01 June 2016

Commentary on the Bill titled Office on Missing Persons

Written by

PART 1: Introduction: Background and Rationale for an OMP

The change of government in January 2015 brought to the fore the need for a discrete body to deal with the tens of thousands of disappearances throughout Sri Lanka‟s recent history. The Paranagama Commission of Inquiry which had been established by the previous government lacked credibility, and was not expected to bring closure to victims. On the contrary, there were serious fears of the retraumatization of victims through another failed mechanism that was not sensitive to their rights or needs. The Report of the OHCHR Investigation on Sri Lanka (OISL) released on 16th September 2016 recommended that the government “dispense with the current Presidential Commission on Missing Persons and transfer its cases to a credible and independent institution developed in consultation with families of the disappeared.” Just a few weeks prior to the release of the OISL Report, Foreign Minister Mangala Samaraweera‟s speech to the UN Human Rights Council announced his government‟s intent to establish an Office of Missing Persons, “based on the principle of the families‟ right to know, to be set up by statute with expertise from the ICRC, and in line with internationally accepted standards.” Operative Paragraph 4 of the UN Human Rights Council resolution 30/1 which Sri Lanka co-sponsored thereafter incorporated this commitment, explicitly referring to the Office of Missing Persons among other promised mechanisms.

It is this context that the OMP Bill was gazetted and is expected to be presented shortly to Parliament. While there are some concerns regarding the process through which the OMP Bill was gazetted, this paper is concerned primarily with its content. The paper concludes that while the Bill is fundamentally sound—with the exception of its strategy to incentivize perpetrator witnesses—there are several technical revisions necessary to ensure the smooth functioning of the OMP. Some of these are critical, and it is essential that they be undertaken at the Committee stage in Parliament before the draft enters into law.

PART 2: Establishment

Part 1 of the Bill deals with the form and nature of the Office. There are a few key features concerning the nature of the envisaged OMP. Clause 3 of the Bill envisages an OMP with legal personality and one that would be based in Colombo, with provision for regional offices as necessary. Notably, if enacted, the Bill envisages a permanent body in the sense that it would only cease to exist in the event Parliament by legislation amends or repeals the OMP Act with a view to terminating the OMP‟s existence. This represents a significant improvement on prior Commissions to investigate missing persons, which served effectively at the pleasure of the President, who was at liberty to terminate or extend their respective mandates at will.

Section 4 deals with composition. The OMP is to consist of seven members appointed by the President on the recommendation of the Constitutional Council. In this regard, the mode of appointment to the OMP is similar to the mode of appointment of the Chairman and members of the Election Commission, Public Service Commission, National Police Commission, Audit Service Commission, Human Rights Commission, Commission to Investigate Allegations of Bribery or Corruption, Finance Commission, Delimitation Commission, and National Procurement Commission.1 Clause 4(2) provides that in making recommendations, the Constitutional Council shall have “due regard” to ensuring the composition of the OMP reflects the pluralistic nature of Sri Lankan society and that the members shall be persons with “previous experience in fact finding or investigation, human rights law, international humanitarian law, humanitarian response, or possess other qualifications relevant to the carrying out of the functions of the OMP.” These provisions are useful hortatory guidelines, but they do not legally bind the Constitutional Council or the President in any way. Similarly, the question arises as to whether the President is bound by the recommendations of the Constitutional Council. The plain text of the Bill suggests a degree of ambiguity. Clause 5 provides that the President “shall appoint, within fourteen days of receiving the recommendations of the Constitutional Council for such appointments, the Chairman and Members of the OMP.” The use of the imperative word “shall” suggests the President has no discretion with respect to whether or not to appoint the Members and Chairman, but it is unclear if this imperative requirement attaches to the specific individuals recommended by the Constitutional Council. Moreover, the word “recommendation” stands in contrast to the word “advice” when used in contemporary constitutional parlance. Where “advice” suggests the binding nature of the duty of the formal decision maker to act in accordance with the decision of an actual decision maker, “recommendations” are commonly understood not to give rise to a binding obligation to act in accordance with the recommendation. In contrast to the OMP Bill, Article 41B(1) of the Constitution clearly stipulates that “[n]o person shall be appointed by the President as the Chairman or a member of any of the Commissions specified in the Schedule to this Article, except on a recommendation of the Council.” The absence of an analogous provision with respect to the OMP Bill is therefore worrisome, and must incorporated into the Bill at the committee stage in Parliament if the mode of appointment of OMP members is to be truly independent of Presidential fiat.

In the event the President fails to make an appointment within two weeks, however, Clause 5 provides that the persons recommended shall be deemed to have been appointed.

