KAMALIKA PIERIS
OFFICE ON MISSING PERSONS (OMP)
The Office on Missing Persons (OMP) Act no 14
of 2016 was passed in Parliament in
August 2016. There were complaints that Parliament had not followed proper
procedures in adopting it. That it was
steamrollered through Parliament, in an undemocratic manner, disregarding
objections of the Joint Opposition. It
went through all three readings very quickly, taking just 40 minutes
altogether. The JVP voted for it.
Government claims 2/3 majority for the bill but is unable to state the number
of votes, said critics. USA’s Asst Secretary of State Nisha Biswal and the US
Ambassador in Colombo hailed the passing of the OMP Bill.
The objective of the Act is to take all
measures necessary for searching and tracing of missing persons, clarify
circumstances in which such persons went missing, protect the rights and interests of missing
persons and identify means of redress.
Missing Person” is defined as “one whose
fate or whereabouts are reasonably believed to be unknown” , in connection
with the conflict which took place in the Northern and Eastern Provinces and its
aftermath, or is a member of the armed forces or police who is identified as
missing in action” or in connection
with political unrest or civil disturbances .
The OMP has the power to receive, from a
relative or any other person complaints about missing persons. OMP also had the
power to initiate an inquiry into the whereabouts and circumstances of
disappearance of a missing person either on a complaint made to OMP or any
other Commission of inquiry.
The OMP must set up a Tracing Unit to trace and search missing persons, how they
wnet missing and where they are now.OMP must also have a Victim and Witness
Protection Division that can protect victims, witnesses and relatives of
missing persons.
When authorized by the OMP, an officer of the
OMP can enter without warrant, at any time, any place of detention, police
station, prison or any other place in which any person is suspected to be
detained, and make inquiries to find out the conditions of detention. They can
take away any document or object. The public cannot obstruct, resist or
threaten OMP officers, or any persons who are assisting the OMP. They must not
try to influence OMP officers either.
OMP can compel any person in Sri Lanka to
appear before the OMP to provide a statement or produce any document or other
thing in his possession. They cannot refuse to come or refuse to answer
questions. They must obey any orders made by OMP and must produce documents
when OMP asks for them. Failure to do so
will go as contempt of OMP. When that occurs, the OMP will report the matter to
the Court of Appeal and the Court of Appeal will treat it as thought it was
contempt committed against the Court of Appeal.
OMP can accept confidential information or information
in camera. The provisions of the Right to Information Act, No. 12 of 2016, will
not apply to such confidential information. No order, decision, act or omission
of OMP or its staff can be questioned in any proceedings or any court of law,
except under Article 126 or 140 of the Constitution. No proceedings civil or
criminal can be instituted against any member of the OMP or any officer or
servant appointed to assist the OMP, other than for contempt against the
authority of the OMP.
The Act permits OMP to ignore the provisions
of the Evidence Ordinance. OMP can
accept any statement or material, written or oral, which might be
inadmissible in civil or criminal proceedings. This clause carries other implications.
Palitha
Senanayake observed that certain categories of evidence, which would help
support war crimes allegations, could
be entertained, by the OMP using this clause. That will be evidence
which is not accepted under the law of evidence. Evidence concocted by the
likes of Channel 4, as well as Tamil Separatist propaganda could also be accepted
by the OMP, as evidence against the Sri Lanka forces.
Sarath Weerasekera adding
to this said that the two Acts, Office of Missing Persons Act and Enforced
Disappearance International Convention Act would help to collect false evidence
against war heroes and subject them to foreign judicial powers and to ICC
jurisdiction.
Chandraprema made a series of
observations on the Act. This office will be outside the state justice system,
he noted. The OMP can received foreign
funding directly, can enter into agreements with foreign organization, they can
receive complaints from just anybody. All government bodies, including military
have to give fullest cooperation to OMP.
OMP can authorize special officers who
can be foreigners to enter without warrant, and investigate any time of the day
any police office, prison, military installations and can seize documents .If a
missing persons is found, if he so wishes he can remain missing, as unless he
agrees, this relative will not be informed, concluded Chandraprema.
The seven members of the OMP are to be
appointed by the Constitutional Council. This Council is dominated by western
funded NGOs, observed Manohara de Silva. Further, the members of the OMP must
be persons with previous experience in fact finding or investigation, human
rights law, international humanitarian law and investigative skills. This means
that all the appointments will be persons from foreign funded NGOs, added
Manohara.
The Office
was established 15 September 2017, and operations commenced in February 2018.
The OMP had a budget of Rs 1.3 Billion in 2018. OMP annual report for the year
2018 said that it had received 14,641
complaints from National Integration and Reconciliation Ministry, plus an
additional 129 new complaints through letters, telephone calls, visits to the
OMP Head Office, public meetings and through direct meetings with families of
the missing and disappeared.
