Serious Flaws in the Legal Foundations of the Office of Missing Persons

Manohara de Silva and C. A. Chandraprema in Q and A, Island 19 July 2016, where the title is 
Manohara de Silva CA Chandraprema

In this interview, President’s Counsel Manohara De Silva speaks to C. A. Chandraprema about the provisions of the innocuous sounding Office of Missing Persons Bill which is now before Parliament. Many people in Sri Lanka are not likely to stand up and take notice when something is described as an Office of Missing Persons. Sri Lanka has had such mechanisms in the past and another such body would not be anything new. But Manohara De Silva warns that the mechanism envisaged in the present Office of Missing Persons Bill has serious political implications for this country.

Q. A Bill to set up an Office of Missing Persons is now before parliament. According to this draft legislation, does this appear to you to be an Office or a Tribunal?

1. Strangely, this Office is going to be a body incorporated by an act of Parliament. It’s not like the Police Department or the Attorney General’s Department where the officers have to be responsible to the government and will have to face the consequences of their actions. Other than the members of the Office of Missing Persons (OMP) appointed by the constitutional Council, there are other officers below them who are unknown. According to Section 11(a) the OMP can enter to enter into agreements, with any person or organization domestic or foreign, for various tasks pertaining to the work of the OMP. They can have units and divisions of the OMP which can be headed by various people consequent to those agreements. The members of the OMP can delegate their powers to these units. For all practical purposes, unknown persons who are not officers appointed by the public services commission, perhaps even foreigners will exercise the powers of the OMP including entry into military installations and the offices of intelligence organisations and have access to any kind of document or object. They can conduct investigations on the basis of these documents and even publish their findings. This information can be used later to prosecute members of the armed forces in a war crimes tribunal. The work of this office will be a prelude to future prosecutions.

1. Q. This proposed Office of Missing Persons seems to be set to work like the Office of the High Commissioner of Human Rights which functions as the secretariat of the UN Human Rights Council where you find government employees coming on secondment from various Western countries to work in the OHCHR. Are you saying that there is no provision in this Bill to specify that the officers of this OMP have to be Sri Lankan?
2. A.No. We need to be mindful of the fact that Operative Paragraph 4 of the resolution against Sri Lanka that we co-sponsored together with the USA last September, says that the Government of Sri Lanka has undertaken to establish a Commission for Truth, Justice, Reconciliation, and Non Recurrence, an Office of Missing Persons, and an Office for Reparations, and furthermore, the Government of Sri Lanka has agreed to give each mechanism the freedom to obtain assistance, both financial, material and technical from international partners including the OHCHR. So you find that the very thing that was agreed upon through the UNHRC resolution is now being brought in by this Bill. This is being passed off as an Office of Missing Persons and our Constitutional Council is to nominate members of the OMP. But the work of the OMP will be guided largely by the agreements it enters into with various foreign persons and organisations. The OMP can have such agreements with pro-LTTE front organisations as well.
3. Q. The seven members of the OMP are supposed to be appointed by the Constitutional Council. This Constitutional Council in its previous form was dominated by representatives of Western funded NGOs. Even now, the so called ‘civil society’ representatives on the CC are either representatives of NGOs or closely associated with the ruling parties. It’s not difficult to imagine what kind of people the Constitutional Council will appoint to the Office of Missing Persons. When these members of the OMP are appointed by the Constitutional Council, they will have the same status as high officers of the state like the Attorney General and Judges of the Supreme Court.

1. A. It won’t be the members of the OMP who do the work of the OMP. These seven members are supposed to delegate their power to other unspecified persons, who are not necessarily public servants in Sri Lanka, to carry out the work. For example it is said that the OMP can send a ‘specified person’ to enter premises and carry out searches. There is no interpretation given as to who this specified person is. It could be a local or a foreigner. We had a Governor of the Central Bank who was a foreigner. He headed the Monetary Board and nobody did anything about it. Even today, the Constitutional Council if full of pro-government members. Seven are representatives of the Prime Minister and the Leader of the Opposition. They work to a certain agenda.

1. Q. The most dangerous thing is that the Evidence Ordinance will not be operational in relation to the information this Office of Missing Persons collects.

1. A. They will be collecting information but what are they going to use it for? The OMP Bill says that the findings of this office will not have any civil or criminal liability. If there is no civil or criminal liability, then why have all these investigations? One normally collects information to do something with it. In the UNHRC resolution which we co-sponsored last year, they accepted the UN Human Rights Commissioner’s (OHCHR) report on Sri Lanka which actually requested other nations to try Sri Lankans suspected of war crimes under universal jurisdiction. So the officers of the OMP can seize documents and other evidence from military installations. They can even introduce bogus documents because these investigations will not be carried out by individuals who are responsible to anyone in Sri Lanka. There will be no way of confirming that the documents or items said to have been seized from military installations were actually found from the locations mentioned by the OMP. Such information can be circulated all over the world and to the UN to take action against Sri Lanka. Furthermore, when this information is circulated all over the world, it will pass off as information found by Sri Lanka’s own Office of Missing Persons – a body established by an Act of the Sri Lankan parliament. Sri Lanka will then not be able to reject the findings of the OMP. Furthermore the bill says that the officers of the OMP can enter any premises at any time of the day or night. As we saw earlier, the officers of the OMP can be foreigners.

1. Q. The whole debate now is about foreign judges. President Sirisena also says that there will be no foreign judges. But he does not say that there will be no foreign investigators.

1. A. Yes. Furthermore, if they think an offence has been committed, the OMP can report it to a ‘relevant authority’. We don’t know what this relevant authority is. Section 21 of the OMP Bill also stated that the OMP can get financial aid from overseas. This money will be utilised to collect information as explained earlier.

1. Q. This Bill does not specify that the findings of the OMP should be reported to a court of law.

1. A. No it doesn’t. They can seek court orders for the exhumation of bodies and the like. I don’t think they have any intention of prosecuting anyone in Sri Lanka. They will collect the information to do the prosecutions abroad because our government has agreed to universal jurisdiction.

1. Q. All the international war crimes tribunals set up at various times have been kangaroo courts with witnesses giving testimony that is used without proper verification. Almost all such international tribunals have had ‘syndicates of informers’ where witnesses are coached and taught how to tell convincing stories without contradicting one another.

1. A. Section 12 says that the OMP can receive statements from the relative of a missing person or any other person or organisation. Even Father Emmanuel’s organisation can make a complaint or statement. In our law if you make a false complaint you’ll have to face the consequences. But any totally unrelated organisation can make a complaint to the OMP. Quite a few will be people residing abroad and there will be no consequences if false statements are made. It is interesting to note that the OHCHR report on Sri Lanka recommended that the Presidential Commission to Investigate into Complaints of Missing Persons be disbanded (the Paranagama Commission) and that its cases should be transferred to a ‘credible and independent’ institution. The OHCHR report also recommended that those suspected to have committed war crimes be prosecuted under universal jurisdiction. All these are parts of the same scheme. The best part of it is that according to this OMP Bill, if after investigating you find that a missing person is alive, that fact cannot be made public without the consent of the person who is supposed to be missing!