Clause 5(2) provides that the Chairman of the Office shall also be the Chief Executive Officer. This suggests that the Chairman of the OMP will be a full time position, with the distinct likelihood that the other positions will not. The absence of provision for members to function as full time officers risks a weakened and dysfunctional OMP. Many independent Commissions in Sri Lanka are undermined by the absence of provision for Commissioners to function on a full time basis, since the general norm appears to be that while Chairmen hold office full time and receive commensurate remuneration, the other members are deemed to function in a role similar to non-executive board members, and thus receive only nominal remuneration. While there is no bar to full time employment by OMP members in the OMP Bill, it is likely that in determining salaries, Parliament would adopt the current practice with respect to existing Commissions. Thus, it would be useful if amendments are effected to provide for at least a few of the members to function on a full time basis. Failure to do so could cripple the OMP, or in the alternative, effectively vest disproportionate executive power in a Chairman who is also the Chief Executive Officer.

The other provisions relating to the Establishment of the OMP deal with modes or removal, term limits for members, meetings and quorum.

Part III of the Bill also deals with the structure of the OMP. Clause 16 contemplates a Secretariat responsible for administration that is staffed by those appointed by the OMP. In addition, the Bill contemplates two auxiliary units: a Tracing Unit and a Victim and Witness Protection Division within the OMP.

Tracing Unit

The Tracing Unit is in effect an investigative unit, and will be headed by an Executive Officer appointed by the OMP and shall include “compete, experienced and qualified investigators including those with relevant technical and forensic expertise”.

Victim and Witness Protection

The Victim and Witness Protection Division is likewise to be headed by an Executive Officer. Clause 18 (3) mandates the Division to take “all appropriate measures” to ensure the protection of victims and witnesses engaging with the OMP. The Division is further mandated to provide administrative services and welfare services including psychosocial support to victims, witnesses and relatives. Further, it shall inform relatives of the use or potential use of information provide, and coordinate with other law enforcement agencies where it deems necessary. In this regard, a central question is the nexus between the Victim and Witness Protection Division of the OMP and the Victim and Witness Protection Authority and Division established under the Assistance to and Protection of Victims of Crime and Witnesses Act No. 4 of 2015. The interpretation clause in Act No. 4 of 2015 limits the definition of witnesses to witnesses before a court or Commission of Inquiry, and thus excludes the OMP. This is a critical issue, and must be remedied by the OMP Bill. However, the proviso to Clause 13(1)(g) of the OMP Bill stipulates that the provisions of the OMP Bill shall not prejudice the rights of victims and witnesses to apply for appropriate orders in terms of Act No. 4 of 2015. On its face therefore, there is no coordination envisaged between the Authority and Division established under the Act—which is itself deeply problematic and in need of revision2—and the OMP.

Finances

Clause 19 provides that the State shall provide the OMP with adequate funds to enable it to discharge its functions. These funds are to be charged on the Consolidated Fund. The salaries of the members are to be determined by Parliament. Significantly however, the OMP is given the power by Clause 21 to “raise funds in order to achieve its mandate, including but not limited to obtaining grants, gifts or endowments from the national or international community.” The accounts of the OMP are to be audited by the Auditor General.

Judicial Review

Clause 21 provides that the OMP shall have immunity from suit, other than in respect of the writ jurisdiction of the Court of Appeal and the fundamental rights jurisdiction of the Supreme Court. However, all applications for writs in terms of Article 140 of the Constitution are to be handled by the Supreme Court, with the effect of eliminating appeals in respect of such cases. Further, there is protection from civil or criminal suits for good faith acts of a member, servant or officer of the OMP in that capacity; the publication of OMP reports in good faith; and the provision of evidence or documentation to the OMP in good faith.

PART 3: Mandate

The OMP has a six-part mandate, outlined in Clause 10 of the Bill. The primary mandate appears to be that of searching for and tracing missing persons and identifying appropriate mechanisms for the same, and to clarify the circumstances in which such persons went missing. Other aspects of the OMP mandate include making recommendations to relevant authorities to address the incidence of missing persons, protecting the interests of missing persons and their relatives, identifying avenues of redress available to missing persons and their relatives and informing them of same, and collating data related to missing persons and establish a database. Clause 10(1)(f) is an omnibus provision mandating the OMP “to do all such other necessary things to that may become necessary to achieve the objectives under the Act.”

Clause 10(2) clarifies the absence of a temporal mandate: the OMP‟s mandate extend to missing persons regardless of the period in which that person went missing.

The definition of “missing person” is therefore the key element in circumscribing the OMP‟s mandate. Clause 27 defines “missing person” as a person whose fate or whereabouts are reasonably believed to be unknown and is reasonably believed to be unaccounted for and missing in three specific contexts. The three contexts are:

  1. The conflict which took place in the Northern or Eastern Provinces or its aftermath, or the person is a member of the armed forces or police who is identified as “missing in action”;
  2. Political unrest or civil disturbances; and
  3. An enforced disappearance as defined in the International Convention on Protection of All Persons from Enforced Disappearances.

With respect to item 1, it is notable that as long as the person went missing “in the course of, consequent to, or in connection with” with the conflict which took place in the Northern or Eastern Provinces, that person would fall within the OMPs mandate. This would be the case even if the person went missing outside the North and East, provided there is a sufficient nexus between the person going missing and the conflict.

