I. Co-Sponsorship of the Geneva Resolution as the Original Sin
The proposal to establish the “Office” of Missing Persons is one of the solemn guarantees embodied in the Resolution co-sponsored by the Government of Sri Lanka at the United Nations Human Rights Council in Geneva on 1 October 2015. This is pledged explicitly in Operative Paragraph 4 of the Resolution. The intensity of pressure to compel implementation is reflected powerfully in the statements at the Council by twelve countries last month and in the proceedings of the British House of Commons, calling for the Government of Sri Lanka to give effect to its own undertakings. The resulting legislation is one of the most dangerous statutes proposed for enactment in recent times.
II. “Office” of Missing Persons a Total Misnomer
It will be evident from the analysis which follows, that what is sought to be established by legislation in Sri Lanka, is no “office” at all, but a fully fledged quasi-judicial mechanism with extensive coercive powers to compel the giving of testimony and the production of documents and other material; untrammelled authority to enter any premises, including sensitive military installations, at any time of the day or night; powers of breathtaking scope to bring in foreign personnel to perform a wide variety of functions with far-reaching repercussions; to exercise these powers, bereft of the safeguards imposed by salutary legislation such as the Evidence Ordinance; to operate in complete secrecy, with no right to information available not merely to the public but even to the highest court in the land; and to wield penal powers for contempt at the same level as the authority conferred on the Court of Appeal. The total gamut of this awesome authority is at the disposal of a tribunal operating entirely outside the country’s institutional framework.
III. De Facto Truncation of the Country
A particularly obnoxious feature of the proposed law consists of its definition of a “missing person”. One of the limbs of the definition declares that a “missing person” means “a person whose fate or whereabouts are reasonably believed to be unknown and which person is reasonably believed to be unaccounted for and missing in the course of, consequent to, or in connection with the conflict which took place in the Northern and Eastern Provinces” [section 27].
One is wholly at a loss to understand why the effect of the law should be stated in this way. Human life is of equal value in the North, South, East and West of the Island. To confine solicitude regarding the fate of “missing persons” to one part of the country, as a matter of explicit priority is absolutely indefensible.
IV. Composition of the “Office” of Missing Persons
The highly elevated status of this institution is manifest in the provision that its members, seven in number, shall be appointed by the President on the recommendation of the Constitutional Council [section 4(1)(a)]. The description of their credentials is revealing. Members of the “Office” are required to be “persons with previous experience in fact finding or investigation, human rights law, international humanitarian law or humanitarian response” [section 4(2)(b)]. There is no requirement that the persons appointed should be citizens of Sri Lanka. The phraseology used is entirely consistent with the appointment of foreign personnel.
"Personnel belonging to foreign NGOs and other foreign organizations which enter into agreements with the OMP and fund it generously, may lawfully be appointed “officers and staff” of the OMP."
V. Procedure for Instituting Proceedings: A Gross Travesty of Natural Justice
It is declared that the OMP has the power “to initiate an inquiry and/or investigation pursuant to a complaint made to the OMP” [section 12(b)]. However, the complaint is shrouded in complete secrecy. There is explicit provision that “Every member, officer, servant and consultant of the OMP shall preserve and aid in preserving confidentiality with regard to matters communicated to them in confidence” [section 15(1)]. This is stated to be the case, “notwithstanding anything to the contrary in any written law”. The provisions of the Right to Information Act are specifically excluded.
Not even the Supreme Court of Sri Lanka is able to penetrate this fog of secrecy. The proposed law boldly states this principle without qualification [section 15(2)]. The danger not only to the country’s Armed Forces but to society at large is all too obvious.
The “Office”, acting on purported complaints by nameless, faceless persons, embarks on an investigation, at the conclusion of which it is empowered to report “to the relevant law enforcement or prosecuting authority” [section 12(i)] generating all the consequences which would ordinarily follow in terms of penal sanctions. What is beyond belief, to the point of absurdity, is that, where a person claimed to be missing is in fact found very much alive, his whereabouts can be disclosed only “subject to the consent of the person found alive” [section 13(1)(b)]. The preposterous effect of this provision is that persons potentially placed in the gravest peril are even precluded from establishing that the person claimed to be deceased is in fact hale and hearty, living in a specific location overseas. Nothing could be further removed from an objective inquiry into truth. What defies understanding is why, if the genuine purpose of the proposed legislation is to institute investigations directed towards discovery of the truth, elaborate provision needs to be incorporated to enable the “Office” to set about its work in a totally furtive and clandestine manner, and why this reliance on an approach of smoke and mirrors has commended itself so unequivocally to the architects of this iniquitous law.
VI. Foreign Influence Manifestly Dominant
The “Office” has global and unfettered power to enter into agreements on any subject with any foreign government, NGO or other institution. This power extends to the making of agreements “with any person or organization whether incorporated or otherwise, and whether domestic or foreign” [section 11(a)]. The most extravagant language is used to vest the OMP with authority to raise funds from foreign sources. These include “grants, gifts or endowments” [section 21] from the international community. The government amendment, requiring these resources to be channelled through the External Resources Department of the Treasury, makes no difference in practice
VII. Foreign Personnel Insidiously Exercising Powers of the “Office”
This is the thin end of the wedge. The provisions are crafted in a way which makes their true import not immediately discernible. The OMP is empowered to appoint “such officers and staff” [section 16(2)] as may be necessary. Personnel belonging to foreign NGOs and other foreign organizations which enter into agreements with the OMP and fund it generously, may lawfully be appointed “officers and staff” of the OMP. There comes into being, moreover, a “Tracing Unit” of the OMP, entrusted with functions of a critical character.
