21 September, 2020

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Managing Expectations About Postwar Justice Process 

By Jehan Perera

Jehan Perera

The government’s commitment to the post-war transitional justice process can be seen in the Constitutional Council’s nomination of seven members to be commissioners of the Office of Missing Persons. As the Constitutional Council includes the Prime Minister, governmental sanction necessarily accompanies its choices although constitutional council members include the opposition and civil society. The movement forward of the reconciliation process has been in fits and starts, in particular where issues of transitional justice that involve the victims of war are concerned. But it is to the government’s credit that they have never abandoned it. This is particularly true of the office of missing persons, with its mandate to investigate any action where people went missing in any year on in any part of the country. The OMP has been constituted to be a permanent body with a standing not less than that of the Human Rights Commission.

The OMP was initially legislated in August 2016. Thereafter there have been prolonged delays in getting it functional. First the legislation regarding it had to be amended. This was on account of the original legislation failing to take into account some amendments made by political parties that were supportive of the legislation.  The next delay was due to the President’s failure to allocate the OMP to any ministry. Finally in July 2017 President Sirisena allocated the OMP to the Reconciliation Ministry which comes under his direct purview. But this seemingly responsible gesture was not taken kindly by supporters of the reconciliation process who found fault with the President for taking on the OMP as they believed it was an over extension of his powers which had been limited by the 19th Amendment.

The latest delay has been in the appointment of commissioners to operationalise the OMP. It is reported that the Constitutional Council has now made its choice. The question is how long it will take to approve the commissioners.  It is reported that one of the members of the Constitutional Council has objected to one of the proposed commissioners. However, the willingness of the Constitutional Council to nominate their choices of commissioners to the President suggests that even in the midst of an important election campaign, the government leaders do not think that the issue of the OMP is politically too sensitive to take up at this time.   This indicates their belief that the majority of people also accept the need for a mechanism to inform families of missing persons of the whereabouts of their loved ones.

Slow Pace 

The desire to know the fate of persons who went missing without a trace is not unique to any one community. In the course of the three decade long war with the Tamil militant movement the majority of victims were Tamil. But large numbers of military personnel who were mostly Sinhalese also went missing.  The Presidential Commission to Investigate into Complaints regarding Missing Persons that was appointed in August 2013 by former President of Sri Lanka, Mahinda Rajapaksa received over 24,000 complaints relating to missing persons of which about 5000 were from families of missing military personnel.  There were several incidents during the course of the war in which the LTTE overran military camps and killed almost all they captured.  In the case of the Mullaitivu army camp which fell in 1996, about a thousand soldiers were killed in two days and many of the bodies disposed of without record.

Another very large group of people who went missing was the tens of thousands who perished during the period of the JVP insurrection in the late 1980s.  Even today there is no commonly accepted figure for casualties, although the figure of 60,000 is frequently mentioned. This is not dissimilar to the figure of 40,000 which is also frequently given in regard to those who lost their lives in the last phase of the LTTE war. Tracing what happened to the soldiers who died or to the victims of the JVP insurrection will be very difficult as the hard evidence will be lacking.  As the OMP has not been given a time frame within which they need to conduct their investigations nor are they limited in their freedom to decide which incidents to investigate, they will certainly be asked to investigate the fate of these missing persons too.

The difficulties that the OMP will face in attempting to track down missing persons from the security forces and from the JVP period is an indication of the problems they will face when it comes to tracing the fate of those who went missing in the last phase of the war. The disposal of the bodies of the victims will mean it is going to be very difficult to find out what actually happened to them individually.  A similar situation would exist in the cases of the JVP insurgents or suspects, some of whom were cremated on tyres on roads. The discovery of mass graves in Mannar in the North of the country and in Matale in the South of the country and a hotbed of JVP activity would suggest that many of the victims were also cremated or buried in mass graves.

However, these investigations have been proceeding very slowly due to both lack of forensic evidence expertise and resistance from vested interests. Studies done in other parts of the world have shown that the process of tracing people and identifying the identity of human remains after many years is an extremely difficult task. In Kosovo where over 30,000 people went missing even a well staffed and well equipped investigation system is able to process only about 100 cases a year. With Kosovo being in the middle of Europe it has access to both financial resources and expertise from neigbouring European countries. But the slow rate of tracing is an indication of the complex nature of ascertaining what happened in the past.

