Missing Persons: Responsibility of a State

BY SUGEESWARA SENADHIRA

Any Nation is responsible for the welfare of its citizens. A Nation facing trying times due to terrorism, internal conflicts, militancy and/or extra-constitutional attempts to seize power could be saddled with the issue of killings and disappearances of some people.

The missing persons could be members of terror outfits, revolutionary organizations, members of State armed forces or law enforcement agencies or even civilians. Such disappearances could result in parents searching for their children, wives waiting for their husbands, inability to find remains to bury under religious customs and no death certificate as proof of their existence and demise.

The Bill to establish the Office of Missing Persons (OMP) was first announced on 22 May and the Bill was gazetted on 27 May 2016.

Subsequently, on 21 June, the Office on Missing Persons Bill was presented to the Parliament and it was passed unanimously in Parliament.

Earlier this month the Gazette notification for establishing the OMP was issued by President Maithripala Sirisena. “This marks another step forward in Sri Lanka’s path to sustained peace”. In signing the OMP Act, the President passed into law the first of four specific mechanisms towards transitional justice adopted by the consensus Resolution ‘Promoting Reconciliation, Accountability and Human Rights in Sri Lanka’ adopted at the United Nations Human Rights Council, in 2015.

Transitional justice mechanism

The Office of Missing Persons which has been established as a transitional justice mechanism to deliver truth, justice, reparations and ensure non-recurrence of conflict. It goes a long way towards helping healing, reconciliation and closure, for those whose lives remain forever lacking authentic knowledge about their missing kith and kin. On one hand the OMP seeks to help several thousands of families to discover the fate of their loved ones and the circumstances of their disappearance, by searching for and tracing missing persons and protecting the rights of the victims and their families. On the other, it aims at establishing a legal provision that concealing evidence of a forcible disappearance is also to be a crime.

This Act will allow provisions to investigate into disappearances in any insurrection or upheaval. That could include the 1971 insurrection of the Janatha Vimukthi Peramuna (JVP), 1988-90 violent insurrection of the JVP, militancy by different Tamil groups like LTTE, PLOTE, EROS, ENDLF, TELO, EPRLF, TEA, TNA and others during the last three decades and during the final stages of the battle between the LTTE and the armed forces.

The OMP is appointed by the Constitutional Council and it has no judiciary powers. Currently as many as 94 countries are signatories to the relevant UN Convention and several countries with large number of missing persons have established OMPs. The countries include South Africa, Chile, Argentine, Bolivia, Uruguay, El Salvador, Peru, Ghana, Guatemala and Uganda.

The appointment of the OMP will put to end the possibility of disappearances in the future and no one will be prosecuted for past action. The government estimates around 20,000 people are missing due to various conflicts including the 30-year-long conflict in the North and East.

The conflict claimed many deaths and disappearances and it left a wave of grief, anger and disillusion, and although many years have passed, there has been a noticeable inability to move past the trauma for the families of missing persons, mainly due to the unresolved nature of these numerous disappearances.

Protection from Enforced Disappearances

It is true that some of the alleged missing could be living happily in foreign countries or even in Sri Lanka. But it is the responsibility of the State to assist the family members to find out the truth. Hence, the establishment of OMP is an important step to redress these grievances. Some critics say that the Bill contradicts the Constitution of Sri Lanka, which does not stipulate a provision to criminalize enforced disappearances during emergencies. However, it should not be forgotten that a Constitution is written to protect the people.

Hence, if there are inadequacies, new laws, regulations and amendments are required to rectify the omissions.

Although several Commissions of Inquiry have been set up in the past, there remain a large number of families across the country that is unaware of the fate of their loved ones.

Now the OMP can take up those cases of missing persons. The OMP will look into the missing persons ‘in the course of, consequent to, or in connection with the conflict which took place in the Northern and Eastern Provinces or its aftermath, or is a member of the armed forces or Police who is identified as ‘missing in action’; or ‘in connection with political unrest or civil disturbances (such as the youth insurrections of 1972 or 1989)’ and ‘as an enforced disappearance as defined in the “International Convention on Protection of All Persons from Enforced Disappearances”.

The OMP is also mandated to help the families of those members of the armed forces also affected by this issue, for example those declared as “missing in action”. The process of setting up the OMP also included consultations with families and representative groups of the armed forces to ensure that the issue is dealt in a sensitive manner, while protecting the best interests of all sections of the society.

The OMP is not a law enforcement or judicial agency but a truth-seeking investigative agency. If it appears a criminal offense has been committed, the OMP may, after consultation, report the same to the relevant authority, who will have to begin a new investigation. But the OMP itself cannot initiate a Court case or any prosecutions. The OMP Act clearly states “the findings of the OMP shall not give rise to any criminal or civil liability”. In any situation which may call for it, after consideration of the best interest of the victims, the OMP may at most pass on information to law enforcement authorities.

The OMP will also collect testimony, which cannot be used in a court of law, because the OMP is not a judicial mechanism. This is similar to provisions found in the Human Rights Commission of Sri Lanka Act, the Commissions of Inquiry Law, and the Special Presidential Commissions of Inquiry Act.

The OMP was set up as the government recognizes the need for justice and its responsibility to such families, which is why it co-sponsored the UN resolution that calls for the establishment of the OMP. This is consistent with the continuing policy position of Sri Lanka to plan for a peaceful country, to fulfil obligations willingly made by the State, and to ensure the rule of law and justice. This is a positive step forward for the future of national democracy, a significant milestone which allows us to stand on the world stage with dignity and respect.