of the Missing and Disappeared
But the provisions in the OMP Act make the body nowhere near what was expected in that Resolution. This reminds the writer of the concluding remark in the Final Report of the International Independent Group of Eminent Persons (IIGEP) invited by the previous Government to oversee the proceedings of the Presidential Commission on Serious Human Rights Violations, who aborted their mission in 2007 stating that the then Government neither had the will nor the intention to promote or protect human rights in Sri Lanka. One wonders whether the intention of the current Government in enacting the OMP Act in line with the said opinion of IIGEP about the previous government. In view of these circumstances one could clearly see that the OMP is going to end up as an institution that would fall far short of meeting the key aspirations of the victims of missing persons and putting an end to their clamour for justice.
by MCM Iqbal, ‘Groundviews,’ Colombo, May 17, 2018
The first permanent official body created to search and trace missing persons in Sri Lanka is the Office on Missing Persons (OMP) established under Act No. 14 of 2016. This was done to comply with a recommendation in the 2015 UNHRC Resolution which was co-sponsored by the Government of Sri Lanka. However the office was set up about two years after the Act was passed. It started functioning only in May 2018 with members visiting Mannar to meet the victims of disappearances in that District.
Following the conclusion of the war in May 2009, there was a clamour by the families of missing persons to find out what had happened to their loved ones who had surrendered to the military at the end of the war and those whose whereabouts remain unknown. Consequently a Commission of Inquiry into Missing Persons, known as the Paranagama Commission was appointed in August 2013. Its mandate was amended later in July 2014 to enable it to inquire into, inter alia, the circumstances that led to the loss of life and other violations by the protagonists during the final phase of the war in 2009.
Unlike the Office on Missing Persons, the Paranagama Commission was not a permanent body and had a limited mandate and a term within which it had to complete its task. Though a large number of victims of missing persons complained to the Commission it failed to meet the aspirations of the victims. So when the Bill relating to the OMP was made public a memorandum was submitted to the Consultation Task Force by the victims’ organisations such as the Affected Families Forum and civil society groups, two weeks after the publication of the Bill given by the Government to make their submissions. As the time given was very short it was not possible to get the views of all victims’ organisations on the proposals in the Bill. This memorandum set out the aspirations of a cross-section of the victims and interested civil society organisations.
The main items in that memorandum could be summarised as follows:
- That enforced disappearances of persons should be made a criminal offence before the OMP Act is enacted;
- That complaints of missing persons should be entertained by the OMP without a time limit;
- That they should have the option to invoke legal remedies independently;
- That information on mass graves, including those where human remains are found should be investigated ;
- That the OMP should have all the investigative powers of Commissions of Inquiry (COI) and other investigative mechanisms with unfettered powers to call for records from state institutions;
- That it should examine and accept evidence already available, with previous investigative bodies such as Commissions of Inquiry, in respect of such missing person ;
- That it should prepare a list of confirmed missing persons from the lists available in the records of previous COI;
- That the OMP should be authorised to issue certificates of absence but should not compel any victim to accept such a certificate in the absence of conclusive proof on the whereabouts of the missing person;
- That the OMP must establish a separate victim and witness protection unit;
- That even though there should be confidentiality in the proceedings of the OMP, that should not hinder the victims right to justice;
- That investigations into missing persons leading to prosecutions should not be handed to the Terrorist Investigation Department (TID) or the Criminal Investigation Department (CID) but must await the other transitional justice mechanisms to become operational.
- That all evidence obtained by the OMP must be transferred to the prosecuting authorities bearing in mind the victims’ rights to justice;
- That the OMP must be given the right to make binding recommendations to the Government to guarantee non-occurrence of such crimes in the future;
- That availing of the services of foreign nationals as staff or advisers of the OMP should be considered in collaboration with the UN High Commissioner for Human Rights and the Sri Lankan authorities;
- That the OMP must set up sufficient branch officers and where their presence is needed at the Head office in Colombo, their travel costs should be re-imbursed .
It would thus be seen that the victims had high hopes that with the setting up of the OMP, their long wait for justice would be met. However when the draft Bill was placed before the Parliament, their aspirations did not receive due consideration. Instead there was a hue and cry that the Government was trying to give in to international pressure and punish the ‘war heroes’ in spite of the valiant efforts that they had made to defeat the LTTE and save the country from them. Consequently, the Government was compelled to amend the Bill to appease the demands of those in the Parliament who considered the ‘military’ as heroes who should not be held responsible for any of violations. This resulted in making the contents of the OMP Act to be diluted. The OMP as an institution is a far cry from the aspirations of the victims of missing persons. Let us now take a close look at some of the provisions in the act.
