Open Letter to President Sirisena on Proposed Missing Persons Office

(Disappearances in Sri Lanka (c)sunanada deshapriya)

H.E. President Maithripala Sirisena,

We the undersigned wish to place on record the most urgent of our concerns and recommendations with respect to the proposed Office of Missing Persons (OMP), which we understand the government intends to establish in the near future. We strongly suggest that the Government rename the proposed Office as ‘Office of Missing and Forcibly Disappeared Persons’, so as to reflect accurately the mandate of the body. Further, we note with disappointment that the government has not yet shared its ideas for this mechanism with victims, civil society and the wider public. We therefore urge that it be done urgently.

We are also concerned about, and would like to draw the Government’s attention to continuing incidents of harassment and intimidation of victim families and activists that are not helpful in creating a conducive environment for public consultations or operationalization of the OMP mechanism. The continued use of the draconian Prevention of Terrorism Act (PTA), the lack of due process in carrying out arrests and resuming the use of white vans in the past month have heightened the sense of fear and insecurity among affected people.

The government has made a commitment to establishing such an Office on the basis of victims’ right to the truth, in an effort to address the cruel history of enforced disappearances that has devastated families and communities in our country. The points we have noted below form the minimal standards of credibility and effectiveness against which the proposed OMP must be assessed. We will continue to engage the government and others on other more detailed proposals from civil society regarding the proposed Office.

1. VICTIMS’ RIGHT TO TRUTH MUST BE FULFILLED: The relatives of persons who are missing and disappeared have continued to actively seek the truth about what happened to their family members, in the face of great hardship and direct threats to their safety, and sometimes over a period of decades. The lack of conclusive information about the fate of their family members is a source of untold ongoing suffering.  The right to know the truth cannot be compromised in any way, and on any grounds whatsoever. It requires that the OMP be mandated to seek and disclose to relatives of the missing and the disappeared the full and complete truth about the circumstances of their relative’s absence.  Victim families have the right to know the fate and whereabouts of the disappeared or missing person, and to know the identities of persons who bear responsibility for the disappearance. They also have the right to have remains returned to them in case of death. Moreover, families’ right to be informed of the progress and results of investigations must be protected. Article 24 of the Convention of Enforced Disappearances which the government signed and has committed to ratify states:

“Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard.”

The OMP must also recognize the collective dimension to the right to truth, and give effect to the public’s right to know the details and patterns of violations, particular in respect to enforced disappearances.

2. VICTIMS’ RIGHT TO JUSTICE CANNOT BE COMPROMISED: It is also of critical importance that victims’ right to justice including through criminal prosecution of perpetrators is ensured, and the OMP facilitates, rather than impedes the course of justice for crimes such as enforced disappearances. In this regard, we demand that tracing investigations and criminal investigations are conducted in tandem, and a suitable model is adopted to facilitate this coordination. We reject the idea that seeking truth may be separated from victim families’ right to justice, and insist that the pursuit of these two rights be recognized as complementary. In this regard, a model that excludes or insulates the OMP from sharing information gathered during tracing investigations with a criminal investigative process would be unacceptable. Information available to the OMP must be made available to other transitional justice mechanisms, with appropriate safeguards in the interests of protection of witnesses or victim families.

3, TRANSPARENCY IN THE PROCESS OF ESTABLISHING AND OPERATIONALIZING THE OMP: The process of establishing the OMP must be transparent, with sufficient opportunities for victims, civil society and the public to be consulted on the process. Furthermore, it would be unacceptable for this key ‘reconciliation’ mechanism to be finalized and presented in the lead up the 32^nd session of the Human Rights Council in June, without open discussion in Sri Lanka. To avoid this, we urge the Government to publicly release its draft proposals on the OMP. Further, we wish to emphasize the importance of ensuring that the OMP is transparent in its functioning and is not shrouded in secrecy. This includes ensuring that the OMP report periodically and publicly on its progress, and by respecting families’ right to be periodically informed on the progress and results of investigations.

