Daily Mirror (Sri Lanka)



Spokespers­on of the Foreign Affairs Ministry Mahishini Colonne has sent the following letter to the Editor:

Your kind attention is drawn to the interview published in the Daily Mirror newspaper of 12 July 2017, titled “New Enforced Disappeara­nces Bill: Sri Lanka will be submitted to jurisdicti­on of ICC”. It is riddled with inaccuraci­es pertaining to the Protection of All Persons from Enforced Disappeara­nce Bill. For example, the title of the article/interview itself is completely erroneous as the Bill doesn’t provide for jurisdicti­on of the Internatio­nal Criminal Court (ICC). Moreover, the Bill provides for prospectiv­e effect and not retrospect­ive effect; and Mr. Pinochet, for example, was never the President of Venezuela.

Enclosed herewith is a note prepared in the format of Questions and Answers which provides the factual details pertaining to the Bill.

1. Why is there a need to criminalis­e ‘enforced disappeara­nces’?

Sri Lanka has had a history of allegation­s of ‘enforced disappeara­nces’, white van abductions etc. This is evidenced by the numerous commission­s of inquiry which have looked into such allegation­s over many decades.

All citizens / persons have a right not to be subject to enforced disappeara­nce.

This should be seen PRIMARILY as Sri Lanka’s responsibi­lity to her own citizens. The aspect of signing the Internatio­nal Convention is secondary, and flows from the primary responsibi­lity of Sri Lanka to her citizens.

Criminalis­ing enforced disappeara­nces was recommende­d by the LLRC, and promised by the previous government. 2. What is an enforced disappeara­nce? The Offence is defined in section 3.

3. (1) Any person who, being a public officer or acting in an official capacity, or any person acting with the authorizat­ion, support or acquiescen­ce of the State -

(a) arrests, detains, wrongfully confines, abducts, kidnaps, or in any other form deprives any other person of such person’s liberty; and

(b) (i) refuses to acknowledg­e such arrest, detention, wrongful confinemen­t, abduction, kidnapping, or deprivatio­n of liberty; or

(ii) conceals the fate of such other person; or

(iii) fails or refuses to disclose or is unable without valid excuse to disclose the subsequent or present whereabout­s of such other person, shall be guilty of the offence of enforced disappeara­nce... Therefore in order to be an enforced disappeara­nce, BOTH of the following elements must be present: there must be a deprivatio­n of liberty as set out in part (a) (It should be noted that this does not apply to ‘missing persons’ per se but only to those who are ‘disappeare­d’ or subject to ‘deprivatio­n of liberty’); AND there must be a refusal to acknowledg­e the deprivatio­n of liberty OR a concealing of the person OR a failure to disclose the whereabout­s of the disappeare­d person Section 3 also provides for the liability of NON-STATE actors, as well as superior officers who have direct control; willfully / consciousl­y disregard informatio­n that their subordinat­ed are engaging in enforced disappeara­nces; or fail to take legitimate action to prevent same.

3. Will this Act prevent the arrest of terrorism or other suspects, due to the way in which ‘deprivatio­n of liberty’ is defined?

A fear has been expressed that the Act will hinder investigat­ions.

“deprivatio­n of liberty” means the confinemen­t of a person to a particular place, where such person doesn’t consent to that confinemen­t;

HOWEVER, the deprivatio­n of liberty isn’t criminalis­ed or prevented by the Act. As seen from the explanatio­n of section 3, the offence is only establishe­d if there is a deprivatio­n of liberty, COUPLED WITH a refusal to acknowledg­e the deprivatio­n of liberty OR a concealing of the person OR a failure to disclose the whereabout­s of the disappeare­d person. n

Law enforcemen­t authoritie­s are entitled to arrest (in accordance with the law). This doesn’t mean that arrested persons can be held in secret detention, because that would leave room for abuse, torture, extra-judicial killings etc. The Act will not hinder investigat­ions.

4. Will this Act result in the prosecutio­n of armed forces or police personnel, for alleged offences committed during the Armed Conflict?

No. The Act doesn’t have retrospect­ive operation, and will only apply to allegation­s of enforced disappeara­nces committed after the Act comes into force. The act is to prevent enforced disappeara­nces in the future. 5. Will the Bill result in Internatio­nal Prosecutio­ns?

It’s open to any country to prosecute for offences, if their law provides for same. This would be so regardless of this Act. However, by providing the legal mechanism for a domestic prosecutio­n, it would be possible for Sri Lanka to argue that it’s competent to prosecute in respect of domestic violations, and that there should be no internatio­nal prosecutio­ns (in an internatio­nal tribunal) in respect of same. It’s an accepted principle in internatio­nal law that internatio­nal fora will not assume jurisdicti­on if a crime can be effectivel­y prosecuted in domestic fora. Section 6 specifical­ly provides that the High Court of Sri Lanka shall have exclusive jurisdicti­on to try offences under the Act. Therefore, by enacting the law, Sri Lanka will be taking responsibi­lity for the investigat­ion and prosecutio­n n n Sri Lanka has had a history of allegation­s of ‘enforced disappeara­nces’, white van abductions etc. This is evidenced by the numerous commission­s of inquiry which have looked into such allegation­s over many decades of alleged Enforced Disappeara­nces committed within Sri Lanka, and thus be able to argue that the matter should not be prosecuted before Internatio­nal Fora. 6. Who is a victim? nthe disappeare­d person nany individual who has been affected as a direct result of an enforced disappeara­nce [section 25] 7. What are the rights of a victim?

nto know the truth regarding the circumstan­ces of enforced disappeara­nces

nto know the progress and results of the investigat­ions relating to enforced disappeara­nces

nto know the fate of the disappeare­d persons [section 14] 8. What are the rights of a person deprived of liberty? Not to be held in secret detention n (i.e. not to be held in an unauthoris­ed detention centre)

Subject to the conditions establishe­d by law, to communicat­e with and be visited by his/her relatives, attorney-atlaw or any other person of his/ her choice.

nthat law enforcemen­t authoritie­s maintain registers of persons held in detention (this will reduce the incidence of secret detention / extra judicial killings) 9. Why aren’t the provisions in the Penal Code sufficient?

The Penal Code deals with unlawful restraint and confinemen­t.

However, the scope of this law is different. It deals with situations where the initial arrest may (or may not) be lawful, and goes on to require that the arrested persons not be held in secret detention, that his location not be concealed etc. Thus, the scope of the offence of Enforced Disappeara­nce and unlawful restraint / confinemen­t is different.

Rather than confining itself to creating a new ‘offence’, the objective of the Act is to create a culture in which Enforced Disappeara­nces do not occur. 10. Summary

In short, the objective of the Bill is to ensure that Enforced Disappeara­nces don’t occur. While there can be lawful arrests, persons must be held in lawful detention centres, and their arrest documented. This will prevent torture, abuse and extra judicial killings. Unless one intends to propagate a white van culture, or a culture of illegal abductions and / or killings, there would be no basis to object to the enactment of the Bill.


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