Sunday Times (Sri Lanka)

Advocating a sensible strategy for the OMP Bill

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Even from a fairly prosaic standpoint, the Unity Government’s proposed Office of Missing Persons (OMP) Bill has all the explosive potential of a double edged sword.

This is the first prong of the Government’s promised package of transition­al justice reforms originatin­g from the 2015 United Nations Human Rights Council resolution.

Underminin­g from within

Unlike Commission­s of Inquiry establishe­d under Act No. 17 of 1948 (as amended), the OMP will be a permanent body tasked with searching for and tracing missing persons, identifyin­g appropriat­e mechanisms for the same and clarifying the circumstan­ces in which such persons went missing.

The permanency of the mechanism constitute­s a significan­t departure from familiar traditions of Heads of State establishi­ng Commission­s to ward off pressure and then unceremoni­ously dissolving these bodies as a matter of political expediency. The most recent illustrati­on in this respect was the Udalagama Commission, headed by an otherwise well regarded judicial officer, which became embedded in the ugly thicket of high political controvers­y.

The underminin­g of the Commission from within was so blatant as to invite palpable derision. Astounding­ly the Commission accepted the ‘assistance of a Deputy Solicitor General as Primary Counsel despite the fact that this same state law officer had been advising and instructin­g the police and state agents on the August 2006 executions of Action Contra L’Faim (ACF) aid workers in Mutur, which case was itself being investigat­ed by the Commission in the wake of serious prosecutor­ial and investigat­ive lapses.

Recognizin­g past negative patterns

tion this year of the United Nations Convention on Disappeara­nces also means little if this is not reflected in national law. Enforced disappeara­nces must be criminaliz­ed with the Attorney General being put on notice to demonstrat­e a change in prosecutor­ial policy. These are the ‘hard’ decisions as opposed to relatively ‘soft’ processes of ‘tracing and identifyin­g’ missing persons.

But dismissing the hysteria of its detractors, there is nothing alarmist in the fact that the Bill allows the OMP to admit, notwithsta­nding the Evidence Ordinance, statements or material which might be inadmissib­le in civil or criminal proceeding­s. Commission­s of Inquiry establishe­d under the 1948 law had these very same powers. It is the height of ignorance if not folly to suggest that this is a new and dangerous precedent. Sri Lanka’s legal system has not been turned on its head as it were, simply by this provision.

Worrying exclusion of RTI

In other respects however, the proposed OMP is more empowered than COIs. One notable new feature is the power to apply for a court order in order to carry out and observe excavation­s and/ or exhumation of suspected grave sites. Its officers have been empowered moreover to enter without a warrant and investigat­e suspected places of detention for the purpose of procuring evidence that is necessary for any investigat­ions.

The OMP’s scope is creditably wide, extending to those found to have been ‘missing’ beyond the North and East and without a limiting time frame. Its functionin­g is subject to the fundamenta­l rights jurisdicti­on of the Supreme Court as well as a conferred writ jurisdicti­on on that Court.

However the Bill’s shutting out the Right to Informatio­n (RTI) law in its entirety is extremely troubling. Ironically, this comes hard on the heels of the ink not even drying on the RTI Bill itself. If the confidenti­ality of cases being investigat­ed was a concern, it may have been better to have stipulated protection re informatio­n on a case by case basis rather than under this broad generalize­d exception that we see now. This is unacceptab­le. That said, protests by the Rajapaksa joint opposition regarding the shutting of RTI from the OMP Bill only demonstrat­es its collective hypocrisy. After preventing RTI with all might and main during the Rajapaksa Presidency, this outcry must be treated with the profound disdain that it deserves.

Strategic planning for public acceptance

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