Ramachandran Subramanium

Freedom of Expression on the decline in Sri Lanka

First published on 3rd May 2018 at http://groundviews.org/2018/05/03/freedom-of-expression-on-the-decline-in-sri-lanka/

The last twelve months, since World Press Freedom day 2017, has not been a good year for freedom of expression in Sri Lanka. The war ravaged North bore the brunt of repression, while there were also several incidents in other parts of the country. Victims included journalists, lawyers, activists, artists and in particular those speaking out and advocating on issues such as of women’s rights, gender and sexuality. A website that had published content critical of the President was blocked, following an intervention from the Presidential Secretariat. With very few exceptions, impunity reigned for past violations of free expression, including most serious ones such as killings and disappearances of journalists and media workers and arson attacks on media institutions. At an event organized by the Free Media Movement (FMM) on the eve of World Press Freedom day, all the speakers and several participants acknowledged the lack of movement in structural reforms to the media in Sri Lanka in the last year.

Free Expression in 2017 – 2018 in the North

In March this year, the Army was reported to have detained and questioned Shanmugam Thavaseelan, a Tamil journalist reporting about Army’s alleged attempts to seize the land of a destroyed LTTE cemetery. When the journalist had refused to hand over his camera to be searched, he was interrogated by the Army who implied that his days were numbered and also subjected him to verbal abuse. The Army appeared to have acknowledged this during an inquiry by the Human Rights Commission, but there were no reports of even disciplinary action against the responsible officers. In December last year, a group of Tamil journalists doing research on Sinhalisation in the Tamil majority Mullaitivu area were reported to have been detained and questioned by Army and Police, their cameras and equipment seized and photos and videos deleted. The identity details and vehicle registration numbers were also recorded and were photographed by the soldiers.

Also in December, in two separate incidents, two Tamil journalists, Subramaniam Baskaran and Shanmuganathan Manoharan were reported to have been beaten. In July, another Tamil journalist, Uthayarasa Shalin was reported to have been stopped by two soldiers when he was travelling to Maruthankerny, to report on a protest by Tamil families of disappeared, and accused of writing lies. Also in July, Northern Tamil print and broadcast journalist T. Pratheepanwas reported to have received multiple summons by the Criminal Investigation Department (CID) to appear in Colombo to testify about broadcasting a press conference, and after informing his inability to travel to Colombo, he was interrogated for three hours about the press conference and was asked to produce footage. His statements, given in Tamil, were transcribed in Sinhala – a language he does not understand and he was pressured to sign this Sinhala document despite being unable to verify its contents. Tamil journalists in the North reported continued surveillance and intimidations.

In a bizarre incident, V. S. Sivakaran, the head of the Federation of Community Organisations in Mannar was reported to have been summoned to appear before the Terrorist Investigation Department (TID) in Colombo, in relation to a letter he had written to President Sirisena, ahead of the latter’s plans to visit the opening of an allegedly illegally constructed Buddhist temple in the vicinity of the historic Thiruketheeswaram Hindu Temple in an area with no Buddhist residents. In his letter, Sivakaran is reported to have criticised the President for his planned participation in the event and that the President’s attendance at the opening ceremony would be marked with protests from aggrieved locals. Sivakaran had not issued any threat to the President’s person.

 Mariyasuresh Easwary, a Tamil woman whose husband had disappeared and has been vocal leader of a prolonged protest demanding truth and justice was assaulted in Mullaitivu. A rights activist was interrogated and beaten on his way home after speaking at an event. A memorial event to remember and grieve for Tamils killed in the war was stopped and organisers harassed and subjected to investigations. In November, two Tamil youths from the Vavuniya district in the Northern Province posted a photo on Facebook showing the Vavuniya District Secretariat office, the purpose of which appeared to be to draw attention to a poster of a tree planting campaign and a large tree behind the poster that looked as if it had been cut. They were questioned by the Vavuniya police, and made to sign an affidavit written in Sinhala, a language they don’t understand, and were told that they could lose their jobs and that they could not photograph Government offices nor critique their actions.

These incidents indicate a trend where the Army and Police seems determined to restrict reporting on matters considered to be sensitive such as disappearances, remembering war-dead, Sinhalisation, land, militarisation and anything critical of the government.