This broad mandate is to be welcomed, but it is likely that in many cases of persons going missing outside the North and East, any nexus to the conflict would only be discovered at a much later stage of a potential investigation. Likewise, in the case of enforced disappearances, a determination that a person was forcibly disappeared is only likely to be made after substantial investigations are conducted. This highlights a major loophole in the design of the OMP as envisaged: while the OMP‟s mandate is crafted broadly, evidence of any person falling within its mandate is likely to be uncovered only at a subsequent stage of the investigation, and is unlikely to be available at the point at which a complaint to the OMP is made. In other words, in the large majority of cases, complaints would be made without sufficient proof that the case falls within the OMP mandate as defined. The technical problem this poses is that the OMP could reject a complaint on the basis that a nexus to the three specified contexts is not demonstrated, even though such information could only be clarified through an investigation which the OMP is ostensibly designed to carry out. In this case, the OMP could—in terms of Clause 12(h) refer such cases to the police or other law enforcement authority after due consultation with the complainant. However, Clause 13(1)(a)(i) mandates the OMP to issue an interim report to the relative where its investigations provide sufficient material to conclude that a person to whom a complaint relates is in fact a “missing person”. Thus, the Bill clearly contemplates investigations by the OMP to determine whether a person falls within the mandate of the OMP. Consequently, while it is inconceivable that reasonable OMP members would flatly reject complaints on the basis that they do not sufficiently justify inclusion within the OMP‟s mandate, it is essential that the law prevents such abuses, and is designed in a manner consistent with the expectation of the duties the OMP is expected to perform. It is therefore preferable if an amendment is introduced by which the OMP is prohibited from rejecting or refusing to investigate a complaint on the basis that it does not fall within its mandate, unless the OMP has investigated the case and provides reasons to support a belief that the case falls outside its mandate.

PART 4: Functions

Clause 13 delineates the functions or duties of the OMP. Clause 13 relates to the obligation of the OMP to provide reports—interim and final—to the relatives for the purposes of obtaining a Certificate of Absence or Certificate of Death as relevant from the Registrar General. Where the OMP has sufficient reason to conclude that a person is in fact a missing person, the OMP is required to provide the relatives with an interim report which could be used to obtain a Certificate of Absence. After investigations are concluded, the OMP is required to issue a final report to a relative to enable the Registrar General to issue a Certificate of Absence or a Certificate of Death. Moreover, the reports leading to the issuance of certificates may be amended where further investigations reveal they were issued erroneously, with the relevant relative and Registrar General being noticed. 

Clause 13(1)(b) mandates the OMP to provide information relating to the whereabouts of a missing person if the person is found to be alive. However, this is to be undertaken “subject to the consent of the person found to be alive.” While this caveat would not be objectionable in cases in which the person found to be alive is at liberty to express consent without fear or threat, it would be wholly problematic in cases where the person found to be alive is in a position in which he cannot freely express consent. For instance, if the person concerned was initially disappeared but thereafter in a working arrangement with armed actors within a coercive environment, it would meaningless to rely on his consent when such consent is not freely exercised. Thus, the Bill must be amended to provide for these types of situations, by clearly stipulating that the lack of consent of the person found to be alive cannot militate against informing family members of his whereabouts where he was at any point a victim of enforced disappearance or where the person is not capable of expressing consent, or is subject to the reasonable apprehension of fear or threat in expressing her views to the OMP. The failure to provide for this sort of eventuality—which is commonly alleged in post-armed conflict situations—is a significant failing of the OMP Bill. 

Clause 13(1)(c) relates to the duty of the OMP to provide information as to the status of an ongoing investigation to the family, unless the OMP is of the view that the provision of such information would hinder an ongoing investigation or that it is not in the best interests of the missing person. However, the Bill does not stipulate the frequency with which the OMP must provide such information and the extent and manner in which such information pertaining to the status ought to be shared. It would therefore be appropriate and desirable for the OMP to formulate formal rules in this regard in terms of Clause 11(b) and (c).

Clause 13(1)(d) captures the central obligation of the OMP to provide answers regarding the fate and circumstances of the missing person to the relatives at the conclusion of the investigation. As noted later in this paper, this duty is subject to the requirements of confidentiality stipulated in Clause 15(1). In terms of the scope of the duty to provide answers, the OMP is mandated to inform the relatives and/or complainant of the “circumstances in which such person went missing and his fate” in cases where the person is deceased or his whereabouts are unknown. In cases where the person is alive and his whereabouts are known, the OMP is to inform relatives of the “circumstances in which such person went missing”, but subject to the consent requirement of Clause 13(1)(b).

