'Justice cannot be compromised' - civil society

organisations

10 May 2016
A wide range of civil society actors have expressed 'urgent concerns'
regarding the Sri Lankan government's proposed Office of Missing
Persons (OMP), and called for 'substantial international involvement', in a
letter to President Maithripala Sirisena.
The signatories, which included members of southern civil society and Tamil
civil society from the North-East, noted that the government is yet to share
the ideas for the mechanism and said there were concerns about continuing
violations, such as white van abductions and harassment of victims'
families by security forces.
The letter urged that justice cannot be compromised and that the OMP
should facilitate rather than impede justice mechanisms.
"We reject the idea that seeking truth may be separated from victim
families right to justice, and insist that the pursuit of these two rights be
recognized as complementary. In this regard, a model that excludes or
insulates the OMP from sharing information gathered during tracing
investigations with a criminal investigative process would be unacceptable.

Information available to the OMP must be made available to other

transitional justice mechanisms, with appropriate safeguards in the
interests of protection of witnesses or victim families,
"We strongly suggest that the Government rename the proposed Office as
Office of Missing and Forcibly Disappeared Persons, so as to reflect
accurately the mandate of the body," the letter further said.
"We are also concerned about, and would like to draw the Governments
attention to continuing incidents of harassment and intimidation of victim
families and activists that are not helpful in creating a conducive
environment for public consultations or operationalization of the OMP
mechanism. The continued use of the draconian Prevention of Terrorism Act
(PTA), the lack of due process in carrying out arrests and resuming the use
of white vans in the past month have heightened the sense of fear and
insecurity among affected people."
See the full letter and list of signatories below:
09th May, 2016
H.E. President Maithripala Sirisena,
We the undersigned wish to place on record the most urgent of our
concerns and recommendations with respect to the proposed Office of
Missing Persons (OMP), which we understand the government intends to
establish in the near future. We strongly suggest that the Government
rename the proposed Office as Office of Missing and Forcibly Disappeared
Persons, so as to reflect accurately the mandate of the body. Further, we
note with disappointment that the government has not yet shared its ideas
for this mechanism with victims, civil society and the wider public. We
therefore urge that it be done urgently.
We are also concerned about, and would like to draw the Governments
attention to continuing incidents of harassment and intimidation of victim
families and activists that are not helpful in creating a conducive
environment for public consultations or operationalization of the OMP
mechanism. The continued use of the draconian Prevention of Terrorism Act
(PTA), the lack of due process in carrying out arrests and resuming the use
of white vans in the past month have heightened the sense of fear and
insecurity among affected people.

The government has made a commitment to establishing such an Office on

the basis of victims right to the truth, in an effort to address the cruel
history of enforced disappearances that has devastated families and
communities in our country. The points we have noted below form the
minimal standards of credibility and effectiveness against which the
proposed OMP must be assessed. We will continue to engage the
government and others on other more detailed proposals from civil society
regarding the proposed Office.
1. VICTIMS RIGHT TO TRUTH MUST BE FULFILLED: The relatives of
persons who are missing and disappeared have continued to actively seek
the truth about what happened to their family members, in the face of
great hardship and direct threats to their safety, and sometimes over a
period of decades. The lack of conclusive information about the fate of their
family members is a source of untold ongoing suffering. The right to know
the truth cannot be compromised in any way, and on any grounds
whatsoever. It requires that the OMP be mandated to seek and disclose to
relatives of the missing and the disappeared the full and complete truth
about the circumstances of their relatives absence. Victim families have
the right to know the fate and whereabouts of the disappeared or missing
person, and to know the identities of persons who bear responsibility for
the disappearance. They also have the right to have remains returned to
them in case of death. Moreover, families right to be informed of the
progress and results of investigations must be protected. Article 24 of the
Convention of Enforced Disappearances which the government signed and
has committed to ratify states:
Each victim has the right to know the truth regarding the circumstances of
the enforced disappearance, the progress and results of the investigation
and the fate of the disappeared person. Each State Party shall take
appropriate measures in this regard.
The OMP must also recognize the collective dimension to the right to truth,
and give effect to the publics right to know the details and patterns of
violations, particular in respect to enforced disappearances.
2. VICTIMS RIGHT TO JUSTICE CANNOT BE COMPROMISED: It is also of
critical importance that victims right to justice including through criminal
prosecution of perpetrators is ensured, and the OMP facilitates, rather than
impedes the course of justice for crimes such as enforced disappearances.
In this regard, we demand that tracing investigations and criminal
investigations are conducted in tandem, and a suitable model is adopted to
facilitate this coordination. We reject the idea that seeking truth may be

