PLAN OF ACTION REGARDING VICTIMS OF ENFORCED DISAPPEARANCES AND PERSONS HELD IN CUSTODY FOR A LONG PERIOD OF TIME

Sampanthan speech-8.3.2016 enforced disappearances indefinite detention

The former Government’s commitment to the ascertainment of the truth, it may be said, was highly questionable. The new Government needs to address this issue more purposefully so as to bring this extremely serious humanitarian issue to a satisfactory closure. Everyone is aware of the agitations that have been conducted by the affected families in regard to the missing persons. That they have a genuine complaint which needs to be addressed is unquestionable. They also quite justifiably complain that their grievance, apart from their going before a Commission and testifying, has not been addressed in a meaningful way. It is true that for most of the period of time it was the former Government that was in power which had no interest in addressing this issue seriously . The new Government has been in power for about one year and the victims would want to know how the Government is handling this issue. What are the Government’s plans? Does the Government have a definite plan to handle this issue? Of course, these persons have gone and testified before these Commissions. The Commissions record the evidence, but have they pursued the testimony of the victims or taken steps to investigate evidence of these witnesses who are victims? When a victim says that my son or my husband was taken to custody by a particular police officer or the police in a particular police station or the army in a particular camp, has the investigation been pursued further to try and find out whether that statement is correct and if so who that officer was? That is not being done. The new Government must accept responsibility for this situation and this issue needs to be addressed urgently…

Sir, I am aware that at the end of last year, I believe in December, 2015, you have signed the Convention on Enforced Disappearances, but it has not been ratified yet and I do not know what action you have taken in regard to the issue of certificate of absence which has been referred to in the Resolution adopted by the UN Human Rights Council. A certificate of absence is very different from a certificate of death. A certificate of absence does not accept that the man is not living any longer. But it enables the victims in such circumstances to use that certificate to be able to receive relief, maybe from the REPPIA, maybe from Samurdhi or maybe to stake their claims to right to succession, inheritance, various entitlements that the family would be entitled to. Consequent to being victims, these certificate of absence would certainly be a very strong document that would help them to rebuild their lives. Now what had been done in regard to this matter? How far have you gone? These are the questions that we would like to raise…

The agony of several thousands of families of these victims of disappearances cannot continue indefinitely. A decision needs to be arrived at as to whether the disappeared person is alive or not. If he or she is alive, his whereabouts should be made public; if not, other suitable and appropriate steps should be taken to reconcile the families with such reality and bring calm and normalcy to their lives. Truth, justice, reparation and all necessary steps to ensure non-recurrence must become effective urgently. This is the responsibility of the Government and I would urge that the Government defines a plan that would provide definite relief to these much traumatized families. I want to refer briefly, Sir, to a recent Report submitted by Mr. Pablo de Greiff, Special Rapporteur on Truth, Justice, Reparation and Guarantees of Non-Recurrence who visited Sri Lanka. He has stated, I quote:

“What is expected is, on the one hand, for the Government to pay immediate attention to certain issues on which it can certainly act without delay (for example, on the issue of the missing, on the prompt adoption of victim assistance programmes including psycho-social support, the lingering issue of land occupied by the armed forces, to name a few), ….”

He identified the issue of missing persons as one that can be dealt with without delay, urgently, amongst others.

Why is the Government not acting?…

This is what the Hon. Minister of Foreign Affairs said. I quote; “Review and repeal the Prevention of Terrorism Act and replace it with anti-terrorism legislation in line with contemporary international best practices.”

“Review and repeal the Prevention of Terrorism Act”. That was what you said to the UN Human Rights Council, on the 14th of September, 2015 in your opening speech, Hon. Minister. Today we are five months down the road. How can you hold persons in custody continuously under that Act which you have agreed to repeal? The only evidence against most of these people are their extracted confessions; most of them are being charged on the basis of extracted confessions. I am told some of the senior police officers, ASPs, who recorded those confessions do not go to courts. That is the reason why the cases are postponed. When you have committed yourself to repeal the Prevention of Terrorism Act, can these persons be any longer held or charged under the Prevention of Terrorism Act? It is a contradiction of your own commitment. The reasons for their release are compelling. I would urge the Government to release these persons, without any further delay at the earliest.

