By Thambu Kanagasabai –

Thambu Kanagasabai

The Office of the Missing Persons [OMP] expected to function shortly has been welcomed as a positive step from various quarters towards reconciliation after the war. However, a close scrutiny and analysis of the legislation governing it reveals the deception and futility underlying most of the provisions in The Act.

Sri Lanka ranks second in the list of countries after Iraq to record the largest number of disappearances with unofficial estimated numbers of about 90,000 since 1980s. Out of these disappearances, enforced or involuntary disappearances are reported to be around 65,000.

Enforced Disappearances always involve state officials and/or security forces. They happen when a person is illegally arrested and detained in undisclosed centres where torture and other ill-treatment including killing and disposal of the dead takes place. The arrest and detention is carried out violating all rules and procedures including court process.

The UN Working Group on Enforced or Involuntary Disappearances, [WGEID c/oOHCHR] in its report on July 08, 2016 after staying in Sri Lanka from 09 – 18 November 2015, has plainly made the following damning statement: “Enforced disappearances have been used in a massive and systematic way in Sri Lanka for many decades to suppress political dissent, counter-terrorism activities or in internal conflicts and many enforced disappearances could be considered as war crimes or crimes against humanity if addressed in a court of law.” The UN working Group received 12,000 cases of enforced disappearance related to Janatha Vimukkti Perumuna [JVP] uprisings and during the armed conflict between Liberation Tigers of Tamil Eelam [LTTE} and the Sri Lankan government forces from 1980 to 2010.

File photo

Missing Persons include those who are arrested, or surrendered or summoned for inquiry and detained by the security forces during the war. These persons finally suffer disappearances mostly by killing and are generally untraceable. About 19,000 persons were reported to the Paranagama Commission as confirmed missing.

The Sri Lanka parliament passed the Office of the Mission Persons Act No. 14 of 2016, coming into effect from 26th August 2016, the government introducing the Bill in accordance with an undertaking given under the UNHRC resolution of October 01, 2015.

Due to international pressure and United Nations concerns over the hither to unresolved cases of enforced disappearances and missing persons, the Office of the Missing Persons Bill was passed in undue haste, ignoring the protests and concerns of affected parties who demanded prior consultation and consideration of their input as called for in the UNHRC Resolution in October 2015.

The final outcome will prove invariably that, ‘haste makes waste’ and one could obviously realise the ineffectiveness and toothless powers of the Office of Missing Persons to mete out justice to the victims and to their loved ones whose views and concerns were never sought.

This Act has also excluded the participation of international experts and this glaring omission has prompted the UN Working group [WGEID] asking Sri Lanka to, “allow them to take part in any Judicial Accountability Mechanism for human rights abuses including disappearances.” Furthermore as long as the Prevention of Terrorism Act [PTA} 1979 remains in force, the OMP will have to work avoiding conflicting positions over persons detained under the PTA with the OMP confined to the limits of its powers over them.

The OMP for its intent and purpose is a positive step to trace, search, and collect information as to the circumstances which led to disappearances, but it is just an inquisitional mission without any powers on its own to prosecute those involved in the disappearances after identifying them.

Furthermore, there is a lurking danger, its process could be torpedoed or stymied from the hardcore elements in the south raising cries of “betrayal of the armed forces” leading to complete impunity for the perpetrators which is the hallmark of 60 years of history of the judicial mechanisms in Sri Lanka.

It is to be noted, only a handful have been convicted for crimes committed during the past pogroms and massacres of civilians since 1956. [Mostly state organized pogroms in 1956, 1958, 1971, 1977, 1983 and from 2004 – 2009]

The main objectives of the Office of the Missing Persons are:
 “To take all necessary measures to search and trace missing persons including those
 missing as victims of abduction, persons missing in action or in connection with armed
 conflicts, political unrest and civil disturbances including conflicts of North-East, to know
 the circumstances in which persons went missing and the fate and whereabouts of such 
 missing persons. To clarify the circumstances in which such persons went missing and 
 their fate. To identify proper avenues of redress to which such missing persons or their
 relatives may have recourse.”