A few comments may be appropriate in reflecting on Clause 13(1)(d). First, the Bill contemplates the “conclusion of an investigation” even in cases where the whereabouts of a person are unknown. This phrasing evinces the question as to when an investigation is to be deemed concluded. Since the OMP is designed to provide answers to victims, and since it is desirable that the remains of deceased victims be returned to their families, it follows that an investigation cannot be closed until the fate of the missing person is clarified, the circumstances surrounding his going missing ascertained, and his remains—if available— returned to the family. However, by contemplating the closure of investigations even before the whereabouts of the person are known, the OMP Bill partially answers an important question it otherwise leaves open. In reality, an open investigation may not necessarily mean the active pursuit of the case by the OMP, given the need for rationalization of what are likely to be limited resources relative to the immense need. However, it is essential that the OMP is not seen to be closing an investigation and forcing families to accept closure when in fact questions that the OMP is mandated to answer remain unanswered.

Second, the Bill does not clarify the manner and degree to which information would be shared with the relatives. It is desirable that families be provided answers in a sensitive manner given the emotional trauma likely to have been already caused, and caused on occasion of the receipt of information relating to their relatives. However, it is also essential that the relevant information be provided in writing as an official acknowledgement of the state. In this regard, the OMP should formulate appropriate rules. Further, and as we discuss later in this paper, it is unclear what effect the confidentiality requirement would affect families‟ right to know.

The other functions of the OMP relate to: the provision of administrative assistance, welfare services and psycho-social support to victims; recommendations with respect to reparations; developing a system of victim and witness protection; creating a database including particulars of all missing persons; informing victims, relatives, witnesses and other information of their right to report serious crimes to law enforcement and prosecutorial authorities; conduct public advocacy; and making recommendations on a range of policy and legal issues pertaining to missing persons.

PART 5: Powers

The powers of the OMP are specified in Clauses 11 and 12 of the Bill and are classified as “general powers” and “investigative powers”. The former primarily relate to powers concerning the establishment of the OMP, and are significant.

General Powers

Clause 11(a) refers to the general power to enter into agreements with any person or organization, whether local or foreign, including agreements to secure information, maintain confidentiality of information, obtain technical support, training and collaboration and establish databases. The phrasing of this provision appears designed to cover potential agreements between the OMP and the International Committee of the Red Cross (ICRC) and other international agencies. The ICRC has been involved in the design process with respect to the OMP and appears to have in its possession material potentially useful to the OMP‟s mandate. However, the ICRC does require some form of confidentiality in that it has a policy of not providing information if there is a risk that such information would be used for criminal investigations and prosecutions. Moreover, the ICRC has a history of signing memoranda of understanding with authorities with whom it shares its information. Thus, this Clause appears to contemplate the type of agreements required to ensure cooperation between the ICRC and the OMP. However, the provision could also permit a wider range of agreements. In particular the phrase “obtaining technical support and training (forensic or otherwise) and collaboration” would likely cover consultancy agreements required to give effect to the government‟s commitment in Human Rights Council Resolution 30/1 passed in October 2015 that Sri Lanka‟s transitional justice mechanisms would have the “freedom to obtain assistance, both financial, material and technical from international partners including the OHCHR”.3

Further general powers of the OMP include the power to make rules governing the OMP, appoint and dismiss staff and consultants, seek secondment of public officers to the OMP, and establish committees, units and divisions. It is notable that the OMP has the power to delegate powers and functions to those Committees as necessary. In this regard, the OMP appears to have the flexibility necessary to establish an oversight committee comprising families of those missing and the disappeared in light of these families‟ consistent demand that they be allowed to play such a role.

Investigative Powers

With respect to investigative powers, the OMP appears to have more extensive powers than the quite significant powers already vested in Commissions of Inquiry (CoIs) through section 7(1) of the CoI Act No. 17 of 1948, as amended. These powers are: 

To receive from any person or organization complaints relating to missing persons - Clause 12(a)

This is an incidental power to the OMP‟s establishment. Notably however, complaints regarding a missing person may be made by any person, and not just a relative. This would enable complaints to be made by non-governmental organizations or others who have previously collated information on behalf of relatives who may be unaware of or unable to access the OMP. Complaints may also be initiated by the ICRC on the basis of information available to it.

To investigate the whereabouts and circumstances of disappearances of a missing person pursuant to a complaint to the OMP or on the basis of information received from previous CoIs – Clause 12 (b)

This is also an incidental power to the OMP‟s establishment. The OMP was initially mooted as a more credible alternative to the Paranagama CoI. However, the Paranagama CoI and other CoIs have collated mostly biographical and other information from a very large number of relatives. The archives of these CoIs—if available—would greatly add value to the work of the OMP.

To take all necessary steps to investigate cases of missing persons, including but not limited to those specifically enumerated – Clause 12 (c)

This omnibus clause enables the OMP to exercise a wide discretion in determining the limits of its own investigative powers. The phrase “all necessary steps” coupled with the clause enabling the OMP to exercise powers beyond those enumerated elsewhere contemplates robust investigations if the OMP exhibits willingness and capacity. 

