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R. Sampanthan

19 March 2016 12:33 am - 0     - {{hitsCtrl.values.hits}}

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I think it would be useful if I were to give this House the definition of “enforced disappearances” as accepted by the United Nations. In accordance with the definition contained in the Preamble of the Declaration, “enforced disappearances” are only considered as such when the act in question is perpetrated by State actors or by private individuals or organised groups - for example,  paramilitary groups - acting on behalf of or with the support, direct or indirect, consent or acquiescence of the Government.

 

That, would be the definition of the term “perpetrators responsible for enforced disappearances”. The definition of “enforced disappearances” is as follows: “As defined in the preamble of the Declaration, enforced disappearances occur when persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of, the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law”. The Declaration referred to in these definitions is the Declaration on Protection of All Persons from Enforced Disappearance adopted by the General Assembly of the UN in its Resolution  47/133 of 18th December, 1992.    


It would appear from these definitions that the persons who are perpetrators of enforced disappearances are either persons who act on behalf of the State or persons who act with the explicit or implied consent of the State. We are concerned with disappearances that occurred at the hands of the State. The responsibility for such disappearances is primarily that of the State.  We are also concerned with disappearances that had occurred at the hands of the LTTE, because we know that there were persons taken into custody by the LTTE, who have also disappeared. They may not strictly come under the term “enforced disappearances”, but all persons taken into custody by other paramilitary groups collaborating with the State would come within the definition of “enforced disappearances”. Since, however, it is accepted by everybody that all these disappearances occurred in the course of the armed conflict, we are concerned with all disappearances, both of civilians and even military personnel. In regard to disappearances that had occurred at the hands of officials of the State or persons acting with the implied or explicit consent of the State, while the State is answerable, the State is also, in a sense, bound to perform its duties in regard to the search for persons who may have been taken into custody even by the LTTE, if that be possible.  


I might also mention, that while we talk of enforced disappearances, as much as we are concerned about women, we are also concerned about children because even children, sometimes, are victims of enforced disappearances and this has an impact not merely on the children, but also on the families of those children. It is in this background, that I propose to address the facts relating to this issue and what needs to be done to address the issue of enforced or involuntary disappearances and what needs to be done to bring this to an acceptable and just closure. The Government has taken certain steps in this regard. These steps have been in the nature of inquiries, but no finality has been reached. It is more than six years since the armed conflict came to an end, and I submit that it would be harmful for both the victims and the country for this state of uncertainty to continue.


The first Commission to be  set up recently was the Lessons Learnt  and Reconciliation Commission, set up in May, 2010. It came up with its Report in November, 2011. They recorded extensive evidence in regard to disappearances, enforced and involuntary, and also other disappearances.  I must also mention that that was the Commission appointed recently, but there were other Commissions appointed earlier, during the incumbency of President Chandrika Bandaranaike Kumaratunga where the issue of disappearances all throughout the country was addressed. I would read some of the Recommendations made by the Lessons Learnt and Reconciliation Commission subsequent to their investigations. I would read  paragraph 9.47 of the Report of the Commission which states, I quote: 


“The Commission wishes to emphasise that it is the responsibility of the State to ensure the security and safety of any person who is taken into custody by governmental authorities through surrender or an arrest.”


 Paragraph 9.48 states, I quote:


“A comprehensive approach to address the issue of missing persons should be found as a matter of urgency as it would otherwise present a serious obstacle to any inclusive and long-term process of reconciliation.”


Paragraph 9.49 states, I quote:


“The Commission also emphasizes that the relatives of missing persons shall have the right to know the whereabouts of their loved ones. They also have the right to know the truth about what happened to such persons, and to bring the matter to a closure.”


Those are certain paragraphs from the Report of the Lessons Learnt and Reconciliation Commission which places the responsibility entirely in the hands of the State. Four years have lapsed since these Recommendations were made by the Lessons Learnt and Reconciliation Commission. What has the Government done in the last four years to implement these Recommendations of  the Lessons Learnt and Reconciliation Commission? There was yet another Commission appointed - the Paranagama Commission on 15th August, 2013.  This Commission is yet sitting; the Commission was also given a second mandate on 15th July, 2014. This related to facts and circumstances surrounding the loss of civilian life and  violations of international law. A team of international experts was also appointed to assist the Commission.  It is somewhat strange that the Commission was given a second mandate beyond the scope of the first mandate before it submitted its Report on the first mandate.

 

The Commission has submitted its Report on the second mandate, but has submitted only an Interim Report on its first mandate. 


The Commission has, as at 15th August, 2015, received 17,329 complaints from families of missing persons, of course this figure varies, and there are other Reports which seem to suggest a slightly higher figure. 

 


There are also reports that about 5000 military personnel went missing. That is also a matter which needs to be investigated in regard to their whereabouts if they are alive. It would seem that in regard to these enforced disappearances, the persons responsible for such enforced disappearances, particularly in recent years, acted with a complete sense of impunity.  


