The Office on Missing Persons (OMP) is one of the four main pillars of Sri Lanka’s transitional justice agenda which promises accountability and justice. The OMP is considered to be an important step in addressing the issue of missing persons and enforced disappearances.
Though this Act was passed in Parliament last August it has not yet been signed by the President and its responsibility has not been assigned to a minister. Thus currently it is not in operation. Legislation to amend the Office on Missing Persons Act has been drafted and will be presented in Parliament soon.
Accordingly clause 11(a) of the Act which grants power to ‘enter into agreements, as are necessary to achieve the mandate of the OMP, with any person or organization’, will be repealed. While certain parties are completely opposed to the setting up of the OMP on grounds that the office targets war heroes and that available mechanisms could be utilized for redress, other activists highlight the delay in establishing the office to be a grave concern.
In the light of this amendment which was initially proposed by the Janatha Vimukthi Peramuna (JVP), the Daily Mirror spoke to some concerned parties who said that the urgency seen in the passing of the Act was no longer visible, and instead there was a delay in setting it up.
“There is a lack of understanding of the purpose of the OMP”
- Dr. Jehan Perera
Executive Director of the National Peace Council
A bill amending the Office on Missing Persons Act will be presented to Parliament
Dr. Jehan Perera said that if the repeal of Section 11(a) facilitated the activation of the OMP it was an acceptable compromise. “There is a lack of understanding of the purpose of the OMP which has led to concern that it is injurious to members of the security forces who fought the war and insurrections of the past. This may be the main reason for the delay in implementing the OMP law. A bill amending the Office on Missing Persons Act will be presented to Parliament that repeals section 11 (a). There seems to have been concern that the OMP would enter into agreements with international organizations. As the OMP would be led by persons of eminence appointed by the Constitutional Council, I think this is an exaggerated fear. But if facilitates the activation of the OMP it is an acceptable compromise,” he said.
He added that though the law establishing the OMP was passed by Parliament more than six months ago, it has not been operationalized and was only on paper. “This undermines Sri Lanka’s position at the ongoing session of the UN Human Rights Council where the government has to report back on its implementation of the commitments it made in Geneva in October 2015 when it co-sponsored the resolution of the UN Human Rights Council on Sri Lanka,” he noted.
“The OMP is not only about finding out what happened to those who went missing in the war, it is also to find out what happened to those missing that stretch back decades and the insurrections that took place in both the North and South of the country and were bloodily suppressed. The OMP is to help them to end the search, and to bring closure to that open wound that exists in the body politic,” he said adding that the OMP law constituted the maximum effort that the Sri Lankan state can take to find out where victims were if they were alive and if not alive what happened to them. “This is why the law provides that evidence that is not admissible in courts of law is admissible in the OMP investigation. This is also why evidence that is confidential is permissible, which even the Right to Information Act cannot access,” he added.
“The President hasn’t signed it yet. We are worried.”
- Brito Fernando
President of the Families of the Disappeared
The President hasn’t signed it yet. We are worried.
“We have been expecting a legal body of this form for a very long period. We didn’t get any institution or mechanism to know what actually happened, to get the truth out. In 1990 Chandrika Bandaranaike appointed commissions to look into the disappearance of people during the period 1988/1989. People gave evidence and a list of those who were responsible was prepared. But action was not instituted,” said Brito Fernando, the President of the ‘Families of the Disappeared’.
“People question about the whereabouts of their friends and relatives: is he alive? Or not? If he has been killed, why? By whom? The OMP Act says they will look into them and let people know what happened,” he said. He added that though there were short comings the OMP has given people new hope to know the truth. “But the President hasn’t signed it yet. We are worried. The families are worried,” he said.
“Independence of the OMP is being taken away in the form of removing 11(a)”
- Shreen Saroor
Founder of Mannar Women’s Development Federation (MWDF) and Mannar Women for Human Rights and Democracy (MWFHRD)
We must move forward as a country on the transitional justice process
Shreen Saroor, the Founder of Mannar Women’s Development Federation (MWDF) and Mannar Women for Human Rights and Democracy (MWFHRD said that the government was delaying the establishment of the OMP and was weakening its power through an amendment because it now believes to have won over the international community. “We must move forward as a country on the transitional justice process, not because somebody is giving an incentive or honour in the form of GSP +. We shouldn’t work for that. There are so many people missing in the country. The government has to genuinely work on establishing the OMP at the same rate as it wanted to do last year. All of a sudden we see that the government is dragging its feet because the government feels that it has won over the international community. That is the reason why they’re delaying the establishment and also weakening the OMP by removing 11(a),” Saroor said.
She said that the independence of the OMP is being taken away in the form of removing 11(a). “The North east women who are looking for their kith and kin, want some kind of hybridity in the OMP, particularly in getting forensic assistance and foreign expertise coming into the process, particularly, in relation to the mass graves. The Prime Minister has suggested the removal of paragraph 11(a) which comes under the general mandate of the OMP where they can contract experts independently. So the independence of the OMP is to some extent being taken away in the form of removing 11A,” she said.