To procure and receive statements, written or oral, and to examine persons as witnesses, including through the use of video conferencing facilities – Clause 12 (c)(i)

This clause is a near identical reformulation of the corresponding provision in the CoI Act, except that the OMP Bill makes specific reference to the use of video conferencing facilities which were initially used and later discontinued in the course of the Udalagama CoI. The OMP Bill puts the matter beyond doubt that using video conferencing to obtain statements is permissible. Notably however, unlike the CoI Act, the OMP Bill does not grant the Office the explicit right to administer an oath to witnesses before obtaining their testimony, with the consequence that a witness who deliberately lies to the OMP would not be perjuring himself.

To summon any person present or residing in Sri Lanka to be present before the OMP to provide a statement or produce any document or other thing in his possession – Clause 12(c)(ii)

An identical provision is made in the CoI Act.

To admit any statement or material, oral or written, which might be inadmissible in civil or criminal proceedings – Clause 12(c)(iii)

An identical provision is made in the CoI Act. The provision does not contribute any significant powers, except to put beyond doubt the admissibility to the OMP of material such as hearsay evidence and other evidence not admissible in courts of law.

To establish a process to accept confidential information or information in camera – Clause 12(c)(iv)

This is an incidental power to the manner in which the OMP is expected to function. Unlike a traditional CoI, where hearings are generally conducted in public in the form of a formal inquiry, the OMP is likely to deal with complainants on an individualized basis. The default mode for receiving statements is likely to be in camera statements taken by one or more investigative personnel from the Tracing Unit.

However, the Bill uses the term “confidential information” in a number of instances. As we discuss in greater detail in the section on “Linkages and Confidentiality”, the precise scope of this confidentiality is left undefined, and is subject to interpretation.

To establish a process to accept information on the condition of confidentiality – Clause 12(c)(v)

Once again, the use of the word “confidentiality” appears, without a precise definition of its implications.

To apply to the relevant Magistrate for an order to excavate and/or exhume, and to act as an observer at such excavation/exhumations and “other proceedings, pursuant to same” – Clause 12(d)

This is a significant power and one that was unavailable to previous CoIs. By virtue of this power, the OMP would effectively be in a position to apply to a Magistrate to take action in terms of Part V of the Criminal Procedure Code.  The referable section of the Code of Criminal Procedure appears to be section 124, which permits the Magistrate to “assist the conduct of an investigation by making and issuing appropriate orders and processes of court…” However, this section appears to apply only to investigations that have been already initiated before the Magistrate by the regular criminal justice process through police investigations. Thus, absent an explicit power vested in the OMP to report and/or forward a case to the Magistrate and thereby to open an investigation, it is doubtful if the Magistrate would be within jurisdiction to issue orders under section 124 where there is no pending investigation before the Magistrate. While the Bill appears to contemplate that excavation and exhumation orders would be followed by regular Magisterial criminal investigations, (demonstrated by the reference to “other proceedings” pursuant to excavation and exhumation orders) it does not legally locate the power of the OMP to apply to the Magistrate within the scope of Part V of the Criminal Procedure Code, and would if unaddressed by Parliament at the Committee stage, potentially lead to technical difficulties.

One way of circumventing these difficulties is for the OMP to report the existence of a grave (and thereby a crime) to the police, and for applications to the Magistrate for appropriate orders to be made subsequent to the police reporting the same to the Magistrate.

However, the OMP is not explicitly vested with the power to report the presumed existence of mass graves to the police. The only analogous power is in Clause 12(i) in terms of which the OMP may report a situation to the relevant law enforcement of prosecuting authority where it appears to the OMP that an offence has been committed. However, the OMP has the discretion to report such offences after consultations with the relatives as it deems fit, “in due consideration of the best interests of the victims, relatives and society…” Clause 12(i) however was clearly designed for situations in which the OMP has clarified, in full or in part, the fate of a missing person and discovered the existence of a crime—evidenced by the fact that it contemplates consultations with the relatives of the specific missing person in respect of whom the crime was committed— and not a situation in which the OMP discovers a mass grave.

There is a further lack of clarity in the manner in which Clause 12(d) is framed. The OMP is to act as an observer in proceedings related to exhumation and excavation of suspected grave sites. However, there is no explicit provision enabling the OMP to play a more technical role in conducting forensic investigations with respect to the graves, despite the prospect that it will, in all probability, be in possession of such competencies. In limiting the OMP‟s role to that of a mere observer, the Bill potentially excludes the OMP from fulfilling a role for which it was manifestly designed. While it is possible that the Magistrate could exercise powers available to him under section 124 to request the OMP to conduct forensic and other functions as necessary, the clarity of the Bill would be greatly assisted by making explicit mention of the Magistrate‟s ability to make such requests of the OMP.

