So it is tens of thousands in numbers who have met with this fate. In amending the Registration of Deaths (Temporary Provisions) Act, now, there is provision to issue a different kind of certificate and that is a certificate of absence. This is a most welcome move; one about which we would congratulate the Government because by this, firstly, there would be an acknowledgement that a person has gone missing – the person is absent – without forcing those families to accept that the person is dead…
[H]ere, people refuse to accept that the person has died. Why? Because in most cases they themselves have handed over that person to authorities. And then, if the same authorities ask them to apply for a death certificate, naturally, they will not do that. When I say “authority”, it is the Government, whoever the agency is. Their question is, “We handed him over to you. How dare you now tell us to obtain a death certificate? Tell us how he died, if he died. Tell us what happened. You have an obligation to answer. Without that answer being given, we will not accept a death certificate.”
REGISTRATION OF DEATHS (TEMPORARY PROVISIONS) (AMENDMENT) BILL
Colombo, August 25, 2016
(The Hon. M.A. Sumanthiran)
Thank you, Mr. Speaker for the opportunity given to say a few words on the occasion of the Bill titled, “Registration of Deaths (Temporary Provisions) (Amendment)” is taken up.
This is an important piece of legislation that this Government is moving consequent to the Office on Missing Persons (Establishment, Administration and Discharge of Functions) Bill that was passed recently. This has been necessitated, as the Hon. Deputy Minister of Home Affairs said, due to certain types of deaths that have occurred for which there is no usual evidence as one would find in ordinary circumstances. This Act was brought in for different purposes at different times – after the tsunami a similar provision was brought in, and after a period of intense violence that this country had to face unfortunately where several thousands of its citizens died, it has become necessary to enable the surviving members of the families of those who met with such deaths to get on with their lives, to move forward, deal with property, deal with various other obligations and therefore, the ordinary law as to how certificates of death can be issued had to be amended.
Now, along with this, the issue of missing persons became a very serious problem. The Government through several means try to ascertain the fate of people who had gone missing. Initially in 2010, when the Lessons Learnt and Reconciliation Commission was appointed by the then Government, when that Commission held sittings in various parts of the country particularly, in the North and the East, thousands of complaints were forwarded to that Commission by the relatives of people who had gone missing during the conflict. Although the mandate of that Lessons Learnt and Reconciliation Commission was somewhat broader, I think more than 90 per cent of the complaints received by that Commission related to persons who went missing over a period of time, most notably, during the last stages from the middle of 2008 to the middle of 2009. The Lessons Learnt and Reconciliation Commission in its report has brought this out and made very important recommendations. Unfortunately, the Government of the day, which appointed the LLRC, did not think it appropriate to implement the recommendations of the LLRC and although several actions were taken to compel, to persuade the Government to implement those recommendations of the LLRC, most of those recommendations remain unimplemented. There were even Resolutions in the UN Human Rights Council and I think the country needs to know this – that the UN Human Rights Council did not in one move adopted the LLRC recommendations. It was specifically mentioned in the Resolution that was adopted in the year 2012. Thereafter, it was reminded again in 2013. However, as we all know, the Government was lethargic, if not totally unwilling, to put into practice what its own Commission had recommended.
Some of those important recommendations related to the case of missing persons. Thereafter, in order to show that this important aspect of the LLRC’s recommendation is being looked into, the then Government appointed a Commission headed by a former High Court Judge, Mr. Maxwell Paranagama. The LLRC recommended that an Investigative Commissioner be appointed with respect to the missing persons. But, what was done was yet another Commission which held sittings all over the country and forced – I am using the word “forced” although there was no physical force – people felt compelled to go before that Commission also all over again and make complaints with regard to their next of kin who had gone missing or who was forced to disappear.
These relatives have gone before several such fora. They complained to the ICRC, they complained to the nearest Human Rights Commission Office, they made complaints to the police station. Invariably, each of those families has a file full of these documents that they have forwarded to various different authorities who, they think, will assist them in some way to resolve this question of missing persons. So, they went before the Paranagama Commission also, repeated their stories. I, myself attended some of those hearings in Mannar, in Mullaitivu and so on. I have commented on this in this House as to how those hearings were far less than satisfactory that people sometimes were asked questions leading them to answer in a particular way and there were occasions when several mothers reacted to those leading questions. They were invariably asked about compensation, whether they have got chickens, whether they have got goats, and many a time mothers would scream at the Commissioners and say, “I want my son back. I do not want a goat. I do not want chickens. I want my sons back.” The conduct of that Commission was so unsatisfactory in everybody’s eyes that one of the Resolutions adopted in the UN Human Rights Council called for a termination of the proceedings of the Paranagama Commission. For some inexplicable reason, this Government too continued to extend the mandate of that Commission. But, I believe, it has now come to an end and some of those recommendations of that Commission are also being made public.
