Written Statement on the OMP Act by Amnesty International as well as two important Reflections on Transitional Justice in Sri Lanka:
We reproduce below the three important interventions relating to the OMP Act and Transitional Justice in Sri Lanka.
- Written Statement by Amnesty International, 33rd Session of the UN Human Rights Council ( 13-30 September 2016) 31 August 2016
- Cheers in Colombo and Apathy in Jaffna
- That Great Betrayal and Institutional Accountability
- Amnesty raises the issue of RTI exclusions from Sri Lanka’s OMP Act
Written Statement by Amnesty International,
At the 33rd Session of the UN Human Rights Council ( 13-30 September 2016)
31 August 2016
‘With regard to the Office of the Missing Persons (OMP), Amnesty said that to be effective, the OMP must provide families with the truth about what happened to their loved ones.” Many fear their right to truth might be compromised because Sri Lanka’s newly enacted Right to Information Act would not apply to confidential information received by the Office. The OMP must not agree to confidentiality regarding any information that would deny families the truth about the whereabouts or fate of their loved ones or obstruct their access to justice.’
AMNESTY INTERNATIONAL’S WRITTEN STATEMENT TO THE 33RD SESSION OF THE UN HUMAN RIGHTS COUNCIL (13 – 30 SEPTEMBER 2016) 31 August 2016, Index number: ASA 37/4721/2016
See the Full Statement at https://www.amnesty.org/en/documents/asa37/4721/2016/en/
In the Statement, AI also pointed out that flaws in relation to public consultation must be addressed without delay. Thus, “Public consultations, the bedrock on which Sri Lanka’s transitional justice process must be built, are underway. However, implementation has been undermined by lack of government resources, including to publicise the process nationally to all affected communities and provide effective protection mechanisms so that victims and their families can participate in safety and confidence. These flaws must be addressed without delay.”
The Statement went onto observe that “Despite repeated promises to progress investigations, impunity persists in most cases, including the January 2006 extrajudicial executions of five students in Trincomalee by Sri Lankan security personnel; the shootings of 17 aid workers with Action Contre La Faim; the enforced disappearance of human rights defender Stephen Sunthararaj in 2009 after his abduction by security personnel; the disappearance of cartoonist Prageeth Eknaligoda in January 2010; and the disappearance of political activists Lalith Weeraraj and Kugan Muruganandan, last seen in Jaffna in December 2011. Families have waited years for truth and justice in these cases.”
Pointing out that threats against human rights defenders and journalists persist even under the current government headed by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe,the Statement cited the beating on 2 June of journalist Freddy Gamage by supporters of a Negombo politician. Gamage had informed Amnesty International that he was further threatened by one of the men he accused of attacking him when they met in court after he pointed him out in an identification parade. It was emphasized that his protection must be secured.
The Statement went on to acknowledge that positive developments have occurred since 2015 when Sri Lanka co-sponsored the Human Rights Council Resolution 30/1 Promoting reconciliation, accountability and human rights in the country, including increased openness to engage with Special Procedures but noted that ‘slow progress in delivering on many aspects of the ambitious agenda coupled with lack of transparency has led some victims and human rights defenders to express frustration.”
- Cheers in Colombo and apathy in Jaffna
By Kishali Pinto Jayawardena
Focus on Rights column, Sunday Times of 28th August 2016
The contradiction was clear if not absurd. Even at the very moment in time that I was being sent unsolicited messages by Colombo’s non-governmental ‘twitterati’ delighting in self-congratulatory chest-thumping over the turbulent passing of the Office of Missing Persons (OMP) Bill, that euphoria was distinctly missing in the Northern peninsula, among the very people for whom this piece of legislation was (primarily) intended.
Failure to draw in core constituencies of victims
Let us be clear about this. The fate of the South’s ‘disappeared’ during the state brutalities of the eighties had not been the motivating factor for this Government’s headlong rush into ‘solutions’ despite the colorful intertwining of state excesses against the Sinhalese to justify the effort. Rather, it was the plight of the ‘disappeared’ in the North and the East which was the central international pressure point necessitating this mad scramble by the coalition Government and its allies, including the North’s Tamil National Alliance (TNA).
Logically therefore, the constituencies left to struggle in the face of continuing state surveillance and apathy in the former war theatre should have been directly drawn into Sri Lanka’s much trumpeted exercise of ‘transitional justice.’ But that is not the case, if we leave aside the familiar spectacle of the North’s political representatives claiming to ‘speak for the people.’ And the anger thereof is searing.
So as the cheers resounded in Colombo’s glitzy lounges, it was a different story in Jaffna with fury counter balanced by disinterest if not apathy. ‘What will this body give us?’ questioned two agitated mothers whose struggle for their ‘disappeared’ children involved traipsing despairingly from one governmental agency to another. One mother brandished a newspaper article with a photograph of a line of hopeless faces along the security perimeter of an army camp post 2009 and wailed ‘that is my child but when I go to that camp and ask where she is, they only tell me that she was never there.’ ‘Will this Office give me answers for what happened to my child and will it give me justice when I am asked to go before it and cry all over again?’ she persisted.
