanka had acceded to the ICCPR. In 1997 to the Optional Protocol I of the ICCPR which allows Sri Lankans to address appeals to the Human Rights Committee in Geneva.

UN intervention

Singarasa was convicted by the Sri Lankan Judiciary on five counts of an attack or attempted attacks on Army camps in the Northern Province to overthrow the democratically elected government. After exhausting the local judiciary options, he sought the UN intervention in terms of the ICCPR and the Optional Protocol.

However, SC ruled that even though the executive arm had signed the ICCPR and the Optional Protocol, the provisions of the latter had not been incorporated into law by Parliament. As it impacts on one of the Constitution’s entrenched provisions, it requires both a two third majority in Parliament and approval by people at a referendum for it to become a law in the country.
Thus, as a sovereign country, we are not beholden to uphold any ruling by a judicial power that does not come under the Constitution. It is this judgment that PM finds “a perverted interpretation of the Constitution”.
As long as the judgment holds rulings by any other judiciary that does not come under the Constitution has no effect on Sri Lankan citizens.

Kangaroo courts

Chandraprema notes, “All international war crime tribunals set up at various times have been Kangaroo Courts with witnesses giving testimony that’s used without proper verification. Almost all such international tribunals have had ‘syndicates of informers’, where witnesses are coached and taught how to tell convincing stories without contradicting one another.”
“According to section 12,” elaborates Counsel de Silva, “OMP can receive statements from the allegedly missing person’s relatives or any other person or organization. Even Rev. Father Emmanuel’s organization may make a complaint or statement. If anyone makes a false complaint, under our law, there’ll be consequences. But for those living abroad, there’ll be no consequences if false statements are made.”

Disappearance

Thayaparajah is worth mentioning at this point. He was the director of a US funded institute that provided Information Technology education, The Vanni Institute of Technology, (Vanni Tech). He worked closely with the LTTE, including Charles Anthony.
In 2009, second week of September, he disappeared. His disappearance was promptly blamed on the military intelligence. TamilNet reported that the then US Assistant Secretary of State Robert Blake had also inquired into the matter. Department Head of Politics and Public Administration, Madras University claimed that Thayaparajah’s wife along with close relatives had even identified the body and after the government cremated it, accepted the ashes. This same story was repeated by the University Teachers for Human Rights. Then, in early May 2014 he and nine others were arrested by the Tamil Nadu Police for illegally entering the country. His wife and three children were among the group.

Interestingly, there had been a concentrated effort in the recent past to indicate that Pottu Amman survived the war and is living safely in India. Even Prabhakaran’s death was denied. Relatives of the woman, the Indian investigators suspect to have assassinated Rajiv Gandhi insist she died on the battleground. If that is true, the true identity of the real bomber is indeed missing.
“Funny, how they insist the dead ones are alive and living ones dead,” observes Ferdinando, who for the last 29 years had been reporting on national security.

ranasingheshivanthi@gmail.com