29 October, 2020

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Will The OMP Address What Is Missing In The Justice System – The Law?

By Basil Fernando

Basil Fernando

Basil Fernando

The law relating to the Office of Missing Persons (OMP) is now part of Sri Lanka’s statute books. That is a good enough reason for all citizens to learn what is involved in an enforced disappearance. Some clarity on the matter may help in making use of this statute in many different ways. Enforced disappearances in Sri Lanka often involve five stages: illegal arrest, illegal detention, torture and other ill treatment, killing and the disposal of the body. There are therefore many illegalities involved at every stage of an enforced disappearance.

Illegality 1: Under the normal law of Sri Lanka, an arrest must be done according to the due process of law. Making any arrest in violation of the due process of law is prohibited by the constitution itself, under Article 13(1). Illegal arrest is also a crime. However, in most instances of enforced disappearance, the perpetrators make a deliberate attempt to secure arrests without following any of the steps required by the due process of law. The rationale is that, if the due process of law is to be followed, the result would be to leave traces of evidence about the arrest as well as those who did the arrest; when we look at how disappearances have been carried out in the past, we see that the officers who came to make arrests did not come in their uniforms. Often they even wore hoods or other disguises to ensure that they would not be identified.

Illegality 2: The law requires that a person who has been arrested should be told the reason for his arrest. This is also a right guaranteed under Article 13(1) of the Constitution: “…Any person arrested shall be informed of the reason for his arrest.” However, when a person is taken in the course of an enforced disappearance, no such reason is given; if the actual reason was to be given, the officers would have to say that the person is being taken for the purpose of making him or her disappear.

Illegality 3: The lawful bases for securing an arrest are “on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the Courts to stand his trial, or because he has been duly convicted of some offence and must suffer punishment for it.” (AV Dicey, An Introduction to the Study of the Law of the Constitution). The purpose of arresting a person for an enforced disappearance is to make him or her disappear, which, going by the past experiences in Sri Lanka, means to kill someone and to dispose of their body in secret. Thus, the very arrest is illegal as the purpose for which it is done is illegal.

Illegality 4: The law requires that officers engaged in the arrest of a person should keep notes of every event relating to the arrest in as minute detail as possible. The purpose of such a provision is to protect the arresting officers in the case of any inquiry into a complaint by demonstrating that the officers have acted in the proper manner under the given circumstances as revealed by the notes taken by them at the time of the arrest. When a person is being arrested for the purpose of causing an enforced disappearance, the relevant officers are exempted from maintaining any records about the arrest. In fact, keeping any records may amount to an admission of the arrest. By such admission the officers become answerable for the subsequent disappearance. The purpose of not keeping any records is a precautionary measure to avoid liability by denying the arrest itself. Thus the officers who engage in such activities are aware that they will be under an obligation to deny the very acts that they are now engaged in. In this manner these officers get entrapped in a pit of deception and thus behave very much like criminals, who also take precautions so as to be able to deny that they engage in any act connected to any crime that they may be charged with.

Illegality 5: Under the law, arrested persons can only be detained in places that are authorised to be used for detention. Such places of detention are gazetted and known to the public. Keeping a person in detention in a place which is not thus authorised is illegal. However, in the case of arrests made for the purpose of causing an enforced disappearance, they are not usually kept in authorised places of detention. Even when they are taken to an authorised place of detention, they will be kept there secretly and they will not be registered in the usual forms on which all the names of persons who are detained are supposed to be recorded. Thus, again, the officers who engage in such activities are well aware that they are detaining the person in an illegal manner and in an illegal place.

Illegality 6: Officers engaged in arrests are under an obligation to inform the families of persons they have arrested of the arrests and also to inform them of the places of detention. This information allows the relatives of arrested persons to attend to their needs by way of visits and to prove them with whatever they need. It also provides an opportunity for relatives to be aware of what is happening to the particular prisoners. However, in the detentions of persons who are to be forcibly disappeared, no such information is provided to the relatives. In fact, every measure is taken to deny these relatives knowledge about where the detainee will be kept. The officers engaged in the activity are aware that if the place of detention is revealed to the relatives of the prisoner, they will become aware of the detention itself (as relatives may not know what has happened, only that someone is missing) and also about those who are responsible for the detention. One of the main preoccupations of the arresting officers is concealing any such information from relatives. Thus, not only the rights of the prisoner, but also the rights of everyone else who may have a reason to be concerned about the prisoner, are denied.