Complaints about missing persons had
started long before. In 2001 Amnesty International published accounts of
missing. A woman in Ariyala, Jaffna said
army personnel came and arrested her son who subsequently disappeared.
There were witnesses’ to the arrest. In
Madhu a woman said her husband had been abducted from their home by a man who
she is told had worked for the CID. Several
said that they suspected that the navy personnel manning local checkpoints were
responsible for the disappearances. One man had disappeared on his way home
from a beer bar at a junction where navy were checking IDs.
From 2017
onwards there were organized protests over missing persons. There was a sit
down protest for over 200 days in Kilinochchi in 2017. Most of them were women,
reported the media. All had lost their
loved ones in the final days of the war in 2009. On the 100th
day
these women called a massive demonstration and hundreds of people took to the
streets and blocked the A-9 in Kilinochchi.
They sit when
it rains, and they sit when the hot wind off the A-9 highway blows sand into
their makeshift tent. They’ve been sitting for over 200 days now in
Kilinochchi, protesting the loss of their family members. They are mostly
women, and they say they have one thing in common: they all lost their loved
ones in the final days of the war in 2009, reported the media in 2017.
They want to
know if their sons, daughters, parents, husbands and in-laws are dead, or if
they’re alive somewhere, in a prison or detention camp. Many believe
that their loved ones are still alive somewhere, and if they were released,
they could come home and help take care of their shattered families.
Some of the missing
are LTTE who surrendered after the Army’s final offensive .But others were just
civilians, picked up in camps for internally-displaced persons or loaded on to
buses and never seen again.
Thangavelu
Sathiyathevy recalled the last time she saw her family. She said she remembers
the day exactly. This was May 18, 2009. We were in Vadduvakallu, and there
were buses taking people away,” she said. Thousands of displaced people had
gathered on the beaches there, seeking safety from the fighting. Vaddavakallu
was technically in a no-fire zone. My daughter, son-in-law, and their three
children were taken into the bus. He was an LTTE member,” she said, we also
asked to join with them. But they said no, you can go separately.”Sathiyathevy
said she was taken to Manik Farm, an IDP camp near Vavuniya. But she has never
seen or heard from her family again. The children were 2, 9, and 10 years old.
Sivayogam
Ratnaraja said she and her family was also taken to an IDP camp in Vavuniya
after the war. In June, her son Ratnam Ratnaraja came to visit them from the
University of Moratuwa, where he was studying engineering. But after he left
the camp, he was arrested by local police. Ratnaraja said she was never given a
reason for his arrest. But she has a suspicion. Her elder son, Ratnam’s older
brother, was an LTTE cadre and died during the fighting. The Police or an
informant might have known this. Six months later, Ratnaraja said one of her
neighbors, met with and spoke with her son at Anuradhapura prison. But she has
not heard from him thereafter.
Jeyakanthi
Narmila’s husband from Thilaiyampathi in Kondavil, Jaffna, disappeared on
August 17, 2007. She alleged that he was taken away by the Army in a white van.
Some Army soldiers reached my home in a white van, it was around 3.30 am. He
has not returned since. I haven’t heard anything about him. I made complaints
about the abduction of my husband to the Uralu Army Camp and the Kopai Police,”
she said.
Six months
after the disappearance, she had seen her husband on a motorcycle pillion,
ridden by an Army soldier. Three years later, she saw her husband once again,
in an army truck. On that day, a piece of cloth was tied round his mouth.
Thereafter, I never saw my husband again.
In 2018 media
reported that families of the disappeared were protesting across Vavuniya, Kilinochchi and Mullaitivu, demanding
to know the whereabouts of their loved ones. Relatives of those missing still
continue with their public protests even as their numbers get less due to the
vicissitudes of time and age, said Jehan Perera. The fate of the missing
persons is an emblematic issue to the northern people. The numbers who went
missing was large, one of the largest in the world at that time, and memories
of those beloved do not fade for those who living, he said.
.In 2019 Mannar
residents protested opposite Mannar GA office demanding that government locate
those reported missing during the war. Families of those missing during Eelam
war IV also gathered in Colombo, Jaffna and Batticaloa. In Colombo they protested
in silence at Lipton Circus. Lovers who have been deprived due to enforced
disappearance during armed conflict, commemorated ‘Missing lovers Day’ opposite
Dutch Hospital in Colombo.
A series of
demonstrations and protest marches were organized in the North, in 2019 to mark
the ‘International Day of the Victims of Enforced Disappearances’. The Association
of Missing Persons Relatives” and other organizations had organized
demonstrations and protest marches in every district in the Northern Province.
They wanted the Government to trace their loved ones and to mete out justice to
their families. They said they didn’t want an Office on
Missing People, they needed relief.
