August 2018

 
TJ INSIGHT

Progress with respect to the operationalization of the Office on Missing Persons (OMP) appears to have been slow this month. OMP Commissioner S.K Liyanage explained that the OMP’s recruitment process has been delayed due to the country’s complex bureaucratic system. According the S.K. Liyanage, the permanent recruitment can only be carried out once the OMP’s scheme of recruitment is approved by the Department of Management Services in the Ministry of Finance. In the meantime, the OMP is functioning with a temporary skeletal staff. Despite these administrative hurdles, the OMP took the important decision to provide financial support to the excavation process of the Mannar mass grave. In fact, the Chairman undertook to fund the basic cost (transport, accommodation and support services) of the forensic team working on the Mannar mass grave for ‘as long as it is necessary’ so as to prevent the closure of the site due to lack of government funding. This intervention is welcome and should be accompanied with a more substantive involvement of the OMP in the process in an observatory capacity. This is all the more necessary since the Mannar Magistrate is reported to have made an order prohibiting journalists from covering the excavation proceedings, without his prior approval. The International Day of the Victims of Enforced Disappearances was also commemorated by the OMP this month with the participation of family members of missing persons. At the event organized to mark the occasion, the Chairman of the OMP revealed that Office’s first interim report containing key recommendations connected to its mandate would be presented to the President of Sri Lanka in September.
This month, the Supreme Court also delivered its determination on the constitutionality of the Office for Reparations Bill which was challenged last month. The Supreme Court found the definition of an ‘aggrieved person’ in the Bill to be inconsistent with the Constitution. While the Bill is likely to be passed with the amendments proposed by the Supreme Court, other concerns about the Bill raised by civil society last month remain unaddressed.
Finally, two positive developments with respect to strengthening the judicial response to grave human rights violations must be noted. The first was the sentencing of monk Gnanasara by the Court of Appeal for his conduct during court proceedings regarding the case of missing journalist Prageeth Eknaligoda. Second the CID’s formal filing of information in the Magistrate’s Court revealing that senior naval officers and members of the Attorney General’s Department obstructed justice in emblematic cases of human rights violations. It is hoped that these developments portend a greater resolve on the part of the judiciary and investigative agencies to pursue justice for grave human rights violations and deal severely with individuals who obstruct the judicial or investigative process.

WHAT’S NEW

ARTICLES
‘Enforced disappearances: families have a right to know’ Daily Mirror on 30/08/2018
‘When struggle becomes the biggest succour’ by Meera Srinivasan, the Hindu on 02/09/2018
‘Finding humanity’ Daily FT on 31/08/2018
‘Sri Lanka’s Democracy: Very critical challenges ahead’ by Jayadeva Uyangoda, Sunday Observer on 19/08/2018
‘New businesses to add over 1,300 jobs in Northern Sri Lanka’ Economy next on 02/09/2018
‘Remembering to rebuild’ by Raisa Wickrematunge, Groundviews on 28/08/2018
‘Justice for the disappeared’ Daily news on 30/08/2018
‘Fragile Hope, Firm Resolve’ by Amalini De Sayrah, Hafsa Razi and Raisa Wickrementunge, Groundviews on 30/08/2018
“Public come to us with distrust” – Mirak Raheem by Chathushika Wijesinghe, Daily Mirror on 31/08/2018

The Supreme Court’s Special Determination on the Office for Reparations Bill and its implications on Sri Lanka’s Post-War Reparations Process

The Supreme Court this month delivered its determination on the constitutionality of the Office for Reparations Bill which was challenged last month. The Bill was challenged on a number of grounds. The petitioner argued that the appointment process of the Office’ members infringes on the President’s executive powers; that the scheme of the Bill erodes Parliament’s control over public finance; that the Bill deprives the people of their fundamental right to information; and finally, that the power given to the Office to determine who ‘aggrieved persons’ are (for the purpose of awarding reparations) is an unconstitutional vesting of judicial power in the Office.
The Supreme Court ultimately found the fourth argument to be the most persuasive. ‘Aggrieved persons’ in terms of the Bill was defined as persons who have suffered a violation of human rights or humanitarian law (as contained in the First, Second, Third and Fourth Geneva Conventions of 1949) in four different contexts (namely in the course of, consequent to, or in the connection with the conflict which took place in the Northern and Eastern Provinces or its aftermaths, in connection with political unrest of civil disturbances, in the course of systemic gross violations of the rights of individuals, groups or communities of people in Sri Lanka or due to an enforced disappearance) . ‘Human Rights’ was defined in the Bill as all fundamental rights recognized by the Constitution and rights contained in Acts of Parliament enacted to give effect to international human rights treaties which have been ratified by Sri Lanka. The Supreme Court reasoned that the Office – in identifying an aggrieved person − would not only have to make a factual inquiry but also interpret and define the scope and ambit of (a) fundamental rights in the Constitution, (b) other human rights in treaties that have been incorporated into Sri Lankan law and (c) violations under international humanitarian law. The crux of the Supreme Court’s reasoning was that the parallel task of interpreting a complex body of law, in the present circumstances, amounts to a judicial function. In light of this, the Supreme Court recommends removing references to rights violations altogether and adopting the following definition of aggrieved persons: persons who have suffered damage as a result of loss of life or damage to their property or persons in the four contexts listed above.
However, delinking reparations from rights violations would be problematic from a transitional justice perspective. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law insist that any reparation program should be implemented on the basis that victims are owed reparations as rights holders whose rights have been violated. Awarding reparations on this premise also offers an avenue for the State to acknowledge that rights were violated in the first place. Dispensing with this acknowledgment takes away from one of the essential functions of reparations and is problematic as such. While an official acknowledgement of rights violations need not come from the Office of Reparations, it must nonetheless take place to ensure that reparations are meaningful.

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