( Excerpts of the speech by the leader of the opposition during the parliamentary discussion on PLAN OF ACTION REGARDING VICTIMS OF ENFORCED DISAPPEARANCES AND PERSONS held in custody FOR A LONG PERIOD OF TIME on 08th March 2016, See full speech at the end.)
I thank you, Mr. Deputy Chairman of Committees, and the House for the leave granted to me to raise the following matter of urgent public importance, on the Adjournment of Parliament today.
Sir, I move the following Motion with regard to a matter of urgent public importance that I wish to raise.
“The current position of the State/Government in regard to persons who have been victims of enforced disappearances and other disappearances and persons who continue to be held in custody under the Prevention of Terrorism Act in judicial proceedings where
i. The trial has been concluded and persons sentenced.
ii.Where persons have been charged and the trial is ongoing, and
iii. Where persons have not been charged but continue to be in custody.
Though initiatives have been taken by the State/Government to inquire into this issue and though a long period of time, very many years, have lapsed, there has been no tangible effective final result, so as to mete out justice and alleviate the extreme trauma experienced by the families and next of kin of all these persons.
This continuing uncertainty is a serious impediment to the commencement of the process of reconciliation, and it is therefore imperative that the State/Government should bring this state of uncertainty to an end, through a definite plan of action that will immediately mete out justice and set in motion the process of reconciliation and end the extreme trauma of these families and next of kin. It is incumbent that the Government defines its immediate action plan in this regard.”
Sir, it would appear from [the] definitions that the persons who are perpetrators of enforced disappearances are either persons who act on behalf of the State or persons who act with the explicit or implied consent of the State. We are concerned with disappearances that occurred at the hands of the State. The responsibility for such disappearances is primarily that of the State. We are also concerned with disappearances that had occurred at the hands of the LTTE, because we know that there were persons taken into custody by the LTTE, who have also disappeared. They may not strictly come under the term “enforced disappearances”, but all persons taken into custody by other paramilitary groups collaborating with the State would come within the definition of “enforced disappearances”. Since, however, it is accepted by everybody that all these disappearances occurred in the course of the armed conflict, we are concerned with all disappearances, both of civilians and even military personnel. In regard to disappearances that had occurred at the hands of officials of the State or persons acting with the implied or explicit consent of the State, while the State is answerable, the State is also, in a sense, bound to perform its duties in regard to the search for persons who may have been taken into custody even by the LTTE, if that be possible.
The first Commission to be set up recently was the Lessons Learnt and Reconciliation Commission, set up in May, 2010. It came up with its Report in November, 2011. They recorded extensive evidence in regard to disappearances, enforced and involuntary, and also other disappearances. I must also mention that that was the Commission appointed recently, but there were other Commissions appointed earlier, during the incumbency of President Chandrika Bandaranaike Kumaratunga where the issue of disappearances all throughout the country was addressed. Sir, I would read some of the Recommendations made by the Lessons Learnt and Reconciliation Commission subsequent to their investigations. I would read paragraph 9.47 of the Report of the Commission which states, I quote:
“The Commission wishes to emphasize that it is the responsibility of the State to ensure the security and safety of any person who is taken into custody by governmental authorities through surrender or an arrest.”
Paragraph 9.48 states, I quote:
“A comprehensive approach to address the issue of missing persons should be found as a matter of urgency as it would otherwise present a serious obstacle to any inclusive and long-term process of reconciliation.”
Paragraph 9.49 states, I quote:
“The Commission also emphasizes that the relatives of missing persons shall have the right to know the whereabouts of their loved ones. They also have the right to know the truth about what happened to such persons, and to bring the matter to a closure.”
Sir, those are certain paragraphs from the Report of the Lessons Learnt and Reconciliation Commission which places the responsibility entirely in the hands of the State. Four years have lapsed since these Recommendations were made by the Lessons Learnt and Reconciliation Commission. What has the Government done in the last four years to implement these Recommendations of the Lessons Learnt and Reconciliation Commission?
There was yet another Commission appointed – the Paranagama Commission on 15th August, 2013. This Commission is yet sitting; the Commission was also given a second mandate on 15th July, 2014. This related to facts and circumstances surrounding the loss of civilian life and violations of international law. A team of international experts were also appointed to assist the Commission. It is somewhat strange that the Commission was given a second mandate beyond the scope of the first mandate before it submitted its Report on the first mandate. The Commission has submitted its Report on the second mandate, but has submitted only an Interim Report on its first mandate.
The Commission has, as at 15th August, 2015, received 17,329 complaints from families of missing persons, of course this figure varies, and there are other Reports which seem to suggest a slightly higher figure.
There are also reports that about 5000 military personnel went missing. That is also a matter which needs to be investigated in regard to their whereabouts if they are alive. It would seem Sir, that in regard to these enforced disappearances, the persons responsible for such enforced disappearances, particularly in recent years, acted with a complete sense of impunity. They seemed to have come to the conclusion that the arm of the law would never reach them and that they could do whatever they wanted. They seemed to have had the guarantee that high persons in governance, in authority, would protect them and that they would never have to face any consequences as a result of being responsible for such disappearances. We know that most of what happened, if not all of what happened, happened during the term of the previous Government.
This matter is referred to in the Report submitted by the Paranagama Commission. I might refer briefly in regard to some of the matters that Report deals with. It states,
“The primary responsibility for preventing disappearances and ascertaining what has happened to people reported missing lies with the State. Disappearances are a tragedy not just for the individual but also for the families. The problems they faced are psychological, legal, administrative, social and economic.” It further states, “A great many families of missing people face economic difficulties linked directly with the disappearance, and are unable to meet their needs in terms of food, health, housing, or education of children.”
