23 January, 2018

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Tamil Civil Organisations Accuse Government Of Rushing Through In Setting Up Office For Missing Persons

Tamil Civil Society organisations and activists have accused the government on the lack of ‘genuine willingness’ to consult the victims in the setting up of mechanisms for transitional justice, while also trying to rush through the consultation process in setting up the ‘Office for Missing Persons.’

Mangala Samaraweera

Mangala Samaraweera

In a letter addressed to Minister of Foreign Affairs, Mangala Samaraweera, on 19th May 2016, 12 organisations and 26 individuals said that the mandate and terms of reference of the Task Force in setting up ‘Office for Missing Persons’ (OMP) are extremely vague and the process to date has been handicapped by in adequate resources and has made very little progress. “In the midst of this, the Foreign Ministry, it appears, is seeking to rush through a tokenistic consultation process on the OMP. The undermining of the Task Force by the Foreign Ministry makes clear the disdainful and instrumental use of the Task Force on Consultation,” the letter stated.

According to the letter, the consultation with regard to all Transitional Justice Mechanisms including the OMP were entrusted with the Task Force on Consultations functioning under the SCRM. “However in the design of the OMP the perception exists that the Foreign Ministry has taken over the consultation process.”

They also noted that despite repeated requests, the Government has refused to engage with victims who are abroad in the consultation exercise. (As to how the OMP will engage with these victims is also not clear). “The Office of the High Commissioner for Human Rights in its Rule of Law Tools on Consultations raises the need to consult with all victims even those abroad. We are unfortunately forced to conclude that there is no genuine willingness to consult the victims on the part of the Government in the setting up of mechanisms for Transitional Justice,” the letter said.

They went on to add that it would be ‘unacceptable’ if the OMP is designed without proper consultation with the victims and their communities.

We publish below the letter in full:

19 May 2016

Hon. Mangala Samaraweera, M.P,
Minister of Foreign Affairs
Colombo 01.

Honourable Minister,

Comments on the draft proposal to establish an OMP

We the undersigned organisations and individuals from the North-East of Sri Lanka submit as follows our view on the draft outline of the proposals put forward by the Prime Minister’s Secretariat and the Ministry of Foreign Affairs on the setting up of an ‘Office for Missing Persons’ (OMP). These proposals were put forward in a briefing held with selected civil society activists on the 9th of May at the Ministry of Foreign Affairs and a leaflet that was circulated by the Ministry on the 13th of May on the same.

A – The Process: Consultation with regard to all Transitional Justice Mechanisms including the OMP were entrusted with the Task Force on Consultations functioning under the SCRM. However in the design of the OMP the perception exists that the Foreign Ministry has taken over the consultation process. The mandate and terms of reference of the Task Force are extremely vague and the process to date has been handicapped by in adequate resources and has made very little progress. In the midst of this, the Foreign Ministry, it appears, is seeking to rush through a tokenistic consultation process on the OMP. The undermining of the Task Force by the Foreign Ministry makes clear the disdainful and instrumental use of the Task Force on Consultation. This runs contrary to the observations made by the Special Rapporteur on the Promotion of Truth, Justice, Reparations and the Guarantee of Non-recurrence following his visit to Sri Lanka in April 2015 wherein he noted that, consultation with those affected by the violations is essential and that they cannot be simply presented with ‘solutions’ in the design of which they were given no role. In his observations on his second visit to Sri Lanka the Special Rapporteur noted that ‘consulting victims is crucial because it constitutes in itself a mode of recognition and respect – that people whose rights were violated, often in the most brutal ways, will be listened to respectfully and their views taken seriously as to the most effective ways of redressing those violations”.

The Government despite repeated requests has also refused to engage with victims who are abroad in the consultation exercise. (As to how the OMP will engage with these victims is also not clear). The Office of the High Commissioner for Human Rights in its Rule of Law Tools on Consultations raises the need to consult with all victims even those abroad. We are unfortunately forced to conclude that there is no genuine willingness to consult the victims on the part of the Government in the setting up of mechanisms for Transitional Justice.

We categorically state that an OMP that is designed without proper consultation with the victims and their communities would be unacceptable.

B – Substance:

We are constrained in our ability to respond in detail to the substantive content of the proposals. The Foreign Ministry’s proposed consultation is being carried out with a two page leaflet that is quite insufficient on the details. A full draft of the proposals on the OMP should be made available for any meaningful consultation.