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Speech made by R Sampanthan, the Leader of the opposition in Parliament on the 8th of March 2016:

I thank you, Mr. Deputy Chairman of Committees, and the House for the leave granted to me to raise the following matter of urgent public importance, on the Adjournment of Parliament today.

Sir, I move the following Motion with regard to a matter of urgent public importance that I wish to raise.

“The current position of the State/Government in regard to persons who have been victims of enforced disappearances and other disappearances and persons who continue to be held in custody under the Prevention of Terrorism Act in judicial proceedings where

i. The trial has been concluded and persons sentenced.
ii. Where persons have been charged and the trial is ongoing, and
iii. Where persons have not been charged but continue to be in custody.

Though initiatives have been taken by the State/Government to inquire into this issue and though a long period of time, very many years, have lapsed, there has been no tangible effective final result, so as to mete out justice and alleviate the extreme trauma experienced by the families and next of kin of all these persons.

This continuing uncertainty is a serious impediment to the commencement of the process of reconciliation, and it is therefore imperative that the State/Government should bring this state of uncertainty to an end, through a definite plan of action that will immediately mete out justice and set in motion the process of reconciliation and end the extreme trauma of these families and next of kin. It is incumbent that the Government defines its immediate action plan in this regard.”

Sir, before I discuss further this question of enforced disappearances, I think it would be useful if I was to give this House the definition of “enforced disappearances” as accepted by the United Nations. In accordance with the definition contained in the Preamble of the Declaration, “enforced disappearances” are only considered as such when the act in question is perpetrated by State actors or by private individuals or organized groups – for example, paramilitary groups – acting on behalf of or with the support, direct or indirect, consent or acquiescence of the Government.

That, Sir, would be the definition of the term “perpetrators responsible for enforced disappearances”. The definition of “enforced disappearances” is as follows: “As defined in the preamble of the Declaration, enforced disappearances occur when persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of, the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law”. Sir, the Declaration referred to in these definitions is the Declaration on Protection of All Persons from Enforced Disappearance adopted by the General Assembly of the UN in its Resolution 47/133 of 18th December, 1992.

Sir, it would appear from these definitions that the persons who are perpetrators of enforced disappearances are either persons who act on behalf of the State or persons who act with the explicit or implied consent of the State. We are concerned with disappearances that occurred at the hands of the State. The responsibility for such disappearances is primarily that of the State. We are also concerned with disappearances that had occurred at the hands of the LTTE, because we know that there were persons taken into custody by the LTTE, who have also disappeared. They may not strictly come under the term “enforced disappearances”, but all persons taken into custody by other paramilitary groups collaborating with the State would come within the definition of “enforced disappearances”. Since, however, it is accepted by everybody that all these disappearances occurred in the course of the armed conflict, we are concerned with all disappearances, both of civilians and even military personnel. In regard to disappearances that had occurred at the hands of officials of the State or persons acting with the implied or explicit consent of the State, while the State is answerable, the State is also, in a sense, bound to perform its duties in regard to the search for persons who may have been taken into custody even by the LTTE, if that be possible.

Sir, it would be relevant for me, before I proceed dealing with this matter, to also read to the House some of the observations made by the Working Group on Enforced or Involuntary Disappearances in a Report that they have submitted. It states, I quote:

“In a general comment adopted this year, the Working Group concluded that enforced disappearance represents a paradigmatic violation of the right to be recognized as a person before the law.

It stated that enforced disappearances entail the denial of the disappeared person’s legal existence and, as a consequence, prevent him or her from enjoying all other human rights and freedoms.”

Going on, Sir, in the next Paragraph it states, I quote:

“….enforced disappearance is a continuous crime as long as the fate or whereabouts of the victim remains unclarified. States should take specific measures under their criminal law to define enforced disappearances as an autonomous criminal offence and to bring their existing legislation in line with the Declaration.”

This Report of the Working Group, Sir, also contains a reference to women, which I think is important and I might place that before the House. It states, I quote:

“Women are particularly affected by enforced disappearances as the consequences at economic, social and psychological levels, are most often borne by them. If they are the victims of disappearance, they are particularly vulnerable to sexual and other forms of violence. In addition, as they are at the forefront of the struggle to resolve the disappearances of members of their families, they are subject to intimidation, persecution and reprisals.”