Most of those who disappear are adult men, so many families have lost their main breadwinner; often women then become heads of household and face limited options of earning a living. All this is very interesting. This is contained on paper; it is contained in reports. But, what has the Government done; what is the Government doing? The purpose of this Debate, Sir, is to find out from the Government what its Action Plan is, at least in the immediate future.
Sir, the unity and territorial integrity of Sri Lanka is sacrosanct. All of us only want a more united and unified Sri Lanka, a better Sri Lanka where the universal principles of equality and justice prevail and are preserved, a more prosperous Sri Lanka where all Sri Lankans will lead a better life and an inclusive Sri Lanka where all of Sri Lanka’s citizens are included, not one where some are included and others excluded on parochial grounds.
Sir, I have placed before the House some of the thoughts of the Government as set out in the Resolution adopted by the UN Human Rights Council, co-sponsored by the Sri Lankan Government.
The agony of several thousands of families of these victims of disappearances cannot continue indefinitely. A decision needs to be arrived at as to whether the disappeared person is alive or not. If he or she is alive, his whereabouts should be made public; if not, other suitable and appropriate steps should be taken to reconcile the families with such reality and bring calm and normalcy to their lives. Truth, justice, reparation and all necessary steps to ensure non-recurrence must become effective urgently. This is the responsibility of the Government and I would urge that the Government defines a plan that would provide definite relief to these much traumatized families.
Now, Sir, having dealt with the question of missing persons, I do hope that what I have said will be taken into consideration by the Government and that the Government will act without delay and act with a certain definite objective to be able to bring this question to a closure in some appropriate way so that the families will be satisfied and accept, maybe painful decisions, if that is the only decision that can be arrived at. Whatever arises, other steps will be taken to bring those persons out and make relief available to the respective families so that the families will be adequately compensated. There will be adequate reparation, adequate measures taken to give them peace, to give them tranquility, to enable them to start normal lives and forget the past.
Sir, I would now like to deal with the question of persons in custody. I do not want to go into figures. There are some persons who have come out on bail; there are some persons who have been convicted and who have been sentenced who are yet in jail; there are some persons against whom cases are pending; there are some persons who have not been charged. These are the different categories of persons. Nineteen persons who have not been charged are still in custody. Three convicted persons have been released: one by His Excellency the President and some others have completed their sentence. I believe, there are about 100 cases that are pending in the High Court. All these persons are still in custody except those persons who were recently released on bail.
This is not the first time that prisoners are sought to be released in special circumstances. They are not charged with crimes against society. They are being charged for acts which have a political dimension. Inequality in treatment between citizens, based on considerations that should have no relevance, is not compatible with transitional justice. In 1971, you have treated prisoners in a certain way. In 1988 and 1989 you have treated prisoners similarly. Why are you not treating prisoners now in the same way?
The Government should not be afraid to do the right thing. That is why the Government was changed. Justice must not be denied on the basis of slogans. There would always be persons who will raise slogans and exaggerated fears. Let us do what the great religions- Buddhism, Hinduism, Islam and Christianity- that we follow teach us. Does Buddhism not teach us to forgive and forget?
How can you justify holding persons under the Prevention of Terrorism Act any longer, a law which you yourself have unequivocally condemned as being draconian in many ways, particularly when these persons have already been in custody for long periods of time, sometimes as much as 10 to 15 years and when it is almost six years since the war came to an end. If those persons have been convicted and sentenced by now some of them should have come out; lots of them should have come out.
The Mahinda Rajapaksa Government released some 12,000 persons who were LTTE cadres, who fought against the State, after rehabilitation. They may have had their own reasons for doing that. But they did that. Why are you afraid to act? Did those cadres also not rebel against the State and did Mahinda Rajapaksa not release12,000 of them? This is the question that is now being posed by the persons in custody. We have no answer to this question. There were some top LTTE cadres; one of them became the Chief Minister of the Eastern Province and some of them were in the Central Government as Ministers. One person who had been an arms procurer engaged in all manner of crimes and who was wanted by Interpol received right royal treatment. He was brought here and given right royal treatment. None of these persons raised slogans against them; none of these persons raised slogans against those acts. Why are you concerned about the slogans now being raised?
I found that one of the persons in the Opposition has said yesterday that by releasing the LTTE cadres, you are going to create Eelam. Can anything be more stupid? Can anything be more absurd? After the conclusion of the war, has there been one single act indicative of a revival of violence? Surely these persons are entitled to ask that they be released. Some of these persons were protected by the MR Government. No slogans were raised at that time. Why are you hesitant to act? Tamils in custody in prisons have had bad experiences. I do not want to refer to such incidents. These persons are the breadwinners of their families. The time has surely come for them to be integrated with their families and for them to start life afresh.
We have discussed this matter with both His Excellency the President and the Hon. Prime Minister. I must say that both the President and the Prime Minister were quite positive. In fact, one day at a conference in Parliament presided over by the Hon. Prime Minister, where the Attorney-General’s staff were present, police officials were present and many of us were present. We discussed the matter and there was a decision taken to appoint a committee which would look at this issue not purely legally but politically because these have a political dimension and take steps to release these people. Unfortunately for certain parochial reasons that committee did not become functional. I think, the time has come for the Government to take some such decision and arrive at a conclusion in regard to this matter.
There has to be a political decision. This is not purely a legal issue. They are not charged with having committed crimes against society. They are charged with crimes which have a political dimension; with acts which had a political motive. Political decisions were made in the past, in 1971, in 1988 and in 1989 when you released a large number of people who were held in custody. Why can you not take the same decision now? Are the prisoners not justified in concluding that you are discriminating against them and would that not be, before long, the view of the international community too?
Read the full speech as a PDF:Hon.Sampanthan’s speech-8.3.2016