B.1. Missing Persons or Enforced Disappearances? : Not just about nomenclature

Enforced Disappearances is a recognised crime in international law whereas ‘missing persons’ is a generic term and may cover situations that do not amount to a crime. An example of the category of missing persons not falling under ‘enforced disappearances’ are Sri Lankan Army soldiers who are missing in action. The OMP’s mandate, if it is conceived as being part of the Transitional Justice process, has to be in relation to the crime of an ‘enforced disappearance’, at the the hands of the state, its security forces and non-state actors. The issue of soldiers missing in action is no less important, but should be kept distinct and should not be conflated with the crime of enforced disappearances. In this regard, the terminology of ‘tracing’ in the context of disappearances is problematic because it denies the fact that a crime has been perpetrated which must be investigated so that those responsible may be prosecuted. It is also not clear as to whether the OMP has been mandated to carry out investigations with a view to prosecutions. (It may be argued that this distinction is inconsequential given that the OMP does not deal with prosecutions. We refer to the artificiality of this dichotomisation in B.4)

B.2. Composition of the OMP: Without international involvement in the OMP it will be extremely difficult for the victims to place faith in the institution. Given that the Sri Lankan Armed Forces are to-date involved in threatening victims and activists in the North-East and the veneration accorded to them by most if not all major political actors in the South, it will very difficult to envisage willingness and imagine the possibility of an OMP made up of exclusively Sri Lankan nationals, undertaking a vigorous process of evidence collection and tracing. For example, it is difficult to conceive how the OMP made exclusively of Sri Lankans, in the current power imbalance, will have the moral and practical courage to enter camps and prisons and properly investigate alleged acts of disappearances. The OMP will be sufficiently empowered to be independent only when qualified foreign individuals known for their integrity, independence and professionalism are included in its composition. We wish to stress that this is the underlying rationale of the hybrid process recommended in the OISL report and the UNHRC Resolution of March 2015 and that it should apply to all aspects of the transitional justice process.

We would recommend that the Government approach the UNWGED and or the OHCHR to recommend suitable names for appointment to the OMP. We also recommend that one half of the membership of the OMP is drawn from such a process. We also wish to emphasise that representatives of the victims and an adequate number of Tamils and Muslims with strong links to the community with lived experience in the North-East should be appointed to the OMP. Gender balance should also be a key consideration in designing the composition of the OMP.

B.3. The Appointment Process: The Constitutional Council cannot be considered to be a sufficiently independent body capable of ensuring an independent appointment process to the OMP. The Constitutional Council as provided for in the 19th amendment, contrary to common understanding, does not provide for an independent appointment process to public institutions. This is manifested for example in the fact that 5 out of 10 members of the current council are members of the ruling coalition. The partiality of the Constitutional Council should be offset by allowing, as suggested above, the UNWGED and/ or the OHCHR to recommend/appoint members to the OMP and mandating that the Constitutional Council work in close consultation with victims and their communities in making the domestic appointments. Representatives of victims should be allowed to vet nominations prior to appointment.

B.4. Prosecutions and Justice: The leaflet issued by the Foreign Ministry says that prosecutions relating to enforced disappearance will be dealt with by ‘another mechanism’. For reasons explained below this ‘other mechanism’ we fear refers to the current organisational apparatus for criminal prosecutions – the Police, Attorney General’s Department and the Judiciary who have no credibility or willingness to investigate these serious crimes. No explanation has been provided for such dichotomisation of the tracing and prosecution aspects in addressing enforced disappearances. The International Convention on Enforced Disappearances, which Sri Lanka is signatory to, provides that the state is obliged to investigate acts of enforced disappearance and bring those responsible to justice.

As will be recalled the UNHRC Resolution is most explicit in its calling for foreign participation in the judicial mechanism. It is with regard to this commitment that the Government has been wavering ever since the resolution was passed, with the President suggesting that no foreign judges will be allowed. Given the above, it appears that the Government is keen on postponing the issue of prosecutions, while wanting to appear to be acting on setting up the OMP. This approach of focusing on the OMP first, we fear has been adopted for an instrumental purpose – to give the impression to the UNHRC, which is scheduled to hear an oral report from the OHCHR on the implementation of the March 2015 resolution, that progress is underway. The Government before setting up the OMP must state unambiguously its policy approach on the question of judicial prosecutions and as to whether they intend to honour those commitments laid down in the UNHRC resolution.