Illegality 7: The law stipulates that interrogations should be conducted according to the procedures prescribed by the law. It specifically prohibits the use of torture and ill treatment during the course of interrogations. This is guaranteed under Article 11 of the Constitution. However, when a person is arrested for the purpose of causing an enforced disappearance, the interrogations are not conducted according to any legal procedure. From the evidence recorded by the Commissions appointed to inquire into involuntary disappearances and through the many other sources that are available, mountains of evidence exist to demonstrate that all kinds of humiliations and the cruelest forms of torture and ill treatment take place under these circumstances. The officers, who are well aware of the ultimate outcome of what they are doing, know for certain that the victim will not be alive to tell tales about what happened to them. Assured of this, they engage in whatever brutality they feel like. The main purpose of such interrogations and torture is to have the names of any others who may be linked to the suspect. Naturally, most persons subjected to such torture divulge any name that comes to their minds, often with the hope that divulging names, real or fictitious, may bring an end to their suffering.

Illegality 8: The law strictly lays down the principle that it is only an official member of the judiciary who can pronounce a verdict of guilty on any accused, and even judges can only do so after a fair trial of the suspect. This principle goes to the very heart of the idea of separation of powers even the President or the Parliament cannot declare a death sentence on anyone. This is strictly a judicial function. Centuries of development of jurisprudence are there, to back this principle. However, in the case of enforced disappearances such a decision may be made by police officers, military officers, even paramilitary or purely hired criminals. Such delegation of power is the lowest depth that any legal system can descend to.

Illegality 9: If there is a suspicious death – such as a death of someone in the custody of the police – the law requires magistrates to conduct an inquiry and record all relevant evidence before the body is given for interment. In the case of a suspicious death, a magistrate would usually order an autopsy to be conducted. However, in the case of enforced disappearances, this most fundamental legal requirement is ignored. Where emergency regulations are drafted in a manner that allows for enforced disappearances, provisions are made to empower a police officer of some rank to make orders to dispose of bodies. Where no such emergency regulations are operative, those who engage in enforced disappearances give themselves the right to dispose of the body.

Illegality 10: Even when death sentences were carried out according to the law (though in fact the practice of carrying out death sentences has been suspended now for a long period) there were procedures to be followed after the person was killed. The family of the deceased had the right to conduct funeral rites according to their religious or other customs. However, when enforced disappearances take place, even this basic final act of human decency is done away with. Secret burials are allowed, and either not keeping details or keeping the details secret is also part of the package. Even many years after such deaths, one of the great lamentations of the family members of the disappeared is that they are unable to pay their last respects to their loved ones.

Illegality 11: The law invented the principle that a case should be established beyond reasonable doubt before a court can pronounce a guilty verdict. The evolution of this principle shows that the jurors wanted to be absolutely certain that they pronounced a verdict only when they were absolutely certain of what they were deciding on. This was a matter of conscience to each of the jurors or, in cases where no juries are engaged, for the presiding judge. This issue of conscience is completely overlooked in the case of enforced disappearances. The issue of guilt or innocence is a matter that is lightly disposed of. Sometimes, according to narratives which are now being published, the sole evidence against many who were disposed of was some verbal information given by some anonymous person.

There are many more illegalities in the cases of enforced disappearances. However, the illegalities mentioned suffice to reveal the utter disregard of the law.

The simple issue is this: the basic principle of the rule of law is that anyone who acts on behalf of the state can only act on the basis of a lawful authority conferred on him or her. An enforced disappearance is comprised of acts which are done without any such lawfully acquired authority.

Sri Lanka, only on the bases of disappearances that have been recorded so far, is second in the world for such occurrences.

That demonstrates how much illegality is ignored in Sri Lanka, even taking into account only the issue of enforced disappearances.

What any sensible citizen should ask themselves is: how can Sri Lanka return to being a state functioning under the rule of law without taking a close account of such widespread illegality practiced within the country not so long ago?

The Office of Missing Persons will, among other things, have to contribute to the ways in which Sri Lanka can overcome the impact that enforced disappearances have made on their legal system as a whole. A legal system that does not outlaw illegality is not a legal system at all. Once such a thing has happened, as a matter of history, how can such the impact be recognised and the problems that have been caused be brought to an end? The ultimate test of success of the Office of Missing Persons will be the way that it addresses this all-important issue.

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Latest comments

  • 6
    0

    The Office of Mission Persons should have Tamils working in it. For reconciliation INCLUSION of under represented minorities in necessary and the FIRST REQUIREMENT!

    It is a JOKE that the so called office of National Unity and Reconciliation (ONUR) under CBK has NO Tamils in senior positions! The reconciliation policy is also a JOKE – after months of talking with experts it has produced NOTHING OF SUBSTANCE.

    Let not the Office of Missing persons be like ONUR.

    How can an office tasked to do national reconciliation have any impact without representatives and VOICES of the Tamil community that has been most affected by war and RACISM in Sri Lanka?!

    The Sri Lanka govt. and foreign Ministry keep out Tamils and rather follows the old Mahinda Jarapassa policy of DIVIDE and RULE the MINORITIES.

    There is policy of putting UNQUALIFIED and IMMATURE Muslims in positions where there should be TAMIL VOICES as at ONUR.