"The intensity of pressure to compel implementation is reflected powerfully in the statements at the Council by twelve countries last month and in the proceedings of the British House of Commons, calling for the Government of Sri Lanka to give effect to its own undertakings. "
As far as this vital organ is concerned, it “shall be headed by an Executive Officer appointed by the OMP and shall include competent, experienced and qualified investigators, including those with relevant technical and forensic expertise” [section 17(2)]. The door is wide open for foreign funding agencies to become an integral part of, and to exercise pervasive influence over, the Tracing Unit.
There is an especially dangerous provision which ought not to escape scrutiny. The OMP is empowered “to authorize a specified officer of the OMP, to enter without warrant and investigate, at any time of day or night, any place of detention, police station, prison or any other place in which any person is suspected to be detained, or is suspected to have previously been detained in, by the State or any State agency, instrumentality, or any officer of the State, and to examine, make copies of, extract from, seize and retain, any object that is deemed necessary for the purposes of any investigation” [section 12(f)].
The amendment requiring the Inspector-General of Police to be informed within 48 hours is obviously cosmetic: the stable door is being shut after the horse has bolted. It must also be noted that the proposed government amendment making a warrant necessary, applies only to excavation, and has no application to entry.
It must be noted that the definition of a “specified officer” is conspicuous by its absence, and that any foreign personnel, made available to the OMP by foreign funding agencies, are entitled to be designated “specified officers” who, ipso facto, become armed with the whole range of these all-encompassing powers.
These “specified officers”, for good measure, are given powers co-eval with those exercised by Sri Lanka’s Police Force with regard to entry, search and seizure on all public or private premises [section 12(g)]. These powers are lavishly conferred on undefined “specified officers” whose judgment and actions can conclusively determine the course of criminal proceedings subsequently launched against our country’s Armed Forces and members of the public. The proposed law even envisages invocation of Magisterial jurisdiction to arm this amorphous category of “specified officers” with these Draconian powers. VIII Unrestricted and Irresponsible Delegation Yet another repugnant provision in the proposed Act is that governing delegation. Having regard to the pivotal importance of the functions assigned to the OMP, it is essential that responsibility for performing these functions should be clearly demarcated and meticulously monitored. The opposite is, regrettably, the case. In flagrant violation of all principle and sound policy, the greatest laxity is deliberately envisaged in respect of delegation. An entirely new frontier with regard to utterly unprincipled delegation is established by the provision which gives the OMP the power “to establish from time to time, and in addition to those Units and Divisions specifically mentioned in this Act, such Committees and/or Divisions and/or Units as are required for the effective administration and functioning of the OMP, and shall also have the power to delegate such powers and functions as are necessary to such Committees, Divisions and Units” [section 11(e)]. This is scarcely believable. We are now asked to accept complacently the position that the powers of the OMP, marked as they are by the gravest implications for this nation’s vital interests, are amenable to delegation to a plethora of officials comprising an indeterminate structure, itself the OMP’s own unbridled creature, with no ascertainable guidelines embedded in the empowering law. The consequences of this are entirely unacceptable.
IX Subjugation of All Public Authorities
The omnipotence of the OMP is nowhere more clearly demonstrated than in the provision which, in terms, clothes the OMP with authority “to request assistance from any State, governmental, provincial or local authority or agency, or any officer thereof” [section 12(e)]. The provision further declares: “Notwithstanding anything to the contrary in any other written law or regulation, any such authority, agency or officer shall forthwith render such assistance”. It may be noted, in particular, that the OMP has full power “to summon any person residing in Sri Lanka to be present before the OMP to provide a statement or produce any document or other thing in his possession” (section 12(c))ii)]. This gives short shrift to such fundamental principles as the privilege against self-incrimination, the presumption of innocence and the right to silence.
X. Conferment of Immunity
While it is legitimate and permissible to confer on public authorities exemption from liability, both civil and criminal, in respect of acts committed in good faith under the aegis of the enabling legislation, the scope of the protection contemplated by the proposed law is grotesquely excessive. This protection is available not only to any member of the OMP, but to “any officer or servant appointed to assist the OMP” [section 25(2)(a)]. Attention has already been drawn to the widest authority conceivable, which the OMP is given in respect of appointment of agents, consultants, servants and delegates. That they should all be considered above the law, is undeniably contrary to seminal principle and intuitively repulsive.
Section 24(1) refers to ten situations which involve liability for the offence of contempt committed against the authority of the OMP. These situations cover a remarkably wide field. Severity of the criminal penalties to which the offence is declared to give rise, is made explicit by the provision which equates the OMP with the country’s Court of Appeal for the purpose of determining the condign punishment (extending to rigorous imprisonment) applicable, and declares that “Every offence of contempt committed against the authority of the OMP shall be punishable by the Court of Appeal as though it were an offence of contempt committed against the Court of Appeal” [section 24(2)].
XII. Extent of the Danger
It is important not to be misled by the seemingly disarming provision that “The findings of the OMP shall not give rise to any criminal or civil liability” [section 13(2)].
The protection inherent in this provision is limited to conclusions or findings, and has no application whatever to the body of evidence gathered by the OMP in the exercise of the full range of its coercive powers. The entirety of this evidence, garnered in cynical contravention of basic rules of natural justice and fairness, can be resorted to without restriction in proceedings founded on the concept of universal jurisdiction which the present Government has accepted by its co-sponsorship of the Geneva Resolution on Sri Lanka. The true dimensions of the peril created by this Bill cannot be realistically appreciated by viewing it in isolation. A holistic approach is possible only when all the dots are connected, and the draft statute is assessed in conjunction with the comprehensive strategy involving war crimes charges, special judicial mechanisms containing hybrid segments, retrospective criminal laws and selective administrative procedures designed to weed out members of the Armed Forces __ all interlocking components agreed to by the Government by its initiatives in Geneva.