The Office on Missing Persons: A New Chapter or Another Empty Promise?

BHAVANI FONSEKA on 08/18/2016

11 August 2016 was an important day for the victims of past abuses in Sri Lanka. This was when Sri Lanka’s Parliament enacted legislation to establish the first permanent entity to investigate and inquire in enforced and involuntary disappearances and missing persons. For the victims, many who have gone before numerous investigations with no follow up, the Office on Missing Persons (OMP) may finally be able to provide them answers and end the silence.

While 11 August was significant for the victims, the events in Parliament demonstrate the immense challenges faced by Sri Lankans in terms of reckoning with the past. Although the OMP bill was gazetted by Parliament in May 2016 and ample time was provided to challenge and move amendments, a few MPs acted in the most despicable manner to disrupt parliamentary proceedings and essentially attempted to scuttle any hope of thousands finding the truth. The antics of a few MPs robbed many others of a debate to discuss a critical issue relevant to reconciliation and for Sri Lankans to attempt to confront the past. Although that opportunity was missed, the government ensured that the bill was not held hostage to the antics of a few. With the support of all the key parties including the TNA and JVP, the legislation was passed in Parliament, thus enabling the OMP to be established.

Although we now have legislation establishing a permanent body to investigate into disappearances and the missing, no official figures are available on the exact numbers of disappeared and missing in Sri Lanka. The recently concluded Paranagama Commission received over 25,000 complaints of missing persons. Over the years multiple commissions have received thousands more complaints. This demonstrates the thousands across Sri Lanka continuing to search for answers. In many instances family members go from one investigation to another, clinging to the hope of finding their loved ones or at the very least, getting answers. The search, despite the many difficulties and challenges, is a basic ask: what happened to my loved one?

What is the OMP?

The OMP is an independent office with seven members appointed by the President on the recommendation of the Constitutional Council. The members of the OMP are meant to be independent individuals with expertise on human rights, international humanitarian law, humanitarian issues, fact finding among other areas. There is also a fixed term of three years and limitation of two terms per member. The office will be headquartered in Colombo with the option of having field offices. Many victims have been vocal that the OMP must have field presence which will facilitate access for them to engage with it.

The OMP has the mandate to trace, search and investigate into complaints brought before them on cases of both the missing and disappearances. Thus, a crucial and basic point that must be raised at the outset is that the OMP is a truth seeking body, a permanent entity that victims can engage with in the search for answers. Due to its permanent nature, there is no fear of whether the mandate will be renewed or not, as faced by many commissions. This provides for the OMP to conduct investigations thoroughly and not be rushed by any deadlines. The legislation provides for a tracing unit but specifies that the OMP also has the discretion to establish other units or divisions, ensuring that the office is able to obtain the necessary expertise and technical assistance required to investigate into cases, some spanning decades.

A missing person is broadly categorised in the legislation as those affected by the conflict in the North and East of Sri Lanka, its aftermath or a person classified as “missing in action”, or affected by political unrest or civil disturbances or as a case of enforced disappearance as defined in the International Convention for the Protection of All Persons from Enforced Disappearances. The broad categorisation ensures that both cases of enforced disappearances and missing persons are included but the downside of this is the fear of overwhelming the OMP with a large number of complaints. Furthermore, despite the mandate to examine both enforced disappearances and missing, a concern raised by some victims is the absence of a reference to enforced disappearances in the OMP’s title. This hopefully can be clarified in the advocacy around the OMP, ensuring that all victims understand the broad scope.

The mandate of the OMP very specifically provides for specific powers to investigate and these powers are clearly articulated in the legislation. Some critics have deliberately distorted facts by claiming that the OMP is a Trojan horse and will open the door to accountability of the war heroes. The question to those critics is how such a task is possible when the OMP mandate has no specific mention of prosecutions or trials but only provides for investigations that can eventually give answers to victims. For those who maybe unaware, the right to truth is a basic fundamental right of victims and one championed by successive Sri Lankan governments. One assumes the rationale to appoint numerous past commissions was meant to unearth answers, although many who went before such commissions are still waiting for answers.

Other critics refer to the exclusion of the Evidence Ordinance in the investigations of the OMP, with a possible situation where false evidence is collected for prosecutions. The point above stands: the OMP is merely a fact-finding body with a mandate to search for answers with no prosecution powers. The Evidence Ordinance is only applicable for those pursuing criminal justice. Similar provisions can be found in the Human Rights Commission Act.

