ERASING THE EELAM VICTORY Part 20 C11
Posted on July 24th, 2021

KAMALIKA PIERIS

 (Continued from C10)

OFFICE OF MISSING PERSONS   (2016)

The Office of Missing Persons Act was passed in Parliament on 12.8.16, during the rule of the Yahapalana puppet government. It was rushed through Parliament ignoring objections. It went through all three readings within 40 minutes. The Bill was not referred to Supreme Court.  

The Joint Opposition refused to accept OMP Bill as properly passed.  They said Parliament had not followed proper procedures in adopting it.  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, 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.

Nowhere in Asia has a mechanism such as this OMP been set up, said Dayan Jayatilleke. The only OMPs set up so far were for persons missing under military juntas in Latin America also where there were agreements between guerilla movements and their governments. Sri Lanka, on the other hand, was a democratic state with a democratically elected government, whose legitimate army fought a war within its borders against a secessionist group and won an outright victory.  

But Yahapalana went ahead and the Office of Missing Persons was put in place. The Office of Missing Persons is no Office’, said critics. It is a fully fledged quasi judicial body just one step away from a fully fledged war crimes tribunal. The ‘Missing Persons’ had to be connected with

armed conflict, political unrest and civil disturbances. Therefore the ‘Missing Persons’ would be those missing in the northern and eastern provinces only.

The OMP would operate entirely outside the state justice system. OMP can arrive at ‘findings’ relating to serious crimes like abduction and murder without any of the safeguards availed to suspects in ordinary courts, said critics. The OMP has extensive powers to compel the giving of testimony and production of documents and other material.

The Evidence Ordinance will not apply. The OMP can admit as evidence statements which contravene the Evidence Ordinance or considered inadmissible in civil or criminal proceedings. This is most dangerous, said critics. OMP can receive complaints from just anybody. Without safeguards of the Evidence Ordinance, a ‘case’ can be built up against   a person by the OMP and he can be removed from the armed forces.

The Right to Information Act and Official Secrets Act will also not apply to the work of the OMP. Right to Information Act has been excluded so that people could give information without fear, said supporters of the OMP. This is necessary because the OMP is a mechanism designed to discover the truth of a missing person’s fate and not act as a prosecutorial or judicial body. However, only information that is communicated in confidence will be excluded from the provisions of the RTI Act. All other information will be subject to the Right to Information.

Any    unreliable organization can make a complaint, false statements included, without having or face any consequences, responded critics. They can admit any kind of evidence in building up a story against a person, and that story could cause serious damage to that person’s reputation and career.

OMP can operate in complete secrecy. OMP can initiate an inquiry on the basis of a complaint, which is then kept secret. This means that people can charge each other in secret.

No court, not even the Supreme Court can order any officer of the OMP to submit to its courts any material communicated to him in confidence. Not even Supreme Court of Sri Lanka can penetrate this fog of secrecy, remarked critics.   

OMP can summon any person in Sri Lanka before it.  Anyone who fails or refuses to cooperate with the OMP may be punished for contempt of court.” OMP’s power to charge contempt of court is equal to that of the Appeal Court.

All government bodies, including the armed forces and intelligence services are mandatorily required to give fullest cooperation to OMP.  All local authorities rank below the OMP.

OMP can establish committees, division or units for the administration of the OMP and can delegate its power to them.  OMP officers have been conferred immunity.  They are above the law.  OMP officers can, without warrant, at any time of day or night, enter any premises, including sensitive military installation and seize any documents or object they require for investigations.  Documents supposedly seized from military organization can be circulated all over the world.

OMP   is allowed to   bring in foreign personnel   and OMP can appoint foreigners as officers and staff of the OMP.  Critics pointed out that the members of the OMP can delegate the work to others who need not be even Sri Lankans.

The OMP can raise funds from national or international sources. They can receive foreign funding directly. OMP has the power to enter into agreements on any subject with any foreign government, NGO or any other institution, including UN agencies like OHCHR. Since these UN organizations have been taken over by the west through funding, the OMP will be operated by the West. OMP can have agreements with LTTE as well, observed critics.

The members of the OMP must statutorily have experience in investigating Human Rights Law (HR) and International Human Rights Law (IHL) and they need not be citizens of Sri Lanka. This means that the appointees can be representatives of western funded NGOs or those who have worked with western sponsored international war crimes tribunals, said analysts. These officers can be foreigners.

If a missing person is found, the OMP need not announce the fact. If that person so wishes he can remain missing, though he may be hale and hearty and living abroad, observed critics.  Unless he agrees, his relatives will not be informed either.

Many of those listed missing during the war could have obtained new identities courtesy of foreign governments, observed Gotabhaya Rajapaksa. Foreign governments including Australia had refused to assist Sri Lanka in its attempts to locate missing persons now living overseas under new identities. Thousands have received new identities, especially in Europe.

Maxwell Paranagama said that his Commission had received 16,000 complaints regarding wartime disappearances and was inquiring into them when the present government terminated the proceedings of the Commission. Some foreign funded NGOs resented investigations undertaken by the Commission.

Paranagama said some of those declared as missing here were living abroad. “Unfortunately, foreign governments have declined to help our investigations by making available lists of those Sri Lankans living there as refugees or given citizenship,” Paranagama said, adding that four of those reported missing had been jailed in the Maldives. “We were able to speak to them over the phone.

Kamal Gunaratne    was also critical.  This is absurd he said. Anyone can just come and complain that their son or family member is missing.  OMP is just accepting complaints. The names of those giving evidence are kept secret. You need to ascertain the accuracy of these claims. How can we issue death certificates   without knowing what happened.

 If we are to issue death certificates or compensation then it has to be established without doubt that the person concerned is really dead. That cannot be done by this OMP. If we issue a death certificate, and later that person is found, this whole process will become a joke, continued Kamal.

The motives of the present OMP can be questioned, concluded Kamal Gunaratne .The OMP has been going to people’s houses and getting them to come forward and say that their loved ones are missing.

The Chairman of the OMP stated in 2020 in an interview,   over the last two years, we have built up the institution, including recruitment of staff, building technical capacity, developing a temporary database, collating information and establishing a Victims’ and Witnesses’ Protection Unit and an Investigations and Tracing Unit .

 OMP was now   busily at work, said the Chairman. There are ongoing individual investigations which are at different stages. Depending on the facts of each case, the OMP is required begin an investigation at different points.

 In some cases, an investigation has begun with a complaint from a family member regarding a missing or disappeared loved one. In another scenario, the OMP has, in keeping with its mandate, intervened in cases because unidentified human remains have been discovered and they may belong to victims of disappearances.

Under the OMP Act, it has the authority to intervene and observe inquiries into human remains before a Magistrate’s Court. OMP has also provided financial and technical support in the Mannar mass graves investigation.   (Continued in C12)

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