Section 12 of the Act speaks of the investigative powers of the OMP. Past COIs had almost the same powers. Investigation units headed by senior retired Superintendents of Police with handpicked teams of Police Officers assisted the COIs in their investigations and perused Police Information books and other records at Police Stations. In some instances they found names of the ‘disappeared’ entered in the Diet Registers but absent in the corresponding entries of persons detained on the relevant dates. They also looked into the entries in the running charts of police vehicles and found some of them had mentioned the names of police officers who had visited particular villages in that vehicle at precisely the very same time that the disappeared person had been taken away. That the police came to that place and took the person concerned away had been denied by the Police when relations made inquiries about the person taken. Such was the amount of effort that the investigation teams of the COIs put into complaints to trace what had happened to the missing persons. In spite of all such information being found, no action has been taken against the alleged perpetrators on the basis of the Reports of the COIs. The investigation reports and the list of perpetrators with the evidence against them keeps gathering dust in the archives, while those who complained to the said COIs keep expressing dismay on their performance. There is nothing to prevent the same thing happening to such reports by the OMP based on information this body’s investigations may find.
Section 12 (i) of the Act states that where it appears to the OMP that an offence within the meaning of the Penal Code or any other law had been committed, it can report this possible offence to the relevant law enforcement or prosecuting authority, in consultation with the relatives of the missing person. But that is exactly what happened with the previous COIs, which unearthed a total of about 2000 names of people against whom credible evidence was found indicative of responsibility for some of the disappearances. The relevant files were then passed on by the President’s Office to the then Missing Persons Unit of the Attorney General’s Department and from there to the Disappearances Investigation Unit of the CID to collate evidence and tie up loose ends, and to enable charges to be framed. What happened to those cases is now history. There is nothing to prevent the same happening to any cases the OMP may forward to the prosecuting authority at the conclusion of its investigations into a complaint. Besides what is the use in the OMP forwarding those to the prosecuting authorities when section 13(2) of the Act says that no criminal or civil liabilities would ensue based on the findings of the OMP?
Section 12 (d) of the Act gives powers to the OMP to exhume suspected grave-sites availing of a judicial order. Such a power was not given to the COIs. Hence they could only mention in their reports about the many mass graves about which witnesses had given evidence but could not probe further into them for want of authority to do so in their mandates. Henceforth, it would be possible for OMP to do so. The remains of many who have disappeared may be discovered in the graves the OMP may exhume. After forensic examination of the remains, the cause of death may be found and the person concerned may even be identified. What the OMP could do in such instances is not clear.
Section 12(f) authorises an officer of the OMP to enter any place of detention without a warrant to look for a missing or disappeared person. This is a power already provided to the National Human Rights Commission (NHRC) by the relevant section of the HRC Act. It enables the HRC to visit any place of detention. Whether providing such power to the OMP makes any difference to what the NHRC already has, is to be seen.
The most frustrating provision in the OMP Act is Section 13 (2) which says that the findings from the investigations of the OMP ‘shall not give rise to any criminal or civil liability’. This is contrary to the expectations of victims who are eager to know what happened to their loved ones and if any harm had befallen them, they expect those responsible be prosecuted. Can they be told, after exhaustive investigations, that the OMP could not find a missing person handed over to a specified officer by a parent or other person in response to a call for those involved (directly or indirectly) in the war to surrender, and stop at that? Will a complainant who makes such an allegation be satisfied with the answer of the OMP that the missing person concerned cannot be found while the person to whom he had been handed over continues to be in service or otherwise, be satisfied and accept a certificate of absence? What if the remains of the person concerned are found subsequently in one of the graves exhumed and the complainant is told that the OMP has no power to take any further action on the matter? That would certainly lead to a clamour for justice by the victims who would be in a state of despair.
Besides this provision is negated by Section 13(2) of the OMP which, as stated earlier, says that ‘the findings of the OMP shall not give rise to any criminal or civil liability’. That being so, what would be the purpose of such cases where there is evidence of the person responsible made available to the prosecuting authority? Does not Section 13 (2) confirm the assurance given to the military with repeated statements in public by those in the Government that no one need fear the OMP finding evidence of anyone being involved in violations during the conflict? What will be the feeling of the families of the disappeared or missing persons when they eventually realise the consequences of the provisions in Sections 12 (i) and the contradictory provision in Section 13(2) of the Act? Besides by attempting to protect some the miscreants in the Police and the Security forces, the reputation of the honourable and disciplined personnel in these institutions remain tarnished.