Freedom of Expression outside the North

While freedom of expression was under the greatest strain in the North, there were also several alarming incidents across the rest of the country from 2017 to 2018. Lakshan Dias, a human rights lawyer speaking about the rights violations of religious minorities on TV was threatened by the then Minister of Justice and was compelled to flee the country temporarily, and was subjected to lengthy interrogation on return. Sudesh Nandimal De Silva, an eyewitness and vocal campaigner seeking justice for prison massacre had his house shot at, and received death threats by phone. Human rights lawyer Senaka Perera who had filed a petition on behalf of Nandimal, also received death threats by phone. There were vicious threats online against them and others campaigning for justice. On October 6, Police Assistant Superintendent Roshan Daluwatte was recorded assaulting journalist Susantha Bandara Karunaratne while the latter was being taken into custody. The video of Karunaratne being held by two police officers while Daluwatte slapped him went viral online and was widely broadcast on television. The Human Rights Commission launched an investigation into the incident shortly after.

In general, foreign journalists found access and the working environment  in Sri Lanka favourable, but in March 2018, a week after the attacks on Muslims by mobs identifying as Buddhists, heavily armed Army and Navy personnel tried to stop an Al Jazeera crew with government accreditation, from filming by the roadside. One soldier warned that they don’t like the situation ongoing in the area being known overseas and another stated that they had been ordered not to allow filming in the area, though this was later denied by the Director General of the Government Information Department.

Free Expression online

In March this year, the government restricted access to several social media platforms for several days in the aftermath of attacks against Muslims by mobs identifying themselves as Buddhists in the Kandy district. Right To Information (RTI) requests by the editor of the citizen journalism website Groundviews revealed that the website Lanka E News was blocked, after a letter from the Presidential Secretariat to the Telecommunication Regulatory Commission noting that the website has been publishing false articles about the President and family members and asking the TRC’s Director General to “take suitable action”. Earlier on, Groundviews had managed to obtain a list of 13 websites that had been blocked from 2015onwards by the TRC, with at least in four instances, the order coming directly from the Presidential Secretariat, who via the Media Ministry had made applications to block specific websites, often on the grounds of providing incorrect or false information about the President.

 Reprisals for expressing opinions and advocating on women’s rights, gender and sexuality

In April this year, a performance in Colombo titled “Cardinal Sin”, by Grassrooted Trust, looking at proposed reforms to abortion law was barred by the government’s censorship arm, the Public Performance Board. The performance was part of an annual event called “V day”, the 2018 version of which was called “PatriANarchy” focusing on how patriarchal values continue to inflict violence in Sri Lanka.

The Muslim Personal Law Reforms Action Group (MPLRAG) , which have expressed strong positions against discriminatory and oppressive elements of the Muslim Marriage and Divorce Act (MMDA) have often come under attack in social media, with accusations ranging from them being a group operating in secret, being Israeli agents, not looking like Muslim women etc. Those expressing opinions and advocating in favor of equal rights for Lesbian, Gay, Bisexual and Transgender persons also faced vicious attacks on social media. Women’s dresses, ranging from abaya to bikini also drew criticism on social media. In April this year, the English language “Daily Mirror” newspaper used words such as “nag”, “nitpick”, bemoan”, “lamenting” to describe women who went to courts against discriminatory laws.

Impunity

In August 2017, Nadesapillai Vithyatharan, who was abducted in 2009, tortured and subsequently dumped on the roadside while he was editing the Colombo based “Sudar Oli” paper during the war had asked a senior Sri Lankan journalist Sunanda Deshapriya, ‘Why is this Government not investigating my abduction? Is it because I am not a Wickrematunge or Ekneligoda?’ The then Secretary to Defense had told an Australian TV, “Vithyatharan is a terrorist, so we arrested him”, and Vithyatharan identified two policemen who came to abduct him by name as Ranganathan and Wijerathana. But still, there is no arrests and none of these three have been even questioned to the best of our knowledge.

Tamil journalist Subramaniam Ramachandran disappeared in February 2007 after being seen at an Army checkpoint.