So, you would see, Sir, from these observations that have been made by the Working Group, the Declaration adopted by the UN and the definitions of “enforced disappearances” and “perpetrators” under that Declaration, the question of enforced disappearance is a matter of extreme gravity and we need to do everything possible to prevent, avoid disappearances and to address the issue of disappearances as a grave and urgent humanitarian issue, wherever it has occurred, because it not merely relates to the life of the immediate victim, but it also has a grievously serious impact on the lives of many others, whose lives are inextricably intertwined with the life of the victim. It also has an adverse impact on society; it destabilizes the society; it prevents the return to normalcy and impedes reconciliation. This situation emphasizes the need for the process of transitional justice to work expeditiously and efficiently for truth, justice, reparation and non-recurrence to become operative and functional. It is as much in the interest of the country as it is in the interest of the victims and their families for this issue to be addressed without delay.

I might also mention, Sir, that while we talk of enforced disappearances, as much as we are concerned about women, we are also concerned about children because even children, sometimes, are victims of enforced disappearances and this has an impact not merely on the children, but also on the families of those children. It is in this background, Sir, that I propose to address the facts relating to this issue and what needs to be done to address the issue of enforced or involuntary disappearances and what needs to be done to bring this to an acceptable and just closure. The Government has taken certain steps in this regard. These steps have been in the nature of inquires, but no finality has been reached. It is more than six years since the armed conflict came to an end, and I submit that it would be harmful for both the victims and the country for this state of uncertainty to continue.

The first Commission to be set up recently was the Lessons Learnt and Reconciliation Commission, set up in May, 2010. It came up with its Report in November, 2011. They recorded extensive evidence in regard to disappearances, enforced and involuntary, and also other disappearances. I must also mention that that was the Commission appointed recently, but there were other Commissions appointed earlier, during the incumbency of President Chandrika Bandaranaike Kumaratunga where the issue of disappearances all throughout the country was addressed. Sir, I would read some of the Recommendations made by the Lessons Learnt and Reconciliation Commission subsequent to their investigations. I would read paragraph 9.47 of the Report of the Commission which states, I quote:

“The Commission wishes to emphasize that it is the responsibility of the State to ensure the security and safety of any person who is taken into custody by governmental authorities through surrender or an arrest.”

Paragraph 9.48 states, I quote:

“A comprehensive approach to address the issue of missing persons should be found as a matter of urgency as it would otherwise present a serious obstacle to any inclusive and long-term process of reconciliation.”

Paragraph 9.49 states, I quote:

“The Commission also emphasizes that the relatives of missing persons shall have the right to know the whereabouts of their loved ones. They also have the right to know the truth about what happened to such persons, and to bring the matter to a closure.”

Sir, those are certain paragraphs from the Report of the Lessons Learnt and Reconciliation Commission which places the responsibility entirely in the hands of the State. Four years have lapsed since these Recommendations were made by the Lessons Learnt and Reconciliation Commission. What has the Government done in the last four years to implement these Recommendations of the Lessons Learnt and Reconciliation Commission? There was yet another Commission appointed – the Paranagama Commission on 15th August, 2013. This Commission is yet sitting; the Commission was also given a second mandate on 15th July, 2014. This related to facts and circumstances surrounding the loss of civilian life and violations of international law. A team of international experts were also appointed to assist the Commission. It is somewhat strange that the Commission was given a second mandate beyond the scope of the first mandate before it submitted its Report on the first mandate. The Commission has submitted its Report on the second mandate, but has submitted only an Interim Report on its first mandate.

The Commission has, as at 15th August, 2015, received 17,329 complaints from families of missing persons, of course this figure varies, and there are other Reports which seem to suggest a slightly higher figure.

There are also reports that about 5000 military personnel went missing. That is also a matter which needs to be investigated in regard to their whereabouts if they are alive. It would seem Sir, that in regard to these enforced disappearances, the persons responsible for such enforced disappearances, particularly in recent years, acted with a complete sense of impunity. They seemed to have come to the conclusion that the arm of the law would never reach them and that they could do whatever they wanted. They seemed to have had the guarantee that high persons in governance, in authority, would protect them and that they would never have to face any consequences as a result of being responsible for such disappearances. We know that most of what happened, if not all of what happened, happened during the term of the previous Government.