There are also some commentators who make factually erroneous statements with regards to the inapplicability of the newly enacted Right to Information Act to the OMP. This is false. The Right to Information Act will apply to the OMP except for a limited instance where information is given in confidence. One should read Section 15(1) of the OMP Act which provides that “members, officers, servants and consultants of the OMP shall preserve and aid to preserving confidentiality with regard to matters communicated to them in confidence. The provisions of the Right to Information Act shall not apply with regard to such information”. This should then be compared to the Nineteenth Amendment to the Constitution, enacted by Parliament in 2015. Article 14A contained in the Amendment introduced the right to information provision with specific restrictions in the application including “such restrictions prescribed by law as are necessary in a democratic society….for preventing the disclosure of information communicated in confidence….”. Similarly, restrictions on accessing information provided by a third party to a public authority in confidence is protected in the Right to Information Act 2016 within Sections 5(1)(f),(g),(h)and (i).

If Article 14A to the Constitution and the Right to Information Act are read in full, one will be able to ascertain that only a few restrictions are placed, with good reason, on accessing information. Everything else is open to the ambit of the Right to Information Act. Thus, it is clear that the OMP is not precluded by the Right to Information Act. On the contrary, it will need to provide information unless in specific instances as provided by law. It is indeed unfortunate that commentators and critics passing judgement on this issue fails either to fully comprehend relevant constitutional provisions and legislation or deliberately attempts mischief by spreading false information, or possibly both.

Apart from the legal safeguards, there is also the practical issue of requiring a degree of confidence in the information given by a victim and/or witness. Past experiences highlight situations where victims and witnesses were threatened, harassed among other things, for engaging with official investigations. The Paranagama Commission was the most recent commission where individuals faced security threats and surveillance. Any independent investigation genuine in its mandate to search for the truth will need to ensure that information provided in confidence is secure and that identities are protected. The absence of such a safeguard will not generate trust with the OMP and may lead to possible protection concerns.

How is the OMP different to past initiatives?

Sri Lanka has had a long list of state driven investigations including numerous commission of inquiry. Several have solely been on enforced disappearances and/or missing persons. Thousands of victims have gone before these numerous initiatives, recounting past events and abuses. Many have done this multiple times, going from one investigation to another, repeating experiences to multiple persons and entities.

Several times I witnessed families going before recent commissions such as the Lessons Learnt and Reconciliation Commission (LLRC) and the Paranagama Commission, to speak about their disappeared and missing loved ones and plead for answers. In many instances their dignity was robbed. For most, their questions remained unanswered. Such experiences involved complex emotions of hope, frustration, anger, fatigue, anticipation, disappointment and much more. For many, state initiatives by successive governments have failed and there is no trust another commission will make a difference.

All of the above begs the question why the OMP will be different to past initiatives?

Firstly, it is not an investigation with a limited time span but a permanent body that is meant to have the necessary resources and expertise to investigate cases of disappearances and missing
It is established by an Act of Parliament with specific powers to investigate and is an improvement on the structurally flawed commissions appointed previously.
The OMP has no restrictions in terms of time period or geographic area and can look at all cases of disappearances and missing
Anyone can go before the OMP to give information or make a complaint
OMP can share information with victims, without waiting for others to take action
OMP can work with other government entities to ensure victims are provided reparations and steps are taken to prevent recurrence of violence
The OMP’s protection powers can ensure security issues are addressed and victims do not face reprisals for engaging with the OMP. Similarly, information provided in confidence to the OMP will be protected and witnesses do not need to fear reprisals for sharing such information.

These are welcome measures as it provides the OMP with resources, expertise and independence to work in a credible manner without the fear of interference and ensuring a victim centered approach is taken. It is now critical that the Government and others raise awareness of what the OMP is, provide it with required resources and expertise and ensure the victims are able to trust it as a credible mechanism to investigate and provide them with answers.

Why is the OMP important now?

Successive government have attempted and failed to provide answers to a significant number of people from across Sri Lanka on the whereabouts of their missing loved ones. Investigations, inquiries, committees and commissions over the years have all failed in this basic task of finding answers. Despite the lack of confidence with such initiatives, thousands continue to engage with the hope that the next initiative may provide answers. Failures with past initiatives and structural flaws are the very reasons for a new entity with the necessary powers to investigate and find answers.

Sri Lankans have been promised ambitious reforms. A new constitution is in the offing as well as reforms addressing reconciliation and development. The reforms hold the promise of a new Sri Lanka, an exciting time for many Sri Lankans. Despite this, a significant number across Sri Lanka do not know what happened to their loved ones. For these families, the promise of a new constitution and infrastructure are hollow. For them, the fundamental right to know, a right many of us take for granted, is still an illusion.

The OMP provides a chance to correct these wrongs. This is the time to go beyond the rhetoric and to establish a mechanism that can finally, after years of failed attempts, provide answers to the thousands still searching for their loved ones. It is also finally an opportunity to say Nunca Mas (Never Again).

Editors note: Also read The Process Behind OMP: Video interviews and OMP – When labels take precedence over content.