23September2017

Duped by government and TNA, Tamil victims resort to direct action

Escalating protests in Sri Lanka’s North and East could surprise some, but really shouldn’t. Their root lies in the stubbornness of the National Unity Government and the hypocrisy of the Tamil National Alliance leadership to bring even minimum relief to beleaguered Tamil victims of human rights violations.

Take for instance the struggle families of the disappeared are waging in Kilinochchi and Mullaithivu for resolution to their plight. It has been met with callous indifference and stout stonewalling, but also furtive confessions of the truth only to be followed by, “Don’t ask me, I can’t do anything because my hands are tied.” 

The Government agreed to implement a transitional justice project that was included in the UNHRC Resolution 30-1 of September 2015. One mechanism of the project was setting up an Office of Missing Persons.

TNA & OMP

After seven months dormancy, in May 2016, the families of the disappeared were alerted to a sudden burst of activity to draw up legislation to establish the OMP. The families were outraged. The draft legislation did not include many provisions they had demanded, including two that were critical – foreign judges, investigators and lawyers in the OMP who would have decision-making powers on cases; and powers to prosecute perpetrators. The draft legislation only provided members of the OMP discretion to obtain foreign assistance for technical support. Nor did the OMP have prosecutorial powers. On the contrary, in the event evidence was unearthed in investigations by the OMP it could not be admitted even before another tribunal with powers to try perpetrators.

Despite these shortcomings the TNA signalled its support for the legislation. Spokesperson, Member of Parliament M. A. Sumanthiran, said that following the TNA’s amendments being incorporated, the party accepted the bill.

On 30th June last year irate family members of disappeared from Kilinochchi and Mullaithivu confronted TNA’s members of parliament and the Northern Provincial Council at Karaichchikudiyiruppu Pillaiyar temple in Mullaithivu.

I saw in a newspaper that as representatives of the Tamils you had approved setting up the Office (OMP). How can this be without consulting the victims?” demanded a family member of the disappeared setting the tone for a fusillade of aggressive questions from indignant participants.

TNA’s Wanni District MP Santhi Sriskandarajah promptly sought to defend the TNA members present and pass the buck: “We are not aware of this. Mr. Sumanthiran is in my party. If you set up a meeting I undertake to bring Mr. Sumanthiran there, where you can ask him. In front of all of you I am willing to take on that responsibility.”

Other promises too were made. Responding to demands that the OMP include international judges or have internationals monitoring the process, ex-TNA MP Suresh Premachandran said, “We will convey the overwhelming demand for international participation for this process when we discuss these issues with the Government.”

The meeting did not end without an admission of impotence by TNA members. “We demand to know what befell those who surrendered to the military when fighting ended. But the Government refuses to respond. The Government treats us like slaves,” lamented Mr. Thurairasa Ravikaran, a TNA member of the NPC.

Protest marches

More than a month passed. Mr. Sumanthiran did not visit Mullaithivu and if Mr. Premachandran had conveyed the concerns of the victims it did not materialise in amendments to the OMP law. The OMP law was passed by parliament on 11th August. The TNA pledged to bring in amendments during parliamentary debate, but failed to raise substantive concerns of the victims. The Joint Opposition – a group of Sinhala extremist legislators – created pandemonium in parliament against the passage of the legislation.

On 18th August, with the OMP made law and none of their concerns addressed, the families of the disappeared moved to ask the TNA and the Government questions. They organised simultaneous protest marches in Kilinochchi and Mullaithivu to TNA offices in the two districts. Their logic was simple and was reflected in the petition they addressed to President Maithripala Sirisena channelled through the TNA leader and Leader of the Opposition R. Sampanthan and NPC’s Chief Minister C. V. Wigneswaran, also from the TNA.

“We … condemn the way Sri Lanka’s Parliament passed the Act to establish the Permanent Office on Missing Persons and what the Office is designed to do. We will never accept the role of the [TNA] … for aiding and abetting in the passage of the Bill with scant regard to the sentiments of the families of the disappeared,” reads the petition.

Still, reposing confidence in the integrity of the TNA representatives and the Government, the petition included a litany of demands – that the OMP include internationals in decision-making positions, have prosecutorial powers, that its headquarters (and not branch offices) be in Northern and Eastern Sri Lanka and staff comprise Tamil academics, lawyers and administrators from areas where “the most significant disappearances occurred.”

Despite the petition to the President, days passed to weeks and no response came. But then like a bolt from the blue came a message that Mr. Sumanthiran was driving through Mullaithivu on 17th September and would break journey to speak with the aggrieved families of the disappeared.

Victims scrambled to assemble at Karaichchikudiyiruppu Pillaiyar temple in Mullaithivu to meet Mr. Sumanthiran. That he was late by hours and as dusk fell people gathered in temple auditorium were peeved and anxious to return home before nightfall only set the background to what was to follow.