Does the Government have a definite plan to handle this issue? Of course, these persons have gone and testified before these Commissions. The Commissions record the evidence, but have they pursued the testimony of the victims or taken steps to investigate evidence of these witnesses who are victims? When a victim says that my son or my husband was taken to custody by a particular police officer or the police in a particular police station or the army in a particular camp, has the investigation been pursued further to try and find out whether that statement is correct and if so who that officer was? That is not being done. The new Government must accept responsibility for this situation and this issue needs to be addressed urgently.

This matter is referred to in the Report submitted by the Paranagama Commission. I might refer briefly in regard to some of the matters that Report deals with. It states,

“The primary responsibility for preventing disappearances and ascertaining what has happened to people reported missing lies with the State. Disappearances are a tragedy not just for the individual but also for the families. The problems they faced are psychological, legal, administrative, social and economic.” It further states, “A great many families of missing people face economic difficulties linked directly with the disappearance, and are unable to meet their needs in terms of food, health, housing, or education of children.”

Most of those who disappear are adult men, so many families have lost their main breadwinner; often women then become heads of household and face limited options of earning a living. All this is very interesting. This is contained on paper; it is contained in reports. But, what has the Government done; what is the Government doing? The purpose of this Debate, Sir, is to find out from the Government what its Action Plan is, at least in the immediate future.

This matter is referred to, Sir, in the Resolution adopted on the 01st of October, 2015 at the 30th Session of the UN Human Rights Council. I wish to refer to some paragraphs of that Resolution dealing with this question. Paragraph 4 of the Resolution states, I quote:

“Welcomes the commitment of the Government of Sri Lanka to undertake a comprehensive approach to dealing with the past, incorporating the full range of judicial and non-judicial measures; also welcomes in this regard the proposal by the Government to establish a commission for truth, justice, reconciliation and non-recurrence, an office of missing persons and an office for reparations; further welcomes the willingness of the Government to give each mechanism the freedom to obtain financial, material and technical assistance from international partners, including the Office of the High Commissioner; and affirms that these commitments, if implemented fully and credibly, will help to advance accountability for serious crimes by all sides and to achieve reconciliation;”

You have made a commitment to the UN; you are a co-sponsor of the Resolution by agreeing to set up a commission for truth, justice, reconciliation and non-recurrence; to establish an office of missing persons which should have handled this issue and to establish an office for reparations. What has happened thus far? We would like to know. We would like to know what plans you have.

Sir, I also would like to refer to Paragraph 13 of the Resolution adopted by the UN Human Rights Council to which Sri Lanka was a partner. I again quote:

“Also welcomes the commitment of the Government of Sri Lanka to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance without delay, to criminalize enforced disappearances and to begin to issue certificates of absence to the families of missing persons as a temporary measure of relief;”

How far have you gone? These are the questions that we would like to raise.

Sir, such disappearances have occurred in Sri Lanka even in the past – in 1971 such disappearances occurred; in 1988-89 tens of thousands of youth from the South of this country went missing. This was during the JVP insurgency. Some awful and dreadful things happened at that point of time. We all know that, that was when the former President Mahinda Rajapaksa despite much resistance from the Government of the day went to Geneva, in my view quite rightly, to espouse the cause of our youth from the South.

Nobody is seeking revenge or vengeance. But, these practices of enforced involuntary disappearances must in the interest of the whole country and all its people be brought to an end – they must not be allowed to continue indefinitely. Mr. Mahinda Rajapaksa went to Geneva because he wanted the UN to intervene. He did what needed to be done. That is what the UN is now doing – what he wanted done when the youth went missing in the South.

Sir, I must mention that there is a tendency in this country to sometimes look upon Resolutions adopted at the UN Human Rights Council as being Resolutions that to some extent infringe upon the sovereignty of Sri Lanka – nothing can be further from the truth.

I want to quote from item 2 of this Resolution, Sir:

“Promoting reconciliation, accountability and human rights in Sri Lanka.”

