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One of the Mechanisms under the Secretariat for Coordinating Reconciliation Mechanisms (which has been tasked with the design and creation of mechanisms {including also a judicial mechanism}, to achieve truth, justice, reparations, non-recurrence, and reconciliation, and the implementation of the country’s reconciliation mechanisms was formed by the Cabinet of Ministers on 2015 December 18 and comes under the Prime Minister’s Office), is the/an Office on Missing Persons (OMP). The gazette pertaining to the said OMP Bill was issued on May 27. Given below are amendments proposed by the authors to reform the Bill.

Office on Missing Persons (Establishment, Administration and Discharge of Functions) Bill/Act, No. of 2016

  1. Section 4 (2) should be further expanded to exclude members of political parties or those with any political affiliation.

{Section 4 (2) reads as “In making recommendations for the appointment of members to the OMP, the Constitutional Council shall, have due regard to: (a) ensuring that the composition of the OMP reflects the pluralistic nature of the Sri Lankan society; and (b) ensuring that the members of the OMP shall be persons with previous experience in fact finding or investigation, human rights law, international humanitarian law, humanitarian response, or possess other qualifications relevant to the carrying out of the functions of the OMP.”}

  1. Section 5 (2) (b) should be amended to read that in the event the President fails to make the appointment for the position of the Chairperson of the OMP as per recommendations made by the Constitutional Council, within such period of fourteen days, the Members of the OMP shall elect from among themselves the Chairperson.

{Section 5 (2) (b) reads as “In the event the President fails to make the necessary appointments within such period of fourteen days–the person whose name appears first in the list of names recommended to be appointed as the Chairman, shall be deemed to have been appointed as the Chairman of the OMP, with effect from the date of expiry of such period.”}

  1. Section 7 (3) should be amended to include that the President shall remove a Member in consultation with the Constitutional Council.

{Section 7 reads as “A member of the OMP may be removed from office by the President, if such person”}

Further, in Section 7 (3) (b), the references made to the roles of the Prime Minister, the Speaker and the Leader of the Opposition should be deleted.

{Section 7 (3) (b) reads as “A member of the OMP may be removed from office by the President, if such person – is found to have a conflict of interest, which in the opinion of the President, formed on the recommendation of the Prime Minister made in consultation with the Speaker and the Leader of the Opposition, conflicts with his duties as a member of the OMP;”}

 

  1. Section 7 (6) (a) should be amended to include that it is the Members of the OMP who shall appoint a Member from among themselves as the Chairperson.

{Section 7 (6) (a) reads as “If the Chairman of the OMP becomes temporarily unable to perform the duties of his office, by reason of illness or other infirmity or due to absence from Sri Lanka or any other such reason, the President may appoint any other member of the OMP to act in his place.”}

  1. Section 7 (6) (b) should be amended to include that the President shall in consultation with the Constitutional Council, appoint any other person subject to Section 4 (2) (including also the amendments to the said Section mentioned above), to act in his/her place.

{Section 7 (6) (b) reads as “If a Member of the OMP becomes temporarily unable to perform the duties of his office, by reason of illness or other infirmity or due to absence from Sri Lanka or any other such reason, the President may appoint any other person to act in his place.”}

  1. Section 7 (6) (c) should be amended to read as “The provisions in/of Section 4 and 5 shall apply in respect of any person appointed to act as the Chairperson or a Member.”

{Section 7 (6) (c) reads as “The provisions sections 4 (1) and 5 shall apply in respect of any person appointed to act as Chairman or Member.}

{Section 4 (1) reads as “(a) The OMP shall consist of seven members who shall be appointed by the President on the recommendation of the Constitutional Council. (b) One of the members of the OMP shall, on the recommendation of the Constitutional Council, be appointed by the President as the Chairman of the OMP:Provided that the Constitutional Council may recommend more than one name for consideration by the President, to be appointed as the Chairman of the OMP.”}

{Section 5 excluding Section 5 (2) (b) reads as “(1) The President shall appoint, within fourteen days of receiving the recommendations of the Constitutional Council for such appointments, the Chairman and the Members of the OMP. (2) In the event the President fails to make the necessary appointments within such period of fourteen days – (a) the persons recommended to be appointed as members of the OMP, and shall be deemed to have been appointed as the members of the OMP with effect from the date of expiry of such period. (3) The Chairman of the OMP shall be its Chief Executive Officer.”}

 

  1. Section 9 has to be amended so that the quorum per meeting shall be five Members.

{Section 9 reads as “The quorum for meetings of the OMP shall be four members.”}

 

  1. Section 11 (a) should be amended to allow the OMP to have the general power to enter into such agreements, where necessary, with any person or organization whether incorporated or otherwise, and whether domestic or foreign, in respect of conducting any investigations on missing persons and for purposes of securing assistance in obtaining information; obtaining technical support and training (forensic or otherwise) and collaboration; establishing databases and personal data protection; and in respect of confidentialityof information subject to the provisions in the Right to Information Act, No. of 2016.;

{Section 11 (a) reads as “The OMP shall have the following general powers to enter into such agreements, where necessary, with any person or organization whether incorporated or otherwise, and whether domestic or foreign, including agreements securing assistance in obtaining information; obtaining technical support and training (forensic or otherwise) and collaboration; establishing databases and personal data protection; and in respect of confidentiality of information;”}

 

  1. Section 12 (c) (ii) should be expanded to include that in the event of the non-appearance of any person summoned, the OMP shall take up the matter with the Supreme Court.