One protest march
was to wish for the destruction of the United Nations, which, they said, was
not doing enough for those who had disappeared during the war. The protestors
said that they had complained to the UNHRC on a number of occasions but their
complaints had gone unheeded.”Therefore we curse them. We hope that the
UNHRC will face destruction,” a protester said. After wishing ill on the
UN, the protesters marched across Vavuniya.
The hope that the establishment of an Office
of Missing Persons would bring a solution has ebbed as no one who disappeared
has yet been said Jehan Perera. In 2019, a group of people protested
opposite the Office of Missing Persons Office, demanding that it be closed as
it had served no purpose. The protesters also called for a proper compensation
scheme as Rs. 6,000 promised to families of the missing persons was
insufficient. They also said that the government did not need to obtain information
on missing persons afresh.
However, OMP
was not inactive. In 2018, in is interim report, OMP spoke of the economic
hardships faced by families of the disappeared and missing. The importance of
providing interim relief until compensation and other forms of reparation are
provided to address their complex needs
and acknowledge the harms suffered.
MP had
recommended that the government provide Rs.6,000 monthly relief to families of
mission persons as interim relief for those who have obtained Certificate of
Absence, unit the Office for Reparations resolves their claims. OMP stated that
this must not be regarded waiver of the right to adequate, prompt and effective
reparations and to seek judicial remedies.
To the great
joy of the OMP, Yahapalana government
included the Rs 6,000
payment in its 2019 Budget. However, OMP
observed that the linking of the monthly relief to the possession of a
Certificate of Absence (COA) poses a challenge. The OMP has a legal
responsibility to facilitate the provision of COAs and is in the process of
devising methods to increase awareness and assist families to apply for COAs.
The OMP made
a number of other recommendations relating to interim relief including debt
relief, housing, education, vocational training and livelihood development and
employment. One such recommendation is that the families of the missing and
disappeared be included in financial aid programmes and loan schemes such as
‘Enterprise Sri Lanka’ to help families achieve economic independence . The families
are required to join the livelihood programmes coordinated by the Office for
National Unity and Reconciliation (ONUR).
MANNAR SKELETONS
In May
2018, a mass grave of more than 300 skeletons were discovered at a
construction site in Mannar. It was the second mass grave found in Mannar. The
first was found in 2014.
The German
Ambassador in Colombo accompanied by a large group of foreign and local
journalists, was one of the first diplomats to inspect the site on. A British
team came next. There was speculation whether these bodies had been tortured. Office
on Missing Persons funded tests, to
determine whether the victims were killed during the Eelam conflict.
However, Beta
Analytic Institute of Florida, USA, said that the samples of skeletal remains
sent from the Mannar mass grave site for carbon dating, were dated to a period between 1499 and 1719 AD. This was
the time of Portuguese-Dutch rule . The National Peace Council, Center for
Policy Alternatives and TNA called for a second opinion.” TNA wanted the bones to be tested in a different
country.
‘ENFORCED DISAPPEARANCES’
Yahapalana government signed and ratified the ‘International
Convention for the Protection of All Persons from Enforced Disappearances’ in December
2016.
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, said Chandraprema.
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.
These two Articles of the International
Convention Against Disappearances read together gives a clear picture of the
action that any member state of this Convention can take against one of its own
citizens or the citizen of any other member state who may be present in its
territory, continued Chandraprema.
Article 13 of the international convention also
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 are supposed to 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.
Clause 8 says that where a request is made to
the Government of Sri Lanka, by the Government of a Convention State for the
extradition of any person accused or convicted of causing an enforced
disappearance, the Minister shall, on behalf of the Government of Sri Lanka,
forthwith notify the Government of the requesting State of the measures which
the Government of Sri Lanka has taken, or proposes to take, for the prosecution
or extradition of that person for that offence, continued Chandraprema.
When you read Articles 10, 11 and 13 of the
International Convention Against Enforced Disappearances together with Clauses
8 and 21 of the Bill that had been presented to Parliament to give effect to
that convention in Sri Lanka, it is clear that once the Convention becomes
operational in Sri Lanka, foreign countries which are members of the
International Convention will have complete jurisdiction over Sri Lankans who
are alleged to have been involved in causing enforced disappearances in Sri
Lanka.
Even if a person believed by foreign states to
have been involved in enforced disappearances in Sri Lanka happens to be in Sri
Lanka, any interested foreign government can request the Sri Lankan government
to extradite that person to their country to be prosecuted or handed over to an
international criminal tribunal to be prosecuted.
By
signing and ratifying the International Convention against Enforced
Disappearances Sri Lanka has accepted that its citizens can be handed over to
an international criminal tribunal for prosecution under Article 11. Nobody
will be able to argue that the ICC does not have the jurisdiction to prosecute
a Sri Lankan handed to them by a third country because Sri Lanka has granted
authority to all member states of the International Convention against Enforced
Disappearances to take action against Sri Lankans for offences under this
Convention and one of the actions specifically sanctioned is the handing over
of suspects to an international criminal tribunal.