To request assistance necessary for the achieving of its mandate from any State, governmental, provincial, or local authority of agency or its officers, including requests for information and the production of documents. Such functionaries “shall forthwith render such assistance”. – Clause 12(e)

This provision appears to strengthen and clarify the powers of the OMP and corresponding duties of those from whom it requests assistance. In any event, the OMP is vested in terms of Clause 12(c)(ii) to summon any person resident in Sri Lanka to provide a statement or produce a document.

To authorize officers to enter, without warrant, and investigate at any time any place of detention, police station, prison or other place in which in a person is suspected to be detained by a State functionary or suspected of having been previously detained, and to examine, make copies of extract from, seize and retain any object deemed necessary for its investigations – Clause 12(f)

The power conferred on the OMP through this Clause is extensive, and is evidently contemplated in respect of places of detention—authorized or unauthorized—in which missing persons are likely to be in detention or likely to have in the past been in detention.

To make application to a Magistrate for a search warrant to enable OMP officers or police officers to search premises suspected to contain evidence relevant to an investigation of the OMP; and to examine, make copies of, extract from, seize and retain any object deemed necessary for its investigations – Clause 12(g)

This power to apply for a warrant is in respect of places where evidence relating to investigations is potentially held, unlike Clause 12(f) which applies to places where persons were previously or are presently being detained. Together with Clause 12(f), Clause 12(g) renders the OMP an extraordinarily powerful investigative body, which is to be welcomed.

To report to the relevant law enforcement or prosecuting authority information relating to the missing person’s biographical information and place in which the missing person was last seen where it appears to the OMP that an offence has been committed. This power to be exercised only after consultation with relatives as it deems fit, “in due consideration of the best interests of the victims, relatives and society…”

This Clause is examined in detail in the section on “Linkages and Confidentiality”.

Offences

Clause 23 criminalizes a number of acts so as to punish acts which prevent the due functioning of the OMP. These acts include failing to respond to summons, refusing without cause to answer questions posed by the OMP, refusing to comply with a requirement of a notice or written order or direction of the OMP, refusing to produce a document in response to a summons, obstructing an officer authorized by the Act to do a thing, knowingly hindering or obstructing the OMP, attempting to improperly influence or interfere with the OMP, threatening or intimidating those cooperating or intending to cooperate with the OMP, disclosing confidential information, and without reasonable excuse failing to comply with a order of the OMP. Trial and punishment is to be by the Court of Appeal for contempt of the OMP as though the offence were that of contempt committed against the Court of Appeal, upon a report by the OMP to the Court.

PART 6: Linkages and Confidentiality

The OMP is designed explicitly for the purpose of “searching and tracing” missing persons (Long Title) in recognition that “relatives of missing persons are entitled to know the circumstances in which such persons went missing, and the fate and whereabouts of such missing persons” (Preamble). While the government has committed to an accountability mechanism to deal with prosecutions, government functionaries have been keen to point out that the OMP is not designed for prosecutions, but “will in no way impede victims‟ right to justice”.

The OMP does not explicitly impede victims‟ right to justice. It does not, for instance, establish a mechanism for amnesty by which perpetrators would be excluded from criminal prosecution. Further, by investigating enforced disappearances and ascertaining the fate and whereabouts of victims, the OMP could potentially build a very powerful public case for prosecutions, and further contribute to trials by identifying mass graves for exhumation and contributing its expertise to criminal investigations. However, the details concerning the linkages between the OMP and a potential accountability mechanism require analysis. While much of the praxis surrounding the interaction between the OMP and a potential special accountability mechanism would be influenced by the relationships between the individuals animating both mechanisms, the Bill contains a few provisions that provide the parameters for this interaction.

Clause 12(i) provides that where it appears to the OMP that an offence has been committed and that such offence warrants investigation, it may “after consultation with the relatives of the missing person as it deems fit”, “in due consideration of the best interests of the victims, relatives and society”, report the same to the relevant law enforcement or prosecuting authority. The use of the phrase “prosecuting authority” appears to contemplate a special prosecutor to deal with, among others, disappearance related crimes. This reporting is to merely transmit biographical information of the victim and the place in which the missing person was last seen. This provision is unduly restrictive on the OMP. First, while consultations with victims are desirable with respect to any decision, the decision concerning the transmission of information to investigating or prosecuting authorities does not require specific consultations. Second, there is no conceivable reason as to why the OMP should have the discretion whether or not to report an offence. Further, the grounds on which they are to exercise this discretion are exceedingly broad and capable of abuse. Finally, since confidential information would in any event be unavailable to a court, such information could be removed from a redacted file concerning the investigation that is sent to the relevant investigators and prosecutors. The current scheme would require investigators and prosecutors to duplicate the work of the OMP in sourcing non-confidential information, and is therefore flawed.

