By
C.A.Chandraprema
The Office of Missing Persons Act was gazetted into operation last week by the President. This is one of several institutions to be established ‘to deal with the past’ in terms of the UNHRC resolution that the Yahapalana government co-sponsored with the Western powers in October 2015.
Even though it is described as an ‘office’ the proposed OMP will be a tribunal for all practical purposes which can examine witnesses, issue summons and hold hearings. Its officers can enter without warrant, at any time of day or night, any police station, prison or military installation and seize any document or object they require for investigations.
Anyone who fails or refuses to cooperate with the OMP may be punished for contempt of court. According to Section 21 of the draft legislation, the OMP will have the power to receive funding directly from any foreign source.
Government bodies at all levels including the armed forces and intelligence services are mandatorily required to render fullest assistance to the OMP and the provisions of the Official Secrets Act will not apply to the proposed institution.
According to Section 12 (c) (iii) the OMP can admit as evidence any statement or material disregarding the criteria laid down in the Evidence Ordinance. The provisions of the Right to Information Act will not apply to the work of the OMP.
No court, not even the Supreme Court can order any officer of the OMP to submit to courts any material communicated to him in confidence.
Given all this, making the OMP Act operational is certainly bad news – especially because this body can obtain funding from overseas. The Western powers have taken over various UN bodies by funding them and it is a foregone conclusion that the OMP will be operated not so much by the government of Sri Lanka as by the West.
Despite this, the OMP Act is nowhere near as dangerous as the Bill to incorporate into local law the provisions of the International Convention for the Protection of All Persons from Enforced Disappearance. Though many tend to confuse the Office of Missing Persons Act with the Disappearances Bill, these are two different matters. The OMP refers to a body that is to be set up in Sri Lanka with foreign funding. The ‘Bill to incorporate into local law the provisions of the International Convention for the Protection of All Persons from Enforced Disappearances which is to be taken up in parliament on Thursday on the other hand seeks to give foreign countries complete and untrammeled criminal jurisdiction over Sri Lankans in relation to the offence of enforced disappearances.
Clause 8 of this Bill which is before Parliament says that where a request is made to the Government of Sri Lanka, by the government of a convention state for the extradition of any person accused or convicted of causing an enforced disappearance, the Minister shall, on behalf of the Government of Sri Lanka, forthwith notify the government of the requesting state of the measures which the Government of Sri Lanka has taken, or proposes to take, for the prosecution or extradition of that person for that offence. Clause 21 of the Bill says that the Minister may issue guidelines or directions to give ‘full effect’ to Sri Lanka’s international obligations under the Convention. Clause 23 states that this new law is to override all other written law. Clauses 8, 21 and 23 of this Bill have to be read together with the provisions of the International Convention against Disappearances to realize the gravity of the legislation the government is trying to get passed by Parliament.
Article 2 of the International Convention against Disappearances makes the Convention applicable only to State Actors which means that this is aimed only at the armed forces and terrorist movements like the LTTE are expressly excluded. Article 10 of this Convention makes it clear that any State in whose territory a person (who can be a citizen of any other member state) suspected of having committed an offence of enforced disappearance is present, can take that person into custody. According to Article 11, after making an arrest in that manner, the member state concerned can take one of three alternative courses of action – (a) extradite that person to another country in accordance with its international obligations, (b) prosecute that person under its own laws or (c) hand him over for prosecution to an international criminal tribunal whose jurisdiction that member state has recognized.
Article 13 of the international convention also states that any member state may request the extradition of a person suspected of being responsible for enforced disappearances in any other member state and all member states are supposed to respect such requests for extradition. Because Sri Lanka is now a signatory to the International Convention for the Protection of All Persons from Enforced Disappearance, the provisions of Articles 10, 11 and 13 form a part of our obligations under this Convention. Article 32 of the international Convention (which the Sri Lankan government has accepted by a separate declaration) enables any member State to complain to the 10-member ‘Committee on Enforced Disappearances’ in Geneva that Sri Lanka is not fulfilling her obligations under this Convention and the Committee can investigate such complaints.