Another Tamil journalist Subramaniyam Sugirtharajan was killed in January 2006 after he had published photos indicating 5 youth killed in Trincomalee in 2006 were by shooting and not due to grenade injuries as narrated by the Special Task Force (STF) of the Police. The Uthayan newspaper office have been subjected to arson attacks and it’s journalists and media workers killed, disappeared, assaulted and threatened numerous times during and after the war, but no one has been arrested, prosecuted or convicted.

In contrast, there has been some progress on three few high profile journalists cases in Colombo. In relation to the killing of Sunday Leader newspaper’s editor Lasantha Wickramatunga and the abduction and torture of Deputy Editor of the Nation newspaper Keith Noyahr, a senior Police Officer an Army Officers were arrested this year.

But after some arrests and revealing of significant information to courts, the case of Prageeth Ekneligoda disappearance seems to be stagnating since about 2016 when all the suspects were released on bail, the last of which was just after a public statement of the President criticising the detention of Army intelligence personnel. Both the Criminal Investigation Department (CID) and State Counsel leading the case on behalf of the Attorney General’s (AG) department, had repeatedly told courts of the Army providing false information, denying possession of evidence, delaying production of evidence and misleading investigations and courts. They had also reported a lack of cooperation and obstructions towards investigations from the Army, and intimidation towards witnesses. A key witness, who had seen and questioned Ekneligoda in the Giritale camp on 25th January 2015, has complained to the Police about a conspiracy to harm his life from the Giritale camp.

Significantly, more than three years after the new government came into power, there have been no prosecutions even in these cases, in May 2008, January 2009 and January 2010 respectively.

Conclusion

In the annual World Press Freedom Index compiled by Reports without Borders (RSF), Sri Lanka still languishes in the “bad” or “red” category (Above very bad, but below Good, Fairly Good, Problematic), placed 131 out of 180. The RSF index indicates that Sri Lanka’s situation on press freedom has improved in relation to other countries by ten notches in the last year, but it should not be misunderstood or misinterpreted as indicating an improvement of the situation of press freedom in Sri Lanka since 2017.

Although there has been no killings or disappearances of journalists, media workers or arson attacks on media institutions during this period, the many threats to Freedom of Expression in last 12 months such as those mentioned above, and impunity for past violations, makes it clear that Freedom of Expression was on the decline in Sri Lanka in 2017-2018.

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“We vehemently refuse to be deceived again”: Protests by families of disappeared, continuing abductions and empty promises

First published on 30th August 2017, at http://groundviews.org/2017/08/30/we-vehemently-refuse-to-be-deceived-again-protests-by-families-of-disappeared-continuing-abductions-and-empty-promises/

Above was the last line in a press release issued on 17th August, by Association for Relatives for Enforced Disappeared in Kilinochchi district, at a press conference in Colombo. It came in context of 6 month long protests by Tamil families of disappeared in the North and East, and empty promises by President Sirisena and much talk about a new Office of Missing Persons.

Today, 30th August, the International Day of the Victims of Enforced Disappearances[i]. The above could be a good start to reflect about preventing disappearances and searching for truth, justice and reparations for disappearances that has happened in Sri Lanka. Three trends come to my mind.

Reports of continuing abductions / disappearances and threats to those campaigning

Earlier this month, an activist based in the North was reported to have gone missing[ii]. Last month, there were reports of an attempted abduction of a student activist in Colombo[iii]. Earlier this year, a trade union leader was abducted in Colombo and released after being warned to “mind his own business”. The latter two had happened at the height of protests by students and workers. Based on sworn statements of survivors, the International Truth and Justice Project has reported 21 persons having been abducted / illegally detained and subjected to torture or sexual violence in 2016 and 3 in 2017[iv]. I couldn’t find information about the fate of the first person, but the others have been released, some after warnings and some after paying money. Two weeks ago, the wife of a disappeared man reported having being slapped and warned of “severe consequences” if she didn’t give up the (6 month long) protest she had been part of[v]. And in March 2017, soldiers were reported to have photographed, followed and threatened Northern journalists who were on an assignment to cover a protest by families of disappeared. The soldiers had insisted that the journalists needed to get soldier’s permission[vi]. All of the above, except the trade unionist and student activist, were Tamils.

