JDSLanka

Justice for Sri Lanka’s disappeared thousands further delayed

By Kithsiri Wijesinghe

A report by legal experts containing urgent recommendations meant to address enforced disappearances in Sri Lanka will be passed over to yet another committee led by ruling party politicians, further delaying justice for tens of thousands.

The Office on Missing Persons (OMP) tasked with tracing and searching for the missing, handed over its interim report to the president and the prime minister on 5 September.

Hours later, Sri Lanka’s president announced plans to appoint another committee “to study the Report”.

“President Sirisena said that he has received the Interim Report of the Office of the Missing Persons established to look into the missing persons issue yesterday and that a cabinet sub-committee will be established to study the Report,” said his office.

His intention was revealed to a high-level delegation representing leading international donors including Japan International Cooperation Agency (JICA), World Bank (WB), Asian Development Bank (ADB), International Monetary Fund (IMF), United States Agency for International Development (USAID) and Korea International Cooperation Agency (KOICA).

OMP chair Saliya Pieris says that at least 21,000 have disappeared from the predominantly Tamil north and east.

A vast majority of them never returned after surrendering to the Sri Lanka military at the end of the war in 2009 May.

The OMP report, released on the eve of the next meeting of the UN human rights body that is expected to review the country’s rights record, calls for immediate relief to families as well as “prompt and effective” investigation and prosecution of enforced disappearances.

However, it identifies a critical flaw in the judicial process that hinders the delivering of justice to victims.

Conflict of interest

“There is an inherent conflict of interest, with the Attorney-General’s Department being required to act as both the prosecutor of alleged enforced disappearances, as well as to defend the respondents in legal proceedings including in relation to habeas corpus writs,” says the report referring to investigation and prosecution.

“The OMP is of the view that in habeas corpus applications the Attorney General’s Department should not represent the interests of persons who are alleged to be perpetrators but rather should represent the interests of the state in a manner that would respect, secure and advance the fundamental rights of the people.”

Nevertheless, the OMP fails to address the conflict of interest with one of its members acting in the dual role of a witness and an investigator.

A commissioner on the OMP, Major General Mohanti Peiris was the chief lawyer (Director General Legal) for the Sri Lankan Army from 2007-10 when the bulk of the disappearances of Tamils took place.

The chair of the OMP, Saliya Peiris, who is yet to comment on this conflict of interest raised by JDS weeks ago, has failed to clear the controversial DG Legal, in the report.

The Report calls for changes in the International Convention for the Protection of All Persons from Enforced Disappearances Act that became law in March 2018 “to capture the full range of perpetrators that may be involved in the commission of enforced disappearances.”

“Amend section 3(3) to expressly recognize the full scope of command responsibility, including the ordering of enforced disappearances.”

Intimidation of witness

It also reveals that ongoing intimidation by state intelligence agencies against witness have been extended to members of the armed forces as well.

“Some individuals suspected of having committed enforced disappearances and related offences are being permitted to remain in positions of power—especially within the armed forces and the police—where they can influence the progress of an investigation. There have been instances where members of the armed forces, who were willing to provide information on disappearances, were subject to harassment.”

The OMP report is the second in two years by a government appointed body to recommend justice and relief to victims in war torn Sri Lanka.

In January 2017, the first ever commission appointed by the government delivered its report on reconciliation authored by the country's civil society activists.

The report running to more than 500 pages by the Consultation Task Force on Reconciliation Mechanisms (CTF) following island wide public consultation was rubbished and rejected by the government.

OMP says that it has relied on the recommendations of previous commissions, including CTF.

The 39th session of the UN Human Rights Council will convene in Geneva from 10 September to 28 September 2018.☐

© JDS