The former Government’s commitment to the ascertainment of the truth, it may be said, was highly questionable. The new Government needs to address this issue more purposefully so as to bring this extremely serious humanitarian issue to a satisfactory closure. Everyone is aware of the agitations that have been conducted by the affected families in regard to the missing persons. That they have a genuine complaint which needs to be addressed is unquestionable. They also quite justifiably complain that their grievance, apart from their going before a Commission and testifying, has not been addressed in a meaningful way. It is true that for most of the period of time it was the former Government that was in power which  had no interest in addressing this issue seriously . The new Government has been in power for about one year and the victims would want to know how the Government is handling this issue. What are the Government’s plans? Does the Government have a definite plan to handle this issue? Of course, these persons have gone and testified before these Commissions. The Commissions record the evidence, but have they pursued the testimony of the victims or taken steps to investigate evidence of these witnesses who are victims? When a victim says that my son or my husband was taken to custody by a particular police officer or the police in a particular police station or the army in a particular camp, has the investigation been pursued  further to try and find out whether that statement was correct and if so who that officer was? That is not being done.  The new Government must accept responsibility for this situation and this issue needs to be addressed urgently. 


You have made a commitment to the UN; you are a co-sponsor of the Resolution by agreeing to set up a commission for truth, justice, reconciliation and non-recurrence; to establish an office of missing persons which should have handled this issue  and to establish an office for reparations. What has happened thus far? We would like to know. We would like to know what plans you have. 


I also would like to refer to Paragraph 13 of the Resolution adopted by the UN Human Rights Council to which Sri Lanka was a partner.  I again quote:


“Also welcomes the commitment of the Government of Sri Lanka to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance without delay, to criminalize enforced disappearances and to begin to issue certificates of absence to the families of missing persons as a temporary measure of relief;” 


I am aware that at the end of last year, I believe in December, 2015, you have signed the Convention on Enforced Disappearances, but it has not been ratified yet and I do not know what action you have taken in regard to the issue of certificates of absence which has been referred to in the Resolution adopted by the UN Human Rights Council. A certificate of absence is very different from a certificate of death. A certificate of absence does not accept that the man is not living any longer. But it enables the victims in such circumstances to use that certificate to be able to receive relief, maybe from the REPPIA, maybe from Samurdhi or maybe to stake their claims to right to succession, inheritance, various entitlements that the family would be entitled to. Consequent to being victims, these certificates of absence would certainly be a very strong documents that would help them to rebuild their lives. Now what had been done in regard to this matter? How far have you gone? These are the questions that we would like to raise. 


Such disappearances have occurred in Sri Lanka even in the past - in 1971 such disappearances occurred; in 1988-89 tens of thousands of youth from the South of this country went missing. This was during the JVP insurgency. Some awful and dreadful things happened at that point of time. We all know that, that was when the former President Mahinda Rajapaksa despite much resistance from the Government of the day went to Geneva, in my view quite rightly, to espouse the cause of our youth from the South. 


Nobody is seeking revenge or vengeance. But, these practices of enforced involuntary disappearances must in the interest of the whole country and all its people be brought to an end - they must not be allowed to continue indefinitely. Mr. Mahinda Rajapaksa went to Geneva because he wanted the UN to intervene. He did what needed to be done. That is what the UN is now doing - what he wanted done when the youth went missing in the South. 


I must mention that there is a tendency in this country to sometimes look upon Resolutions adopted at the UN Human Rights Council as being  Resolutions that to some extent infringe upon the sovereignty of Sri Lanka - nothing can be further from the truth. 


The agony of several thousands of families of these victims of disappearances cannot continue indefinitely. A decision needs to be arrived at as to whether the disappeared person is alive or not. If he or she is alive, their whereabouts should be made public; if not, other suitable and appropriate steps should be taken to reconcile the families with such reality and bring calm and normalcy to their lives. Truth, justice, reparation and all necessary steps to ensure non-recurrence must become effective urgently. This is the responsibility of the Government and I would urge that the Government defines a plan that would provide definite relief to these much traumatized families. 
 

I would now like to deal with the question of persons in custody.  I do not want to go into figures.

There are some persons who have come out on bail; there are some persons who have been convicted and who have been sentenced who are yet in jail; there are some persons against whom cases are pending; there are some persons who have not been charged. These are the different categories of persons.  Nineteen persons who have not been charged are still in custody. Three convicted persons have been released: one by His Excellency the President and some others have completed their sentence. I believe, there are about 100 cases that are pending in the High Court. All these persons are still in custody except those persons who were recently released on bail. 