Paragraph 4 of the Resolution begins by saying that the Human Rights Council reaffirms its commitment to the sovereignty, independence, unity and territorial integrity of Sri Lanka. That is how the Resolution starts. So, these fears that are expressed by some people – that these are infringing on the sovereignty of our country – I would submit are utterly unfounded. We are parties to various commitments; we are parties to various conventions; we are parties to various treaties that we have accepted. We are bound by them; we have to observe them.

I would like to read, Sir, a statement that has issued recently by an organization called, “Friday Forum” comprising of very leading members of civil society, academics and intellectuals. This is what the “Friday Forum” has said in the statement issued by them on the 17th of October, 2015, a few days after the adoption of the Resolution at the UN Human Rights Council. It states I quote:

“Some elements consider support for the HRC Resolution as undermining the status of Sri Lanka as a sovereign and independent State. We need to remind ourselves that Sri Lanka has, from the time of independence, voluntarily become a party to international human rights treaties and global policy documents. Successive Sri Lankan parliaments have passed laws that have incorporated these international standards.

Local policies have been influenced by internationally accepted standards in many areas.

Some of the laws and policy initiatives have strengthened our response to common problems. Even as our government was responding to the armed conflict in the North and East, important laws like the Convention on Torture Act were passed by Parliament at the instance of the late Lakshman Kadirgamar, then Minister of Foreign Affairs.

It is those engaged in adversarial politics for what they perceive as short term political advantage who wrongly use the argument of State sovereignty to reject Sri Lanka’s voluntarily undertaken responsibilities as a member of the community of nations.”

This statement by the Friday Forum has been signed amongst others by Prof. Savitri Goonesekere, Ms. Suriya Wickremasinghe, Mr. Chandra Jayaratne, Prof. Camena Guneratne and Dr. Deepika Udagama. Are these persons traitors to the country? There are persons here who shout that the UN Human Rights Council Resolution – the Sri Lanka co-sponsored Resolution – is an attack on the sovereignty of this country. The Hon. Lakshman Kadirgamar was responsible for creating a part of the domestic law of this country, the Convention on Torture. Was he doing something that was treacherous to this country? In fact, I think, that if the Hon. Lakshman Kadirgamar had continued to be the Foreign Minister, this country would probably never have got into all these difficulties with the United Nations. It is after the Hon. Lakshman Kadirgamar ceased to be the Foreign Minister and others took over the Foreign Affairs Ministry that this country got into very serious difficulties.

Sir, the unity and territorial integrity of Sri Lanka is sacrosanct. All of us only want a more united and unified Sri Lanka, a better Sri Lanka where the universal principles of equality and justice prevail and are preserved, a more prosperous Sri Lanka where all Sri Lankans will lead a better life and an inclusive Sri Lanka where all of Sri Lanka’s citizens are included, not one where some are included and others excluded on parochial grounds.

Sir, I have placed before the House some of the thoughts of the Government as set out in the Resolution adopted by the UN Human Rights Council, co-sponsored by the Sri Lankan Government.

I want to refer briefly, Sir, to a recent Report submitted by Mr. Pablo de Greiff, Special Rapporteur on Truth, Justice, Reparation and Guarantees of Non-Recurrence who visited Sri Lanka.

He has stated, I quote:

He identified the issue of missing persons as one that can be dealt with without delay, urgently, amongst others. Why is the Government not acting?

Now, Sir, having dealt with the question of missing persons, I do hope that what I have said will be taken into consideration by the Government and that the Government will act without delay and act with a certain definite objective to be able to bring this question to a closure in some appropriate way so that the families will be satisfied and accept, maybe painful decisions, if that is the only decision that can be arrived at. Whatever arises, other steps will be taken to bring those persons out and make relief available to the respective families so that the families will be adequately compensated. There will be adequate reparation, adequate measures taken to give them peace, to give them tranquility, to enable them to start normal lives and forget the past.

Sir, I would now like to deal with the question of persons in custody. I do not want to go into figures. There are some persons who have come out on bail; there are some persons who have been convicted and who have been sentenced who are yet in jail; there are some persons against whom cases are pending; there are some persons who have not been charged. These are the different categories of persons. Nineteen persons who have not been charged are still in custody. Three convicted persons have been released: one by His Excellency the President and some others have completed their sentence. I believe, there are about 100 cases that are pending in the High Court. All these persons are still in custody except those persons who were recently released on bail.