Truth vis a vis Justice
There is a vexed interplay between finding the ‘truth and securing ‘justice.’ This is what the convenient ‘pigeon-holing’ of separate ‘solutions’ (without the affected communities being informed of the connections between each element) into inter alia, an OMP, another of Sri Lanka’s interminable Truth and Reconciliation Commissions and a Special Court ignores. And the refusal to address the issue of flawed justice institutions and pervasive systemic impunity further bedevils the legitimacy of Sri Lanka’s transitional justice package.
Adding to the confusion is the sudden springing up of ‘transitional justice experts’, (more or less like instant noodles), half of whose experience in academia or the solid practice of the law in the national courts can be summed up on the back of the proverbial envelope while the other half is conspicuously distinguished by their lack of a popular support base either in the North or the South. Thus, a distastefully elitist mentality predominates which treats the very idea of ‘peoples’ participation’ with disdain preferring instead to maintain a façade of handpicked and targeted ‘consultations’ with carefully ‘packed’ questions that have the suggested ‘correct’ answers on what ‘the victims want.’
This Colombo ‘bubble’ as it were is also characterized by a disturbingly fluid ability of many to be part of numerous ‘government’ committees and task forces while professing to be ‘non-governmental’ at the same time. Hence we have anti-corruption activists defending the slow pace of corruption cases and human rights activists seeking to justify the failure to engage in substantive security sector reform. Truly this grotesque paradox can only be possible in Sri Lanka.
The law ‘being lost in translation’
To be brutally frank, despite the sentimental reminders that I find myself awash in with regard to South Africa’s transitional justice experience, I would be hard put to find a more obvious contrast. The South African process was led by towering personalities in law, in civil rights, in religion and in social justice who hailed not from the secluded corners of ‘white’ privilege but were instead firmly situated among the South African dispossessed and who counted as honourable, the time spent in prison as punishment for that commitment. Their knowledge of constitutional law was profound. This was in fact, a major reason why their efforts stood up to rigorous scrutiny by the courts and formed a formidable body of jurisprudence which civil rights activists used extensively.
In Sri Lanka however, the law appears to have been ‘lost in translation.’ Indeed, this is evidenced beyond the transitional justice sphere where legal challenges come from multiple fronts ranging from the procedural (VAT Bill) to confusion in regard to constitutional concepts (proposal that the 2006 contested Singarasa judgment of the Supreme Court may be ‘over-ruled’ by the Speaker).
Reportedly there has also been a simply bizarre proposal that amendments may be entered into the OMP law after the Bill has passed the seal of Parliament and the certification of the Speaker. Meanwhile the much touted asset recovery of criminals of the former regime splutter in legal confusion, only partly owing to loyalists of the former regime. The whole is characterized by what can only be referred to as the phenomenon of great incoherence in government.
Acknowledging the irony
So those of us who throw up our hands in mortified dismay certainly have some justification. What if time was reversed and the Rajapaksa regime was in place? Would there not have been severe remonstrations in regard to the abuse of due process? The singular hypocrisy thereof is stark. And the unnerving consequences of such disarray need no elucidation. Already, the judiciary is being reminded by the Parliament of its place in the constitutional scheme of things.
But for now, it is ironic that those throwing themselves into Colombo’s (well funded) ‘transitional justice’ fray look down their noses when called to account if a greater participatory model should not have been used when addressing the grief of Sri Lanka’s ‘disappeared.’ The sight of a ‘consultation task force’ issuing an interim report on suggestions made by affected communities in regard to the OMP Bill even as the Bill was passed during those very same days is just one of the many perplexingly obvious examples of that irony.
Certainly there are many more.
See also; http://www.sundaytimes.lk/160814/columns/a-shameful-rejection-of-a-collective-mea-culpa-204754.html’
http://www.sundaytimes.lk/160911/columns/looking-for-the-truth-beyond-colombos-comfort-zone-208271.html
- That Great Betrayal and Institutional Accountability
By Kishali Pinto Jayawardena
Focus on Rights column, Sunday Times of 4th September 2016
‘Thus a key ground to compel the disclosure of information on the basis of which it may be judicially reviewed as to whether the OMP has exercised proper discretion in (the minimum) initiating the first step in a criminal investigation is rendered arguable…the discretion of the OMP in shutting out such information even to the family members of the victims is dangerously open-ended.’
Visiting United Nations Secretary General Ban Ki Moon’s assertion this week that ‘much needs to be done in order to redress wrongs of the past and restore accountability of key organizations, particularly the judiciary and the security services’ raises an interesting question.