    • 4
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      Meritocracy and qualifications for job, with quota for under-represented groups and women should be the priority but today politician’s cronies and their children are everywhere, and at the Foreign Ministry and onur CBKs and Ranil cronies and old networks are everywhere..

      This deadwood blocks change and there is no space for new ideas.

      Mangala please explain What is Gamini Keerawella who is implicated in various things and missing funds during Norwegian Peace process doing as Deputy Ambassador in United States capital while there are
      No Tamils at hi level in Foreign Service because of deadwood like this one…

    • 3
      0

      True Laxmi,

      Truth commissions and missing persons officers though important will not change the root cause of evil in Sri Lanka’ which is DISCRIMINATION and RACISM against impoverished Tamils who are the largest segment of the poor in Sri Lanka today according to official DCS poverty survey.

      Lawyers have captured the whole reconciliation process in Sri Lanka today. Reconciliation is now just a technical exercise to please Tamil Diaspora nationalists and their politicians led by UN experts.

      Tamil civilians living in Sri Lanka have little voice in reconciliation which does not address the day to day marginalization and discrimination impoverished Tamils who are growing in numbers face because of racism.

      This is a disaster for social reconciliation and INCLUSION of impoverished Tamil communities living in Sri Lanka who experience discrimination in getting jobs and housing, and does not address the root cause of conflict in Sri Lanka.

      To help Tamils who are the most poor community in Sri Lanka because of lack of access to good jobs, particularly in govt and public sector because of discrimination by Sinhalas and Muslims networks as well we need a different approach.

      What is needed for real reconciliation is Cultural attitudes to Change. Today because of how Gota and Mahinda Jarapassa militarized Buddhism in Sri Lanka Sinhala Buddhist culture is an insult to what the Buddha from Nepal and India Taught.

      Sri Lankan nationalist Sinhala Buddhist culture is racist, sexist and intolerant of diversity must change to respect and value and include women and minorities.

      Sinhala Buddhist majoritarian racism is the reason that minorities are excluded and discriminated against and is root cause of war and needs to be change by multicultural education.

  • 2
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    All “illegalities” mentioned above are disregarded in Sri Lanka, where law enforcement ignores them.
    Our police and judiciary ignore these niceties of law enforcement.

    The average magistrate rarely asks accused produced by police, in private, his/her opinion/response to the allegations of the police, as required by law.

    The magistrate barely even glances at the accused while ‘police tell their tale’ – he/she is busy writing.
    If he does, he may judge by the demeanour of the accused, even by his/her facial expression whether he/she is fearful, in pain or is suffering from injury.
    The magistrate rarely inquires whether relatives are present.

    The ‘army’ of lawyers seated at the ‘bar table’ almost totally ignore what is happening.

    The ‘accused’ is made to stand in a cage like an animal, unlike in civilised countries where he is seated next to his lawyer.
    The magistrate sits on a podium six feet high with only his face and shoulders visible – unlike in civilised countries where he/she is seated at a table on a dais about one foot high.

    This pantomime goes on daily in Sri Lanka.

    • 0
      0

      Thanks justice, these are areas where urgent reforms are needed

      Soma

      • 2
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        somaaasss

        “Thanks justice, these are areas where urgent reforms are needed”

        I agree, it should start from within your heart and mind if at all possible and only if you believe in fairness and justice.

        Your past typings suggest otherwise.

        • 0
          0

          N.V.

          “Your past typings suggest otherwise.”

          I am only countering Tamil racists and Islamic fundamentalists.

          I am only exposing their self contradictory hypocrisy.

          I am one Sinhalese who is not against Ealam. I am only against federalism because that is an attempt to take us for a ride.

          I am only fighting against this Ealam AND the right to live anywhere in the country.

          I am only demanding that Tamils(Tamil speaking people) should choose between Ealam OR the right to live anywhere. THEY JUST CAN’T HAVE BEST OF BOTH WORLDS.

          I am struggling to elicit a clear, unambiguous answer to an extremely simple question:

          ” In respect of a political solution does the ‘Tamils’ mean only Hindu and Christian Tamil speakers in the North or all Tamil speaking people in the island irrespective of their religion or the date of arrival?
          NV, do you know any Tamil who can help me? Don’t try it yourself in your Biblical parables – you are a master of evasion.

