By 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.