At long last, on Tuesday, Sri Lanka got what the minority Tamils and the UN Human Rights Council (UNHRC) have been demanding since the separatist war ended in May 2009 – an Office of Missing Persons (OMP) – to trace 21,000 to 40,000 persons still not accounted for.
But constitutional experts say that the gazette notification on the setting up of the OMP is unconstitutional. If challenged in the Supreme Court, and if the court strikes down the notification, the larger process of finding the missing would be derailed and post-war ethnic reconciliation will remain a far cry.
An overwhelming majority of the missing are Tamil civilians – mainly young men and women.
Already, the Sinhalese nationalist opposition, led by former President Mahinda Rajapaksa, has been shouting from rooftops that the OMP will put hundreds of Sri Lankan armed forces personnel in the dock and demoralize the entire military which had lost more than 5000 men in ridding the country of terrorists.
Rajapksa’s line is finding resonance among the majority Sinhalese, a constituency the Sirisena-Wickremesinghe government cannot afford to ignore.
On Tuesday, Sri Lankan President Maithripala Sirisena, in his capacity as the Minister of National Integration and Reconciliation, issued a Gazette Extraordinary to declare that the OMP will start functioning from September 15.
But the order, which the minority Tamils, should have welcomed joyfully, was met with skepticism.
The Center for Policy Alternatives (CPA), the Tamil National Alliance (TNA) and constitutional lawyers, pointed out that the notification was in violation of the 19 th.Amendment of the constitution and that it could be shot down by the judiciary.
Simplifying the highly legalistic statement issued by the CPA, a constitutional lawyer who did not want to be named, said that as per the 19 th.Amendment of the constitution passed in 2015, the President should not have issued the notification. He had no authority to do so.
“As per 19A, the President can hold only two ministerial portfolios – that of Defense and Environment. He cannot be Minister of any other subject. But in violation of this constitutional provision, he had made himself the Minister of National Integration and Reconciliation. And then, now, in a further violation of the constitution, he has issued an important notification setting up the OMP as Minister National Integration and Reconciliation, a post he is constitutionally barred from occupying, ” one of the lawyers, who is a Tamil, pointed out.
“Anybody can challenge this notification in the Supreme Court on this ground and scuttle the OMP,” he warned.
Apparently, the issue had been brewing for some time. Two constitutional experts who are involved in the drafting of a new constitutional for Sri Lanka, had met the President’s Secretary, Austin Fernando, and informed him about the flaw and suggested that the notification be issued by another ministry.
Fernando asked if it could be done by the Defense Ministry, which the President holds legitimately. But the lawyers felt that such a step would not go with the spirit in which the OMP was set up.
For the sake of fairness and credibility, the OMP ought to be totally independent of the Defense Ministry. Therefore, as an alternative, the two experts suggested that the notification be issued by the Deputy Minister of National Integration and Reconciliation, AHM.Fowzie, as that will pass muster under the constitution. But this advice was not taken.
The speculation is that the President wanted to take personal credit for operationalizing the OMP, which the UNHRC has been insisting upon year after year since the war ended in May 2009.
At the 36 th.Session of the UNHRC, which is currently in session in Geneva, the High Commissioner for Human Rights, Prince Zeid Ra’ad bin Hussein, slammed the Sri Lankan government for dragging its feet on transitional justice measures such as the setting up of the OMP.
Some political observers say that President might be wanting the OMP to be under his wings directly, in order to have full control over its functioning because of the political sensitivity of the institution.
The Many Hurdles
The OMP bill was actually passed in 2016 but it took an inordinately long time to set it up.
In 2016, as a sop to the Tamils who accounted for most of the missing, the government offered to issue Certificates of Absence – a halfway house.
But the Tamils overwhelmingly rejected it saying that they wanted the government to trace the missing kin and at least tell them what happened to them. They could not be kept in the dark for ever.
The opposition raised new issues and sought amendment to the Act. Members of the opposition had voiced concerns about the OMP’s powers and capabilities and demanded that it should not have powers to prosecute and secure funds from abroad independently of the Sri Lankan government.
The government agreed to the amendments and the amended bill was passed unanimously in 2017.
But despite this, the OMP did not start functioning because the necessary administrative actions did not follow. The reluctance to operationalize it was attributed to opposition from Rajapaksa, who was voicing the innate fears of the nationalist Sinhalese.
But what finally pushed the government to act was the hard hitting speech of UN Rights Chief Prince Zeid at the UNHRC on Monday, in which he recommended that Sri Lanka be brought under “Universal Jurisdiction”, which will enable any petitioner, in any country, to file cases of war crimes against Sri Lankans, have them arrested and convicted.
The threat is real because most recently, in August, a rights group in Brazil filed a war crimes case against retired Sri Lankan army chief Gen.Jagath Jayasuriya, who was Sri Lanka’s Ambassador in Brazil.
The case raised a political storm in Sri Lanka though Gen.Jayasuriya escaped arrest because he had completed his term by then and was on his way home in Sri Lanka.