Amend The Enforced Disappearance Bill
Ruwan Jayakody
They are phantoms and apparitions condemned to the Nacht und Nebel (night and fog) of memory – the disappeared, ceasing to exist as persons but existing as nonpersons or Orwellian unpersons, denied access to the human bondage of their flesh and blood, exiled to an erasure as a certificate of absence, a document issued as a face saving gesture by an apathetical Government to be clutched by needy hands for the purpose of establishing identification, to be used in order for the families of the disappeared ones to get things done: victims of disappearances which were forced, enforced, involuntary and unjustified. They are either among the dead, the bodies dumped, plonked and jailed in some memory hole of Mother Earth or the scattered remains and traces encountered along a vanishing trail providing sustenance to and for gluttonous scavengers, or if alive, as a habeas corpus, damned to a life of earthly hell, their bodies conditioned as a site of grotesque pastiche and hideous parody, the withered gaunt skin a dirty black emaciated wilt pockmarked by the scars of hate. In the case of those falling into the latter category, enduring violence, physical and psychological, rituals of cleansing at the hands of their captors or would be assassins, is and becomes merely a way of living and simply surviving. Such is the accursed lot of The Others who have been relegated to the lost and not been found.
Enforced disappearance constitutes the violation of the basic rights (fundamental and human) relating to life, liberty, personal security, health, legal personhood, the equal protection of the law, access to legal counsel, a fair trial, the presumption of innocence, the freedom from arbitrary arrest (including being taken into custody without being informed of the charge/s against one) and detention, and the freedom from torture, cruel, inhumane and degrading treatment and punishment.
In Sri Lanka, the missing persons including cases and complaints of enforced disappearances are in the five figure range and include cases which are being investigated, closed and concluded, resolved, unresolved, gone cold, under study due to the lack of clarification, unverifiable due to investigators running into a blank wall, discontinued (abandoned searches), where persons are presumed dead or declared dead in absentia, and historical cases, and elsewhere of the officially missing and unofficially missing, of illegally cremated bodies recovered from excavations and exhumations of mass graves, of corpses in unidentified, unmarked graves, of bodies whose whereabouts remain shrouded in uncertainty or are unknown, of persons incorrectly believed to be dead owing to being absent for a lengthy period or other such circumstances, staged disappearances, faked deaths and cases involving the fraudulent reportage of the missing, amongst others.
These incidents occurred during the brutal insurrections and the bloodier counterinsurgencies of the 1980s involving the then Governments and the Janatha Vimukthi Peramuna, the murderous three decade civil war and armed conflict and the terrorism of the Liberation Tigers of Tamil Eelam, and the post-war State sponsored terror of the authoritarian and totalitarian regime of the dictator, former President Mahinda Rajapaksa and the notoriously reliable killing machines in the form of the white van phenomenon masterminded by former Defence Secretary Gotabaya Rajapaksa and alleged extrajudicial activities including summary executions carried out by the State’s armed forces, the security establishment and forces, and the military (the Army, Navy, Air Force) and its personnel (soldiers including officials and heads), the intelligence agencies and services (and surveillance apparatuses), the Police including the secret Police (including custodial killings during interrogations and investigations), pro-Government paramilitary groups, State death squads, unofficial armed groups, agents of the Government, and the militants (the Tigers). Most recently, a former Navy Spokesman was arrested on charges of alleged involvement in the disappearance of several youths, the malefaction of enforced disappearance.
The International Convention for the Protection Of All Persons from Enforced Disappearance Bill is a piece of enabling legislation presented by the Government of Sri Lanka (GoSL) {Sri Lanka being a dualist country} to give effect to the obligations under the namesake International Convention which the incumbent GoSL acceded to, signed and ratified, thereby becoming a State Party to the said Convention. The Bill purports to ensure the right to justice of victims of enforced disappearances and also to provide reparation to such victims.
Offences recognized as coming within the scope of the Bill include enforced disappearance, wrongful confinement, kidnapping and abduction {all the offences mentioned here come under Section 3 of the Bill}, and aiding and abetting/conspiracy {Section 4 of the Bill}, all of which are crimes which according to the Bill apart from being non-bailable, grants the relevant law enforcement authorities the power to arrest suspects sans warrants and conduct investigations sans judicial permission obtained in prior {Section 5 of the Bill}, and are punishable upon conviction by the Colombo High Court or a High Court with the jurisdiction in the Western Province {Section 6 of the Bill} by way of a term of imprisonment (maximum 20 years), a fine (maximum Rs 1 million) and compensation (maximum Rs 0.5 million) {Sections 3 and 4 of the Bill}. Further, interference with and influencing an investigation, the latter also by means of the application of pressure; the intentional or unintentional failure on the part of officers responsible for the official register to record particulars in relation to the deprivation of liberty of a person; intentionally recording inaccurate information; the refusal to provide information; and the provision of inaccurate information, are all enshrined as offences under Section 17 of the Bill and are punishable by a term of imprisonment (maximum seven years) and a fine (maximum Rs 0.5 million).
Those who can be held liable under Section 3 of the Bill include public officers; anyone acting in an official capacity; anyone acting with State authorization, support and acquiescence; and superiors wielding effective authority and control over subordinates (interpreted as those possessing the power to issue orders and having the capacity to ensure compliance).