B.5. The right to truth: We note with concern that the leaflet provides that the OMP will have discretion on the decision to share information received by it with the families of the victims. That this is not mandatory reduces the OMP’s usefulness even as a truth seeking institution. The families of the victims have a right to know and this cannot be compromised. Furthermore the Government is obliged to ensure that victims of enforced disappearance or those directly affected by it have a right to obtain reparation and compensation.

B.6. Witness Protection: The Assistance to and Protection of Victims of Crimes and Witnesses Act, as was acknowledged in the UNHRC Resolutions, falls far short of providing adequate protection. Those authorities from whom protection is required find representation in the National Authority established under the Act. Out of the twelve members of the authority seven are ex-officio and represent different organs of the state including the Police and the Attorney General’s Department. Given that the relatives of the disappeared are desperate for information it is likely that they will engage with the OMP even without adequate witness protection. But the Government should not take this for granted. It is the Government’s responsibility to put in a proper mechanism for witness and victim protection.

Thank you

Signatories

Organisations

Association of Families of the Disappeared
Tamil Civil Society Forum (TCSF)
Centre for Human Rights and Development (CHRD)
Centre for the Promotion and Protection of Human Rights, Trincomalee (CPPHR)
The Social Architects (TSA)
Tamil Lawyers Forum
North-East Coordinating Committee on Disappearances
Mannar Citizens Committee
Justice and Peace Commission of the Jaffna Catholic Diocese
Jaffna University Employees Union
Ceylon Teachers Union
Kiraamiya Ulaippaalar Sangam (Rural Workers Union, Jaffna)

Individuals

K.S. Ratnavale, Attorney-at-Law
Fr. V. Yogeswaran, Attorney-at-Law
R. Sivarasa Kurukkal
Prof. V.P Sivanathan
P.N. Singham
Fr. Jeyabalan Croos
V. Puvitharan, Attorney-at-Law
Fr. Elil Rajan
Fr. Sebamalai
Navaranjini Nadarajah (Sureka)
Sherine Xavier
Rev. Fr. S.V.B . Mangalarajah,
Rev.Fr. M.V.E. Ravichandran
Rev. Fr. T. Raviraj
Dr. T. Balamurukan
Kumaravadivel Guruparan, Attorney –at-Law
N. Kamalathas
B.N. Thambo, Attorney –at-Law
V. Niranjan, Attorney –at-Law
N. Kandeepan
J. Sinthujah
K. Thurka
T. Thamilselvi
N. Thayaharan
U. Achuthanath
S. Sivanesan

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Latest comments

  • 11
    5

    To be reasonable it does not seem to be Samaraweera who is responsible.He is known to be fair minded person really interested to resolve this matter once and for all,like the Prime Minister and President.The blame should be on a middle aged woman official in the Foreign Ministry with a very large stomach who is in charge of this project and working unsupervised in this important matter.She is said to having only 10 or 12 years of experience.It is said she was extremely close to Sajin the former Monitor in the Foreign Affairs Ministry.Her brother is well known catcher of Gota Rajapaksa and did many shady things working in the Defence Ministry.This woman’ s racist views are known.But now she is in charge of this important matter even though she has no experience and totally unsuitable for this important matter.Officials in ministry surprised how this woman became so powerful after been identitified with the Rajapaksas.It is sabotage by her.Government must get up and take action before people like this ruin our country

    • 9
      4

      “”Government must get up and take action before people like this ruin our country “”

      It was ruined on 4th february 1947 and there is no return.
      At present all your leaders and catchers are like Gaddafi, Saddam etc.

      The man at the top never commits a mistake but his subordinates do it for the perks. So we have FIA. But there are lawyers who turn black to white and judges/jury who work under the table for the same perks.

      Its a very vicious cycle and the world view cannot be changed by listening to Lankain cock and bull to fill your goblet of honey.

      “”He is known to be fair minded person really interested to resolve this matter once and for all,like the Prime Minister and President.””

      Been there Seen it Before!

