OMP to ‘sate’ all grievances, but what’s next?

BY SULOCHANA RAMIAH MOHAN-2016-08-14

The controversial Bill - the Office of the Missing Persons (OMP) passed in Parliament on Thursday without a vote despite the Joint Opposition agitation over it, is measured as a simple step, yet a huge step forward in terms of bringing consolation to the victims' families and leading to an accountability mechanism which is by far the only way to improve the human rights record of Sri Lanka.
The call for the OMP Bill was the need of the hour said the government and the International community however the protest by MP Mahinda Rajapaksa and cohorts said it is to 'nail' the military that executed a war.

Foreign Minister Mangala Samaraweera on the OMP Bill said that in the past, Commissions that have looked into 'missing persons' have been ad hoc arrangements and they were constrained by time durations. They were dependent on extensions. Their mandates were restricted by geography and time frames. They didn't have the necessary means to protect victims or witnesses. They didn't have the necessary legal mandate or personality to seek assistance to trace the whereabouts of people from other institutions and from other countries.
But the OMP will not be constrained. It will be open-ended with no start or end date or restrictions based on geographic areas. Anyone from the South or the North or the East or West or the Centre of the country can take a complaint to this Office, and the Office will try to provide answers.

What Ceylon Today learns is that the OMP will conduct a 'scientific' investigation on all accounts of missing persons in this country with no judiciary powers and investigations will not be used if the evidence being given in confidence, 'otherwise' the evidence can and will be used in the Truth Commission and in the Accountability Process, and that makes sense.
When the government went about saying the OMP will only find the truth and bring closure on whether the missing is living or dead, people were in doubt what to do with the truth the OMP is ready to find out spending funds and making people to repeat what they have been telling all the past missing persons commissions that were 'always breakdown' or basically to 'sit on it'.
Once the persons who have been identified behind abduction or killing and if that perpetrator is living, there is no closure, surely. The OMP cannot close the books, once the culprits are identified, and be it the 'living' LTTE members or the military officials. There is a long and lengthy process the government will have to work for a longer period of time the reason why a time period has not been framed for the OMP.

To clear this doubt, Ceylon Today contacted one of the most important officials of the reconciliation process who spoke under anonymity.
He clarified that the judicial commission has nothing to do with the OMP and all past commissions that was initiated to find about the missing persons such as the Paranagama Commission on missing persons will be transferred to the OMP. He said for a considerable time the OMP will be in operation and all depends on the applications. Since it has no time bar or any period, it can take 'some time' to complete the process.

The OMP that will work independently will not clash with the local judiciary mechanism. The local judiciary mechanism is not expected to be initiated soon but not too late either with a thorough consultation process.
According to the official, the OMP scientific investigations will not be used if the evidence being given in confidence. Otherwise 'the evidence can and will be used in the Truth Commission and in the Accountability Process.
For prosecution, that office will have to unearth its own evidences or get evidences available in 'other sources', he added.
It's definite that the OMP will trace the culprits behind missing and abducted persons. Thereafter "what then?" is the next question people will ponder. The OMP's job is to let people know what happened to the persons missing and not allow them to live on false hopes. Then the Truth and Accountability process begins to hold accountable all persons who are responsible for that situation. They could be compensated and issued with a death certificate if there is factual evidence that they died in the battlefield or otherwise. What about the others who have been indentified and are yet alive and all the evidence points to him being the man behind the 'missing or abducted?

"The priority of the OMP will find out once and for all whether dead and if so how and where the body is, alive or missing, this will provide final legal proof of status. Then there can be closure for the victims and soldiers' families too."
He also added that the OMP will cover not only the recent war but even the two youth unrests in the South. "This will have a way and accurate statistics and can counter spurious allegations and the wild numbers that are being bandied about. Prosecution cannot be done by OMP or using OMP information if it is given in confidentiality or otherwise," he pointed out.
SOME CLAUSES OF THE OMP BILL ...

The OMP Bill states that it shall have the mandate; which is to search for and trace missing persons and identify appropriate mechanisms for the same, and to clarify the circumstances in which such persons went missing; to make recommendations to the relevant authorities towards addressing the incidence of missing persons; to protect the rights and interests of missing persons and their relatives as provided for in this Act; to identify avenues of redress to which missing persons and relatives of missing persons are entitled and to inform the missing person (if found alive) or relative of such missing person of same; to collate data related to missing persons obtained by processes presently being carried out, or which were previously carried out, by other institutions, organizations, Government departments and commissions of inquiry and Special Presidential Commission of Inquiry and centralize all available data within the database established under this Act.