Section 13 (k) of the Act expects the OMP to make recommendations to prevent future disappearances. This is a ludicrous provision. Well-considered recommendations in this regard made by the eminent members of the three zonal COIs and the All-Island Commission appointed by President Chandrika Bandaranaike, continue to be ignored by successive governments which appear to have no appetite to end this scourge of disappearances in the country. Ignoring such recommendations has promoted impunity which was at its infancy then and has become mature now. Perhaps the current government could take a look at those recommendations at least now and consider taking action based on those recommendations without waiting for the OMP to make fresh recommendations in this regard. Such an action would prove that the Government is serious about preventing disappearances of persons in the future.
A note on the staffing and financing of the OMP. While the Act says in Section 3(2) that the OMP is a ‘body corporate having perpetual succession’, Section 6 of the Act says that ‘Every member of the OMP shall hold office for a period of three years’ . If the term of office of all seven members of the OMP expires on the same date in three years and if seven new members are appointed thereafter, it would be as good as a new OMP coming into being with a new view on its functions. Instead it would have been appropriate for the purpose of making the body, in fact a perpetual one, if provision had been made for a certain number of members ceasing to hold office in a given number of years and being replaced by that number of persons to enable a continuity in the operations of the OMP rather than the whole lot being replaced in one go and giving it a completely new face at the end of three years.
While under section 5(3) the Chairman of the OMP has been named as its Chief Executive, its Secretary and the Accountant who have a key role to play, are not referred to as the statutory heads of their respective divisions. The OMP Act speaks of three other different units – the Tracing Unit and the Witness Protection Unit to have statutory heads (vide sections 17(2) and 18 (2) respectively), there is no mention of a head for the Data Collection Unit referred to in section 13(h). Besides it cannot be understood why the Act expects the OMP to create a data base unit containing all particulars of missing persons, when the data so collected cannot be accessed by anyone due to the obligatory need for confidentiality of such information.
Though it is stated that the monies would be provided for the OMP from the Consolidated Fund, the experience of the COIs show that the financial independence of the OMP would be limited as it has to be subservient to the powers of the Secretary to the President, who is the Chief Accounting Officer of the Consolidated Fund. This could have been obviated if the Parliament was authorised by the Act to make a direct allocation of funds to the OMP as they do to the Bribery Commission and the Commissioner of Elections.
To cap it all, Section 15 (1) of the OMP Act which ensures the confidentiality of the information provided to the OMP or collected by it, also states that ‘The provisions of the Right to Information Act No. 12 of 2016 shall not apply with regard to such information’ . Consequently the Right to Information Commission is going to be deprived of access to any information or data available with the OMP. This would invariably lead to the OMP having to suffer the same fate that befell the Commissions of Inquiry into Disappearances of Persons. Further even if a victim wishes the information he or she had provided be made public, the OMP can withhold such information. It appears that this provision had been deliberately included in the Act to protect the de facto and /or alleged perpetrators’ names from being made public and shamed.
Further when the UNHRC’s Resolution recommended that appropriate measures must be taken to deal with the issues relating to the missing persons in the country, it expected that a determined effort would be made to identify perpetrators and deal with them in a manner as to become a deterrent to such incidents taking place in the future. But the provisions in the OMP Act make the body nowhere near what was expected in that Resolution. This reminds the writer of the concluding remark in the Final Report of the International Independent Group of Eminent Persons (IIGEP) invited by the previous Government to oversee the proceedings of the Presidential Commission on Serious Human Rights Violations, who aborted their mission in 2007 stating that the then Government neither had the will nor the intention to promote or protect human rights in Sri Lanka. One wonders whether the intention of the current Government in enacting the OMP Act in line with the said opinion of IIGEP about the previous government. In view of these circumstances one could clearly see that the OMP is going to end up as an institution that would fall far short of meeting the key aspirations of the victims of missing persons and putting an end to their clamour for justice.
Editor’s Note: The author was the Secretary to two Commissions of Inquiry into Disappearances of Persons in Sri Lanka and later a Consultant at the National Human Rights Commission. Some of the information in this article is from his personal knowledge of events. Also read “In their Absence: Families of the Disappeared Share Treasured Keepsakes” and “The Process Behind OMP: Video Interviews“.