Chandraprema pointed out that the United States, Britain,
Australia and Canada, had not signed this Convention. USA has a clear policy
that no foreign government is going to 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 had also signed it ten years
ago, she too had never ratified it. But Yahapalana had had signed and ratified
this convention within a few months .
Yahapalana then moved on to the next step which was a Bill to
incorporate into the law of Sri Lanka, the provisions of the ‘International
Convention for the Protection of All Persons from Enforced Disappearances’.
There was opposition.
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, said Chandraprema.
G.L.Peiris observed that
this Bill was probably not even drafted here but sent from overseas. 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, he said.
He pointed out that this proposed 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. That
protection which is even enshrined in customary international law, is
specifically taken away and furthermore, that through this proposed Bill, it
becomes possible to send Sri Lankans to the Hague through a foreign country.
He said that Clause 23 of the proposed Bill enables the proposed
law to supersede all other written laws in Sri Lanka giving it a status akin to
the constitution. Joint Opposition said it does not want the debate on this
Bill. They want it withdrawn altogether.
Yahapalana government took
no notice. Sri Lanka enacted the International Convention for the Protection of
All Persons from Enforced Disappearance Act in March 2018. Here are two clauses in this Act.
Where
a request is made to the Government of Sri Lanka, by or on behalf of the
Government of a Convention State for the extradition of any person accused or
convicted of an offence under sections 3 or 4, the Minister shall, on behalf of
the Government of Sri Lanka, forthwith notify the Government of the requesting
State of the measures which the Government of Sri Lanka has taken, or proposes
to take, for the prosecution or extradition of that person for that offence.”
Notwithstanding anything in the Extradition Law, No. 8 of 1977,
an offence specified in the Schedule to that Law or an offence under this Act,
shall not be deemed an offence of a political character for the purposes of the
extradition of any person accused or convicted of any such offence, as between
the Government of Sri Lanka and any Convention State.
OFFICE FOR
REPARATIONS
Yahapalana
government passed the Office for Reparations Act, No. 34 of 2018. Yahapalana
appointed the Board in April 2019.Dhara Wijayatilake, Chairperson,
J. M. Swaminathan, Sellathamby Sumithra, A.A.M. Fathihu, Lt. Colonel (Retired)
Rathnapriya Bandu . Yahapalana government allocated Rs. 700 million for the
Office for Reparations.
Office for
Reparations is the second step of the transitional justice mechanisms for
reconciliation process formulated locally and implemented by the Government of
Sri Lanka, said Yahapalana .It is the responsibility of the Office for
Reparation to identify the aggrieved victims qualified for reparation and
provide appropriate compensation individually or collectively to them, reported
the media.
The Office for
Reparations is an independent body reporting to the Parliament of Sri Lanka.
The Office is tasked to
identify the aggrieved persons, who are eligible for reparations as well as
their level of need, and to formulate and recommend policies on Reparations and
guidelines with regard to the grant of individual and collective reparations,
including the criteria for eligibility, and the nature and severity of
grievances for which reparations will be available.
The objectives of this Office would include formulating policies
on reparation to grant individual and collective reparations to aggrieved
persons. Also to facilitate and implement such Policies, which could include
memorialization.
The Office for
Reparations had the power to receive
recommendations with regard to reparations to be made to aggrieved persons from
OMP, other relevant bodies, institutions,
as well as aggrieved persons or their representatives and to verify the
authenticity of such applications, for the purpose of assessing the eligibility
for reparations also to consider non-monetary reparations and collective reparation.
The Office was also to take action on collective reparations such as memorials
and measures of restitution, including the provision of land and housing.
The Office for Reparation was to focus
primarily on those affected by Eelam war, or enforced disappearances as defined
in the International Convention for the Protection of all Persons from Enforced
Disappearance Act, No. 5 of 2018.
The idea of reparation had been floated
long before the Act was passed. In 2016
‘Fairplay’ had written to the papers saying that the government should pay
compensation to Tiger widows. Then In
2018, MP Swaminathan 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.
Swaminathan made use of an LLRC recommendation that said
ex combatants and next of kin should also be considered eligible for
compensatory relief. Compensatory
relief should be given for the deaths
and injuries of those who were involved in suspected terrorist activities and
their next of kin, said LLRC. Government
wants to pay enhanced” compensation to those who took to arms to create a separate
homeland” in Sri Lanka, observed contemptuous critics.
Swaminathan
had submitted this proposal to Cabinet thrice. The Cabinet Paper had been deferred
in the first two instances, but on the third occasions, due to continued
protests from Ministers, was stopped for good, reported the media. The paper
had also proposed to compensate civilians, places of religious worship and the
families of dead LTTE cadres as persons affected by the war. ( Continued)