          Thanks

          Soma

  • 2
    0

    The 11+ illegality mentioned by the writer seems to be true at its nature and also correct to say that a legal system that doesn’t outlaw illegality is not a legal system at all. This is a land of lawlessness although it seems to be that Sri lanka has a firm legal system.
    Forced disappearances, particularly of the youths who surrendered immediately after the war, those who were abducted and disappeared and who are still missing are dead according to Ranil. But the fact that those who surrendered were murdered and females who were raped and murdered by the armed forces has to be investigated by the UNHRC and not by the OMP. The OMP should come within the purview of the UNHRC panel which should consists of mainly foreign judges. The OMP as it is, is another farce and cheat by the government, similar to the LLRC commission report. Mr.Sumanthiran suggests that certificates of absence for the missing persons is essential for the government’s position that it has accepted that the persons are missing. What an idiotic talk by Sumanthiran. The people know as to what happened to the LLRC report. The United Human Rights Council resolution adopted in October last year included demilitarisation and land returns. What happened is that more and more camps are being established by the army in private lands. Jaffna is a military town.
    The major powers like USA, India and Great Britain are not at all concerned about the Tamil problem but concerned about the importance of their position in Sri Lanka. Had Rajapaksa came to power, the situation is Sri Lanka would have turned to different direction as predicted by Ananthy Sasitharan who advocated the people to abstain from voting. But our Tamil leaders, inclusive of Wigneshwaran canvassed for Sirisena. Sirisena is a wolf under sheep’s clothing.
    The Tamils did not benefit under any government in the past and are not going to benefit anything under this government or any other in the future.
    The Tamils will learn lessons is very doubtful.

  • 0
    0

    Ground situation and the sharing of the families of so called disappeared reveal that they should know where their relations are (Let Government of Sri Lanka (GOSL) publish the list of persons who are under their custody & knowledge and facilitate the relations to visit them immediately) within the period 3 months to 2 years to TRUST the GOSL.
    Since there is no TRUST in GOSL let the officers of UN (Foreigners) take part along with family members of so called disappeared in the office. Since GOSL failed to bring JUSTICE for last 7 years the above stated demand of victims is justifiable.
    The name ‘Office of Missing Persons (ONP)’ is not at all appropriate because many LTTE rebels surrendered and much hand over their relations to the military officers of GOSL and can name them as ‘disappeared’.
    According to the views of many family members of so called disappeared they demand that this main office should be in Mullaitivu or Kilinochchi where most of the family of so called disappeared live and the medium (language) should be Tamil not exclusively Sinhalese or English particularly in documentation..
    The duty of the GOSL is to make sure the existence of the family members of so called disappeared and they should get a payment from GOSL monthly for their survival. This payment should not consider as a trump card to stop their cry or JUSTICE.
    Legitimate life of minority (ethnicity, religion, language…) is possible only in Federalism (Example: Canadian Quebec province)not in Unitary state. As long as Sinhalese Buddhist Supremacy remains there is no possibility for life for minority. ‘OMP’ is a channel to cheat …………….once again…

    WORDS THAT DO NOT MATCH DEEDS ARE UNIMPORTANT – Che Guevara

  • 1
    0

    Basil,

    Will you ever personally address what is missing in the Asian Human Rights Commission – integrity?

    • 1
      0

      replace the old dry rum `trade union`with automated software- integrity and more in the 21st century.- no holiday pay, no bonus, no slipping away….

  • 1
    0

    First who trust the UN after Darusman report and actions of Yasmin sooka & others….
    Why should the missing persons family members be paid an allowance by the Govt? According to tamilini, this ltte was propagated by the wants of Diaspora and also wants of the catholic church of the North that comes under the diocease of South India & shame to say actions of S.J.Emmanuel, then.
    How many deaths of tamil children & youth was the responsibility of Ananthy & her husband.
    Forced conscription of children by LTTE which was detested by Tamilini and some others in the ltte?
    Then for them to say, what are we doing in mud ponds in the jungle and with no proper food when the world has moved on rapidly?
    Who shattered the dreams of Tamil Youth & Children?
    What OMP are we talking here ???? THIS IS SOME NGO/INGO’S HIDDEN AGENDA

    It appears this NGO Basil f’do of AHRC who is an armchair critic knows it all.
    Basil speaks logic known to everyone & yet behave as if he is the Authority.
    With just a couple of years of practice at Wattala M/C in the 80s appear himself of on everything.
    Will Basil tell this forum how much input was provided to the UN when under MA regime through ALRC a sister Organisation of AHRC.
    This are Cloak and Dagger operations by (02) ex-Clergy men of the Catholic Church.

    Above JOHN STEWART SLOAN an Hourable Retired Civil Servant of HK who joined the AHRC.
    His relentless pointing of the finger at Basil & AHRC is a clear indication HANKY PANKY nature of operation that are conducted at the AHRC & Basil F’do.

    Therefore, is Basil F’do with his integrity put to test & suspicion by JSS attempting to impress the Yahapalanaya to creep in to some position at OMP ?????????????????
    Basil F’do is yet to clear hinself.
    But he boast of holding a Senior post in the U.N.organisation BUT his thinking mentality is clealy reflected in page 144 in a book written by himself captioned : Human Rights Act by Lawyer Basil Fernando.
    Thus, therein reflect his low mentality in his thinking…..

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