By Chandra Jayarathna
In terms of the invitation published in the Media under your hand, dated 31st October 2013, calling for written submissions, I am pleased to make the under-noted submissions:
The Commission should interpret the scope of its Terms of Reference as set out in the Warrant issued by the President, taking cognizance of the reasons and historical background leading to the appointment of the Commission, the expressed recommendations of the Lessons Learnt and Reconciliation Commission and the expectations of the family members of missing persons.
As the main intention of the investigation is to systematically address all complaints of missing persons, the Commission needs to initially make public, a certified list of complaints of missing persons followed by verification whether such persons are living, dead or in legal custody through an investigation of the their current status and their likely whereabouts, where applicable.
The Commission also needs to extend the scope of their terms of reference to include the investigation of, where necessary, the circumstances leading to disappearances and the associated failure of law enforcement personnel in upholding the rule of law. In addition the Commission should address issues of legal redress and compensation to family members for the death or disappearance of their loved ones.
Other significant consequences of disappearances which need to be addressed are livelihood support to families, safety, security and assistance in obtaining death certificates where applicable. Psycho-social support and rehabilitation treatment to family, where necessary, in addressing post traumatic stress disorders should also receive the attention of the Commission. State assistance is important to fulfil funeral rites in bringing finality to loss of loved ones in order to fulfil the envisaged process of truth and reconciliation.
The Commission should be flexible enough to accommodate fresh complaints of missing persons made as a mark of renewed public confidence in the inquiry process.
Last but not least, the commission needs to make robust, effective and unambiguous recommendations to prevent or at least minimise disappearances and abductions that may arise in the future.
In tabulating the list of missing persons, the Commission should expand their scope to cover the entire island and not only to the Northern and Eastern Provinces.
Cover all locations not only disappearances/abductions from their places of residence
Extend the cut-off date for inquiries on missing persons beyond the specified date of May 19, 2009 to October 31, 2013 in order to include post-conflict disappearances.
In addition to providing the opportunity for any person to give evidence in camera as provided for in the Commissions of Inquiry Act, the Commission should also ensure the following:
Widely publicise the specific and general witness protection framework that would be adopted to benchmark the best international practices and which are expected to apply in Sri Lanka in the future following the enabling statute being enacted as recently reported to have received Cabinet approval
Make public an interim report of their findings and recommendations prior to submitting a final report
Make arrangements to set up and have in place an effective and interactive web site for effective public engagement, public awareness and information, and make appropriate arrangements, similar to the LLRC hearings, to facilitate a secure, uninterrupted and unrestricted access to the public in hearings and engagement in order to assist witnesses, citizens and civil society representatives in attending and participating in the hearings.
The Commission should deem it necessary to meet public and civil society expectations as expressed by the “Voices” of the citizens and Civil Society as expressed in the Media and as duly submitted to the Commission in written representations.
The Commission also needs to take cognizance of the commendable broad interpretation of and the flexibility in expanding the terms of as recently adopted by the Commissioners of the Lessons Learnt and Reconciliation Commission of which some leading members are members of the present Commission.
In order to meet international standards of best practice in good governance and rule of law applications, the Commission should:
Review all previous reports of similar Commissions of Inquiry as duly submitted and follow up and report on the due implementation or non implementation thereof, as well as the consequential impact on citizens and society and what remedial steps are recommended for strategic action
Bench mark their findings with the findings and recommendations of comparable situations in other countries/societies as well as those published in case studies and academic research in Sri Lanka and overseas.
(The article is based on a letter written by the writer to H. W. Gunadasa, Secretary to the Commission. The Commission to Investigate into Complaints Regarding Missing Persons)