Image: On the International Day of the Disappeared, 30 August, Colombo. © Sunanda Deshapriya.
The OMP made such progress amidst an array of challenges including lack of cooperation from key state actors and continuous efforts to deny the rights of families of the missing and disappeared, says Saliya Pieris P. C. , Chairperson, Office on Missing Persons issuing a statement on the National Day of the Disappeared in Sri Lanka.
The full statement follows:
The National Day of the Disappeared is commemorated today by families of the missing and disappeared in Sri Lanka and organisations supporting them. The Office on Missing Persons (OMP) acknowledges the tens of thousands of citizens of our country who have been forcibly disappeared and the courageous efforts of their family members to search for their missing loved ones. In its Interim Report of August 2018, the OMP recommended that today be recognised as the official National Day of the Disappeared in Sri Lanka. The OMP believes the commemoration of a National Day of the Disappeared is important to create public awareness, including among fellow state institutions, of the rights of the victims and their family members and to reject the denialism concerning the nature and extent of disappearances in our country.
The OMP acknowledges the critical contributions made over the past four decades by families in demanding answers from the State concerning their missing loved ones. The struggles of the family members have resulted in the explicit legal recognition of their rights, representing a symbolic break from past systemic impunity. Their struggle has also directly led to the establishment of the OMP, the first permanent, independent state institution with a primary mandate to search for and trace the fate and whereabouts of missing and disappeared persons. The OMP’s mandate extends to all disappearances that have occurred in Sri Lanka, regardless of the region or period in which the disappearance occurred, or the ethnicity or religion of the victim. The OMP also has a mandate to protect the rights and interests of family members of the missing and disappeared; make recommendations towards non recurrence and identify appropriate avenues of redress.
The success of the OMP is important not just for the families of the missing and disappeared and those who work with them but for all Sri Lankans. The extent to which we right those who have been wronged is a testament to the rule of law in our country and our solidarity as citizens.
Over the past year and a half, the OMP made progress not just in terms of symbolic gains but also in terms of operationalising its mandate, particularly in recruiting staff and establishing its offices; advancing investigations; and making interventions to secure the rights of family members. The OMP made such progress amidst an array of challenges including lack of cooperation from key state actors and continuous efforts to deny the rights of families of the missing and disappeared.
Recruitment of staff and establishment of its offices
At the outset of its establishment in February 2018, the OMP did not have any staff or physical infrastructure. As a result, the OMP was required to devote significant resources to recruit permanent staff and establish its offices. Following lengthy negotiations, the OMP obtained the required approvals to recruit permanent staff in December 2018 and commenced the process of recruitment in April 2019. The OMP received over 16,000 applications for a range of staff positions, and after reviewing all received applications, it has recruited and trained the first round of Victim and Family Support Officers who will be the first point of contact for family members. Additionally, the OMP provided training to its staff to engage with families of the missing and disappeared, in order to avoid causing further distress or trauma among the families.
At the outset of its establishment, the OMP determined that it would establish regional and sub-regional offices in areas most directly affected by disappearances to ensure effective access to its offices as recommended by the Final Report of the Consultation Task Force on Reconciliation Mechanisms. Over the past year, in addition to establishing its head office in Colombo, the OMP opened three regional offices in Matara, Mannar and Jaffna. The OMP plans to open a regional office in Batticaloa before the end of 2019. The OMP envisages that the regional offices will provide vital assistance to families including by accepting complaints, following up with district level state agencies on administrative issues and carrying out inquiries on individual cases.
The OMP faced serious challenges in recruiting staff at the approved government salary scales, which is often too low to attract candidates with specialised skills such as those required for investigations and tracing. The OMP is continuing to negotiate with relevant authorities in order to ensure that it can recruit experienced, skilled personnel that will be capable of effectively carrying out its core mandate. The OMP has also been constrained by various procedural rules and regulations of the State which has stifled its effective functioning.