The OMP shall be a body corporate having perpetual succession and may sue and be sued in its corporate name. This section confers permanent status to OMP which can also be sued in its capacity as a corporation and for liabilities as incurred by a corporation. However no action is possible against any member of OMP for any acts or acts omitted while discharging his/her function as a member. This is specifically mentioned under Sec 12 [1] except by way of writ filed in the Supreme court. The right to sue OMP for any of its findings is denied under Section 13-[2]
The OMP will consist of seven members including a Chairman appointed by the President on the recommendation of the Constitutional Council.

The provision of selecting the seven members of the OMP by the Constitutional Council which includes seven parliamentarians and three other eminent members from the public is a duty which must be properly carried out giving priority to well-known independent and qualified persons, excluding persons with political leanings. It’s paramount that impartiality, absence of bias and pre conceived interests, must be the guidelines in selecting the seven members who also should be above suspicion.

Full Discretion to the OMP is given to do all such other necessary things that may become necessary to achieve the objectives under the Act. This confers full freedom to OMP to decide which is necessary and it need not act on this matter if it decides so. The mandate of the OMP shall extend to missing persons notwithstanding the period in which such person became a missing person. This provision could cover periods from 1980s to the current period.

The investigative powers of the OMP are to receive from any relative of a missing person or any other person or organization, complaints relating to missing persons. Under this section anyone can make a complaint without any condition including groups and organizations.

It is also a welcome feature to include all missing persons notwithstanding the length of time such person became a missing person. This period could cover the 1980s to the current period including JVP uprisings besides the periods of armed struggle between the LTTE and other movements, including the wars between the LTTE and the state’s security forces lasting thirty years or more.

Under Section 12: [Mandatory]
OMP should initiate inquiry or investigation into the whereabouts and/or circumstances of disappearance of a missing person following a complaint received by previously established Commissions which have inquired into allegations relating to disappearances or missing persons. This requirement must be complied with by the OMP as a mandatory one and if it fails or omits to perform this duty in relation to a missing person, it could be sued through the writ process in the Supreme Court as stated under Section 25 [2] 
 Section 12 [1] [Discretionary]
Section 12 [1] states as follows: Where it appears to the OMP that an offence under the penal code or any other law has been committed, the OMP may report same to the relevant law enforcement or prosecuting authority.” This section is only directory, the exercise of this power of OMP is subject to its discretion: [The words] – it “may refer” indicate its absolute discretion to do or omit to do and this cannot be questioned by any court or any affected person even if it fails to exercise this power.

Under Section 13 [1: [Discretionary]
Section 13 [1] states as follows: Where the OMP has sufficient material to conclude that the complaint relates to a missing person, an interim report will be issued to issue a certificate of absence by the Registrar General.”
This is another section which grants the OMP the discretion and judgement as to the question of sufficiency of material for a conclusion and this is a subjective power and a decision which will not be easy to challenge through a writ in the court by a missing person. If the material falls within “confidential information” a missing person will have no avenue open to demand a certificate of absence as stated under section 15 [1]

Under Section 15 [1]: [Mandatory] 
Section 15 [1] states as follows: “OMP shall preserve and aid in preserving confidentiality with regard to matters communicated to them in confidence. Right of Information Act 2016 shall not apply with regard to such information. “
This section completely prohibits from giving to relatives etc. all information requesting confidentiality relating to the circumstances in which a person went missing. 
Thus Section 15 [1] grants complete non-disclosure of all information communicated in confidence even prohibiting the applicability of rights under the Right of Information Act 2016. This section is a sweeping denial of a person’s right to access the information, verify its truth and nature and by whom and against whom it was given. This denial of a fundamental right weakens the provisions of section 13 [1] which requires OMP to inform victims, the relatives, witnesses and other informants their right to directly refer matters to relevant authorities, to report serious crimes not ordinary crimes. As such this right to initiate any action through Police or State Prosecutors is a much curtailed one barely serving the needs for justice to the affected parties including informants, and complainants.