This is not the first time that prisoners are sought to be released in special circumstances. They are not charged with crimes against society. They are being charged for acts which have a political dimension. Inequality in treatment between citizens, based on considerations that should have no relevance, is not compatible with transitional justice. In 1971, you have treated prisoners in a certain way. In 1988 and 1989 you have treated prisoners similarly. Why are you not treating prisoners now in the same way? If you are not seen to be even-handed in your treatment with our prisoners at different times, that is not compatible with transitional justice. Those families, those individuals are entitled to say, “We are being treated differently for certain parochial reasons.

That is discrimination against us.” Evenhandedness must be seen as the main determining factor. If evenhandedness is absent, there can be no trust. If there is no trust, there can be no progress. You will not take off towards progress.

The Government should not be afraid to do the right thing. That is why the Government was changed. Justice must not be denied on the basis of slogans. There would always be persons who will raise slogans and exaggerated fears. Let us do what the great religions- Buddhism, Hinduism, Islam and Christianity- that we follow teach us. Does Buddhism not teach us to forgive and forget?

How can you justify holding persons under the Prevention of Terrorism Act any longer, a law which you yourself have unequivocally condemned as being draconian in many ways, particularly when these persons have already been in custody for long periods of time, sometimes as much as 10 to 15 years and when it is almost six years since the war came to an end. If those persons have been convicted and sentenced by now some of them should have come out; lots of them should have come out.

The Mahinda Rajapaksa Government released some 12,000 persons who were LTTE cadres, who fought against the State, after rehabilitation. They may have had their own reasons for doing that. But they did that. Why are you afraid to act? Did those cadres also not rebel against the State and did Mahinda Rajapaksa not release12,000 of them? This is the question that is now being posed by the persons in custody. We have no answer to this question. There were some top LTTE cadres; one of them became the Chief Minister of the Eastern Province and some of them were in the Central Government as Ministers. One person who had been an arms procurer engaged in all manner of crimes and who was wanted by Interpol received right royal treatment. He was brought here and given right royal treatment. None of these persons raised slogans against them; none of these persons raised slogans against those acts. Why are you concerned about the slogans now being raised?

I found that one of the persons in the Opposition has said yesterday that by releasing the LTTE cadres, you are going to create Eelam. Can anything be more stupid? Can anything be more absurd? After the conclusion of the war, has there been one single act indicative of a revival of violence? Surely these persons are entitled to ask that they be released. Some of these persons were protected by the MR Government. No slogans were raised at that time. Why are you hesitant to act? Tamils in custody in prisons have had bad experiences. I do not want to refer to such incidents. These persons are the breadwinners of their families. The time has surely come for them to be integrated with their families and for them to start life afresh.

We have discussed this matter with both His Excellency the President and the Hon. Prime Minister. I must say that both the President and the Prime Minister were quite positive. In fact, one day at a conference in Parliament presided over by the Hon. Prime Minister, where the Attorney-General’s staff were present, police officials were present and many of us were present. We discussed the matter and there was a decision taken to appoint a committee which would look at this issue not purely legally but politically because these have a political dimension and take steps to release these people. Unfortunately for certain parochial reasons that committee did not become functional. I think, the time has come for the Government to take some such decision and arrive at a conclusion in regard to this matter.

There has to be a political decision. This is not purely a legal issue. They are not charged with having committed crimes against society. They are charged with crimes which have a political dimension; with acts which had a political motive. Political decisions were made in the past, in 1971, in 1988 and in 1989 when you released a large number of people who were held in custody. Why can you not take the same decision now? Are the prisoners not justified in concluding that you are discriminating against them and would that not be, before long, the view of the international community too?