A member of the audience asked Mr. Sumanthiran why the families of the disappeared were not consulted before he agreed to the provisions in the OMP.  Mr. Sumanthiran, who is a lawyer, replied, “I did not speak about the people’s views only my own. It was based on my understanding of international law and legal mechanisms. I can’t consult 100 people where one person says it (the OMP) is useful and another person says it’s not. We are not machines who merely convey the opinions of others. We were elected as representatives because people believed we have competence and the ability to think for ourselves.”

Judicial accountability

Mr. Sumanthiran pursued this aggressive, confrontational tone for other questions too. Asked by a member of the audience, “Perpetrators will be identified when there is an investigation into enforced disappearances. Is there any provision in the OMP law to punish them?”

Mr. Sumanthiran replied, “That what I told you before; weren’t you listening? That’s the four (transitional justice) mechanisms I spoke about, including the judicial mechanism. In accountability there is something known as judicial accountability, where not only (disappearances) but even other violations such as cluster bombs can be examined. There is a way to link (disappearances) with the judicial mechanism.”

He was bluffing. Provisions in Article 13 (2) of the OMP law ensure that “findings shall not give rise to any criminal or civil liability,” which means no perpetrator can be prosecuted by any judicial body.

But the meeting did not end before Mr. Sumanthiran wore on his sleeve what was fast becoming the TNA’s characteristic response to all problems involving accountability: impotence. “When a participant queried why there was no progress in finding the disappeared although seven years had passed since fighting ended. Pointing to a member of the audience he asked, ‘This lady is the head of a district association of the disappeared. Can you ask her seven years are over and where are our children? [The TNA] is the same…’”

Some weeks passed without event. Then on 27th September the head of government administration in the Mullaithivu District, District Secretary T. Ketheeswaran wrote to Mr. Ravikaran, MPC, referring to a “protest for opening the OMP in the Mullaithivu District.” The letter discussed the protest march by families of the disappeared on 18th August. It said that the prime minister’s office was requesting more information on opening the OMP in the Mullaithivu District.

There are two important points here. The petition of 18th August did not originate from Mr. Ravikaran. It came from the families of the disappeared of Mullaithivu. Second, the petition (as described above) was not only about establishing the OMP in Mullaithivu. It was perhaps the least significant demand! The district secretary’s letter was to accomplish one goal: diminish the importance of that petition. Although the petition originated from the families of the disappeared the letter was addressed to a specific person, Mr. Ravikaran – a first-term provincial councillor; and it reduced the multi-demand petition to its least important ask: establishing the OMP in Mullaithivu.

It is not known if Mr. Ravikaran replied the district secretary’s letter.

Two more years to GoSL

If the petition submitted by the families of the disappeared from Mullaithivu evoked a disingenuous response from the Government, the petition from Kilinochchi produced only stony silence. Undeterred however, on 2nd November a delegation met with Kilinochchi’s district secretary Mr. K. Arumanayagam. While admitting that there had been no response from the Government Mr. Arumanayagam said, “I cannot give back your [disappeared] children. But I understand your suffering and will take steps rectify your problems regarding the petition.”

To date there is no evidence of Mr. Arumanayagam taking “steps” let alone “rectifying” the problems of the disappeared.

The final attempt at bringing to the TNA’s notice their petition and the party’s lack of empathy and understanding came on 12th December. At a Kilinochchi Citizens’ Committee meeting to celebrate Human Rights Day, a group of families of the disappeared submitted another petition to District’s TNA parliamentarian Mr. K. Sritharan. The petition after listing the frustrations of the families to at least get a response, let alone a favourable one, said: “We are deeply perturbed by the indifference shown by the government over this issue. We are also saddened that the TNA through which we channelled our petition has not taken the trouble to contact the government for a response to our misgivings.”

The last nail to date on the OMP’s coffin was struck in March. The cabinet passed an amendment to the legislation disallowing the OMP to “enter into agreements … to achieve the mandate of the OMP…” This rescinded the OMP’s discretion to call on foreign assistance even on technical support that the original legislation had permitted.

Outraged by the Government’s callousness and betrayed by the TNA’s self-serving politics the families of the disappeared finally decided that direct action as the only solution to their interminable problems.

The action was timed to coincide with the UNHRC’s 34th session taking place in February-March 2017 where the Government asked for more time to implement provisions of Resolution 30-1. The Government’s position was officially supported by the TNA. The families however contradicted this, demanding instead that Sri Lanka be given no further time, but be referred forthwith to the International Criminal Court by the UNHRC through the UN Security Council.

However, on 23rd March the Government has got two more years to implement provisions of Resolution 30-1 in a rollover resolution.

Although their demand was spurned by the UNHRC at stake now is whether direct action by families of the disappeared – a consequence of repeated rebuffs by the Government and TNA – will falter and die or summon renewed energy to fight on.

The families of the disappeared have declared that they will not be taken for a ride this time. They insist they will not call off direct action until they know the fate of their loved ones and justice is served on the perpetrators.

© JDS

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