This is not the first time that prisoners are sought to be released in special circumstances. They are not charged with crimes against society. They are being charged for acts which have a political dimension. Inequality in treatment among citizens, based on considerations that should have no relevance, is not compatible with transitional justice.  In 1971, you have treated prisoners in a certain way.  In 1988 and 1989 you have treated prisoners similarly. Why are you not treating prisoners now in the same way? If you are not seen to be even-handed inyour treatment with our prisoners at different times, that is not compatible with transitional justice. Those families, those individuals are entitled to say, “We are being treated differently for certain parochial reasons. That is discrimination against us.” Even handedness must be seen as the main determining factor.  If even handedness is absent, there can be no trust. If there is no trust, there can be no progress. You will not take off towards progress. 


The Government should not be afraid to do the right thing. That is why the Government was changed.  Justice must not be denied on the basis of slogans. There would always be persons who would raise slogans and exaggerated fears. Let us do what the great religions- Buddhism, Hinduism, Islam and Christianity- that we follow teach us. Does Buddhism not teach us to forgive and forget? 


How can you justify holding persons under the Prevention of Terrorism Act any longer, a law which you yourself have unequivocally condemned as being  draconian in many ways, particularly when these persons have already been in custody for long periods of time, sometimes as much as 10 to 15 years and when it is almost six years since the war came to an end.  If those persons have been convicted and sentenced by now some of them should have come out; lots of them should  have come out.


The Mahinda Rajapaksa Government released some 12,000 persons who were LTTE cadres, who fought against the State, after rehabilitation. They may have had their own reasons for doing that.  But they did that. Why are you afraid to act?  Did those cadres also not rebel against the State and did  Mahinda Rajapaksa not release12,000 of them? This is the question that is now being posed by the persons in custody. We have no answer to this question. There were some top LTTE cadres; one of them became the Chief Minister of the Eastern Province and some of them were in the Central Government as Ministers. One person who had been an arms procurer engaged in all manner of crimes and who was wanted by Interpol received  right  royal treatment. He  was brought here and given right royal treatment. None of these persons raised slogans against them; none of these persons raised slogans against those acts. Why are you concerned about the slogans now being raised? 


I found that one of the persons in the Opposition has said yesterday that by releasing the LTTE cadres, you are going to create Eelam. Can anything be more stupid? Can anything be more  absurd? After the conclusion of the war, has there been one single act indicative of a revival of violence? Surely these persons are entitled to ask that they be released. Some of these persons were protected by the MR Government. No slogans were raised at that time. Why are you hesitant to act? Tamils in custody in prisons have had bad experiences. I do not want to refer to such incidents.

 These persons are the breadwinners of their families. The time has surely come for them to be integrated with their families and for them to start  life afresh. 


We have discussed this matter with both His Excellency the President and the Hon. Prime Minister. I must say that both the President and the Prime Minister were quite positive. In fact, one day at a conference in Parliament presided over by the Hon. Prime Minister,  where the Attorney-General’s staff were present,  police officials were  present and many of us were present. We discussed the matter and there was a decision taken to appoint a committee which would look at this issue not purely legally but politically because these have a political dimension and take steps to release these  people. Unfortunately for certain parochial reasons that committee did not become functional. I think, the time has come for the Government to take some such decision and arrive at a conclusion in regard to this matter.    


There has to be a political decision.  This is not purely a legal issue.  They are not charged with having committed crimes against society.  They are charged with crimes which have a political dimension; with acts which had a political motive.  Political decisions were made in the past, in 1971, in 1988 and in 1989 when you released a large number of people who were held in custody.  Why can you not take the same decision now?  Are the prisoners not justified in concluding that you are discriminating against them and would that not be, before long, the view of the international community too?  


So, I think the time has come for the Government to act. You must not be scared by scaremongering.  What is your position in regard to the Prevention of Terrorism Act?   What is the position that the UN Human Rights Council has adopted in its Resolution which you have co-sponsored and accepted with regard to the Prevention of Terrorism Act?   


When you have undertaken to repeal the Prevention of Terrorism Act, on the basis that that is a law which should never have been applicable in the country, how can you hold in custody the persons you have taken into custody under that law?  How can you convict persons under that law?  How can you even detain persons who have been sentenced under that law?  How can you hold persons without being charged under that law? I think you cannot do so.  The Hon. Minister of Foreign Affairs made a categorical statement in the course of his opening statement at the UN Human Rights Council, on  the 4th of September, 2015. This is what the Hon. Minister of Foreign Affairs said - “Review and repeal the Prevention of Terrorism Act”. That was what you said to the UN Human Rights Council, on the 14th of September, 2015 in your opening speech, Hon. Minister.  Today we are five months down the road.  How can you hold persons in custody continuously under that Act which you have agreed to repeal?  The only evidence against most of these people is their extracted confessions; most of them are being charged on the basis of extracted confessions.  I am told some of the senior police officers, ASPs, who recorded those confessions do not go to courts. That is the reason why the cases are postponed. When you have committed yourself to repeal the Prevention of Terrorism Act, can these persons be any longer held or charged under the Prevention of Terrorism Act?  It is a contradiction of your own commitment.  The reasons for their release are compelling.  I would urge the Government to release these persons, without any further delay at the earliest. 

 

 

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