So, I think the time has come for the Government to act. Sir, You must not be scared by scaremongering. What is your position in regard to the Prevention of Terrorism Act? What is the position that the UN Human Rights Council has adopted in its Resolution which you have co-sponsored and accepted with regard to the Prevention of Terrorism Act? I wish to read that part of the Resolution. I read paragraph 12 of the Resolution. It states, I quote:

“ Welcomes the commitment of the Government of Sri Lanka to review the Public Security Ordinance Act and to review and repeal the Prevention of Terrorism Act, and to replace it with anti-terrorism legislation in accordance with contemporary international best practices;”

“And to review and repeal the Prevention of Terrorism Act”. That was your position. When you have undertaken to repeal the Prevention of Terrorism Act, on the basis that that is a law which should never have been applicable in the country, how can you hold in custody the persons you have taken into custody under that law? How can you convict persons under that law? How can you even detain persons who have been sentenced under that law? How can you hold persons without being charged under that law? I think you cannot do so. The Hon. Minister of Foreign Affairs made a categorical statement in the course of his opening statement at the UN Human Rights Council, on the 4th of September, 2015. This is what the Hon. Minister of Foreign Affairs said –
ගරු නියෝජ්‍ය කාරක සභාපතිතුමා
(மாண்புமிகு குழுக்களின் பிரதித் தவிசாளர் அவர்கள்)
(The Hon. Deputy Chairman of Committees)
Hon. Member, you have only two more minutes.
ගරු රාජවරෝදියම් සම්පන්දන් මහතා
(மாண்புமிகு இராஜவரோதியம் சம்பந்தன்)
(The Hon. Rajavarothiam Sampanthan)
Mr. Deputy Chairman of Committees, I will wind up my speech in two minutes.

So, this is what the Hon. Minister of Foreign Affairs said. I quote;

“Review and repeal the Prevention of Terrorism Act and replace it with anti-terrorism legislation in line with contemporary international best practices.”

Thank you.

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The Issue Of Missing Persons & PTA

By Mangala Samaraweera, Colombo Telegraph, March 11, 2016–

Mangala Samaraweera – Minister of Foreign Affairs

“The Government has taken steps to have a new draft law formulated by the eminent members of the National Law Commission and this has recently been handed over to the Ministry of Justice. We want to make sure that the draft legislation also is in line. We want to repeal the PTA but replace it with new legislation in keeping with international best practise.”

The Honourable Leader of the Opposition, Mr. Sampanthan has raised several important questions in this adjournment motion debated today but due to time restraints, I will speak out first on the matter of families of the disappeared and the missing.

Mr. Chairman,

The issue of missing persons is one that is very close to my heart. In fact way back in 1989, I along with Hon. Mahinda Rajapaksa at that time were the core joint conveners of the Mothers Front Movement which was formed to deal with the missing people in the South during that era. In fact over the years, I have personally fought for the rights of the families of the missing, the pain and anguish of parents who have lost their children both in the North and the South, wives who have lost their husbands, sisters and brothers who have lost their siblings, is the same everywhere. In fact human grief has no colour, no race, no caste, no religion. Since the new government assumed office in September following the general election, we signed as Hon. Sampanthan said earlier, the Convention against Enforced Disappearances. Actually I believe on the Human Rights Day on the 10th of December last year with the clear objective to ensure that the white van culture and the years and years of enforced disappearances that took place all over the country would be confined to the history books (and) would be a thing of the past. This we are determined to achieve through firm action. In fact we are now in the process of drafting the legislation and hopefully within the next two months, the legislation will also be brought here to the house. No other government has taken this step for long years despite repeated calls to take action in this regard. We took the first step of signing the convention and I said we are now proceeding to work on enabling the legislation and I can assure the house that the work is currently underway to give legislative effect to the provisions of this convention hopefully within the next two months. As a measure of immediate relief to the families of the missing, the Cabinet of Ministers approved the issuance of Certificates of Absence in September, 2015. It is a matter of regret that the legislative amendment that is required to give effect to the issuance of this certificate has still not reached Parliament but my colleague, the Hon. Minister of Justice, has assured us that it will be done so in the very near future. However this matter is being closely followed by the Office of National Unity and Reconciliation and I’m hopeful that this much needed and much awaited piece of legislation would soon be passed enabling the families of missing persons to obtain Certificates of Absence. Just recently the ICRC also completed as you know, a needs assessment of the families of the missing and this was shared with the government late last month. ONUR and my ministry with a host of other line agencies are in the process of studying this to identify and address pressing issues of the families of the missing. I pledge that we will expedite action to explore what interim relief can be provided to the families of the missing. I urge the Honourable Members of the Parliament to also join the Government in assisting this task by suggesting measures that can be taken. In the meantime as I have mentioned before, the Government has worked on a concept note together with the ICRC for the establishment of an Office of Missing Persons by statute which will carry out its work on the basis of the families’ right to know.