Clause 13(2) dealing with the functions of the OMP stipulates that “the findings of the OMP shall not give rise to any criminal or civil liability”. This provision has caused concern among some sections of the public, who fear it extinguishes or reduces the prospects for accountability. A plain reading of the provision suggests, however, that it only reiterates a reality that would otherwise be accepted, that the findings of the OMP pursuant to an investigation would not, of themselves, be sufficient to ground civil or criminal liability of a potential perpetrator. Thus, the provision appears to be redundant and was likely included in the Bill to assuage the fears of a group or groups of suspected perpetrators. Its inclusion does not add any legal value to the text of the Bill, and thus should have been avoided.

Another potential concern is the usage of the concept of confidentiality in the Bill. As noted previously in this paper, Clause 12(c)(iv) empowers the OMP to establish a process to accept confidential information or information in camera for the purpose of victim or witness security, while Clause 12(c)(v) empowers the body to establish a process to accept information on the basis of confidentiality. Clause 11(a) which empowers the OMP to enter into agreements envisages one such type of agreements to be in respect of “confidentiality of information”. The enforcement of this confidentiality requirement is strengthened through the visitation of contempt sanctions on those who “disclose any confidential information in contravention of the provisions” of the Bill, in terms of Clause 24.

Clause 15 deals specifically with the confidentiality of information and provides that the OMP shall preserve and aid in preserving confidentiality with regard to matters communicated to them in confidence. Further, it provides that no OMP functionary shall be required to produce, whether in court or otherwise, any material communicated to him in confidence in the performance of his duties, except as required for the purposes of giving effect to the provision of the Act. Like Clause 12(c)(v), Clause 15 also draws an implicit distinction between information provided on the basis of confidentiality, and information that is provided without such an understanding. It thus stands to reason that the OMP could be compelled by a court of law or other body having the power to compel and/or summon the OMP to produce all other material and information available to the OMP. This may include material obtained without an understanding of confidentiality, or material generated by the OMP directly through forensic or other investigations and analysis. This material could potentially provide a very rich body of evidentiary material to a judicial process. However, as invariably is the case with confidentiality requirements, controversies are likely to arise as to what information is confidential, and what is not. The Bill is unclear if the confidentiality requirement only attaches to the identity of those who submit the information, or to the information itself. It is thus critical that the OMP formulate precise and specific rules concerning the way in which it deals with the issue of confidentiality.

The SCRM leaflet on the OMP proposals states that the guarantee of protection for confidential information is offered “in the hope of eliciting useful information”. The question of how to elicit information from potential perpetrators is a central one, but as we point out in a recent SACLS Position Paper, the simple grant of confidentiality is unlikely to provide perpetrator-witnesses a sufficient incentive or protection to disclose the truth to the OMP. In fact, since such truth-telling increases the likelihood of the discovery of crimes in which they were involved (and thus increase the chance of prosecutions) perpetrators have an interest in preventing effective OMP investigations.5

Another reason motivating the requirement of confidentiality is, as noted previously, the potential role of the ICRC in contributing information to the OMP. What is clear is that the ICRC would—if it decides to share information with the OMP—require a guarantee that information provided by it would not be used in criminal investigations or prosecutions. In these contexts, “confidentiality” would be synonymous with the exclusion of such evidence from prosecutors and investigators. However, the text is unclear as to whether the scope of “confidentiality” is broader, with the result that the OMP would be left to define the word itself. However, there are significant dangers here.

An expansive definition of confidentiality could seriously undermine victims‟ right to truth, by for instance, withholding certain details gathered by the OMP through a confidential statement from the relatives of the missing person. Moreover, in the most expansive interpretation of „confidentiality‟ possible, information obtained on the basis of follow-up investigations pursuant to a confidential statement could also be excluded from the material shared with the relatives. This kind of eventuality would be plainly unacceptable. Yet, Clause 13(1)(d) in terms of which the OMP has a duty to inform the family of the fate and circumstances in which the person went missing or was deceased, applies “subject to the provisions of section 15(1)” which relate to confidentiality. This is a serious problem, unless there is clarity that only the identity of the confidential witness cannot be disclosed. Without such clarity, there is a risk of relatives being denied information regarding the fate and circumstances of the person going missing or being deceased. This eventuality would be utterly objectionable as a matter of victims‟ rights or common sense. The purpose of any concession to witnesses by providing confidential cover to their statements is to ensure that relatives are entitled to know as much truth as could possibly be known, and to provide a mechanism whereby those who would not otherwise come forward to share information could do so without fear of repercussions. However, the purpose of providing such concessions to witnesses would be frustrated if relatives are not provided the information obtained confidentially.

It is therefore important that Parliament clarifies the scope of the confidentiality requirements set out in the Bill.

Conclusion

The OMP Bill gazetted by order of the Prime Minister on 27 May 2016 signifies an important Transitional Justice development in Sri Lanka. The first of four mechanisms promised by the government, the OMP seeks to respond to the unrelenting demand for the truth by relatives of the missing and forcibly disappeared. The OMP draft legislation, as gazetted, appears to be fundamentally sound—barring its provisions on linkages with prosecutions and the ambit of the confidentiality granted to some statements it seeks to protect—and would, if implemented genuinely, offer a meaningful chance of closure and answers for at least some relatives of the missing and forcibly disappeared. However, the Bill does raise some technical issues, which if unresolved, could potentially stymie the implementation of its provisions and deny victims‟ their rights. Further, past experience had demonstrated that even minor amendments to legislation are very difficult to effect after passage through Parliament into law. These issues must therefore be remedied at the Committee stage in Parliament.