4. THE OMP MUST BE INDEPENDENT, CREDIBLE AND WELL RESOURCED: The independence of the OMP must be assured, including by ensuring that appointments to the OMP are based on competence, experience and highest levels of integrity and are made through a transparent and independent process. It should meet the test of credibility in the eyes of affected people. Further, the operational independence of the OMP must be guaranteed by law, providing the OMP flexible powers with respect to staff selection, investigations and modes of work. Further, the OMP must be sufficiently resourced. The State must bear full responsibility for the OMP, while ensuring that the OMP is vested with effective powers and authority to seek funding from other sources. The capacity of the OMP to conduct forensic investigations—including by the participation of skilled personnel, and by having recourse to modern technology must be ensured. To further ensure the credibility of the OMP, the Government must bring to a halt pressure by local government officials to accept death certificates, and offer the promised certificate of absence as an alternative. Death certificates previously issued under duress must be converted into certificates of absence, unless the OMP is able to conclude that the victim is dead.
5. SUBSTANTIAL INTERNATIONAL INVOLVEMENT IN THE OMP: In Operative Paragraph 4 of UN HRC Resolution 30/1 which deals with transitional justice mechanisms including the OMP, the government committed to ensure that “each mechanism (has) the freedom to obtain financial, material and technical assistance from international partners…” In this regard, we reiterate the importance of international participation in these mechanisms. In particular, the OMP cannot succeed unless forensic and other technical skills are introduced into the mechanism through the participation of international experts and investigators.

6. CRIMINALIZING ENFORCED DISAPPEARANCES AND OTHER INTERNATIONAL CRIMES: In Operative Paragraph 7 of the UN HRC Resolution 30/1, the government committed to reform domestic law to allow for “the investigation and punishment of those most responsible for the full range of crimes under the general principles of law recognized by the community of nations…including those committed during the period covered by the LLRC”. Meeting this commitment requires the incorporation of international crimes into Sri Lankan law, as well as modes of liability under international criminal law, with retroactive effect. In Operative Paragraph 13 the government also committed to criminalize enforced disappearances without delay. It is a matter of grave concern that these basic commitments have not been fulfilled. We urge the Government to do so prior to the setting up of the OMP.

7. THE GOVERNMENT MUST COMMIT TO A COMPREHENSIVE TRANSITIONAL JUSTICE PLAN, AND SITUATE THE OMP WITHIN THAT FRAMEWORK: The OMP cannot be divorced entirely from the other proposed transitional justice mechanisms including the Truth Commission, Special Court, and Office of Reparations. Instead, the OMP must be situated within a comprehensive transitional justice plan, clarifying its linkages and division of labour with the other mechanisms. The government’s commitment to a comprehensive approach to dealing with the past will be undermined by a piece-meal establishment of individual mechanisms that does not follow a publicized plan of work. We urge the government to announce its draft comprehensive plans without delay.

Further, In Operative Paragraph 12 of the UN HRC Resolution 30/1, the government committed to review and repeal the PTA. This draconian piece of legislation has directly led to widespread impunity, torture, abduction and disappearance. In this context, the continued retention and application of the PTA will be incongruous with, and will serve to undermine the tracing of missing and disappeared persons under the newly established OMP. We therefore urge that the government take measures to repeal the PTA with immediate effect.
Thanking you,

