P.K.BALACHANDRAN | 4 MARCH, 2018
Sri Lanka Moves on Enforced Disappearances
Bill in Parliament to criminalise enforced disappearances
COLOMBO: With the 37th Session of the UN Human Rights Council (UNHRC) on in Geneva, the Sri Lankan government has hurriedly taken a couple of steps to ward off criticism that it has done precious little to implement a resolution on ethnic reconciliation which it had itself co-sponsored at the council’s session in September 2015.
On February 28, the government appointed Commissioners to the Office of Missing Persons (OMP), an organization which had been gazetted months ago, but had not been given the required personnel.
Going a step further, the government is to present a bill in parliament on March 7 to criminalize enforced disappearances. According to the state-owned Sunday Observer, the Bill for Protection against Enforced Disappearances, will be put to vote after a day’s debate.
An estimated 65,000 Sri Lankans have been reported missing after two Marxist insurgencies in South Sri Lanka, and a 26-year war against Tamil separatist militants in the North and East of the island.
The Sri Lankan government had presented the International Convention for the Protection of All Persons from Enforced Disappearances Bill in Parliament on March 7, 2017. The Bill was scheduled to be taken up for debate on July 5 and September 19last year. But the government deferred it due to objections from various groups including the Joint Opposition group in parliament led by former President Mahinda Rajapaksa.
However, a major flaw in the Bill is that it is “not retrospective”. It will not apply to past cases of enforced disappearances, including those which occurred during the brutal Eelam War IV between 2006 and 2009.
The government has made it clear that the Bill’s main objective is to ensure that every Sri Lankan citizen enjoys the right to live without fear of being a victim of enforced disappearance or abduction. The bill will therefore apply to fresh cases after the bill becomes law.
The Bill will give effect to the UN International Convention for the Protection of All Persons from Enforced Disappearance that the Government of Sri Lanka ratified in May 2016.
Under the said convention, Sri Lanka has an obligation to enact local laws to criminalize enforced disappearances and offer protection to victims of the crime.
According to Section 3 of the Bill, any public officer or person acting with the authority or support of the State, who “arrests, details, wrongfully confines, abducts, kidnaps” and refuses to acknowledge the arrest, detection, confinement or abduction, conceals the fate of such a person or refuses to disclose the person’s whereabouts, will be guilty of the crime of enforced disappearance.
Under the provisions of the Bill, enforced disappearance is punishable by a prison term not exceeding 20 years and a fine of LKR 1 million (US$ 6450).
Persons convicted of the crime of enforced disappearance will also be liable to pay compensation of no less than Rs. 500,000 (US$ 3548) to a victim.
The Bill has to be supported by a simple majority of the House to be enacted into law.
As part of the process of tacking the problem of enforced disappearances, the Sri Lankan government had set up an Office of Missing Persons (OMP). But it took months to appoint the mandated seven commissioners to it.
The Commissioners, headed by leading lawyer Saliya Peiris, were appointed only late last month after the UNHRC began its 37 th.Session and after the High Commissioner of Human Rights, Prince Zeid, asked members to consider extending “Universal Jurisdiction” to Sri Lanka if it continued to drag its feet on setting up reconciliation and judicial mechanisms it had committed itself to.
The OMP has the mandate to:
(a) search for and trace missing persons and identify appropriate mechanisms for the same, and to clarify the circumstances in which such persons went missing;
(b) make recommendations to the relevant authorities towards addressing the incidence of missing persons;
(c) protect the rights and interests of missing persons and their relatives as provided for in this Act;
(d) identify avenues of redress to which missing persons and relatives of missing persons are entitled and to inform the missing person (if found alive) or relative of such missing person of same;
(e) to collate data related to missing persons obtained by processes presently being carried out, or which were previously carried out, by other institutions, organizations, Government departments and commissions of inquiry and Special Presidential Commission of Inquiry and centralize all available data within the database established under this Act;
(f) to do all such other necessary things that may become necessary to achieve the objectives under the Act.
No Time Period For Cases
Most importantly, the mandate of the OMP will extend to missing persons “notwithstanding the time period in which such person became a missing person.”
Where it appears to the OMP that an offence within the meaning of the Penal Code or any other law, has been committed, that warrants investigation, the OMP may, after consultation with such relatives of the missing person as it deems fit, in due consideration of the best interests of the victims, relatives and society, report the same to the relevant law enforcement or prosecuting authority.
Such a report will provide information relating to the missing person’s civil status (such as the name, age and gender of the missing person), the place(s) or district(s) in which the missing person was last seen and the date thereof: Provided that where a witness consents, the OMP may also inform the relevant authority, of the details of such witness, in order to enable such relevant authority to secure a statement from such witness to be used in the process of investigation.
Again, very importantly, the findings of the OMP “shall not give rise to any criminal or civil liability.”
However, the OMP and the bill have come under fire from the Joint Opposition led by former President Mahinda Rajapaksa as well as the representatives or families of missing persons.
The families of missing persons complain that the OMP will have no teeth, having no power to prosecute; and the Disappearances Bill will not have retrospective effect to cover the war period. But Sinhalese nationalists say that the OMP and the Bill will lead to a witch hunt of armed forces personnel who, against great odds, broke the back of the Tamil terrorists, sometimes using unconventional methods.
Answering this and other criticisms, Finance Minister Mangala Samaraweera said on Sunday that the OMP does not aim to benefit only one community and does not threaten another.
“It is merely a truth-seeking mechanism. It aims to investigate and find out the truth about those identified as missing or who have disappeared during the conflict,” he said.
The Minister pointed out that according to the international Committee of the Red Cross, over 16,000 individuals have gone missing during the civil war. Of them, 5100 belonged to the armed forces.
“We as a nation, have a responsibility to find the truth about where they are, and to bring an end to the agony faced by their families and loved ones,” Samaraweera said.
“The OMP mandate cuts across all ethnic and religious boundaries. It seeks to investigate persons missing in connection with the conflict of the North and East and its aftermath. This includes those of all ethnicities; including the armed forces and police who have been identified as Missing in Action. It will investigate into those gone missing during political unrest or civil disturbances in the south as well as victims of enforced disappearances island wide.”
“Despite its role as an investigative body, the OMP is not a law-enforcement or judicial body such as a court of law, and the Act clearly states that the findings of the OMP shall not give rise to any criminal or civil liability,” Samaraweera pointed out.
“The myths that have been spread about the OMP claiming that it is a witch hunt to prosecute our war heroes is a lie. The OMP cannot prosecute perpetrators of violence. These rumors are political manipulations to deter the fair and just actions taken by the government towards peace and reconciliation,” Samaraweera clarified.
“The OMP is merely an office set up to address grievances of the families and friends of those gone missing during conflicts and to ensure fair treatment for them in the future.”
“The OMP gives the chance for renewed faith and hope for those who have lost their families and friends. It is not limited to an area or ethnicity but promises dignity and prosperity for all. These steps will prevent isolating and radicalizing aggrieved communities and avoid new forms of terrorism that can shake the peace and stability of our nation,” the Minister reasoned.