18 December, 2018

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A Comment On The Proposed Office Of Missing Persons

By Basil Fernando

Basil Fernando

Basil Fernando

It seems no progress can be made in Sri Lanka on the attitude to murder. Murder is now regarded as normal and therefore not something to worry much about. And, this is exactly what should worry everyone. But hardly anyone seems to worry about it.

We see the same thing in the proposed Office of Missing Persons (OMP). The simple fact about a missing person in Sri Lanka is that he or she is dead. Very rarely, does a missing person re-appear. As in the case of the dead, missing persons normally never appear again. At least that is case in Sri Lanka, what ever the case may be elsewhere off the Island.

When a person is dead, he or she, of course, goes missing. There is no paradox involved in this. However, it is quite a different case if we were to be told to assume that the dead person is merely a missing person. This means that we are expected to assume that the dead man or woman is not dead at all but only missing.

Why should the dead be assumed to be merely missing? The answer would be that there is no proof of death, as the dead body has not been found. The argument is that in the absence of a corpse, there is no proof of death. So this whole exercise is about proof.tamils-missing-3-630x350

If the corpse is available then we know person is dead. If the person is, in fact, dead but his body cannot be found, we are expected assume that the person is missing. However, what is really missing is not the person, but the corpse.

If an office were to be established to look for missing dead bodies, the task of the office would be different than of an office looking for missing persons.

The situation would differ even more, if one knows or has reasonable grounds to suspect that the person is not only dead, but, in fact, killed, and the corpse has been disposed of. Obviously in such a situation, there is no need to be looking for the missing body, as the body itself has been disposed, in order to hide the fact of a murder.

In this situation, the starting point is that murderers have disposed the body in order to destroy evidence of the killing. If anything has to be sought and discovered, it is who the murderers are.

Looking for murders is not the work of a fact-finding office. Investigation into murder is the task of the criminal investigation department. A murder where the corpse has been disposed is a more gruesome form of murder, requiring greater attention of the criminal investigation department.

Then there is a greater riddle. It is that there is also reasonable ground to suspect that the killing and disposal of the body is likely to have been caused by persons connected with the security forces and conducted during operations; this is known or, at least, suspected by everyone.

In such circumstances, it is the duty of the criminal investigation department to act. If they have failed to act, it is duty of the Executive, to ensure that this most vital duty of the criminal investigation department is been complied with. If the Executive has failed to do so, it has virtually failed to govern; good governance implies that the government should enforce the law.

It is a good thing to have a database for “Missing Persons” (including those assumed to killed and their bodies disposed). However, the obligation of a government is primarily to investigate and prosecute murder, through its criminal investigation and prosecution departments, which in Sri Lanka means the Attorney General’s Department. It is good to have, in addition, a database. But, criminal justice cannot be delegated to a database.

As for soldiers who are missing in action, it is for their relevant forces and units to account for what happened to each of them and to inform the families of such persons. If there is failure in this, it should be looked into under the relevant laws and regulations of the Armed Forces.

There is an already established record of murder done in large scale during security operations. In these murders, abduction has taken the place of arrest and this had been planned. When a person is abducted in order to hide the identity of the arresting officers and the authority, so as the make it difficult to identify those who did it, there is already premeditation. From this mode of “arrest”, there is reason to deduce that those who made such an arrest are likely to know the final outcome of the same, which would be to kill and dispose of the body. These are matters that only the country’s crime investigators can deal with under criminal procedure laws.

The next riddle is why the country’s investigators and prosecutors have failed to act? Again, everyone commonly assumes the reason: that the political authorities have stopped it from happening. This being the case, there is nothing that the proposed OMP can do, except to include their observations in the proposed database.

The argument that is not so openly stated, but mooted about, is that murders of this sort should not be investigated and prosecuted as common murders for two reasons: the first is that people by and large have approved such killings of “terrorists”, and the other is that such investigations are not good for the morale of the security forces. The latter simply means, they might not do it again, if such punitive action is taken.

Doesn’t such consideration relativise the very idea of murder, especially if for such reasons murder could be justified?

There is no argument being made about the establishment of an office of missing persons or not. The argument is against such an office been made a substitute for immediate investigations and prosecutions of enforced disappearances by the legitimate authorities of Sri Lanka. If the criminal investigation department needs to wait to start investigation into all complaints, of murder, till orders are given from above, then there is a serious flaw in the investigation system. No government has any power to stop a criminal investigation department from carrying out the very functions for which it exists.

If the government wants to strengthen the Criminal Investigation Department, it could promulgate the law it promised to criminalize enforced disappearances. Sri Lanka’s Foreign Minister made such a promise to the United Nation’s Human Rights Council in June 2015. But, even a draft of such a law has not been presented to the Parliament or made available to the public.