Lack of answers after six months of protests and meetings with the government

Tamil families of disappeared, largely women, have been engaged in continuous and indefinite protests in five locations in the North and East, for about 6 months. One of their primary demands is that President Sirisena keep a promise he made to them to “release lists of persons who surrendered to the Armed forces in the final phase of the war”[vii] on 12th June 2017. Sinhalese family members of disappeared, like Mauri Jayasena from Anuradhapura also continued their unceasing campaigns to find truth and justice for their disappeared husbands. But despite multiple engagement and dialogues with the government, there have been no answers to them.

Empty promises of institutions and laws

The above trends appear to be largely ignored by the government, and those sympathetic and supportive to it. Instead, they there is optimistic talk about the OMP and a draft bill criminalizing disappearances. Almost as if disappearances in Sri Lanka could be addressed only through these, while ignoring continuing abductions, threats to campaigners, long protests and empty promises.

These three trends indicates a serious disconnect in addressing disappearances in Sri Lanka. But it doesn’t have to be so. The protesting families and many of their supporters are also expecting the law criminalizing disappearances to be enacted sooner than later[viii]. And they are supporting a victim centric, effective, independent OMP to be set up soon and have repeatedly made practical contributions towards this[ix]. They have been engaging with numerous Ministers, Government officials, at the protest sites and also by coming to Colombo. Several families leading the protests and some of their supporters had also served in the Zonal Task Force of the Consultation Task Force on Reconciliation mechanisms, a government initiative.

But how could families of disappeared have faith in promised institutions and laws when reports of abductions continue to emerge and there are reprisals against campaigners, and when there is no indication of firm, fast and transparent action against those responsible? Other key factors to bridge the disconnect will be if President can keep the promises he made, and if there is more sensitivity and support towards mothers, wives, fathers who have been at roadside protests in the North and East from rest of the country.

Evolution of the protests

The protests started with families of disappeared persons in Vavuniya staging a fast unto death in January this year, demanding information about their family members who had disappeared. Their leader, Jeyavanitha, a Tamil mother, clutches a campaign leaflet of President Sirisena and asserts that one of the school girls in uniform next to the President is her daughter.

As health conditions of elderly women fasting in Vavuniya deteriorated, the State Minister of Defense met the families at the protest site. He promised a meeting with several senior Ministers in Colombo, and families agreed to temporarily suspend the protest. That meeting was marred by controversy, as the government had invited some Tamil National Alliance (TNA) MPs, which the families didn’t want. TNA MPs had eventually left, but based on what the State Minister for Defense had told him, TNA Spokesperson reported to media that the families wanted priority for their own family member’s cases. Several of those actually present at the meeting till the end told me that they never asked for this, and insisted on answers to all families of disappeared. More than 6 months after, the meeting had not yielded anything. But in meantime, the families had waited for two weeks and recommenced their protests, which has now exceeded 6 months in it’s second phase.

The Vavuniya protests appeared to have triggered series of protests by other Tamil families of disappeared, with protests starting in Maruthankerny, Mullaithivu and Killinochchi in the North and Trincomalee in the East. Most at the vigil were women. They had to battle cold nights at the beginning and then the heat, dust and rain. While participating in these protests on behalf of disappeared children, women had to send other children to school and worried about safety of teenaged girls at home. Some went to work and came to the protest site in the night. During my visits to them from January to August, I sensed dejection, desperation and waning of spirit and physical strength. But families have disappeared have held on till now.

On 30th May, after 100 days of protesting, the families in Kilinochchi, convened a larger protest, with families of disappeared from all major districts in North and others from East and few from Colombo joining them. Police tried to obtain a court order to prevent it, but the Magistrate refused. Protesters rejected meetings with the Prime Minister and yet another “Committee”, but after a 5 hour blockade of the major A9 road to north, during which only ambulances were allowed to pass, they obtained a meeting with the President, which happened on 12th June – in which the President made promises that have not been fulfilled todate.

The protesters had tried to reach out to Sinhalese, through appeals, letters and banners in Sinhalese. Despite their desperate situations, and weariness in repeating their stories and being photographed by strangers I took with me everytime I visited, we were always warmly welcomed and even offered meals. Some expressed disappointment about lack of support from activists from Colombo and other parts of the country, and from Tamils in the North itself. Two weeks ago, the families came to Colombo to reach out to Colombo based media.