When that Commission started its sittings in the District of Kilinochchi, close to the place where the Commissioner sat, there was another tent put up and the son or “a son” of the former President was personally present there dolling out cash to people who were going to the Paranagama Commission to divert them to this other shed – giving them cash asking them to apply for a death certificate of their loved one. We raised that matter in this House even at that time. People were being bribed to admit that the persons who have gone missing and about which they were going to make complaints had actually died; and to accept such deaths. There was a huge reaction to this and then that practice of overtly coercing people to accept death certificates was done away with and people continued to make their complaints. Over 20,000 complaints have been made even to the Paranagama Commission, the conduct of which no one was satisfied about. So it is tens of thousands in numbers who have met with this fate. In amending the Registration of Deaths (Temporary Provisions) Act, now, there is provision to issue a different kind of certificate and that is a certificate of absence. This is a most welcome move; one about which we would congratulate the Government because by this, firstly, there would be an acknowledgement that a person has gone missing – the person is absent – without forcing those families to accept that the person is dead.
There is “presumption of death” in our law, but that is only when there is a question as to whether a person is living or dead becomes an issue in a legal proceedings. Then, if those people who would otherwise have ordinarily heard of him have not heard or seen him – initially it was for a period of seven years; then, it was brought down to a period of one year – then, there is a “presumption of death”. That is very different to saying that the person is dead. That presumption is a legal fiction for purposes of determining whether a person is alive or not in those legal proceedings – it is a very narrow compass that presumption exists. But, here, people refuse to accept that the person has died. Why? Because in most cases they themselves have handed over that person to authorities. And then, if the same authorities ask them to apply for a death certificate, naturally, they will not do that. When I say “authority”, it is the Government, whoever the agency is. Their question is, “We handed him over to you. How dare you now tell us to obtain a death certificate? Tell us how he died, if he died. Tell us what happened. You have an obligation to answer. Without that answer being given, we will not accept a death certificate.” Here, now, there is another option: the certificate of absence. By that they do not have to accept that the person is dead. But it is accepting the actual state of affairs – the person is missing. In fact, he is missing. That is their complaint also. So, therefore, they get this certificate. I must say this to the relatives of those persons that there is a mischievous campaign being carried out telling them not to accept the certificate of absence.
இந்த ேவைளயிேல, காணாமல்ேபானவர்களின் உறᾫகᾦக்கு நாங்கள் ெசால்லேவண்ᾊய ᾙக்கியமான ெசய்திெயான்ᾠ உண்ᾌ. அதாவᾐ, “குறித்த நபர் காணாமல்ேபாயிᾞக்கின்றார்” என்ற சான்றிதைழப் ெபறேவண்டாம் என்ᾠம் அைதப் ெபற்றதற்குப் பிறகு அவர் மரணித்ᾐவிட்டாெரன்ᾠ அவர் குறித்த எந்தவித விசாரைணகᾦம் நைடெபறமாட்டாᾐ என்ᾠம் அவர்கள் மத்தியில் ெபாய்யான பிரசாரம் ெசய்யப்பᾌகின்றᾐ. அᾐ தவறானெதாᾞ பிரசாரம். “காணாமல் ேபாயிᾞக்கிறார்” என்ᾠ அவர்கள் ெசால்ᾤகின்ற குற்றச்சாட்ைட ஏற்ᾠக்ெகாள்கின்ற பத்திரம்தான் “குறித்த நபர் காணாமல்ேபாயிᾞக்கிறார்” என்ற சான்றிதழ். அவர் பற்றிய விசாரைண அத்ேதாᾌ ᾙᾊவைடந்ᾐவிடாᾐ. இச்சான்றிதழ், “குறித்த நபர் காணாமல்ேபாயிᾞக்கிறார்- காணாமல் ஆக்கப்பட்ᾊᾞக்கிறார்” என்பைத அரசு ஏற்ᾠக்ெகாண்ᾊᾞக்கின்றᾐ என்பதற்கான அத்தாட்சி மட்ᾌேம! அதற்குப் பிற்பாᾌ, அவᾞக்கு என்ன நடந்திᾞக்கின்றᾐ என்பᾐ ெதாடர்பிலான விசாரைண நைடெபறேவண்ᾌம்.