separated from victim families right to justice, and insist that the pursuit of
these two rights be recognized as complementary. In this regard, a model
that excludes or insulates the OMP from sharing information gathered
during tracing investigations with a criminal investigative process would be
unacceptable. Information available to the OMP must be made available to
other transitional justice mechanisms, with appropriate safeguards in the
interests of protection of witnesses or victim families.
3. TRANSPARENCY IN THE PROCESS OF ESTABLISHING AND
OPERATIONALIZING THE OMP: The process of establishing the OMP must
be transparent, with sufficient opportunities for victims, civil society and
the public to be consulted on the process. Furthermore, it would be
unacceptable for this key reconciliation mechanism to be finalized and
presented in the lead up the 32nd session of the Human Rights Council in
June, without open discussion in Sri Lanka. To avoid this, we urge the
Government to publicly release its draft proposals on the OMP. Further, we
wish to emphasize the importance of ensuring that the OMP is transparent
in its functioning and is not shrouded in secrecy. This includes ensuring that
the OMP report periodically and publicly on its progress, and by respecting
families right to be periodically informed on the progress and results of
investigations.
4. THE OMP MUST BE INDEPENDENT, CREDIBLE AND WELL RESOURCED:
The independence of the OMP must be assured, including by ensuring that
appointments to the OMP are based on competence, experience and
highest levels of integrity and are made through a transparent and
independent process. It should meet the test of credibility in the eyes of
affected people. Further, the operational independence of the OMP must be
guaranteed by law, providing the OMP flexible powers with respect to staff
selection, investigations and modes of work. Further, the OMP must be
sufficiently resourced. The State must bear full responsibility for the OMP,
while ensuring that the OMP is vested with effective powers and authority
to seek funding from other sources. The capacity of the OMP to conduct
forensic investigationsincluding by the participation of skilled personnel,
and by having recourse to modern technology must be ensured. To further
ensure the credibility of the OMP, the Government must bring to a halt
pressure by local government officials to accept death certificates, and offer
the promised certificate of absence as an alternative. Death certificates
previously issued under duress must be converted into certificates of
absence, unless the OMP is able to conclude that the victim is dead.
5. SUBSTANTIAL INTERNATIONAL INVOLVEMENT IN THE OMP: In Operative

Paragraph 4 of UN HRC Resolution 30/1 which deals with transitional justice

mechanisms including the OMP, the government committed to ensure that
each mechanism (has) the freedom to obtain financial, material and
technical assistance from international partners In this regard, we
reiterate the importance of international participation in these mechanisms.
In particular, the OMP cannot succeed unless forensic and other technical
skills are introduced into the mechanism through the participation of
international experts and investigators.
6. CRIMINALIZING ENFORCED DISAPPEARANCES AND OTHER
INTERNATIONAL CRIMES: In Operative Paragraph 7 of the UN HRC
Resolution 30/1, the government committed to reform domestic law to
allow for the investigation and punishment of those most responsible for
the full range of crimes under the general principles of law recognized by
the community of nationsincluding those committed during the period
covered by the LLRC. Meeting this commitment requires the incorporation
of international crimes into Sri Lankan law, as well as modes of liability
under international criminal law, with retroactive effect. In Operative
Paragraph 13 the government also committed to criminalize enforced
disappearances without delay. It is a matter of grave concern that these
basic commitments have not been fulfilled. We urge the Government to do
so prior to the setting up of the OMP.
7. THE GOVERNMENT MUST COMMIT TO A COMPREHENSIVE
TRANSITIONAL JUSTICE PLAN, AND SITUATE THE OMP WITHIN THAT
FRAMEWORK: The OMP cannot be divorced entirely from the other
proposed transitional justice mechanisms including the Truth Commission,
Special Court, and Office of Reparations. Instead, the OMP must be situated
within a comprehensive transitional justice plan, clarifying its linkages and
division of labour with the other mechanisms. The governments
commitment to a comprehensive approach to dealing with the past will be
undermined by a piece-meal establishment of individual mechanisms that
does not follow a publicized plan of work. We urge the government to
announce its draft comprehensive plans without delay.
Further, In Operative Paragraph 12 of the UN HRC Resolution 30/1, the
government committed to review and repeal the PTA. This draconian piece
of legislation has directly led to widespread impunity, torture, abduction
and disappearance. In this context, the continued retention and application
of the PTA will be incongruous with, and will serve to undermine the tracing
of missing and disappeared persons under the newly established OMP. We
therefore urge that the government take measures to repeal the PTA with

immediate effect.
Thanking you,
Signatories;
Individuals
1. Ainslie Joseph
2. Amal de Chickera
3. Amalanayaki Amalaraj Batticaloa
4. Ameer M. Faaiz
5. B. Gowthaman
6. Balasingham Skanthakumar
7. Bhavani Fonseka
8. Bishop Duleep de Chickera
9. Brito Fernando
10. Caryll Tozer
11. Chandra Jayaratne
12. Chandraguptha Thenuwara
13. Deanne Uyangoda
14. Deshamanya Godfrey Yogarajah
15. Dr. Malathi de Alwis
16. Dr. Muhammed Muzzammil Cader
17. Dr. Sonali Perera
18. Dinushika Dissanayake
19. Dulan de Silva
20. Emil van der Poorten In defence of civic and human rights
21. Ermiza Tegal
22. G.A. Prabath Kumara Badulla
23. Gamini Viyangoda
24. Gayathri Gamage
25. Herman Kumara
26. Hilmy Ahamed
27. Ian Ferdinands
28. Iromi Perera
29. Isabelle Lassee
30. Ishan Jalill
31. Ithayarani Sithravel - Trincomalee
32. Jayantha Dhanapala
33. Jensila Majeed - Mullaitheevu
34. Juwairiya Mohideen Puttalam
35. K. Aingkaran - Attorney-at-law
36. K.S. Ratnavale Attorney-at-law