High Expectations 

There are several challenges that the OMP will be subjected to that need to be considered. The first will be to manage the high expectations of the families of the missing persons. Many if not most of them continue to hope against hope that their loved ones continue to be alive and are being held in some place of detention, most likely by the security forces. Whenever government authorities tell them that there are no such places they get highly agitated and accuse those in government of being deceitful. Both President Sirisena and Prime Minister Wickremesinghe have each said that their government is not holding anyone in places of secret detention .

After the setting up of the OMP the expectation will be rife that it will swiftly locate the missing persons. But as the situation in Kosovo indicates the pace of finding out what happened to those who went missing is extremely time consuming.  Such a slow pace will not be acceptable in Sri Lanka. The families of the missing are likely to believe that the OMP too is duping them. On the other hand, if the OMP discloses to the families that their loved one is either dead or they are unable to trace what happened to him, this truth will be difficult for the families to bear. It would be necessary that the OMP should function as part of a package of reforms that include the provision of psychological counseling and economic assistance for development purposes.

The biggest challenge will be that of ensuring accountability. The ongoing case former Navy spokesman and five others, who are currently in remand custody over the alleged disappearances of 11 youths in 2008 is an example. Replying to the defence lawyer who was critical of the treatment of a war hero, the lawyer representing the state said this was not an ordinary allegation but an investigation about the disappearances of eleven youths who were not even LTTE supporters. He said,

“We are mindful of the fact about people who had served the nation, but that does not mean that they received licenses to abduct innocent people to demand ransom. Investigations are still going on and much revealing evidence is being filed into this inquiry. So it is not appropriate that counsel behave shouting at the Judge like a bull in a fish market”

The victims are demanding an international or hybrid system of courts in which foreign judges will be active as they are mistrustful of the efficacy of the national system of justice. They want justice which is also important for society as a whole. The government position has been that foreign judges will not sit in judgment in the courts. The government needs to create a credible system of transitional justice in which all sections of the people can place their trust. It is also the responsibility of religious leaders, their clergy and civil society to both demand this and to educate the general population about these issues. It is easy for those who are not ready to bear responsibility to raise the expectations of the people. It is important that those with deep psychological wounds be cared for and unrealistic expectations be managed.

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Latest comments

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    Jehan Perera

    How many commissions and enquiries we have had but where were the results?

    Six months ago President promised to release the written record of Tamils taken into custody by the armed forces, but failed to produce upto now. Why did he breach his promise?

    Courts in Mullaithivu ordered the armed forces to produce the record where they have entered the names of Tamils admitted to the camps in Vavuniya but while agreeing to produce the same in Courts at the first hearing, they denied having one at the next hearing. What sort of justice is this?

    ” If government is not holding anyone in places of secret detention” the very same govt has the duty to tell the citizens what had happened to those surrendered to the armed forces. Are they kept in ” open ” places of detention if there were no ” secret” places. If so where are they? Name the places. Are they alive or not? If they are not alive after their surrender, the govt must accept its guilt and face the punishment. Give an answer that either they have been killed or kept in detention, naming the places of detention. This will bring some sort of relief to those relatives. Will you ask your Prime Minister and President to give an answer instead of continue to cheat by different ways.

    Relatives of ” disappeared” don’t believe that OMP will bring any relief to them. They cannot be deceived anymore. So tell the govt not to waste their time and money.

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    During his visit to North recently, President met the relatives of missing persons in Vavuniya and asked them to see him in Colombo to sort out their grievances. These poor villagers were very happy in speaking to the President, borrowed money for their expenses and went to Colombo hoping he will give them good news about their missing loved ones. But what took place at President’s place was nothing but an act of insult. Instead of disclosing the whereabouts of missing persons or reveal whether they are alive or not by checking the record of entry at the camps in Vavuniya, President asked them to complete an application form that will be prepared by his Department, with the details of missing persons and submit. What an act of insult to injury!!

    All the details have been given to various commissions by these poor souls, the last one was Paranagama commission which received 24000 complaints. Nothing happened to these complaints so far. Why can’t the govt act on these complaints instead of calling a few to Colombo, giving hope and deceiving them. Is this Buddha dharma?

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    If one traces the history of this ‘conflict’ it will have some demands by Tamils. Successive GoSLs since independence reject the demands but NEVER EVER put anything on the table. If the present GoSL says “This is what it will be” or whatever it will go a long way.
    By now it is clear that the minority issue was used as a cloak to mask the never ending ‘home vs home’ clashes. Unfortunately the cloak is still usable.

