In August 2016, the OMP Bill was bulldozed through Parliament by the UNP, the SLFP government group, the JVP and the TNA despite the objections raised by the Joint Opposition. Less than 40 minutes was allowed to debate this new law. Then a vote was taken and the Speaker declared the Bill to have been passed. In the confusion surrounding the Sinhala-Muslim riots, the government rammed through the Enforced Disappearences Bill in much the same way. This was a piece of legislation that the government had presented to Parliament twice earlier and then withdrawn due to protests from the Buddhist monks and the public. If not for the Sinhala-Muslim riots, this law may never have seen the light of day. It should be remembered that a joint meeting of the Karaka Sangha Sabhas of the Malwatte and Asgiriya Chapters had asked the government not to proceed with this legislation.
The Joint Opposition had asked for more time to debate the Enforced Disappearences Bill. This had been agreed to, and the vote was not going to be taken last Thursday but the Speaker had suddenly put it to the vote and declared the Bill to be passed. During the short debate that had taken place earlier, Foreign Affairs Minister Tilak Marapana had told Parliament that he wished to include a phrase ‘excluding Sri Lankans’ in Section 8 of the Bill in response to the allegation made by the JO to the effect that the legislation allowed a foreign state to try Sri Lankans, who are found to have committed an offence in Sri Lanka. Section 8 says that the government of Sri Lanka will notify any state, which makes an extradition request, of the steps already taken or to be taken in respect of the prosecution or extradition of the person accused of offences under the Act. However the Prime Minister had withdrawn the amendment proposed by the Foreign Minister and the Bill was finally passed without any amendments.
Implications of operationalizing the OMP
President Maithripala Sirisena appointed the seven members of the OMP just days before the Sinhala-Muslim riots broke out in Kandy. The main motive for this was obviously the UN Human Rights Council sessions in Geneva. The Office of Missing Persons is one of several institutions that the yahapalana government has agreed to set up to ‘deal with the past’ in terms of the UN Human Rights Council Resolution 30/1 of 14 October 2015. Even though it is described as an ‘office’ the proposed OMP will be a tribunal for all practical purposes which can examine witnesses, issue summons and hold hearings. Even more significantly, its officers can enter without warrant, at any time of day or night, any police station, prison or military installation and seize any document or object they require for investigations. Anyone who fails or refuses to cooperate with the OMP may be punished for contempt of court.
When the OMP Act was first passed, former President Mahinda Rajapaksa drew attention to the fact that the new law required the seven members of the OMP to have experience in fact finding and expertise in human rights law and international humanitarian law and pointed out that the appointees will for the most part be representatives of Western funded NGOs. Now looking at the people who have been appointed to the OMP, he has been proved right. A howl of protest has already arisen in this regard. What is even more insidious is that the present composition of the Constitutional Council is such that all the ten members of the Constitutional Council are yahapalanites and hence all members of the OMP are also yahapalanites. The danger in a lot like that exercising the powers vested in the OMP should be obvious. Section 21 of the Act empowers the OMP to receive funding from any source local or foreign. Hence this body can receive funding from foreign governments, international NGOs and even from pro-LTTE Diaspora organizations that have not been banned.
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 which makes it obvious that the pro-LTTE Diaspora organizations which are trying to continue the war against the Sri Lankan state by other means will be heavily involved in this body. Government bodies at all levels including the armed forces and intelligence services are mandatorily required to render fullest assistance to the OMP and the provisions of the Official Secrets Act will not apply to the proposed institution. Given the present composition of the OMP, can one even begin to imagine the implications this will have for the country? Furthermore, section 12 (c) (iii) of the Act allows the OMP to admit as evidence any statement or material disregarding all criteria laid down in the Evidence Ordinance. Disregarding the Evidence Ordinance will result in the common safeguards available even to the accused in ordinary criminal courts in this country being denied to those brought before the OMP. Moreover, the provisions of the Right to Information Act will not apply to the work of the OMP. 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.
Under Section 25 of the Act, all officers of the OMP 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. 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. Under section 13(1)(i) of the Act, information gathered by the OMP can be referred to the relevant law enforcement or prosecuting authority. It can be observed that the various laws being introduced by this government complement one another. The Office of Missing Persons (which will be funded and maintained by interested foreign parties) can make an allegation against an individual in a report and on that basis a foreign country can ask for the extradition of the suspect to be either tried in that country or handed over to an international criminal tribunal for prosecution.
The Enforced Disappearances Bill
The Bill to incorporate into the law of Sri Lanka, the provisions of the ‘International Convention for the Protection of All Persons from Enforced Disappearances’ has now been passed. 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 21 empowers the executive arm of the State to oversee the FULL implementation of the international convention on enforced disappearances in Sri Lanka.
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. 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 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.
Article 32 of the international Convention (which the Sri Lankan government has accepted by a separate declaration) 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. Countries like the United States, Britain, Australia and Canada, never even signed this Convention. Denmark, Finland, Norway, Sweden, Ireland and India signed it ten years ago in 2007, but never ratified it. Many countries have kept away from this Convention altogether for the obvious reason that its provisions have the potential to violate the individual rights of citizens of the States that join it. 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 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 categorised 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 categorised as having ‘disappeared’ by all interested parties.
Was Tilak Marapana being truthful?
Even though Foreign Minister Tilak Marapana said in Parliament that the Enforced Disappearances Act will not have retrospective effect, Article 13(6) of our Constitution specifically says that there is no impediment to applying a new law retroactively if at the time the act in question was committed, it was ‘criminal according to the general principles of law recognized by the community of nations’. Apart from this blanket provision in our Constitution, the retroactive application of the Enforced Disappearances Act is also written into it. Section 20(1) of the Act goes as follows: “Without prejudice to any judicial or other remedy provided for by or under any written law, any person with a legitimate interest shall be entitled to apply by way of petition addressed to the High Court seeking the enforcement of sections 7, 14, 15, 16 or 19 of this Act and to plead for such relief or redress as shall be prayed for in such petition.” And Section 20(2) goes as follows: “The jurisdiction of the High Court may be invoked under subsection (1) of this section by any person with a legitimate interest, by himself or through any other person on his behalf, within three months of the date on which the non-enforcement of sections 7, 14, 15, 16 or 19 of this Act becomes known to such person,…”
Section 14 of the Enforced
Disappearances Act goes as follows: “14. (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. (4) Law enforcement authorities shall take all appropriate measures to search for and locate the disappeared person, and in the case of a person held in secret detention, procure the release of such person, and in the event of death, to locate, respect and return the remains of such person.”
The ‘non-enforcement’ of Section 14 that is spoken of in Section 20 is about people not knowing the whereabouts of disappeared persons irrespective of when they disappeared. The inherent retroactivity of this proposed enabling legislation has been cleverly concealed. Within three months of a person becoming aware that he has still not received news of what happened to someone 10 or even 20 years ago, that person can make an application to the High Court under Section 20, asking for relief under Section 14. Thanks to the Sinhala-Muslim riots, this law is now on our statute books.