Initially, a certificate of absence can be given because that is a mere acknowledgment by the Government that in fact that person is not around. That is your complaint as well. That does not extinguish your right to have an inquiry into the fate of that person. There must be a determination at the end of it whether the person is dead or not or whether there is sufficient evidence to conclude that the person is dead. If there is sufficient evidence which the family can actually accept, and if you can tell them “All right, this is what happened,” then, whether it is right or wrong they will accept it and there can be a closure and they can move on in their lives.
The other implications of such a death can be dealt with differently but this amendment to the Act addresses the issue of the family knowing the fate of the missing person. If there is no evidence, if it is unascertainable as to what happened to that person, then you still have the certificate of absence, the legal incidence of which will enable you to continue to move forward in life; deal with property, marriage rights and you can deal with various other aspects. Although this is not the total answer to this huge humanitarian problem, this is something that can be done and that step has been taken so that there would be some solace for those people who have gone from pillar to post complaining for several years and not found any answers to their complaints up to now.
I have given notice to move an amendment at the Committee Stage and I wish to say a few words with regard to that. There was an incident that I spoke about where people were forced to accept death certificates. The information we have is that several people have taken those death certificates unwillingly on account of various coercion that was practiced on them. Now, there is a mechanism that is being put in place with respect to missing persons; now that a new law has been enacted; now that through this amendment, there is the option of accepting a certificate of absence instead of a certificate of death, even those persons who have already obtained death certificates must have the option to exchange it for a certificate of absence and have their cases also investigated. That is the amendment that I am proposing. I urge the Government to kindly consider this because this does not change anything. It only extends the relief that you are extending to the families of the disappeared and for those who have been doubly jeopardized by this coercive practice to have the right to have an investigation. At the end of the investigation, if it is found that the person is actually dead then they may be given a death certificate, but to have in the interim the right to withdraw the death certificate and instead be given a certificate of absence in that period of time.
When this Act is implemented we hope that this very important issue, the huge issue of people who were forced to disappear; who were made to disappear; who have gone missing primarily during the conflict in the North and the East, as it is defined here, but also otherwise, will have a remedy and it is our prayer that this scourge of missing persons will totally be eradicated from this land.
Whilst the Government takes steps with regard to nonrecurrence, we will fully participate in that as we are now doing in the drafting of a new Constitution. One has to deal with these unfortunate people who had to face this issue. So, these are some measures that the Government has taken and we urge the House to pass this into law and I urge the House also to consider the amendments that I will move at the Committee Stage.
Thank you very much, Sir.
(The Hon. Mangala Samaraweera – Minister of Foreign Affairs)
Mr. Speaker, at the very beginning of the speech, I would also like to echo the sentiments of the Hon. M.A. Sumanthiran when he said that this Bill along with the Office on Missing Persons (Establishment, Administration and Discharge of Functions) Bill will eradicate the question of missing persons forever and hopefully confine them into the pages of our history and the era of disappearances and white vans that we hope will never raise its ugly head again.
Mr. Speaker, we have before us in this House today, an important piece of legislation which has been presented by the Hon. Minister of Home Affairs. Like the Office on Missing Persons (Establishment, Administration and Discharge of Functions) Bill passed in this House on the 11th of this month, this too is a landmark legislation in our reconciliation process and also in our transitional justice scheme…
(The Hon. Rauff Hakeem – Minister of City Planning and Water Supply)
…Clause 2 of the Registration of Deaths (Temporary Provisions) (Amendment) Bill very clearly says, “….for the registration of persons reported missing as a result of the conflict which took place in the Northern and Eastern Provinces or its aftermath or political unrest or civil disturbances or enforced disappearances or of Members of the armed forces or police identified as missing in action:…”
(The Hon. M.A. Sumanthiran)
Sir, the New Clause reads as follows:
I move, “In Page 12, after line 28, add: 11. Section 13 of the principal enactment is hereby amended by the addition immediately after sub-section (4) thereof, of the following new sub-section;
(5) Notwithstanding anything contrary in the preceding provisions of this Act, where,
(a) pursuant to any person having made an application in terms of sections 2 or 8 of this Act, prior to the coming into force of this amendment,
(b) a death certificate has been issued in respect of a missing person, and
(c) an application is made by a relative of a missing person substantially in the manner specified in section 8G(1) of this Act the Registrar-General shall forthwith cancel such a Certificate of Death and forthwith proceed to issue a Certificate of Absence in terms of Section 8G of this Act.” The provisions of Sections 8D and 8F shall mutantis mutandis apply to an application under this sub-section…
New Clause, ordered to stand part of the Bill.