Honourable Speaker,

This House is very well aware of the many commissions of the past that were established to look into missing person issues. There were several in the past including the current one which we intend on winding up that was appointed by the previous administration. This House is aware that these commissions were all established on an ad-hoc basis and in a hurry with no consultations locally or with experts outside who are knowledgeable on these issues. As a result, the commissions have been plagued with problems and shortcomings and the families of the missing have had little or no relief. In fact we want to ensure that we avoid these mistakes of the past, neither do we wish to establish mechanisms just to please the international community or to meet various deadlines. As Hon. Bimal Rathanayake very correctly said, we are meeting our commitments to the long suffering people of this country not because of international pressure, not to appease the international community but because our Government, the Government of President Sirisena and Prime Minister Wickremesinghe sincerely believe that we must address the past, we must come to terms with our past if we are to move forward boldly as a nation. I know very well however that for the family members who suffer daily, for those who grieve each day, is a nightmare. Any delay in the part of the authorities even if such a delay is to ensure that they are better served is no solace to them. However I urge you to bear with us a little longer, perhaps until the end of this month or before, allowing us time to consult experts to ensure that before we go to Cabinet to seek approval to establish this permanent office, we get things right at least this time. In fact at the moment we have also a team in South Africa, a technical team, who is also looking at the various aspects of the South African Truth Commission. Of course, I personally believe that while there are many things that we can learn from South Africa, what we finally decide for Sri Lanka must be uniquely Sri Lankan, addressing the needs of our own country and this Government is determined to what is right by the victims and the families of the missing.

And also Mr. Chairman,

As for the other, another important issue Hon. Sampanthan raised, the Prevention of Terrorism Act, I believe and I believe and know that our Government believes is that the PTA has no place in its current form in a democracy such as ours. I did say this in my address to the governing council of the Community of Democracies just last Wednesday in Geneva.

In fact the Honourable Leader of the Opposition, I urge you to know what our views are on this subject and we also agree with your argument and as you know we have been discussing with the various authorities involved in expediting the release of these prisoners as soon as possible. In fact the Government I agree has given repeated commitments to this very House to look into the question of detainees. Some who are on trial have been released on bail but there are some who continue in detention while on trial. The problem for those who are facing trial is that their cases have not been concluded as speedily as expected and continues to drag on. In fact I’m aware of the efforts, and we appreciate the efforts taken by the Honourable Leader of the Opposition here and some members of the Parliament of TNA to urge the detainees who have commenced a fast unto death, to discontinue its action and allowing us space to address this serious issue in a meaningful and sensible manner. Some have listened to reason and given up their fast while some still continue. The lives of each of these detainees, I say with all sincerity, matters a great deal to us. We are a Government that has pledged to uphold and promote and protect the human rights and dignity of all. We lost too many lives on all sides in all parts of our country for long years as a result of action of this nature and as a result of violent conflict. We cannot afford repetition. We don’t want to see repetition and we cannot lose any more lives in connection with the conflict that is long over and if we want to ensure non-recurrence, this is the moment in time, moment in history where we have to win everyone over. The hearts and minds, as President Sirisena constantly says, are more important than the bricks and mortars of development. I admit that there have been delays in addressing this important issue. It is against our collective conscience in this House to allow this situation to continue this way and we must as a Government make a special effort even at this late hour to address this issue expeditiously. In fact tomorrow some of our Ministers want to go and meet some of these detainees ourselves and speak to them and we have also asked the Minister of Justice to expedite this process and to get the Attorney General’s Department to take some action speedily in this regard.

There’s much more I would have liked to have said but due to restraints of time, I’d like to thank you again for allowing me to speak.

*Statement made by the Minister of Foreign Affairs in Parliament on Missing Persons on 08 March 2016

Sampanthan Speech on Disappearances & Indefinite Detention of Political Prisoners

The Issue Of Missing Persons & PTA

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