We therefore recommend that Parliament effect the following revisions to the Bill: 

  1. Insert a provision similar to Article 41B(1) of the Constitution to provide that no person shall be appointed by the President as the Chairman or a member of the OMP, except on a recommendation of the Council.
  2. Provide that at least three of the members of the OMP would function as deputy CEOs or any other relevant executive capacity.
  3. Amend-directly, or by implication by making provision in the OMP Bill— the Victim and Witness Protection Act No. 4 of 2015 by providing that for the purposes of such Act, the OMP would be deemed to be a Commission of Inquiry.
  4. Provide, for avoidance of doubt, that the OMP shall not reject or refuse to investigate a complaint on the basis that it does not fall within its mandate, unless the OMP has investigated the case and provides reasons to support a belief that the case falls outside its mandate.
  5. In respect of Clause 13(1)(b) and Clause 13(1)(d)(ii), provide that the whereabouts of a person shall not be withheld from the relatives where the person found to be alive was at any point previously subject to an enforced disappearance or where the person is not capable of expressing consent, or is subject to the reasonable apprehension of fear or threat in expressing his views to the OMP. 
  6. Expressly provide that no investigation into a missing person shall be considered closed until the fate of the person and circumstances in which the person went missing are clarified, and in cases where the missing person is deceased, their remains returned to the family.
  7. Clarify the scope of confidentiality with respect to information given to the families of the missing. In terms of Clause 13(1)(d), provide that only information regarding the identity of the person providing the information who explicitly requested confidentiality could be withheld from the family, and not the information itself.
  8. Delete Clause 13(2) which is redundant.
  9. Make explicit provision enabling a Magistrate to open an investigation under Chapter V of the Criminal Procedure Code upon a request for exhumation and/or excavation of a suspected grave site by the OMP. 
  10. Make explicit provision enabling the Magistrate to make necessary orders requesting the OMP to undertake and/or assist any investigative function pursuant to proceedings initiated by an OMP request to the Magistrate for an order of exhumation/excavation.
  11. Amend Clause 12(i) and require that the OMP transmits a copy of its case files (with confidential information redacted) to the relevant prosecutor and/or investigating authority concerning a missing person/persons, where it appears to the Office that an offence has been committed.
  12. Rethink the government‟s approach to incentivizing witnesses to come forward, in particular by considering the involvement of a prosecutor in the OMP‟s investigations. 

Endnotes

1 Article 41B of the Constitution as amended.

2 For a comprehensive critique of existing witness and victim protection legislation, and analysis of the necessary reform, see Aruni Jayakody, “Witness and Victim Protection: The Need for Further Reform”, South Asian Centre for Legal Studies, September 2015. Accessed at: https://drive.google.com/file/d/0B8Ja0Q7ULo0c3FVcmJLb3pNTEE/view 

 3 Operative Paragraph 4, Resolution 30/1, “Promoting reconciliation, accountability and human rights in Sri Lanka”. 1 October 2015. UN.Doc.A/HRC/30/1.

4 Leaflet titled “Proposals for the Office of Missing Persons” released by the Secretariat for Coordinating Missing Persons (SCRM) on or around 13 May 2016. 

5 Dr. Isabelle Lassee, SACLS Position Paper, “Criminal and Humanitarian Investigations into the Fate of Missing Persons: A False Dichotomy”, May 2016. Accessed at: https://drive.google.com/file/d/0B8_6FPyGGn9WUJNRE5fT2FSLWM/view 

 

Niran Anketell

Niran is an Attorney-at-Law who has litigated human rights, constitutional law, and civil cases in Sri Lankan courts for over seven years. He graduated with an honours degree in law from the University of Colombo, where has was awarded the Gold Medal for Most Outstanding Student, before taking oaths in 2008. Niran was thereafter awarded two full scholarships—the Fulbright Scholarship and the prestigious Hauser Global Scholarship—to pursue an LL.M in International Legal Studies at New York University.

Niran has also worked at the International Co-Prosecutor’s Office at the Extraordinary Chambers in the Courts of Cambodia (ECCC) as a Fellow of the Centre for Human Rights and Global Justice, New York. He has published widely on constitutional reform and Transitional Justice, and currently serves on the Sri Lankan Constitutional Assembly’s Panel of Experts and on the Expert Panel of the Task Force on Transitional Justice Consultations. Niran has taught undergraduate and postgraduate course on international law, criminal law, Transitional Justice and human rights at the University of Colombo.

Outside the law, Niran’s interests are in rugby and politics.

Contents