Together with such a law, if a Special Investigation Unit (SIU) of CID is given the task of investigation into the alleged cases of enforced disappearances , and it is given adequate personnel and resources, many mysteries hidden for many years will be resolved within reasonable time frame.

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Latest comments

  • 4
    2

    Basil Fernando,

    The society has become immune to three waves of mass killings and disappearances since independence with hardly anybody punished for these mass crimes against humanity.

    The society has also become immoral in tolerating or even encouraging such lawlessness.

    Once the moral fabric is torn, the rule of law doesn’t matter any more to the society. Kenya has become a current example of this.

    What you say will surely fall on deaf ears.

    • 3
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      Thiru

      Welcome back.

      Where you’ve been all these months?

      By the way, we didn’t miss you.

  • 3
    1

    Basil Fernando, Thank You for this always topical but long overdue article/comment.

    The truth is: Everybody knows that the war is over, Everybody knows the bad guys lost, Everybody knows the fight was fixed, The poor and ignorant stay poor and ignorant, the powerful and connected get rich. That’s how it goes, Everybody knows.

    Everybody knows that the boat is leaking, Everybody knows that the ‘captain’ lied, Everybody’s got this broken feeling, Like their father or their dog just died.

    People have gone missing in little Sri Lanka for a such a long time, we are as a nation inured. If it is not our loved one, we just shrug ‘what to do’ until it happens to us.

    WE are a despicable lot because WE cannot all stand up TOGETHER to demand the answers. Because of that. ‘Missing Persons’ will continue to be a dark secret for this nation, and the curse will remain.

    EVERYBODY knows, but most NOBODY gives a damn. Lest they go missing too?

    • 1
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      Spring Koha old chap

      Did you hear that Hissene Habre, the Chad’s ex-ruler was convicted of crimes against humanity?

      • 1
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        Native Vedda

        Thank You for the good news – 25 years – after, but nevertheless hope for all. AND, Habre was just the tip of a v big pyramid.

        Fyi I am in New York watching closely, and engrossed as our American friends decide who the next Ruler of the Universe will be. In truth, they have a grim choice before them, but I am fascinated by the whole process and this is my treat to keep ageing at bay. Next Tuesday is going to be big!!!!!!!! Expect me to draw on my observations in time.

      • 0
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        When will Ussenna Gothabre of Srilanka be convicted of crimes against humanity

  • 1
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    There is no political will to improve accountability for missing persons or for anything else. Nothing will change without this.

  • 1
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    It is as the writer claims, the search is for murdered bodies – not missing persons. The Island is known as land of mass graves to the West. Read:
    http://www.economist.com
    http://www.bbc.co.uk/news/world-asia-21964586
    http://www.bbc.co.uk/news/world-asia-20726027
    http://sri-lankahumanrights.blogspot.co.uk
    http://www.theguardian.com/world/2013/mar/28/sri-lanka-mass-grave-marxist BBC investigates Sri Lanka disappearances:
    http://www.bbc.co.uk/news/world-asia-24662898
    http://www.bbc.co.uk/news/world-asia-24648595

    Any Missing Persons Office has to be located in the NP/EP and under
    supervision of UN Executives – being the Technical Assistant that the
    UN has granted and accepted by SL:

  • 0
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    Accountability ?
    It never happens and victors move on.
    So it happened since WW II……….

    Agent Orange, Atom Bomb, Carpet Bombing, Drone killings are all relegated into history.

    E[Edited out]

  • 2
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    It is sad that the current leaders are more interested in saving their votebank rather that be the statesmen that Sri Lanka direly is in need of. All the regime winners over the years have let Lanka lose. Every political winner is actually the cause of Lanka’s loss.It is with so much of pomp and promise that the current crop of leaders got elected but the hope that they would be able to save the bleeding SL has all but evaporated.

    SL has a history – phony this and phony that will spring just on the eve of the UNHRC sessions. It cannot pretend anymore that the deliberate activity on the “eve” of another session will hurt SL. It will add on to the headache. Now that Ranil has joined Maithiri in confirming that no foreign involvement will be allowed in the alleged war crime investigations and with a ding-dong Mangala standing to lose his credibility, the viscous cycle will continue.

  • 1
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    My question is, how many LTTE terrorist’s families have come forward to declare that their family member/s were fighting with LTTE against the DFSL?
    So far not a single Tamil!
    Does that mean all LTTE terrorists escaped death and living somewhere?

  • 1
    1

    It appears that Basil has missed the bus. He has commented workout reading the cabinet paper or the draft law which has been explained in many news items. Victims we represent are not prepared to accept upfront that their loved ones are dead. They are known to be missing. Therefore the office must search for them. If the investigations show they are dead then an appropriate finding will be made. There is provision for special court to prosecute. The office is a humanitarian operation which was promised by the government and should not be stifled by anyone!

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