Under Section 15: only matters communicated to them in confidence cannot be disclosed under the Right of Information Act 2016 – Under 15 [2] OMP shall not be required to produce whether in any Court or otherwise all materials communicated to them in confidence.
Under Section 15: only confidential information will be kept secret and OMP is also given immunity from any legal challenge to disclose all matters communicated to them in confidence in person or in absence. 
All in all, the above sections do not in any way help the complainants to seek judicial remedies, which is a denial of a citizen’s fundamental right of freedom to seek redress through courts. It is to be expected that all the information provided by the complainant will be in confidence.
OMP will also have a Victim and Witness Protection Division to protect the rights, concerns ect. of victims, witnesses and relatives of missing persons.
This is a welcome feature allowing all witnesses to give evidence without fear of reprisals or blackmail. The success of this section depends on the steps the OMP takes without favour or bias. Under Section 23, OMP is not bound to submit annual reports containing confidential information received under Section 15 [1].

Under this Section, confidentiality even extends to its annual reports as well which also fortifies the duty of non-disclosure of information given in confidence reducing the opportunities of an affected party to seek legal remedies.

Under Section 25 [1]: “ No order, decision, act or omission of OMP or member, officer, servant shall be questioned in any court of law except in proceedings under Article 126 or 140 of the constitution. The writ jurisdiction under art. 140 shall be only exercised by the Supreme Court.” This section provides a relief only by way of writs like mandamus, prohibition, certiorari quo warrantor or injunction filed in the Supreme Court which is cumbersome for an ordinary litigant.
Section 25 [2] grants protection from civil, criminal or administrative action. All acts of an OMP member or OMP done in good faith or omitted to be done, report made in good faith or any person providing evidence or documentation to the OMP are protected except under Article 126 – 140 by way of writ in the Supreme Court.

Under Section 25 [2]: This section also allows only writ remedies through the Supreme Court, which is a tedious and expensive matter viewing the challenges facing a litigant to prove bad faith which is a subjective test and difficult to prove in any Court.

Under Section 27: [Discretionary]“Missing Person means a person whose fate or whereabouts are reasonably believed to be unknown and which person is reasonably believed to be unaccounted for and missing.”
This section also implies subjective tests to decide if a person is missing or not, depending on the OMP’s discretion to conclude the question of ‘reasonable belief’ which will prove to be a contentious issue in a Court. All in all, OMP is a welcome move but with discretionary and deceptive provisions shutting out the core concept of judicial accountability through non-liability for the perpetrators and granting impunity with criminal non liability which as stated in Section 13 [2] is as follows: “The findings of the OMP shall not give rise to any civil or criminal liability.”

Armed with various discretionary powers, the OMP’s success depends on how far these discretions are exercised honestly and in good faith to uphold justice which an aggrieved litigant can attempt to achieve through the writ remedies to challenge an act, omission, order, or decision of the OMP or acts of members, excluding the findings of the OMP and closing the avenues of civil or criminal liability proceedings against identified perpetrators.

This act was intended to placate the United Nations and the International Community hoping to ride over the gathering stormy waves expected from the forthcoming UNHRC sessions particularly the one in March 2017 when Sri Lanka is in the agenda for a final evaluation and assessment report about its progress as regards the October 2015 UNHRC Resolution, the recommendations of which, except the OMP, remain untouched and intact. It is unfortunate that most of the paragraphs in the resolution use the word, [Sri Lanka is] “encouraged” rather than force compliance of any of the stated provisions – a fact which the writer raised as a matter of concern in an earlier article published October 1, 2015: A Deflated US Resolution & Tamils’ Quest for Justice and Accountability
.

Whether the findings of the OMP based on undisclosable confidential information will be of any value to the affected is a six million dollar question?