37. Kalani Subasinghe

38. Kamala Vasuki
39. Kumari Kumaragamage
40. Kusal Perera Journalist
41. Mahalaxumy Kurushanthan - Mannar
42. Mangaleswary Shanker
43. Manori Kalugampitiya Journalist
44. Mario Arulthas
45. Marisa de Silva
46. Mohammed Mahuruf
47. Nicola S.
48. Nilashani Sreenika
49. Nimalka Fernando
50. Niran Anketell
51. P. Selvaratnam
52. P.N. Singham
53. Parakrama Niriella
54. Peter Rezel
55. Philip Dissanayake
56. Philip Setunga
57. Prabodha Rathnayake - Attorney-at-law
58. Prabu Deepan
59. Prof. Ajit Abeysekera
60. Prof. Jayantha Seneviratne
61. Prof. Kumar David
62. Rajany Feminist, Jaffna
63. Rev. Fr. E. Sebamalai
64. Rev. Fr. J.C. Paul Rohan
65. Rev. Fr. Jeyabalan Croos
66. Rev. Fr. M. V. E. Ravichandran
67. Rev. Fr. Nandana Manatunga
68. Rev. Fr. Nishantha Gunaratne
69. Rev. Fr. Noel Fernando - Coordinator, Reconciliation & Peace Desk,
Diocese of Colombo
70. Rev. Fr. S.V.B. Mangalarajah President, Justice and Peace
Commission, Catholic Diocese of Jaffna
71. Rev. Fr. Sarath Iddamalgoda
72. Rev. Fr. V. Yogeswaran
73. Rev. Jason J. Selvaraja - Assembly of God, Chavakachcheri
74. Rev. Sr. Helen Fernando HF
75. Rev. Sr. Nichola
76. Rohini Hensman

77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.

Ruki Fernando
S.C.C. Elankovan
Sampath Samarakoon
Shehan de Alwis
Shenali De Silva
Shreen Abdul Saroor
Sudarshana Gunawardana - Attorney-at-law
T. Balamurukan
T. Mathuri Attorney-at-law
U.L. Jaufer
Udaya Kalupathirana
Vanie Simon Ampara

Organizations/Networks
89. Action Against Apathy
90. Christian Alliance for Social Action (CASA)
91. Families of the Disappeared (FoD)
92. Future in Our Hands Development Fund
93. Human Rights Office, Kandy
94. INFORM Human Rights Documentation Centre
95. International Centre for Ethnic Studies (ICES)
96. International Movement Against All Forms of Discrimination and Racism
(IMADR) - Asia Committee
97. Mannar Citizens Committee (MCC)
98. National Peace Council (NPC)
99. Right to Life Human Rights Centre (R2L)
100. Rights Now Collective for Democracy
101. SAMADANA/M - Centre for promoting Nonviolence, Conflict Resolution
& Handling and
Peace Building
102. South Asian Centre for Legal Studies (SACLS)
103. Tamil Civil Society Forum (TCSF)
104. Women's Action Network (WAN)
Letter Copied to:
1. Hon. Ranil Wickremesinghe, Prime Minister.
2. Madam Chandrika Bandaranaike Kumaratunga, Chair, Office for National
Unity and Reconciliation (ONUR).
3. Hon. Mangala Samaraweera, Minister of Foreign Affairs.
4. Hon. M.A. Sumanthiran, Spokesperson, Tamil National Alliance (TNA).
5. Hon. Rauff Hakeem, Leader, Sri Lanka Muslim Congress (SLMC).
6. Hon. Mano Ganesan, Minister of National Co-existence Dialogue and

Official Languages.
7. Manouri Muttetuwegama, Chairperson, Consultation Task Force.
8. Mano Tittawella, Secretary-General, Secretariat for Co-ordinating
Reconciliation Mechanisms.
9. Dr. Deepika Udagama, Chair, Human Rights Commission of Sri Lanka.
10. Claire Meytraud, Head of Delegation, International Committee of the
Red Cross Sri Lanka.
11. Juan Fernandez, Human Rights Adviser, Office of the High
Commissioner for Human Rights (OHCHR), Sri Lanka.
12. Una McCauley, Resident Coordinator (ai), United Nations, Sri Lanka
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