JDSLanka

Can OMP deliver justice when Sri Lanka's President won't?

By K Rajasingham

Confronted by vocal and combative family members of the disappeared – nearly all women – newly-appointed chairman of the Office of Missing Persons (OMP), parried, promised and stretched the truth to sell his organisation as the vehicle that would bring victims relief, while giving few specifics on how this would be accomplished.

The meeting between the families of the disappeared and the OMP delegation took place on Saturday, 2 June in Sri Lanka’s Northern Province town of Mullaithivu.

What underlay the discussion were the divergent objectives of Chairman Saliya Pieris and his interlocutors. Whereas Mr. Pieris did his utmost to persuade the families of the disappeared to engage with the OMP rather than boycott it, the victims voiced scepticism about the OMP delivering on its pledges, and imposed minimum conditions, for the Office to win their trust.

The suspicion of the families of the disappeared, who have mounted protests against the Sri Lanka government in Kilinochchi and Mullaithivu for over one year for not providing answers on the disappeared, was evident with only around 50 people attending the official meeting in the Mullaithivu district secretariat. This forced Mr. Pieris and his colleagues to meet the protestors outside.

At the meeting with the protestors, Yogarasa Kanakaranjiny, head of Kilinochchi’s Association of the Families of the Disappeared, and the unofficial leader of the inter-district associations of the disappeared in Sri Lanka’s North and East, laid out the groups’ demands.

“Our demand is for a list of our loved ones who are detained in black sites and prisons. When we surrendered to the Sri Lanka military and the Sri Lankan State took responsibility for us, even a one-month-old baby was registered. So there is a record (of the surrender). Our demand is they should tell us where they are, publish a list of their names and allow us to visit them freely. Can the OMP do this?” she asked.

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She said that only when that was accomplished could the OMP establish district level offices and start inquiring into the problems of disappearances.

Ms. Pushpambal, a prominent human rights defender whose child disappeared, was more stringent in her demands. “Commissions (of inquiry) that sat before, have a trove of our documents. Use those documents and release at least 100 disappeared persons who were handed over (to the military). Only then the OMP can begin working. Till that time we trust nobody.”

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The words of these two family members of the disappeared reflect the outrage and incomprehension they feel about a category of persons now missing. During the final weeks of the civil war, when the Tamil people crossed over to the Sri Lanka government-controlled area from the territory held by LTTE rebels, they were instructed by the military that anyone who had any contact with the LTTE needed to register with the military separately. Given that the LTTE was the de facto state, almost everyone living in the rebel-controlled areas had come into contact with the rebels. Therefore, an unknown number of persons – probably in the thousands – voluntarily registered separately when they arrived at the military checkpoint. Many of them were never seen again.

For the families of the disappeared their loved ones surrendered to the military for having had connections with the LTTE and are now missing, cannot be classified as “disappeared,” because they were not abducted but handed over into state custody. As one mother told Mr. Pieris, “We are not here to talk about the missing, we are here to talk about our loved ones who we took by the hand and handed over to your military.”

The issue of this category of disappeared persons has surfaced in different ways in the post-civil war years. An instance was during the cross examination of a senior Sri Lanka Army officer by an attorney representing family members of the disappeared in a habeas corpus inquiry in the Mullaithivu magistrate’s court. Although the officer admitted to a list of family members who had been handed over to the military existed, the Army has stonewalled orders by the Mullaithivu magistrate to produce document in court for over two years.

The matter of the disappeared handed over into military custody came up more publicly when their families began resorting to protests and demonstrations in Kilinochchi and Mullaithivu in early 2017. As the demonstrators grew bolder, Sri Lanka’s President Maithripala Sirisena decided to intervene directly to inquire into their problems. They met the President for the first time on 12 June 2017.

Speaking with Mr. Pieris, Ms. Kanakaranjiny recalled the meeting with Sirisena. “The President met us on the 100th day of our protest and accepted our demands saying, ‘your demands are just and I have no objections in fulfilling those demands.”’ 

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But the matters did not go well between the President and the families of the disappeared. The key demand by the victims was the publication of two lists by the government: one the list of those handed over into military custody, the other, of those currently detained by the government. President Sirisena pledged to process the request expeditiously. But to date, almost a year later, no progress had been made.

But negotiations between families of the disappeared and the President broke down much earlier. Following the final meeting they had with the President on 16 November last year, a disappointed Ms. Kankaranjiny was to tell the media, “Today we lost faith that this government, which preaches Buddhist values, will give us back our children … but we will continue our unremitting struggle for our loved ones.”

Mr. Pieris however was ever solicitous. He told the protestors, “We too are discussing how the list can be obtained. Right now I cannot tell you how we’re going to do this. But we’re mindful of the importance of obtaining the list...”