With respect to its primary mandate to search and trace for the fate and whereabouts of missing and disappeared persons and to clarify the circumstances surrounding their disappearance, the OMP received information concerning individual cases of disappearances. Further the OMP began the process of analysing patterns and contexts of disappearances, especially with respect to incidents that have been substantively documented and are of public importance. The OMP received information from victims, family members, justice collaborators and state and non-state stakeholders. The OMP has conducted initial inquiries and conducted interviews with eye witnesses and called for further information from other state authorities.
Further the OMP has focused on improving its institutional capacity by receiving technical expertise and training from national and international actors concerning the planning, procedures and resources required for investigations, strategic approaches to identifying the whereabouts of missing and disappeared persons and the use of forensic science in excavations, exhumations and in the identification of human remains. The OMP also began developing its rules concerning the exercise of its investigative powers. The OMP together with the Ministry of Justice and Prison Reforms developed guidelines on the search of places of detention which was gazetted in.
Pursuant to its authority to act as an observer to excavations and exhumations, the OMP continued to act as an observer to the case of the Mannar mass grave at the Sathosa building in Mannar town (Case No B/232/2018). As of 16th January 2019, the investigation team has excavated the skeletal remains of 300 bodies over the course of 130 days. The OMP provided financial support to the excavations and submitted guidelines to the Hon. Mannar Magistrate to ensure that appropriate steps are adopted to secure public confidence in the investigation process and safeguard the chain of custody of the bone and teeth sample extracted from the site. Along with representatives of the families, the OMP observed the process of selecting and handing over six representative bone and teeth samples for radio carbon dating at Beta Analytics, a laboratory in Miami, USA.
In February 2019, the results of the carbon dating suggested that the remains are from a historical period ranging from 1404 to 1642 AD. The OMP in its submission to the Magistrate recommended that the results of the carbon dating should be considered in light of the analysis of all other available information, and that a determination as to the future course of the investigation should be made following the consideration of the comprehensive report. Following a meeting with the investigation team on 22 March 2019, the Magistrate extended the temporary order halting the excavations pending the submission of the comprehensive report by the full investigation team including the results of the carbon dating and other tests that have been completed pursuant to the orders of the Magistrate.
In its Interim Report of August 2018, the OMP made recommendations regarding interim relief for families of the missing and disappeared concerning the provision of financial aid, debt relief, housing, educational support, vocational training, livelihood development and employment quotas. In making its recommendations the OMP distinguished between reparations and relief and emphasised that acceptance of relief measures cannot be regarded as a waiver of the rights to reparations and justice.
In March 2019, in response to two of the recommendations made by the OMP, the Government proposed the allocation of 500 million Rupees in the 2019 Budget to support families of missing and disappeared persons, including members of the armed forces and police identified as missing in action, who have obtained Certificates of Absence (CoA). As part of the relief offered, the Government will award 6,000 Rupees per month to support families of all missing persons who have obtained a CoA, until final reparations are recommended by the Office for Reparations.
The OMP welcomes the announcements of these proposals; however, notes that there has been a delay on the part of the government in their implementation. The OMP advocates that in doing so the scope of the beneficiaries be broadened to include those who have not obtained CoAs, and that special consideration be provided to the most vulnerable families including those who are in situations of poverty, single-headed households, families that are caring for children, the elderly or persons with disabilities and victims of sexual violence.
Certificates of Absence
The OMP is mandated to issue Interim Reports to families of the missing and disappeared under a special procedure which enables them to obtain CoAs from the Office of the Registrar General. A CoA is a legal document which provides for the status of a missing or disappeared person and enables families of the missing and disappeared to access administrative and financial services and other benefits in the absence of a Certificate of Death. The OMP has engaged with the Office of the Registrar General to fast track the process of obtaining CoAs in accordance with the available legal provision stipulating a special procedure under the Registration of Deaths (Temporary Provisions) (Amendment) Act No. 16 of 2016, and to assist the families who have previously obtained a Certificate of Death with respect to a missing or disappeared loved one, to be able to make an application with the relevant supporting documentation for the cancellation of the Certificate of Death and the issuance of a CoA.