The OMP Bill states it also may grant priority to recent incidents of missing persons, incidents in which there are substantial evidence submissible; or such incidents that are, in the opinion of the OMP, of public importance because the fact remains that the atrocities committed before and after the war were the driving force to commence a reconciliation
process
The general powers of the OMP are: 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.
The OMP investigative powers are: To receive, from any relative of a missing person, or any other person or organization, complaints relating to missing persons, irrespective of when such person may have become a missing person; To initiate an inquiry and/or investigation into the whereabouts and/or circumstances of disappearance of a missing person pursuant to a complaint made to the OMP or on the basis of information received from previously established Commissions of Inquiry, Commissions on missing persons or Commissions which have inquired into allegations relating to disappearances or missing persons; To take all necessary steps to investigate cases of missing persons, including but not limited to the following; To procure and receive statements, written or oral,

and to examine persons as witnesses, including through the use of videoconferencing facilities; 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/her possession; 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;To establish a process to accept confidential information or information in camera,

if required, to help ensure personal security for victims and witnesses; To establish a process to accept information on the condition of confidentiality; To apply to the appropriate Magistrate's Court having territorial jurisdiction, for an order of Court to carry out an excavation and/or exhumation of suspected grave sites, and to act as an observer at such excavation or exhumation, and at other proceedings, pursuant to same; To request assistance necessary for the achieving of its mandate, from any State, governmental, provincial, or local authority or agency, or any officer thereof.

Notwithstanding anything to the contrary in any other written law or regulation made thereunder, any such authority, agency or officer to which a request for assistance is made by the OMP shall forthwith render such assistance. Such assistance shall include but not be limited to providing information and producing documents in the possession of such authority, agency or officer; To authorize a specified officer of the OMP, to enter without warrant and investigate, at any time of day or night, any place of detention, police station, prison or any other place in which any person is suspected to be detained, or is suspected to have previously been detained in, by the State or any State agency, instrumentality, or any officer of the State, and to examine, make copies of, extract from,

seize and retain, any object that is deemed necessary for the purposes of any investigation being conducted by the OMP; To make an application to the Magistrate having territorial jurisdiction, for the issuance of a search warrant, to enable Police or specified officers of the OMP, To search any premises suspected to contain evidence relevant to an investigation being conducted by the OMP, and to examine, make copies of, extract from, seize and retain, any object that is deemed necessary for the purposes of any investigation being conducted by the OMP; To refer, after due consultation with the complainant, to the police or any other relevant law enforcement authority all cases of missing persons that have been brought before the OMP not falling within the definition of the expression 'missing persons' as defined in this Act. Where it appears to the OMP that an offence within the meaning of the Penal Code or any other law, has been committed, that warrants investigation,

the OMP may, after consultation with such relatives of the missing person as it deems fit, in due consideration of the best interests of the victims, relatives and society, report the same to the relevant law enforcement or prosecuting authority; Provided that where a witness consents, the OMP may also inform the relevant authority, of the details of such witness, in order to enable such relevant authority to secure a statement from such witness to be used in the process of investigation.

Even though the Bill in essence is for 'Searching and Tracing', in reality when families of the disappeared inform the circumstances of their loved ones disappearances, it will inevitably point fingers of those involved of this crime. Identifying those responsible is the first step to bring those involved to face justice and punishment.
If victims cannot identify who was responsible, then this Bill will not have credibility and will strengthen other steps to boost the process.

the fear
National Peace Council Spokesperson, Jehan Perera says "The fear of the Sinhalese, and the military, is that the transitional justice process is meant to punish the military personnel who fought in the war and finished the LTTE. The fear is that most or all of the military are being set up for punishment. The Foreign Minister says it is not so.it is only the black sheep who did war crimes will get into trouble, and by cleansing the military of the black sheep, the rest of the military, and the vast majority in the military can absolve their names which is currently blackened."

Perera explains the process of accountability possibly would take place quite a bit later, when it is politically possible to do so. "This is called a phased approach, doing one thing at a time, and waiting for the correct time to do what has to be done. We might have to wait a while till the sea becomes more calm, or else the ship might sink, and all of us might go down with it."
Writer Mark Salter, UK based expert on Sri Lanka's political scenario explains thus: "At its core transitional justice is partly about undertaking the delicate balancing act of attempting to satisfy at both sides core/key needs and demands. A political approach to conflict resolution is only possible if you have the will. Furthermore, the transitional component is essentially premised on the understanding that in such contexts, justice will not be perfect, will not satisfy everyone's demands - maybe not even their core needs - will leave a country with plenty of work still to do, in other words."

The common man's sufferings can only be consoled by the government it voted for and they mainly vote anticipating that they would be cared and protected but should not be 'politically handled'.
As Martin Luther King said, "And there comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must do it because Conscience tell him it's right.

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