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    Sinhala people are not allowed to relive the victory against the most ruthless terrorist outpit in the world. but, Tamils can relive their annihilation in order to get revenge and fulfill their dream homeland. GOSL politicians are very cheap and weak. that is the problem.

  • 2
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    Jim softy

    “Sinhala people are not allowed to relive the victory against the most ruthless terrorist outpit in the world.”

    Could you cite any comparative studies on ruthless terrorists.
    The people are not allowed to relive the victory against the ruthless JVP terrorist outfit in the world while the terrorist outfit has been commemorating its fallen comrades since 1994.
    I am surprised you haven’t noticed it in the past 23 years.

    • 0
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      JVP struggle was a class struggle.
      LTTE killed sinhala, and muslims civilians. as well as Tamils who supported the govt and Slaughtered whole villages. How can we classify those under a class struggle ?

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    In the kids’ movie “Jingle all Way” Arnold is coming as Howard Langston. On the eve of a Christmas , he and his villain for long time were fighting through many obstacles, even though a blasting bomb and reaching a radio station which advertised that they will prize with Turbo Man toy for their winning contestant, which the villain and the Hero wanted as the present for their children..
    Here is the dialog went at the Studio:
    DJ: Excuse me, gentlemen, are you two under the impression that I have a Turbo Man doll here in the studio?
    Howard Langston: Yes.
    Myron Larabee: That’s what you said on the radio.
    DJ: Oh, no.
    Myron Larabee: Yes it is.
    DJ: No, no, no! What I actually said was whoever *won* would *get* a doll E-VENTUALLY. See…
    [Chuckles]
    DJ: What we have here… is a gift certificate.

    Howard Langston, Myron Larabee: A gift certificate?
    DJ: Right.

    Harward and Myron acted desperate fools only to a Hollywood movie. Tamils too are desperate, but not that fool to believe Yahapalanaya and dream that they were at the theater and watching Arnold’s heroic movies. Tamils were 100% sure that OMP is the biggest dupe of Yahapalanaya and Jehan PhD. That is why they are protesting for 250-300 days in the rain and the shine. Jehan PhD has been showing jugglery in CT “Watch, Watch, here it comes here it’s comes, don’t blink, Don’t Blink OMP coming, the entire world is going to be lit ever after without any more nights” Now the balloon is puffed off.

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    Jehan PhD was thinking that it would be going that easy to fool IC and Tamils. But there are many International media essays raising suspicion on the delay of the OMP. The reality of the OMP was questioned even in UNHRC. We have repeatedly questioned Jehan PhD’s morality here in CT every time when he was giving hope on Yahapalanaya’s OMP, if he was honest and sincere. But whatever happened, Jehan PhD and Yahapalanaya have successfully watered out the Resolution 30/1 so far and have bought out the China with the sale of Hangbangtota. Day before yesterday Ranil proudly displayed on TV as his achievement, the biggest check he got from China for the Sales of Hangbangtota. Then we expected Yahapalanaya to take the steps to the next move. Jehan PhD has come with it here. He sees it is time to tell the truth about OMP to everybody as Yahapalanaya is well secured at International Arena. OMP is Hallow promise of Yahapalanaya to Sampanthar and Tamils- a kind of Secret Solution. Now he is telling that the OMP is their well thought out and meticulously planned biggest cheating.
    Harward and Myron wanted to crush DJ. But what is the point? So they returned to fighting again and got out of the studio in search of Turbo Man Toy. There is no Point in telling to Jehan PhD that “WE TOLD YOU SO, BECAUSE HE REMMBER WELL “that we said so. The fasting people to in protest of their loved one missing have said that their only hope is IC and UNHRC. Let’s respect their believes. Let’s leave Jehan PhD with the donations he collected showing mirages to Tamils by his writing, but we appeal to IC until it act on this and bring justice to Tamils.

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    Having known Jehan for 30 years, I never doubted that he means well. We met for the first time in Jaffna soon after the Indo-Lanka Accord in 1987. Before belabouring well-meaning Sinhalese like Jehan, we need to ask if we Tamils have given them any chance to bring their good intentions to fruition. After all ‘our side’ started needless wars not less than four times.

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