Further, in response to representations made by families concerning challenges they experienced due to a lack of clarity as to the validity and purpose of CoAs, the OMP made interventions to the Secretary to the Ministry of Foreign Affairs, all foreign missions established in Sri Lanka and the Governor of the Central Bank.
Register of missing and disappeared persons
The OMP has an explicit duty to collate data related to missing and disappeared persons held by Government Departments, Commissions of Inquiry (COIs) and Special Presidential COIs and centralise all available data within a database. The records of COIs are deposited at the Department of National Archives (DNA) under Presidential Seal for a period of thirty years from their creation. The OMP has obtained approval from the Secretary to the President to access and digitise records of COIs pertaining to missing and disappeared persons and has entered into a Memorandum of Understanding with the DNA to do so. Centralising such records will consolidate the efforts of past COIs and minimise the burden on families to report information that had been provided to past mechanisms.
Legal and policy interventions
The OMP made key law reform recommendations and policy interventions relating to the CoA, Draft Law on Inquests, Standard Operating Procedures on Mass Graves, the Counter Terrorism Bill and the Emergency Regulations of 2019. These interventions were made with a view to facilitate non-recurrence of enforced disappearances, protect the rights of families of the missing and disappeared and ensure that the broader legal framework explicitly recognises the mandate of the OMP.
The OMP recalls that over four decades, in multiple contexts including during the southern insurrection, the armed conflict in the North and the East and during periods of civil and political unrest, enforced disappearances have been prevalent in Sri Lanka. Such is the extent of its prevalence in the country, that Sri Lanka has one of the highest rates of reported enforced disappearances in the world. Every district in Sri Lanka has been touched by the devastating consequences of widespread enforced disappearances. Yet, sections of the general public and key stakeholders continue to deny these facts about our past. The OMP has an explicit duty to raise awareness concerning disappearances, and in 2019 it launched a communications campaign titled “Pain never disappears. Let’s fulfil our responsibility to find the truth.” to raise awareness of multiple contexts in which disappearances have occurred, their impact on the families, and to raise awareness of the mandate of the OMP.
Justice related recommendations
The OMP believes that ensuring justice for enforced disappearances is a core legal obligation of the State. The OMP acknowledges justice has been a central demand of the families of the missing and disappeared and believes that the prosecution of perpetrators is essential to ending the systemic impunity which enabled widespread disappearances and ensuring its non-recurrence. The OMP welcomes the establishment of the Office for Reparations; however, observes that the lack of a specialised judicial mechanism to ensure justice for enforced disappearances has undermined the confidence of the families of the missing and disappeared in the State.
The OMP made a number of recommendations relating to ensuring justice in August 2018. The OMP recommended a number of amendments to the Enforced Disappearances Act No. 5 of 2018, including that it be amended to recognise the continuing nature of the crime and to capture the full range of perpetrators that may have committed the crime of enforced disappearances. The OMP further recommended that law enforcement authorities expedite and give the highest priority to the investigation and prosecution of enforced disappearances. The Minister of Justice and Prison reforms and the Hon. Attorney-General and the Inspector General of Police have engaged with the OMP, whilst the Secretary of Defence, the Commanders of the Sri Lanka Army, Navy and Airforce have corresponded with the OMP concerning the implementation of the OMP’s recommendations. Whilst the OMP notes such efforts, it calls for more robust collaboration with the OMP with a view to implementing its recommendations. The OMP observes that insufficient progress has been made, and in particular that a number of high-profile cases involving abductions languish before the courts, without substantive progress of the investigations.
