T he Affected Families’ Forum (AFF) have called for the constitution and composition of the Office on Missing Persons (OMP) to be amended to include three female leaders representing the AFF and warned that they would reject reparation in the form of compensation if it was given on behalf of the missing, the disappeared and those feared dead.
The OMP is one of the mechanisms under the Secretariat for Coordinating Reconciliation Mechanisms formed by the Cabinet of Ministers on December 18, 2015.
The OMP has been tasked with the design and creation of mechanisms to achieve truth, justice, reparations, non-recurrence and reconciliation and the implementation of the country’s reconciliation mechanisms comes under the Prime Minister’s Office. The gazette pertaining to the said OMP Bill (now Act) was issued on May 27, 2016.
According to Section 4(1)(a) of the OMP (Establishment, Administration and Discharge of Functions) Bill, of 2016, it shall consist of seven members, who as per the provision in Section 4(2)(a) must reflect the pluralistic nature of the society and as per the provision in Section 4(2)(b) 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.
The AFF is led by Sandhya Ekneligoda, wife of missing journalist Prageeth Ekneligoda, Tamil National Alliance Provincial Councillor Anandi Sasidharan who is the wife of the former LTTE head of the Trincomalee district, Elilan, and Anu Asha whose son went missing (allegedly abduction) while in Police custody.
Even though Sasidharan and Asha had previously formed separate organizations in this regard, they will henceforth be working together along with Ekneligoda as the AFF. While the AFF has members from all over the island, it especially has in its membership families from districts in the North, East, Moneragala in the Uva Province, Kandy in the Central Province and Colombo in the Western Province.
Meanwhile, Facilitator of the AFF, Ranjith Perera also added that while the Certificate of Absence issued by the Government to family members and relatives of the missing persons was useful in solving problems pertaining to property, the majority of the families and relatives of the missing did not want to accept the said Certificate as they believe that such an acceptance would result in the investigations underway to look for and seek the whereabouts of the said missing persons and the habeas corpus processes, procedures and proceedings, coming to a halt.
Section 15(1) of the Bill 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, of 2016, shall not apply with regard to such information.”
The AFF while also demanding that the relevant Sections of the RTI Act be included in the proposed OMP Amendment Draft Bill, called for the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 and its subsequent Amendments to be repealed.
The authors also recommended that Section 11 (a) of the Bill should be amended to allow the OMP to have the general powers 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 the confidentiality of information subject to the provisions in the RTI Act, of 2016.
According to the AFF, they are prepared to accept any livelihood assistance provided for the needy, which is offered by the Government.
The Human Rights Commission of Sri Lanka too has called for the appointment of members of affected families to the OMP, Perera said.
Elsewhere, according to Ekneligoda, the security apparatus including the military, especially the army is blocking the Criminal Investigation Department probe into her husband’s case and being non-supportive.
“Those in the South do not take this issue in an organized manner as those in the North and the East. The AFF wants to engage with the Governmental processes and mechanisms for transitional justice including the Consultation Task Force on Reconciliation Mechanisms none of which has been established. They are at present represented,” Perera said.
He pointed out that in South Africa, while the process of reconciliation and amnesty had taken place along with the involvement of the perpetrators and the victimized, in Sri Lanka it was not the case.
“The affected must be taken in and listened to. Politicians cannot represent them. Right now, in the absence of the affected, groups are talking on behalf of them. The affected are not happy with the process, which is problematic,” he added.
He also said that around 90% of the affected families do not know what the OMP is about while the balance has not even heard about it. “The Government has not gone to the grassroots level, reached out through village officials and made them understand,” Perera explained.
Previously, the Presidential Commission on the Disappeared also known as the Mahanama Tillakaratne Commission was appointed in 2006, the Commission of Inquiry appointed to Investigate and Inquire into Serious Violations of Human Rights which are alleged to have arisen since August 1, 2005 also known as the Udalagama Commission appointed in 2006, the International Independent Group of Eminent Persons (IIGEP) was established in 2007, the Presidential Commission to Investigate into Complaints Regarding Missing Persons also known as the Paranagama Commission was appointed, the Monitoring Committee on Abductions and Disappearances was appointed in 2006 and the Special Committee to Inquire into Abductions and Recruitment of Children for Use in Armed Conflict was appointed in 2007.
“The AFF are not calling for foreign or political intervention regarding missing persons,” Perera emphasized, adding that the AFF also had some faith in the local judiciary.
“The affected have given detailed interviews to the Udalagama and Paranagama Commissions and the IIGEP and yet nothing has materialized. It is a top-down approach instead of a bottom-up one. The same process seems to be repeating itself with the OMP. The OMP process has been hasty. We cannot see a solution,” he opined.
Given below are further amendments proposed by the authors to reform the Bill:
Section 4(2) should be further expanded to exclude members of political parties or those with any political affiliation.
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 7(3) should be amended to include that the President shall remove a Member in consultation with the Constitutional Council. 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(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)(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)(c) should be amended to read as: “The provisions in/of Sections 4 and 5 shall apply in respect of any person appointed to act as the Chairperson or a Member.”
Section 9 has to be amended so that the quorum per meeting shall be five Members.
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)(iii) should be deleted.
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.
In Section 15(1) 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).
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 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 25(1)(b) should be deleted.Sasidharan was not available for a comment.