“The government rushed and established the OMP, while the consultation was going on with the victims. The cabinet paper was passed just after the consultation task force was appointed and we were told by the Foreign Minister that the government wanted to set up the OMP as soon as possible because of International pressure as Sri Lanka was applying for GSP +. Even in Geneva, the Foreign Minister promised to set up the OMP, but the President has not signed the OMP,” she added.
“This is a terrible piece of legislation against the interests of Sri Lankans”
- Manohara de Silva
The police can file action. They are not immune
This is nothing but a mechanism for foreigners to come and interfere with our investigations
President’s Counsel Manohara de Silva said that the OMP was not about finding missing people, but rather prosecuting war heroes. “This has to be understood in the light of the UN High Commissioner’s report and the resolution which facilitates the setting up of an office aiming at investigation and prosecution. If they think of prosecuting people in this country it must be done by the police and the Attorney Generals Department. You don’t need another office for prosecution,” he said.
Stating that certain NGOs and other parties with Sri Lankan citizenship were acting against the best interests of the state De Silva pointed out that the OMP Act allowed people to be summoned at any time and that confessions obtained were valid before a court of law. “They can summon anybody day or night and record statements. If a confession is made to a police officer under the evidence ordinance it is not admissible. But when they record statements the confessions will be admissible,” he said adding that confessions will be forcibly extracted.
“If there are independent commissions, and if the judiciary and the police are independent why are they wasting public funds to set up another office? They can get the National police commission to look into this. Otherwise they should admit to the public that our police and judiciary are not independent. This is nothing but a mechanism for foreigners to come and interfere with our investigations and somehow punish war heroes, and to see that in future insurrections, no one joins our military,” he said noting that if war heroes had been told that an office of this nature would be set up in future to penalize them, they would not have gone to the war front.
When asked if he believed that soldiers who have committed war crimes should also be protected he said there was a law and if they had committed war crimes they can be court-martialled. “The police can file action. They are not immune. The objection is not towards investigation, but to investigation by these ad-hoc people,” he said.
Remarking that he did not want the act to be amended to hoodwink the public he pointed out that even if the clause was removed there was no provision preventing such agreements. “Are they going to have NGO personnel in this office? That’s quite possible. When you go through the Act the intention appears to be so. They didn’t think twice when establishing the FCID as a separate unit of the police to prosecute our own people. So why can’t they have a another special unit to deal with missing persons?”
Responding to his question he said that it was because there was an uproar against hybrid courts that instead of having foreign judges the government now attempted to establish this office to bring people forcibly and make confessions. “They want to fix the leaders who led the army. This is a terrible piece of legislation against the interests of Sri Lankans,” he said.
“There is no OMP investigations will get delayed”
- Niran Anketell
You may need a specialist organization to do DNA testing on a mass scale
The OMP doesn’t exist because the law says that the relevant minister has to gazette it into operation
Attorney-at-Law Niran Anketell pointed out that the office has not been established and that complaints were not received. “The OMP doesn’t exist because the law says that the relevant minister has to gazette it into operation. It is the President who decides which minister is responsible for the OMP. The President hasn’t assigned it yet to a minister. We have understood that the Prime Minister advised the President to gazette it to him. But the President has either refused or is unwilling to do it. Therefore there is no OMP and therefore no one can make complaints and investigations will get delayed.”
“Once the relevant minister gazettes it the constitutional council will have to nominate the members to be appointed. It is only when the members are appointed that the office can exist. The office is the legal body that has not yet been created,” he added. Highlighting the importance of clause 11(a) Anketell said that a clause permitting the OMP to enter into agreement with local or international bodies was introduced for several reasons. “The ICRC which has a lot of information in this regards, will not hand over that information unless they have a guarantee of confidentiality. You can have a guarantee of confidentiality through an agreement.” “Or you may need a specialist organization to do DNA testing on a mass scale. We don’t have that here and will have to be brought from outside. It was for that purpose that clause was introduced. But subsequently it was weakened, even in parliament,” he added. Stating that the JVP proposed the deletion of this clause at the committee stage he said that there was confusion as to whether the leader of the house had accepted the JVP amendment. “When the final draft came out that clause was only amended and was not fully deleted, as the JVP wanted. Then the JVP made a fuss saying that they introduced this amendment and that the government agreed to the amendment, but the final Act did not reflect the agreement in parliament. Now they have introduced the amendment to delete that clause in line with the JVP’s suggestion,” he added.
According to him now there is a question as to whether the OMP will be able to enter into agreements. “Normally you have the power to enter into agreements that are necessary for the body to fulfill its own functions, whether or not it is stated in the law. If they had not written it into the law in the first place certainly those agreement would have been possible. But now that it was introduced and taken out politically there could be an issue if the OMP starts entering into these agreements,” he said.