Myopic framing of core questions
Post last year’s ‘rainbow revolution’, where is the focus on substantive institutional reforms? Let me delight in being as heretical as always and pointing out that, on the contrary, there appears to be a ‘settling’ for a straight-jacketed transitional justice package, each in separate limited components. This is quite distinct from an uncompromising insistence on state accountability for systemic wrongs.
Put harshly but nonetheless justifiably, this resort to ‘settling’ is nothing but a great betrayal of long and bitterly fought struggles on fundamental failures of justice.Lest we mistake the matter, these failures predate the grievous Medamulana affliction upon this land. Rather, every political party along with every political leader, living or dead, has to bear responsibility for the same.
But to be fair, the Government is responsible for this myopic framing of core questions only up to a certain extent. The issue of systemic accountability is a ‘hard question’ that any political regime will prefer to leave undisturbed if allowed to by citizens. This is precisely what has happened in Sri Lanka’s frantic rush towards the tempting glamour of ‘justice in transition.’
Unacceptable compromises on fundamental issues
Let us take the judiciary and the security sector (mentioned by the UN Secretary General) as good examples thereof. So is the need for legal institutional reform adequately met by the Bar Association of Sri Lanka indulging in a seminar series on the Rule of Law encompassing anti-corruption to victim protection? Or are we to believe that hasty constitutional reform following a bow and tie ‘packaged’ process of ‘public consultations’ will suffice?
The irony is even greater given that state law officers who enabled the cover up of abuses in the Rajapaksa years facilitate some of these farcical exercises. In India for example, if a state law officer complicit in enforced disappearances in Kashmir had been tasked to lead witness protection programmes or security sector reform, a storm of (public) protests would have ensued.
That is the singular strength of civil movements elsewhere in the region. But in this strangely incestuous society, the ‘yahapalanaya’ minded see no problem in joining hands with compromised individuals to unblushingly proclaim their adherence to good governance. This is a parody of the most satirical kind. So let alone Northern victims protesting, can the South profess anything but profound disinterest in these games that are being played?
Who makes the decisions for the victims?
The problem lies with institutional culture and political will, not the Constitution, whether First Republican, Second Republican or (conceivably) the Third Republican, which one devoutly hopes will not be as inherently self-contradictory as the 19th Amendment to the Constitution. The issue is not really the law itself, superior or subordinate as the case may be.
So when the habeas corpus application of a mother whose sixteen year old daughter had disappeared when fleeing from the Wanni with her other family members during 2009 is met by stony silence of the defence establishment in the Vavuniya courts, there is a failure of justice. A Special Court with or without international involvement, aimed at a few military or political scapegoats, leaves that failure undisturbed.
This is also not satiated by an Office of Missing Persons (OMP) which subsumes the ‘disappeared’ under the bland euphemism of the ‘missing’ or a Truth and Reconciliation Commission both of which lack an explicit link to an effective criminal justice process or an efficacious habeas corpus remedy. . In the end, who arrives at these decisions on behalf of the victims and then claim the right to ask the victims to ‘believe’ in those choices? Making these linkages and insisting on reform of these processes would not have been met with howls of protest from the South despite Rajapaksa histrionics
Dismissing crassly simplistic arguments
In any event, no civil or criminal liability attaches to the findings of the OMP. However, if an offence has been committed, it ‘may’ be reported to a law enforcement authority. Even here, the duty is discretionary. And as information received ‘in confidence’ by the OMP is not subject to the reach of the Right to Information (RTI) Act, No 12 of 2016, that particular information in unreviewable.
Thus a key ground to compel the disclosure of information on the basis of which it may be judicially reviewed as to whether the OMP has exercised proper discretion in (the minimum) initiating the first step in a criminal investigation is rendered arguable. The crassly simplistic argument that this is necessary for preserving the security of witnesses’ testimony is unacceptable. This objective may have been achieved by a more tightly drawn clause defining these circumstances narrowly.
Citing the use of the term ‘in confidence’ in other statutes is also unhelpful as there are clear safeguards in those contexts to prevent abuse, one example being the overriding public interest disclosure clause in the RTI Act at several levels of appeal and review. In contrast, the discretion of the OMP in shutting out such information even to the family members of the victims is dangerously open-ended.
Need for less effusion and more discretion
Overall there is the reposing of a disturbingly naïve belief in the great goodness of such bodies which runs counter to all our past experiences. Those lacking a sense of institutional history need to be reminded of this.
And as Sri Lankans are confronted with what appears to be a ‘managed’ and rushed process to satisfy external timelines, wondrously effusive messages of support ceaselessly emanate from a plethora of foreign missions.
Perhaps it is now time for a little less effusion and a little more discretion. And for more considered thought to be given to ‘reconciliation’ processes which, as of now, appear to be aimed discomfortingly at ‘reconciling’ only politicians bound by a common struggle for political survival.
