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)