When this was first to be presented to Parliament, there were protests from the Maha Sangha and from opposition activists due to which the government temporarily withdrew the Bill. After withdrawing it, the government launched a propaganda offensive to justify the proposed law. Their main argument was that the law will take effect only after it is passed and will not therefore have retrospective effect. This was contested by the Joint Opposition on the grounds that the proviso to Article 13(6) of the constitution will automatically make this legislation applicable to the past. What this proviso states is that it will be legal to try and punish any person for a crime which at the time it was committed, was criminal according to the general principles of law recognized by the community of nations.
Apart from Article 13(6) of the Constitution, there are provisions in the Disappearances Bill before parliament to make it applicable to the past. For example, Clauses 20(1) & (2) of this Bill read together with Clause 14 makes it very clear that any disappearance that this law will be ipso facto retroactive. The ‘non-enforcement’ of Clause 14 that is spoken of in Clause 20 is about people not knowing the whereabouts of disappeared persons irrespective of when they disappeared. The inherent retroactivity of this proposed enabling legislation has been cleverly concealed. Within three months of a person becoming aware that he has still not received news of what happened to someone 10 or even 20 years ago, that person can make an application to the High Court under Clause 20, asking for relief under Clause 14. So the law is retroactive despite anything the government may say.
Making Pinochets of our war veterans
Another contention the government has put forward is that no Sri Lankan can be hauled before the International Criminal Court even if the Bill to introduce into local law the International Convention against Disappearances is passed, because Sri Lanka is not a signatory to the Rome Statute and therefore does not come under the jurisdiction of the ICC. Interestingly the government has not tried to argue that our war veterans cannot be taken to be tried in other countries, because that in fact is the very purpose of this law. Allowing our war veterans to be tried in other countries for alleged crimes committed here is as bad if not worse than being tried by an international criminal tribunal. At least one could argue that an international criminal tribunal is a multilateral body whereas another country is a different matter altogether.
What matters here are the provisions of the ‘International Convention for the Protection of All Persons from Enforced Disappearance’ which has been signed and ratified by the Sri Lankan government. When you read Articles 10, 11 and 13 of the International Convention Against Enforced Disappearances together with Clauses 8 and 21 of the Bill that had been presented to Parliament to give effect to that convention in Sri Lanka, it is clear that once the Convention becomes operational in Sri Lanka, foreign countries which are members of the International Convention will have complete jurisdiction over Sri Lankans who are alleged to have been involved in causing enforced disappearances in Sri Lanka. This has been accepted by the yahapalana government by signing and ratifying the International Convention against Enforced Disappearances. Any member state of this international convention can get a Sri Lankan extradited to their country, and arrest, prosecute and punish a Sri Lankan for such an offence.
When a foreign country which has complete jurisdiction over Sri Lankans in that manner arrests a person on suspicion over an offence relating to this convention, and that foreign country also happens to be a member of the International Criminal Court, that person can be handed over to the ICC to be dealt with as they would a citizen of the foreign country that carried out the arrest. The only standing international criminal tribunal in the world is the ICC in the Hague. The other international criminal tribunals are ad hoc tribunals. What is important here is whether the country carrying out the arrest has accepted the jurisdiction of the ICC or not. If it has, then any Sri Lankan who is arrested in such a country or is extradited to such a country by our own government under the proposed enabling legislation can in fact be handed over to the ICC.
Even if a person believed by foreign states to have been involved in enforced disappearances in Sri Lanka happens to be in Sri Lanka, any interested foreign government can request the Sri Lankan government to extradite that person to their country to be prosecuted or handed over to an international criminal tribunal to be prosecuted. By signing and ratifying the International Convention against Enforced Disappearances Sri Lanka has accepted that its citizens can be handed over to an international criminal tribunal for prosecution under Article 11.
Countries like the United States, Britain, Australia and Canada, never even signed this Convention. Denmark, Finland, Norway, Sweden, Ireland and India signed it ten years ago in 2007, but never ratified it. Many countries have kept away from this Convention altogether for the obvious reason that its provisions have the potential to violate the individual rights of citizens of the States that join it. But here we are now faced with the prospect of legislating into law an international convention that was avoided even by the countries that have been getting resolutions passed against us in the UNHRC!
Courtesy:Sunday Island