      Everyone one almost everyone who post here also think they are fair by giving their thought out evidence etc.
      Give them the power and you see the 2nd and 3rd face in them- the greedy destroyer.
      FM,PM Pres are no saints in a monastery but common politicians.

      NO politician is EVER…EVER well-meaning. IF YOU believe that, then you are very naive. Money, power, and ulterior motives are the ONLY things that drive a politician to get out of bed each morning.

    • 6
      2

      The International Convention on Enforced Disappearances, which Sri Lanka is signatory to, provides that the state is obliged to investigate acts of enforced disappearance and bring those responsible to justice.”

      You name a good office of UN or IC; Wildlife Sanctuary SinhaLE will be a signatory of. But there is only one office, which can enforce all those signatures; it is the ICC. These smart thieves are not signatories of it. The Sinhala Intellectuals from Wildlife Sanctuary SinhaLE is the most fraudulent spice of the earth.

      An example of the category of missing persons not falling under ‘enforced disappearances’ are Sri Lankan Army soldiers who are missing in action. Well! Ladies and Gentlemen, you are on the wrong end of the rope. That is not the one selected win the tug-of-war. Even the most uneducated Modaya in the Wildlife Sanctuary SinhaLE knows that his/her relative counted as missing in action is killed in the war and the Rapist Army has the full record of the person. Dear Sirs and Madams, Appe Anduwa is not confusing between “Enforced Disappearances” and “Missing in Action”- after all, the Lankawe MISs are only fought and death soldiers, to whom their chiefs do want to allow pension or damages awarded. This is how Mangala sells his Idiyappa and Pol Sambol to UN Ambassador Samantha Power. Pls Read about Ambassador Samantha Power’s speech in U.S.-Sri Lanka Trade and Investment Framework (TIFA)(April 2016). She has openly said in that speech that she was not a person supposed to attend a Trade and Investment meeting, and she is not interested in US-Lanka TIFA. But she had visited there only because Mangala had sent her a note that for Breakfast Idiyappa and Pol Sambol would be served there. But she was disappointed. That is all what she has been receiving from the time she started to deal with Wildlife Sanctuary SinhaLE. We can’t blame her. That is what Aappa Diplomacy is fine tuned for. We can come back to that latter. Let’s see the next.

      The Assistance to and Protection of Victims of Crimes and Witnesses Act, as was acknowledged in the UNHRC Resolutions, falls far short of providing adequate protection. Hello Signatories to this memo, I do not think saying that publicly is very smart thing to do. Paranagama is going to send his henchmen called the CIDs. I believe it is officially listed as 5000 is only missing. There 150,000 Paranagama’s CIDs are stationed in North. There is lot of unemployed CIDs are there and he can well afford to take care of you too. Weerawansa like fool politicians don’t know to answer to OISL other than fast in front on UN until freshly squeezed orange juice served. Last September, it was the (war) Lord Paranagama answered to OISL. So, for the coming June, he has been officially appointed to answer to UNHRC.

      “To be reasonable it does not seem to be Samaraweera who is responsible.” In May 2009 The Old King released a joint statement with UNSG, But Lankawe was not responsible for that, because it was his personal opinion. Then G.L. Peiris issued a statement with FM Krishna. Lankawe is not responsible for that, it was his personal opinion. Solomon West Ridgeway, Dudley, Junius Richard all wrote Pacts with Tamils. They were not responsible for all that because they all are their personal opinion. Mangala agreed on a negotiation with UNHRC. Only Kshenuka is responsible for that. But for only one thing Lankawe is responsible for what it did. That is: ” On Tuesday, President Mahinda Rajapaksa and his Chinese counterpart, President Xi, witnessed the signing of a “term-sheet” agreement on the Colombo Port City Developing Project (Phase I). According to the official media statement, CHEC Chairman Mo Wenhe signed on behalf of Sri Lanka while China Development Bank Chairman and Executive Director Hu Huaibang signed for China.” Do you get it? China did not allow Lankawe to sign it. Mr.Mo Wenhe signed it. That is why Lankawe could not get out of it. Then which part of the Democratic, Socialistic, Doupmasteric, Cutthroatic Wildlife Sanctuary SinhalE’s constitution allow the Chinese to sign for Sri Lanka? Answer can find out only if Shiranee Bandaranayake contests her first dismissal of 2014 and put forward the National Serving Banks borrowing in the court.