A few Hindu Temples, Churches, shop owners, journalists and Tamil diaspora groups had extended support by providing food. The protest in Kilinochchi has been held in the premises of the Kandasamy Temple. University students, auto drivers, shop owners, clergy have also extended symbolic support by visiting and in April, a day of hartal was observed across the North. Few Sinhalese, Muslim and Tamil families of disappeared, including Sandya Ekneligoda, wife of disappeared journalist Prageeth Ekneligoda and an award winning prominent activist, travelled several times from Colombo to extend solidarity and support. 

OMP

The President has been stalling the establishment of the Office of the Missing Persons (OMP), promised in September 2015, and for which legislation was rushed through in August 2016, bypassing promised consultations with families of disappeared and public. Then, after 10 months of silence and apparent loss of interest, an amendment was passed by parliament, removing an article that enabled the OMP to enter into agreements with external parties. Suggestions by families of disappeared were not even considered as amendments. And finally, last month, a gazette notice was issued, assigning the OMP to a ministry held by the president – when the constitution prohibits the President from holding this ministry. The requirement in the OMP Act to gazette a date OMP will come into effect is yet to be fulfilled, and there is no indication when this will be done. If the OMP is established under the present ministry it has been assigned to, it’s legal standing is questionable. And so, nearly 2 years after the promise, there is still no OMP, there is no time line for its establishment, leave alone when it will give answers to families who have been waiting for decades.

The OMP is latest of number of Commissions of Inquiries appointed by successive Sri Lankan governments, to address disappearances. According to the government, more than 65,000 complaints have been received by these Commissions since 1994[x]. Despite promises made nearly two years ago, the government has failed to publish key reports of previous Commissions, such as the Mahanama Tillekeratne and Paranagama Commission, the latter having functioned under both the previous and present government.

The government has made legislative provisions have been made to issue Certificates of Absence, but it’s not clear what procedures have been put in place to actually issue these.  Earlier this month, I met government officials across the Killinochchi district who told me they had not heard anything about this.

The government ratified the International Convention against Enforced Disappearances, but without accepting article 31 that will allow families of disappeared and other Sri Lankans to complain to the UN Committee monitoring the implementation of the convention.  The government has also promised to criminalize enforced disappearances,  but that too has not happened for nearly two years. A draft bill was expected to have been debated in parliament, but was postponed indefinitely. And at the same time, the government has failed to repeal the Prevention of Terrorism Act, and counter terrorism laws are being drafted without any public consultations, containing draconian provisions that can serve as license for enforced disappearances.

Economic justice

Despite widespread poverty amongst families of disappeared, there are no systematic initiatives to ensure economic justice for families. For many families, poverty is linked to the disappearance of the main breadwinner of the family. The right of the families to reparations has been relegated to an Office for Reparations, an entity that is likely to take even longer than the OMP to be established. There has been no response from the government to appeals for interim relief. But, even amongst supporters of families of disappeared, and amongst families themselves, there appears to be reluctance to talk about this important aspect. This is probably due to fear that it may undermine demands for truth and criminal justice, including through offers of minimalistic, temporary and unsustainable financial and material assistance. “We want our children, not chicken or certificates” thus became a slogan at protests and during hearings of Commissions of Inquiries. Administrative measures such as certificates of justice, interim relief measures or sustainable livelihoods, must be seen as a right by itself that compliments and not substitutes rights to truth and criminal justice. Protests, court cases, international campaigns etc. are likely to be more stronger, sustainable and independent if families of disappeared, especially mothers and wives, have stable livelihoods and are able to feed, educate, house, provide healthcare for one’s children who are still with them.

Moving forward

It’s important for the OMP to be operational as soon as possible, firmly rooted within constitutional provisions, with no ambiguity about its legal standing. At least at this stage, the recommendations of the families of disappeared should be taken seriously, including having families of disappeared and individuals of integrity and competence, who have confidence of many families of disappeared, women, ethnic and religious minorities in leadership positions. Independent international involvement is a must. And the government should criminalize enforced disappearances, upholding the spirit and letter of the International Convention, before the OMP begins its operations.

