Sri Lanka’s disappeared need more than reparations

The long awaited Office of the Missing Persons (OMP) has finally been established but Sri Lanka’s ‘disappeared’ from the North to the South need far more than reparations or indeed, to be told categorically that their loved ones are not among the living any more. That caution must be stressed quite categorically even as the incurable optimists in our midst profess misty eyed optimism.

Abstaining from obeisance to international realpolitik

As months pass by, one parent after another, protesting over the disappearance of his or her family member during the ending of the conflict in the Wanni, departs this life unnoticed and unsung by those preoccupied with the political cacophony in Colombo or the extravaganza taking place in Geneva for which annual record taking, events are carefully choreographed in Sri Lanka.

Indeed, tying each and every step to the ‘Geneva process’ gave the nationalist lobby and its Rajapaksa backers a convenient whip to lash the public. And so it happened that, facing the inevitable backlash, the Government buckled even in regard to an eminently sensible Enforced Disappearances Bill which is now scheduled to be taken up for debate in the House during the coming weeks. The fate of this Bill is anybody’s guess. Undoubtedly it needs to be passed into law.

But and not to mince words thereto, it was this obeisance to international realpolitik that precipitated the coalition Government to sink into a morass of unfulfilled promises out of which the OMP has finally emerged three years later. That said, the OMP’s agonizing gestation and contested process of coming into being has dramatically reduced the confidence of victims in the mechanism.

Reluctance to address systemic impunity

To put the matter in context, it must not be forgotten that pronounced doubts arose even at the point at which the OMP Bill was passed into law. In a column that I wrote at the time titled ‘Cheers in Colombo, apathy in Jaffna’ (August 28th 2016)I questioned the manifest reluctance of the

Government to address the problems of flawed justice institutions and pervasive systemic impunity which undermined the legitimacy of Sri

Lanka’s proposed transitional justice reforms of which the OMP is one. At that time, I referred to ‘the phenomenon of great incoherence in government’ in the formulation and strategizing of transitional justice reforms which words have unfortunately now been proved to be prophetic.

A compartmentalized transitional justice ‘package’ which leaves systemic impunity unaddressed was bound to falter as indeed it did. The callous ignoring of the criminal justice process in the emblematic cases of gross human rights violations such as the executions of Tamil students in Trincomalee and the Tamil/Muslim Action Contra L’ Faim aid workers in Mutur during 2006 were examples in point. Meanwhile experiments with new counter-terror legislation became unmitigated disasters. This was what best summed up the indictment of ‘great incoherence in government’ as each embarrassment succeeded the other.

In the meantime, there was no national effort to bring about local consensus to effect changes in laws, practices and policies that guard against enforced disappearances in a manner that did not look as if it was associated to Geneva resolutions and the like.

Addressing impunity as a whole

Useful strategies in that regard would have been reforms in the criminal justice system and the strengthening of the legal remedy of habeas corpus which is the most powerful weapon to deter enforced disappearances. Many of these reforms are commonsensical and deserve even at this late stage, to be incorporated into changed policy and practice by state agencies. Frequent requests by state counsel in habeas corpus applications pleading for time to produce ‘validated’ detention orders while a corpus languish in detention and duplicate detention orders being filed against one person in a variety of courts.

Further, as has been documented, though the ordinary practice is for the Magistrate to make available his order relating to the prima face inquiry at the close of the said inquiry following referral of a habeas corpus application by the High Court, a practice has developed where the state counsel calls upon the Magistrate not to release the said report. As a result, many habeas corpus petitioners were totally unaware of the status of their cases after giving evidence in the Magistrate’s Court.

As a matter of practical note, this was the case in regard to several family members who had lost their sons/husbands in 2007-2009 and had given evidence before the Trincomalee Magistrate’s Court but did not know what had happened to the cases as the relevant orders had not been furnished to them. Due to laws delays in the High Court, it takes years by the time the matter is referred back to the Court and is taken up. Consequently the petitioners have no idea as to the fate of the habeas corpus application on missing family member during that period.

Strengthening deterrents to enforced disappearances

Indeed as extensive studies in Sri Lanka have stressed, the remedy of habeas corpus is largely unfamiliar to both lawyers and judges. Many remain unaware that the High Court of Provinces Act enables habeas corpus applications to be filed in the respective High Court of the Province. Even when and if the writ is issued, no clues are provided in the legal system as to enforcement thereof.

Moreover there are no “contempt” procedures if decrees issued by Court are found to be non-complied with. In many instances, the Penal Code and the writ of Habeas Corpus stood virtually ‘suspended’ as lawyers advised clients not to file habeas corpus applications but to make appeals to the police or to the army given that this may yield better results.

In addition, the Magistrate plays a supporting role to the Police in their investigations and rarely brings an independent mind to bear on the case. Consequently when the Attorney-General submits that the corpus is detained, the Court does not question whether it is lawful or not. Such undue deference to the opinion of the Attorney General has surfaced as a general pattern across all courts.

Ensuring the very minimum

With the setting up of the OMP, a long standing demand that an independent body mandated with the task of investigating all cases of disappearance has now come to pass. That must be celebrated, warts and all. Reforming law and practices in order to deter enforced disappearances, (including a Habeas Corpus Act), and ensuring a well-balanced counter terror law are two vital accompanying steps that must now be taken.

Helpless and hapless human beings should not be permitted to vanish into the legal ‘black hole’ of the enforced disappeared any longer in Sri Lanka. That is the very minimum that needs to be ensured.