      Now we can see why Mangala Samaraweera did not send Idiyappa and Pol Sambol to TIFA, Washington, D.C., to Ambassador Samantha Power as he promised. Because Iddi Appam is only Tamils’ food; especially Jaffna Tamils’! It does not fit into the Sinhala Aappa diplomacy. Let see that in Mangala’s words:
      It was also thanks to my predecessor Lakshman Kadirgamar that the LTTE was proscribed in the United States in 1998 and the UK in 2001. And it was during my tenure that I, along with the help of our friends in Washington aimed the biggest blow to the LTTE by listing them in the 27 countries of the EU and Canada. By 2007 with the LTTE banned in the US, EU and Canada, its funding and procurement network was severely affected.

      In fact, much of the spadework for winning the war was done by the time you became President through a narrow election victory that was secured thanks to the LTTE who got the people of the North to boycott the election.

      Even though your regime started accusing the US of being LTTE sympathizers, I can say confidently if not for the support of the US State Department, in particular Condoleezza Rice and Nicholas Burns, achieving a unanimous consensus among the EU’s twenty seven countries would have been impossible and I am happy to say that today our relations with the United States have been restored and gone on to greater heights than ever before.

      What is he saying is, Secretary Kerry is not Condoleezza Rice. Neither Ambassador Samantha Power is Nicholas Burns. He does not like Secretary Kerry and Ambassador Samantha Power. What is Mangala expecting is, he would like to remind them it is time for them to leave from white house, the same way they chased out Old King. He is waiting to celebrate that victory day too.

      • 1
        0

        Mallaiyuran,

        “But there is only one office, which can enforce all those signatures; it is the ICC. These smart thieves are not signatories of it.”

        Boris Johnson clearly spelled it out to the tamils when they voted him- there is another sure way to get the ICC unlocked.I did read it somewhere for sure.
        But general tamils from Lanka are marxist type that they go into labour party camps and know only their little world.

        But they cant do a one off and hoodwink him because only he has helped them to atleast throw eggs at MR1 and make him run home. no one else in the history of the conflict afforded them anything- they are real porriki.
        The rest like Anglo-Indian Vas and Labour MP’s are there permanently suckingg eggs.Even some Tory MP’s.

    • 6
      2

      “This woman’s racist views are known”

      You are singling out one person as if the nation willingly did not vote MR1 to MR2 and now finding it difficult to breath.

      She is there because the monks/minister wants her there for many more things too.

      I think you are narrow minded and unable to understand that MR also employed Karuna, KP, Douglas etc So what did they do and not do?

      Instead of sitting on your brains read -The Sociopath Next Door` because they are worldwide phenomenon and politicians use them.

  • 3
    0

    Well, don’t worry too much guys (and gals), our saviour Dr Rajasingam Narendran has a great formula. He will somehow convince the Sinhalese majority to teach their own regime some useful lessons in life. Why are these jokers up on arms. When you are in despair and have no one else to turn to, the great Doctor has a magic wand to solve the woes. Have faith in him.

    • 1
      0

      Over to you Narendran [Edited out]

  • 4
    0

    This wavering and hoodwinking can mean only one, and only one thing. The magnitude of the ‘enforced disappearances’ must be really very serious involving every organ of the regime that exposing it will be the horror of this century. It may even mean the countries may be forced to look at different and newer options, including considering self-determination for the Tamils. Let us watch the events as they unfold.

  • 6
    2

    Double-speaking Mangala thinks he can fool the International Community and Tamils at the same time.

  • 6
    0

    The best thing is for the Government to allow the concerned provinces to investigate directly from the missing persons relatives. The relatives should justify by giving proper evidence to the satisfaction of the concerned judiciary or courts. If they cannot identify the involved person, every effort must be taken by the judiciary to identify and charge the accused. Then only the responsibility of the judiciary will be seen by the missing person’s relatives. The inquiry must be aimed at making reconciliation as envisaged. The proposal looks good, but still if it is conducted in Colombo only it is going to be a white wash. If there are persons in the hierarchy involved or accused, it is going to be difficult for the North and East to penetrate as now it is obvious the new good Government is now protecting its predecessors and has no intention to sticking to their undertaking with UNHRC.