Signatories;
Individuals

1. Ainslie Joseph
2. Amal de Chickera
3. Amalanayaki Amalaraj – Batticaloa
4. Ameer M. Faaiz
5. Gowthaman
6. Balasingham Skanthakumar
7. Bhavani Fonseka
8. Bishop Duleep de Chickera
9. Brito Fernando
10. Caryll Tozer
11. Chandra Jayaratne
12. Chandraguptha Thenuwara
13. Deanne Uyangoda
14. Deshamanya Godfrey Yogarajah
15. Malathi de Alwis
16. Muhammed Muzzammil Cader
17. Sonali Perera
18. Dinushika Dissanayake
19. Dulan de Silva
20. Emil van der Poorten – “In defence of civic and human rights”
21. Ermiza Tegal
22. A. Prabath Kumara – Badulla
23. Gamini Viyangoda
24. Gayathri Gamage
25. Herman Kumara
26. Hilmy Ahamed
27. Ian Ferdinands
28. Iromi Perera
29. Isabelle Lassee
30. Ishan Jalill
31. Ithayarani Sithravel – Trincomalee
32. Jayantha Dhanapala
33. Jensila Majeed – Mullaitheevu
34. Juwairiya Mohideen – Puttalam
35. Aingkaran – Attorney-at-law
36. S. Ratnavale – Attorney-at-law
37. Kalani Subasinghe
38. Kamala Vasuki
39. Kumari Kumaragamage
40. Kusal Perera – Journalist
41. Mahalaxumy Kurushanthan – Mannar
42. Mangaleswary Shanker
43. Manori Kalugampitiya – Journalist
44. Mario Arulthas
45. Marisa de Silva
46. Mohammed Mahuruf
47. Nicola S.
48. Nilashani Sreenika
49. Nimalka Fernando
50. Niran Anketell
51. Selvaratnam
52. N. Singham
53. Parakrama Niriella
54. Peter Rezel
55. Philip Dissanayake
56. Philip Setunga
57. Prabodha Rathnayake – Attorney-at-law
58. Prabu Deepan
59. Ajit Abeysekera
60. Jayantha Seneviratne
61. Kumar David
62. Rajany – Feminist, Jaffna
63. Fr. E. Sebamalai
64. Fr. J.C. Paul Rohan
65. Fr. Jeyabalan Croos
66. Fr. M. V. E. Ravichandran
67. Fr. Nandana Manatunga
68. Fr. Nishantha Gunaratne
69. Fr. Noel Fernando – Coordinator, Reconciliation & Peace Desk, Diocese of Colombo
70. Fr. S.V.B. Mangalarajah – President, Justice and Peace Commission, Catholic Diocese of Jaffna
71. Fr. Sarath Iddamalgoda
72. Fr. V. Yogeswaran
73. Jason J. Selvaraja – Assembly of God, Chavakachcheri
74. Sr. Helen Fernando HF
75. Sr. Nichola
76. Rohini Hensman
77. Ruki Fernando
78. C.C. Elankovan
79. Sampath Samarakoon
80. Shehan de Alwis
81. Shenali De Silva
82. Shreen Abdul Saroor
83. Sudarshana Gunawardana – Attorney-at-law
84. Balamurukan
85. Mathuri – Attorney-at-law
86. L. Jaufer
87. Udaya Kalupathirana
88. Vanie Simon – Ampara

Organizations/Networks

89. Action Against Apathy
90. Christian Alliance for Social Action (CASA)
91. Families of the Disappeared (FoD)
92. Future in Our Hands Development Fund
93. Human Rights Office, Kandy
94. INFORM Human Rights Documentation Centre
95. International Centre for Ethnic Studies (ICES)
96. International Movement Against All Forms of Discrimination and Racism (IMADR) – Asia Committee
97. Mannar Citizens Committee (MCC)
98. National Peace Council (NPC)
99. Right to Life Human Rights Centre (R2L)
100. Rights Now Collective for Democracy
101. SAMADANA/M – Centre for promoting Nonviolence, Conflict Resolution & Handling and
     Peace Building
102. South Asian Centre for Legal Studies (SACLS)
103. Tamil Civil Society Forum (TCSF)
104. Women’s Action Network (WAN)

Letter Copied to:

1. Ranil Wickremesinghe, Prime Minister.
2. Madam Chandrika Bandaranaike Kumaratunga, Chair, Office for National Unity and Reconciliation (ONUR).
3. Mangala Samaraweera, Minister of Foreign Affairs.
4. M.A. Sumanthiran, Spokesperson, Tamil National Alliance (TNA).
5. Rauff Hakeem, Leader, Sri Lanka Muslim Congress (SLMC).
6. Mano Ganesan, Minister of National Co-existence Dialogue and Official Languages.
7. Manouri Muttetuwegama, Chairperson, Consultation Task Force.
8. Mano Tittawella, Secretary-General, Secretariat for Co-ordinating Reconciliation Mechanisms.
9. Deepika Udagama, Chair, Human Rights Commission of Sri Lanka.
10. Claire Meytraud, Head of Delegation, International Committee of the Red Cross Sri Lanka.
11. Juan Fernandez, Human Rights Adviser, Office of the High Commissioner for Human Rights (OHCHR), Sri Lanka.
12. Una McCauley, Resident Coordinator (ai), United Nations, Sri Lanka

– 09^th May, 2016