But the OMP should not be the only focus. The families of disappeared await response of the President to promises he made to release lists of detainees, surrendees and detention centres and publishing of Commission of Inquiry reports that many of them gave testimony to. In context of broken promises in the past, they don’t have much faith in the President’s promises. Hence, they have decided to continue the protests while awaiting a response. But there appears to be little support for these 6 month long protests and urgent demands of the families from the mainstream media and most activists in North & East, Colombo and rest of the country.

This is also a time for families of disappeared to assess their long struggles, recognize some achievements and plan next steps and phases of what is likely to be an even long and continuing struggle. This could include thinking of effective, long term and sustainable alternative strategies to present form of continuous protests. It would be important to think about strengthening alliances in Colombo and across Sri Lanka as well as internationally – with families of disappeared across the country and beyond, and potential allies such as activists, artists, academics, clergy, trade unions and mainstream Sinhalese and English media. The disastrous memorandum emanating from protest in Vavuniya in June, literary saying “we only believe in USA, only USA can help us, USA come and save us”, could serve as a wakeup call for all Sri Lankans. To be conscious of various political influences  on the protests, but not to dismiss what’s fundamentally a struggle by desperate families to find their loved ones who had disappeared. And 30th August can also be a day to reflect why our elderly mothers, fathers, sisters and brothers, had to resort to such desperate and drastic calls, undertaking roadside protests for more than 6 months to find disappeared family members.


[i] http://www.un.org/en/events/disappearancesday/

[ii] https://twitter.com/garikaalan/status/900005138412191744

[iii] http://www.hirunews.lk/166456/two-ministers-accuse-police-for-their-attempt-to-abduct-convener-medical-faculty-student-activists

[iv] http://www.itjpsl.com/assets/ITJP_unstopped_report_final.pdf (page 8, section 1 – B)

[v] http://www.jdslanka.org/index.php/news-features/human-rights/702-tamil-woman-activist-campaigning-for-disappeared-threatened-with-death

[vi] http://www.tamilguardian.com/content/tamil-journalists-threatened-sri-lankan-soldiers

[vii] https://english.dgi.gov.lk/news/latest-news/1265-president-meets-family-members-of-missing-persons

[viii] https://www.slguardian.org/2017/07/sri-lanka-womens-call/

[ix] Press Release by Association for Relatives of the Disappeared, 17th August 2017

[x] http://www.mfa.gov.lk/index.php/en/media/media-releases/6502-cabinet-certificates-of-absence

Can the Office of Missing Persons make a difference?

First published at http://www.ucanews.com/news/can-the-office-of-missing-persons-make-a-difference/77471 on 2nd November 2016

Ruki Fernando, Colombo
Sri Lanka November 2, 2016

Sri Lanka has a legacy of disappearances. According to the government, 65,000 complaints have been received since 1994.

The country also has a legacy of government failure to uphold the rights of victims’ families to truth, justice and reparations.

Sri Lankan society also has a legacy of apathy in the face of mass disappearances — in the past and even now.

Since the end of the civil war in 2009, families of the disappeared have become symbols of resistance and courage — the front line in the pursuit of truth and justice.

The international attention they have attracted has ensured that the present Sri Lankan government has given some priority to addressing disappearances. In August, parliament passed a law to establish the Office of Missing Persons.

The move followed a visit by the United Nations’ Working Group on Enforced and Involuntary Disappearances in November last year, 16 years after their last visit. The government also ratified the International Convention for the Protection of All Persons from Enforced Disappearances in May.

However, the government has stopped short of allowing Sri Lankans to lodge complaints directly with the committee monitoring the implementation of the convention. The criminalization of enforced disappearances, an obligation after ratifying the convention, has not happened.

The government had committed to nation-wide consultations on transitional justice mechanisms such as the Office of Missing Persons. But instead of consulting the people, the government relied on a secret process to come up with a draft bill to establish the office.

In May, the Foreign Ministry held a hastily convened briefing for a few activists. At the insistence of the activists, a further briefing was held with some families of the disappeared. Four days later the draft bill was approved by the cabinet and subsequently passed by parliament with some amendments, but without a substantial debate on the bill.

