Total freedom to investigate all disappearances:

OMP undergoes belated debate

by Manjula Fernando & Uditha Kumarasinghe

Minister Malik Samarawickrema with Parliamentarians Geetha Kumarasinghe and Udaya Gammanpila wearing black scarves to protest against the Bill.

Even as the Joint Opposition tried to whip up public anger over the Office of Missing Persons Bill, passed in a hurry in Parliament last Thursday, the Paranagama Commission on Missing Persons handed over their final report to President’s Secretary P.B.Abeykoon.

The members of the Paranagama Commission submitted the report to the President’s Secretary on August 12 at 2.00pm in the presence of two presidential advisers, Eastern Province Governor Austin Fernando and former Presidential Secretary W.J.S.Karunaratne.

With the Government promising expeditious results through the Office of Missing Persons (OMP) not repeating the work that has already been carried out, the Paranagama report will perhaps be one of many documents the OMP will refer to, in the course of achieving its mandate. That is - to search and trace missing persons, assist and identify avenues of redress to their relatives, set up a database of missing persons, and set out procedures and guidelines applicable to the powers and functions of the OMP. The OMP Bill also provides for initiating investigations into the circumstances of a disappearance of a person on the basis of information received from previously established missing persons commissions.

Boycott

Meanwhile, the Joint Opposition which missed the opportunity to fully debate the controversial Bill before it was passed in the House, due to a rash decision to boycott the debate and stage a black ribbon clad demonstration in the well of the House, wrote to the Speaker on Thursday, seeking his intervention to reverse the process. They alleged, the process violated Parliamentary rules and norms.

Observers said, if the Speaker puts his signature to the Bill, there is no way to reverse the process and halt it from becoming law. But, legal experts warned against it, saying passing an important Bill without a proper debate and space to allow amendments would do more damage than good. Foreign Minister Mangala Samaraweera dispelling Joint Opposition claims that the Government was making preparations to send the war heroes who rid the country of the scourge of terrorism to the guillotine, promised, the Bill will wipe away the tears of the loved ones of all those who had disappeared in the brutal conflict as well as the two youth insurrections in the 1970s and 1980s.

“As a responsible State, can we continue to ignore their tears and pleas?”, he questioned when the Bill was presented for debate in Parliament. He said, this office, also a means to win back the international community’s trust, will only be responsible and answerable to the people of this country and Parliament.

Without any boundaries or restrictions to tie down its mandate, the Minister said, this office will be the first of its kind to be given total freedom to investigate all disappearances that happened in Sri Lanka in the past many years leading up to the end of the war in May 2009. And, he added, it includes soldiers, policemen, and other Security Forces personnel.

The JVP is already contemplating, officially seeking investigations into the disappearances of its leaders including the founding leader Rohana Wijeweera who died or went missing in unclear circumstances in November 1989 during the UNP reign.

Joint Opposition Leader Dinesh Gunawardena:

At the moment, the Joint Opposition (JO) is making representations to the Speaker against the procedure in presenting the OMP Bill in Parliament violating all laid down norms and rules. Asked, if the OMP Bill runs counter to the Constitution why didn’t the JO take legal acti on in time, MP Gunawardena said, not taking legal action by any citizen doesn’t mean Parliament can violate the Constitution. Earlier there had been many instances of violating the Constitution and it shall be the duty of Parliament to rectify them.

The OMP Bill is a follow up of the total surrender of Sri Lanka’s sovereignty at the Geneva Human Rights Conference last year and this is also one of the clauses against Sri Lanka. Basically, we had the Paranagama Commission appointed by former President Mahinda Rajapaksa and extended its mandate by the incumbent President Maithripala Sirisena which had done a lot of positive work, and as such, the OMP Bill is not really necessary.

International interference

At present, foreign interference in our internal affairs is growing and the Bill will give an open cheque for external interference. The intention of the Government is to deviate from available domestic mechanisms permitting international interference.

MP Gunawardena said, the 1988-89 insurrection took place during the tenure of the UNP regime. So one can understand that the UNP regime will not do this job properly. Secondly, if the Government wishes, it could pursue action in this regard. The OMP basically aims at prosecuting the heroic soldiers and their commanders who won the war against terrorists and liberated the country from the clutches of terrorism and separatism.

COPE Chairman and JVP Parliamentarian Sunil Handunnetti:

The OMP cannot be used to harass the war heroes. But after the information on disappearances are provided to the OMP, parents or relatives of missing persons can use such information to file a case against the party held responsible for those disappearances. There are about 5,100 missing soldiers in the Forces. Parents and relatives of such missing soldiers can request the OMP for information on their missing children or take legal action to mete out justice to them. We believe the OMP cannot pursue legal action against anybody.

The OMP can help investigate the disappearance of thousands of JVP youth during the 1988-89 period, because there is no time frame for this process. If the OMP will give priority to the disappearances that took place recently, its functions will not be restricted to a stipulated time frame. So it can investigate the incidents that occurred even in 1971, 1988-89 or the incidents from 1990 to 2015.

If not for the OMP Bill, foreign interference on disappearances could have been possible. Even today, such interference is taking place. For example, Canadian technical assistance had to be sought in the Wasim Thajudeen murder case.

‘Drama’

The bones collected from the Matale mass grave have been sent to China to conduct further investigations. The JVP also had issues on certain contents in the OMP Bill, such as, setting up of funds and signing of international agreements. We have proposed amendments to such clauses. Clause 11 of the Bill had such provisions to enter into agreements and the JVP proposed an amendment to remove that clause and the Government accepted it. We couldn’t conduct the necessary dialogue in Parliament on the OMP Bill due to the ‘drama’ enacted by the JO in Parliament which led to abruptly to suspend sittings. It was the JO which should be held fully responsible for creating chaos in Parliament.

The Government was also in a rush to pass the Bill without a debate and the SLFP MPs in the JO supported the Government to realize its hidden motive. As claimed by the JO, we don’t know whether the OMP has Police powers. The OMP is however empowered to access any state institution without a warrant from a court of law. However, to prevent the abuse of powers, we have proposed an amendment that the IGP should be informed of any entry to a state institution within 24 hours.

The Act provides for,

*The appointment of OMP.

The Office will consist of seven members – nominated by the Constitutional Council and appointed by the President.

A Chairman (CEO) will be chosen from among them, also appointed by the President on the recommendation of the CC.

Members and the Chairman have a maximum of two 3-year terms.

Headquartered in Colombo with regional offices if necessary.

*Powers,

To enter into agreements – for technical support and training, confidentiality of information, etc.

Make rules for effective functioning of OMP

To appoint and dismiss staff and consultants

Appoint committees, etc.

*Investigative powers

Summon any person in Sri Lanka

Procure statements

Accept information in confidence

Seek court orders for excavation or exhumation of grave sites

Enter without warrant any suspected places of detention

Examine, make copies, seize and detain any object necessary for their investigations

*Functions

Issue a report to the relatives to obtain a Certificate of Absence or a Death Certificate from the Registrar of Persons

Inform the relatives the circumstances in which a person went missing

Facilitate administrative assistance, welfare services and psycho social support.

*Recommend Reparations

Develop and enforce a system of victim and witness protection.

Create, manage and maintain a database of missing persons

Make recommendations to prevent future disappearances

The OMP will give priority to recent cases of missing persons

The Act defines relatives of a missing person as

The spouse,

Children including adopted, non-marital and step children,

Parents including step parents, adopter,

Full/half brothers and sisters and adopted siblings,

Parents in law,

Grandchildren.