Promotion and transfer of suspected or accused officers
The OMP recommended that members of the armed forces and police who are named as suspects or accused in criminal actions relating to abductions and enforced disappearances be suspended pending the final determination of such cases. In particular, the OMP recommended that state actors ensure that suspected officials are not transferred, promoted or offered any other office in the armed forces, police or the public service while cases against them are continuing.
The Army, Navy and Airforce have responded to the OMP, noting that whilst provisions exist under the applicable legal framework to withhold the pay of officers against whom there is a prima facie case or to suspend officers against whom an indictment has been served; such accused officers are entitled under Article 13(5) of the Constitution to be presumed innocent until proven guilty. The OMP acknowledges that all citizens including state officials are protected by the presumption of innocence until proven guilty; however, such protection should not be interpreted to permit individuals accused or suspected of serious crimes to hold positions of public trust nor be placed in positions of authority in which they would have the opportunity to interfere in ongoing investigations misusing the powers that they wield. The OMP observes that ordinarily public servants who are accused of serious crimes are likely to be interdicted and therefore be prevented from carrying out their official duties, pending their exoneration.
Role of the Attorney-General in habeas corpus applications
Further the OMP observed that there is an inherent conflict of interest with the Attorney-General’s Department being required to act as both prosecutor of alleged enforced disappearances as well as to defend the respondents in legal proceedings including in relation to habeas corpus writs. The OMP recommended that in habeas corpus applications the Attorney-General’s Department not represent the interests of persons who are alleged to be perpetrators but rather should represent the interests of the State in a manner that would advance the fundamental rights of citizens.
The OMP observes that although the Attorney-General is authorised to defend public officers in civil and criminal actions, the Attorney-General has the authority to exercise discretion to decline to do so. In cases where a public officer has committed a criminal act, the Attorney-General is required to prosecute such cases. In the past, the Attorney-General has declined to defend public servants accused of torture, especially in cases where leave to proceed had been granted in fundamental rights applications before the Supreme Court. The OMP looks forward to continuing to engage with the Hon. Attorney-General to implement its recommendations.
Threats and intimidation of families and justice collaborators
The OMP notes the cooperation extended by the Secretary of Defence and his directions to the Sri Lanka Army, Navy and Airforce and the Police to comply with all justice related recommendations made by OMP. The OMP notes the instructions issued by the Commanders of the tri-forces and the Inspector General of Police to officers under their command to adopt measures that will ensure the protection of family members of the missing and disappeared and other justice collaborators, and that such officers refrain from participating in action which may amount to harassment or reprisals.
Whilst noting the cooperation offered in principle by the Secretary of Defence, the tri-forces and the Sri Lanka Police, the OMP cites with grave concern that it has continued to receive reports of acts of intimidation and surveillance perpetrated allegedly by members of the security sector against families of the missing and disappeared and justice collaborators. In particular, the OMP has received complaints concerning attacks against legal representatives, justice collaborators and family members who are presently party to proceedings before courts. In response the OMP has intervened in specific cases and followed up with the authorities to ensure the security of the concerned individuals and the progress of the investigations and legal proceedings.
The OMP is aware its progress must be measured against the hopes and expectations of the families of the missing and disappeared, some of whom have waited over three decades for answers as to the fate and whereabouts of their missing loved ones. The OMP recognises that among the families of the missing and disappeared are those that continue to protest against the OMP. The OMP respects their right to protest and continues to engage with these families. The OMP recognises that families that protest against the OMP and those that cooperate with it have courageously continued their searches despite the excruciating uncertainty of not knowing the fate of their missing loved one, facing threats and intimidation and grappling with the lack of responses from multiple state institutions. Whilst acknowledging the long, complex road ahead of us, my fellow Commissioners and I reiterate our commitment to realising their rights as citizens of this country to know the truth and realise justice for their missing loved ones.
Saliya Pieris P. C.
Office on Missing Persons
Statement issued by the Office on Missing Persons on the National Day of the Disappeared, 27 October 2019