{Section 12 (c) (ii) reads as “The OMP shall have the following investigative powers: to take all necessary steps to investigate cases of missing persons, including but not limited to the following: to summon any person present or residing in Sri Lanka to be present before the OMP to provide a statement or produce any document or other thing in his possession;”}

 

  1. Section 12 (c) (iii) should be deleted.

{Section 12 (c) (iii) reads as “to admit, notwithstanding anything contained to the contrary in the Evidence Ordinance, any statement or material, whether written or oral, which might be inadmissible in civil or criminal proceedings;”}

 

  1. Section 13 (2) should be amended to enable the OMP to based on its findings, institute criminal or civil proceedings in a competent court holding such jurisdiction to try such matters.

{Section 13 (2) reads as “The findings of the OMP shall not give rise to any criminal or civil liability.”}

 

  1. Section 15 (1) is in contravention of the Article 14A of the Constitution owing to its omission/disregard of the provisions of the Right to Information Act, No. of 2016. Therefore, Section 15 (1) cannot contain any clause ousting the jurisdiction of the Right to Information Act, No. of 2016.What is meant by confidential in that whether such relates to the confidentiality of the information provided, meaning the content of the information and/or the confidentiality of the identity of the person providing the said confidential information should be clarified within the scope of the OMP Act including also in Section 11 (a).

 

{Section 15 (1) reads as “Notwithstanding anything to the contrary in any written law, except in the performance of his duties under this Act, every member, officer, servant and consultant of the OMP shall preserve and aid in preserving confidentiality with regard to matters communicated to them in confidence. The provisions of the Right to Information Act, No. of 2016, shall not apply with regard to such information.”}

{Article 14A reads as “(1) Every citizen shall have the right of access to any information as provided for by law, being information that is required for the exercise or protection of a citizen’s right held by:- (a) the State, a Ministry or any Government Department or any statutory body established or created by or under any law; (b) any Ministry of a Minster of the Board of Ministers of a Province or any Department or any statutory body established or created by a statute of a Provincial Council; (c) any local authority; and (d) any other person, who is in possession of such information relating to any institution referred to in sub-paragraphs (a) (b) or (c) of this paragraph. (2) No restrictions shall be placed on the right declared and recognized by this Article, other than such restrictions prescribed by law as are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals and of the reputation or the rights of others, privacy, prevention of contempt of court, protection of parliamentary privilege, for preventing the disclosure of information communicated in confidence, or for maintaining the authority and impartiality of the judiciary. (3) In this Article, “citizen” includes a body whether incorporated or unincorporated, if not less than three-fourths of the members of such body are citizens.”}

 

  1. The powers and scope of the Tracing Unit in Section 17 must be clearly outlined. It must also be clarified as to whether this Unit would involve the participation of other law enforcement agencies.

{Section 17 reads as “(1) There shall be a Tracing Unit of the OMP, which shall be responsible for tracing and searching for missing persons and for assisting in clarifying the circumstances of such disappearance, and the whereabouts and fate of such missing person.

(2) The Tracing Unit shall be headed by an Executive Officer appointed by the OMP and shall include competent, experienced and qualified investigators, including those with relevant technical and forensic expertise.”}

  1. Section 21 must be deleted from the bill entirely. Any external funding would give rise to allegations of partisanship. Also, there is no necessity for further funding of the OMP when the State provides for necessary funding through the Consolidated Fund.

{Section 21 reads as “The OMP shall have the power to raise funds in order to achieve its mandate, including but not limited to obtaining any grants, gifts or endowments from the national or international community.”}

 

  1. Section 25 (1) (b) should be deleted.

{Section 25 (1) (b) reads as “The writ jurisdiction conferred on the Court of Appeal by Article 140 of the Constitution in relation to any order, decision, act or omission of the OMP or any member, officer or servant thereof, shall be exercised by the Supreme Court and not by the Court of Appeal”}

{Article 140 reads as “Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority to inspect and examine the records of any Court of First Instance or tribunal or other institution and grant and issue, according to law, orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo warranto against the judge of any Court ofFirst Instance or tribunal or other institution or any other person : [provided that Parliament may by law provide that in any such category of cases as may be specified in such law, the jurisdiction conferred on the Court of Appeal by the preceding provisions of this Article shall be exercised by the Supreme Court and not by the Court of Appeal]”.

(ruwanjayakodypm@yahoo.com and faizer@live.com)