The Office of Missing Persons Act has some positive features. There are no time limits or geographical restrictions on claims, anonymity is guaranteed for witnesses and there are powers to summon people, obtain documents and issue search warrants and court orders. The Office of Missing Persons can also have branch offices.

But there are limitations. There is little place for victims’ families to participate in the Office of Missing Persons processes. Furthermore, the Act does not give the office the authority to prosecute. One of its clauses states that the office’s findings cannot lead to civil or criminal liability. There is also no requirement for the Office of Missing Persons to work in tandem with prosecutorial bodies.

Despite widespread poverty, there are no initiatives to ensure economic justice for families or offers of interim financial and material relief. The right of the families to reparations has been relegated to an Office for Reparations, a totally separate entity that is likely to take longer to establish.

Progress in the courts has been slow and unpromising. While there were regular hearings at the Magistrate Courts for disappeared Sinhalese journalist Prageeth Ekneligoda, there have been no indictments against any of the suspects arrested.

This month, the president expressed displeasure about military personnel being detained and his wife had complained of threatening calls. There appears to be no progress for many other cases, including well-known cases of Tamils such as journalist Ramachandran Subramanium, Catholic priests Father Jim Brown and Father Francis Joseph, and human rights activist Stephen Suntharaj.

Catholic priests have been amongst the disappeared, yet, by and large, church leaders and the Catholic community has not been an active supporter of the families of the disappeared. There have been some notable exceptions but these individuals have faced arrest, threats, intimidation and been branded “traitors.”

In the months leading up to the establishment of the Office of Missing Persons, several cases of abductions were reported, with at least 10 between March and June this year. At least two of those who disappeared have not returned, despite complaints to the police and Human Rights Commission. Some have been reported to have been found in police or remand custody and others dumped by the roadside after being abducted.

The Office of Missing Persons, like other transitional justice mechanisms, came out for the Sri Lankan government’s commitments to the U.N. Human Rights Council in Geneva in September 2015. It appears these were more about placating the international community than addressing the grievances of families of the disappeared.

However, there is still hope the Office of Missing Persons can make a difference.

For this to happen the office must appoint individuals of integrity and competence. These appointments should include family members of the disappeared. They should encompass women, ethnic and religious minorities. Independent international involvement is a must. The government should criminalize enforced disappearances before the Office of Missing Persons begins its operations.

But in the end, the success of the Office of Missing Persons will depend on Sri Lankans. The families of victims and activists, including Catholics, will have to critically engage with the Office of Missing Persons in order to ensure it delivers on what it promises.

Ruki Fernando is a human rights activist and consultant to the Justice, Peace and Integrity of Creation Commission of the Conference of Major Religious Superiors in Sri Lanka. He is also a member of the Asia-Pacific chaplaincy team of the International Movement of Catholic Students.

Latest measures to address disappearances in Sri Lanka

First published in the report “Human Rights situation in Sri Lanka: 17Aug 2015 – 17 Aug2016” by INFORM Human Rights Documentation Centre on 18th August 2016

 

By the time the new Parliament was elected in August 2015, families of the disappeared had emerged as strong civil movements in Sri Lanka. Their courage and persistence have helped bring about significant developments in relation to addressing disappearances.

The most significant is the Government’s decision to create an Office of Missing Persons (OMP), which received approval by Parliament in August 2016. Almost until the OMP was set up, a Commission of Inquiry, appointed by the previous President, continued to function. In July 2016, the Government introduced a draft law to facilitate the issuance of certificates of absence to families of the disappeared.[1] In November 2015, the UN’s Working Group on Enforced and Involuntary Disappearances visited Sri Lanka after the Government allowed entry, 16 years after their last visit.[2] In May 2016, the Government ratified the International Convention for the Protection of All Persons from Enforced Disappearances[3] and committed to pass legislation to make disappearances a crime under Sri Lankan law.

OMP

Despite a commitment to consult people about the proposed transitional justice mechanisms, the draft Bill for the OMP, the first of four transitional justice mechanisms initiated by the Government, was drafted in secret, even before formal public consultations began. Just before the draft bill was approved by Cabinet, there was a hastily convened briefing for few activists, followed by another slightly broader briefing, both in Colombo.[4]

The Bill was passed on 11th August with some amendments to the draft Bill. There was no substantial debate on the Bill, with the former President Rajapakse’s allies criticising it and the Government limiting itself to defending it. Neither the amendments nor the final version of the Bill, as enacted, are available at the time of writing this article.