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The confidence Mr. Pieris exuded of what the OMP could accomplish was not shared by his audience. In her intervention Ms. Kankaranjiny said, “I have a question. If the honourable President, whose citizens we are, cannot give us justice, no one can…”

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Mr. Pieris’ interlocutors also expressed doubt about how the OMP was different from other government-appointed commissions such as the Lessons Learnt and Reconciliation Commission (LLRC) and the Presidential Commission on Disappearances (Paranagama Commission), before which families of the disappeared gave evidence in the post-civil war years and were disappointed for the lack of results.

Throughout the meeting, Mr. Pieris defended his organisation vigorously. He drew a distinction between the OMP and other commissions by saying that while the latter were time-limited, the OMP was a permanent office.

But the contrast he emphasised most was that, “Although we’re established by the Government, it is an independent institution.”

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But the independent status of the OMP has to be questioned. While its members were not selected directly by the Government, but by the Constitutional Council, there has been persistent criticism the Constitutional Council is too politicised a body to make independent appointments. Second, the OMP is funded by the discretionary fund, which is a general fund in the national budget managed by government and not dedicated to the OMP. This means that technically, the government can defund the OMP. Finally, on 31 May, two days before the Mullaithivu meeting, President Sirisena in Gazette Extraordinaire placed the OMP under the direct purview of a government ministry – the Ministry of National Unity and Coexistence.

The most extraordinary defence of the powers of the OMP mounted by Mr. Pieris was related to prosecutions. The families of the disappeared have persistently argued that the OMP should have punitive powers if their investigations revealed the identity of perpetrators. This concern was reflected in the question by Ms. S. Chandraleela, a prominent human rights defender in Mullaithivu. She asked, “If a perpetrator is identified, does your institution have the power to punish (them)?”

Mr. Pieris responded saying that even if a suspected perpetrator was identified, the OMP did not have powers of punishment. “We’re not a court of law. In this country only courts of law has powers to punish. We have no punitive powers. But if from our investigation it seems a crime has been committed, we have the power refer the case to a magistrate and begin an inquiry.”

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This assertion however, is contradicted by provisions in the OMP Act which says quite simply: “The findings of the OMP shall not give rise to any criminal or civil liability,” [Section 13 (2)]. In an article to Sri Lanka’s The Sunday Times on 18 September 2016, M.C.M. Iqbal, who was secretary to previous commissions of inquiry into disappearances, reaffirms this point.

“Will a complainant who alleges that a particular person was personally handed over to a particular military officer or taken away by known police officers or other persons be satisfied if the OMP says they cannot now be found? What if the remains of the person concerned are found in one of the graves exhumed and the complainant is told that the OMP has no power to take any further action? That will create a public uproar.”

But adding to the confusion that is the OMP, Section 12 of the Act states that where it appears to the OMP an offence has been committed that warrants investigation, the matter could be reported to the relevant law enforcement authority. It was probably to this provision Mr. Pieris was referring to.

There are two caveats, to Section 12. First, the offence is not reported automatically but only after the OMP determines if such an action is “of the best interests of the victims, relatives and society.” In other words, the OMP could refrain from reporting it for political and personal reasons. If the perpetrator – for instance a military officer – is reported, legal proceedings against him or her could create social and political tensions and thereby not in the “best interests of society.” Second, even if the OMP was to report the matter, only the name, age and gender of the missing person and the place and date he/she was last seen can be given. In other words, the law enforcement authority would have to begin the investigation anew – which in Sri Lanka’s context will be another interminable process, fraught with legal and political pitfalls. 

While Mr. Pieris answered questions of the protestors and highlighted the virtues of his organisation, there was little doubt as to what his long-term goal was: getting the protesting family members of the disappeared to engage with the OMP regardless as to whether it answers the families’ need for accountability. Early in the meeting he said, “I understand that you suspect and mistrust this institution set up by the government. My request to you is: please speak to us; please send us your proposals… What we should do or not do. What your expectations are.”

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As long as the protestors continue boycotting the OMP, its legitimacy will be in question and the government will not be able to pull the wool over the eyes of the international community that it is resolving the issue of enforced disappearances in Sri Lanka. This is why M. Pieris kept repeating to his audience that the OMP’s success would depend on their support. Answering a question on whether the return of the President Rajapaksa’s party to power would result in the OMP closing, he said: “The way this Office has been set up it will continue even if there is a regime change. But if this Office is to continue your strength is essential. Therefore, I believe if your support continues this office cannot be closed easily.”

WATCH VIDEO HERE:

The question is: will the boycotts and protests continue as the families of the disappeared hold out against an institution they regard essentially as a sham. Or, will the government’s tactics to break the will of these people draw in the sceptics?  

© JDS