    • 2
      0

      The 150,000 men strong Rapist Army is sitting there in the small corner of North and still carrying out its PTA arrests, tortures, rapes. Tamils cannot bring out any case anywhere. The chidren’s raped and murdered like Saraniya, Vidya went nowhere. One of worst cunning fox, a Ranil appointment, is serving as Governor of NPC. NPC Budget is in full control of the Colombo and every second forcing it to be returned back to them. The legally due Land and justice powers are not to be given to NPC by the Yahapalanaya Government. They all are forcing Sampanathar to keep his mouth closed threatening “if you talk you get nothing in the new constitution”. That Old Patriarch is not able to open his mouth even to eat food. But he is talking inconsistent talks. The entire Tamil world celebrated the Vaddukoddai Convention, 40th year on the last 14th. Only one person out of theTamils (I mean world-not just Eelam) said the Tamils have moved out of it was Sampanthar. Why did he do that? Because he was with Modi at the time the world was celebrating it. Modi’s intelligence (ROW) services informed him that. Apprently Modi knows now where the Tamils minds are even without a referendum. (But TGTE like the ones already asking for referendum.) So Sampanthar had to tell the lie through his teeth to Modi that the Tamils have moved out of it. He has to keep in his head, the teeth of 6th amendment is ever sharp and aimed at Tamil politicians. In this unbreathable, oppressive circumstances from internal and external forces, UNHRC is saying it is ok for it if there an internal investigation takes places. There is no doubt that in their mind where it go and what will be result of it(i.e LTTE did it, but the Appe Andu conducted a humanitarian operation and liberated the Northern Tamils) This is an open attempt of High Commissioner Prince Zeid to collaborate with Lankawe to hide the elephant. It is in this atmosphere the World is staying their fingers crossed the Yahapalanaya government have reconciliation completed so they can let go the UNHRC’s 2015 September resolution. The mental status of the world, even after the UN had completed its internal investigation and found fault on it, is exactly same where it was like they vacated their offices from Lankawe, when the Lankawe wanted to kill the 145,000 (in in 2008- 2009) without witness.

      You might have seen in the other thread that Mangala has indicated that he did not like to deal with Secretary Kerry or Samantha Power. He had indicated there were better friends Lankawe in America during the infamous Bush’s reign when last time he was the FM of Lankawe. His Mussolini mind is still searching for Bush in America even after Bush was badly defeated by Americans and was categorized by their opinion polls as one of the worst presidents served America. So his next optimistic expectation is a power change in America. His mentor Chandrika has full influence with Clinton family. In diaspora world it is said if Chandrika’s small finger moves, Clintons’ entire home moves. Clintons do not get along with Kerry too. This is a good opportunity to present them to Hillary Clinton as an underdog of Kerry’s time. It appears this is the card Mangala wants to pull. Lankawe successfully defeated Susan Rice and brought Secretary Kerry in, with Chinese money. Now they want to say Bye bye to Secretary Kerry, whom they wanted and play the backward order. He appears to be ahead of the game. Mrs. Clinton is a person who knows the Tamils plight a lot better than any others served in White house. But anything materializing for Tamils is still up in the air. Chandrika has many Kathirgamars in SLFP to be utilized in UN, including Thamara Kunanayagam, Radhika Coomaraswamy, who are with never dying ambitions and crave for name and posts.

  • 1
    6

    How many Organizations these Thamils have, after Pirahaparan bid farewell?

    I mean TNA, MTNA,TELO. GTF, BFT, TNGTE , ITAK, TPC, and god knows how many others are out there, who don’t even get a mention in this petition to our gay FM Mr Mangalan.

  • 0
    6

    Look like Tamils are not happy, they did not have the piece from the pie and they could not divide among GTF, BTF, Candian Tamils, Norwegian Tamils, French Tamils, German Tamils, australian Tamils blahh blahh.

    • 4
      0

      jim the dimwit,

      Even the One party Xi cannot help Lanka now because of bad debts dodgey burgers are coming out of the freezer.

      So you too may be enjoying the floods with foreign planes circling the island like at cat man do?

      ” GTF, BTF, Canadian Tamils, Norwegian Tamils, French Tamils, German Tamils, australian Tamils blahh blahh. “

      because they are educated in the same way you were British system- land of associations!
      now live with it.

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