The draft Bill had some positive features in relation to the right of the families to truth, with no restrictions on temporal or geographical restrictions, clauses guaranteeing anonymity for witnesses, opportunities for international expertise, powers to summon any person and obtain documents and other materials, make unannounced visits to relevant places, and seek search warrants and court orders for exhumations. The OMP will also have branch offices.

But there were numerous areas where the OMP Bill needed improvement.[5] The draft did not give the OMP prosecutorial authority and this may hamper the possibility to offer plea bargains, immunity in exceptional circumstances, and other forms of incentives to elicit information. Considerations such as gender and ethnicity were not specified. Families were not guaranteed involvement at any level in the OMP’s structures. There was no requirement for the appointing authorities to give time and opportunities to families of the disappeared and others to comment on nominees or make nominations for the seven Members (the highest positions in the OMP). The regularity to provide information to families was not specified and it was not obligatory to provide maximum information to families. There was no process set out for the OMP to take into account existing information and evidence before requiring families to give evidence again.

The right to pursue justice was compromised by the OMP not having prosecutorial authority and being given the discretion to share information with the external investigative and prosecutorial bodies where offences are involved. There was no provision to ensure that tracing investigations would be done in tandem with criminal investigations or that the OMP would ensure information and evidence discovered would be treated with best international criminal investigation standards, to enable them to be admissible during any subsequent prosecutions. Also, if enforced disappearance is not made a crime in Sri Lanka prior to the OMP beginning to operate, there will likely be barriers to holding perpetrators responsible for the crime of ‘enforced disappearance’ (and instead being limited to lower level crimes).

Slow judicial processes 

While there were regular hearings at the Magistrate Courts on the case of the disappeared Sinhalese journalist Prageeth Ekneligoda, there were no indictments against any of the suspects arrested. Further, there did not appear to be even minimal progress on many other cases, including well known cases of Tamils such as the journalist Ramachandran Subramanium, Catholic Priest Fr. Jim Brown, and human rights activist Stephen Suntharaj. Habeas corpus cases in relation to those who were alleged to have surrendered in front of eyewitnesses to the Army and then disappeared on the last day of the war dragged on, with the Army refusing to provide a proper list of those who had surrendered, despite repeated requests by Courts.

Continuing abductions

Alarmingly, cases of abductions continue to be reported, with at least 10 cases reported between 30th March and 30th June this year. At least two of those who disappeared have not returned, despite complaints to the Police and Human Rights Commission. Some have been reported to have been found in Police or remand custody after being abducted.

In order to make the OMP effective, the Government should criminalise enforced disappearances and ensure that the discretion and ambiguity in the OMP Act is used in favour of families of the disappeared. But even as the OMP starts its operations, habeas corpus cases and other cases related to disappearances pending for long years in the courts could be expedited. And unless there is a full stop to continuing disappearances and abductions, some of the steps the Government has taken to address past disappearances may not have much credibility.

[1] For information relating to concerns about the draft legislation on certificates of absence, see Memorandum to the Consultation Task Force, dated 23 July 2016, https://www.scribd.com/document/319070165/Memo-to-CTF-COA-22-July-2016.

[2] Preliminary observations at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16771&LangID=E.

[3] International Convention for the Protection of All Persons from Enforced Disappearance, adopted 20 December 2006, UN Doc. A/61/488 (entered into force 23 December 2010).

[4] For further information, see Follow-up letter to the Foreign Minister on the OMP, dated 16 May 2016, https://www.scribd.com/doc/312730188/Memorandum-to-the-Foreign-Minister-THE-OFFICE-OF-MISSING-PERSONS.

[5] For further information, see Memorandum to the Consultation Task Force on amendments to the OMP Bill, dated 5 July 2016, https://www.scribd.com/document/317667408/Memo-to-CTF-OMP-Bill-5-July-2016. See also Memorandum to the Consultation Task Force, dated 1 May 2016, https://www.scribd.com/doc/311091283/Memorandum-to-the-Consultation-Task-Force-The-OMP-1-May-2016.