An open letter to the Most Venerable Mahanayake Theras and the Maha Sangha by Mahinda Rajapaksa
A few days ago, the President signed into effect the Office of Missing Persons Act and hailed it as a major step taken towards ‘reconciliation’. In August last year, the OMP Bill was bulldozed through Parliament by the UNP, the SLFP government group, the JVP and the TNA despite the objections raised by the Joint Opposition. Less than 40 minutes was allowed to debate this new law. I wish to draw the attention of the venerable members of the Maha Sangha to the following provisions of the Office of Missing Persons Act No: 14 of 2016 as amended by the Office on Missing Persons (Amendment) Act, No. 9 of 2017, which has just been given effect to, under the hand of the President:
1. Even though the body to be set up under this law is referred to as an ‘office’, Section 12 of the OMP Act makes it clear that it will in actual fact be a tribunal which can receive complaints, carry out investigations, examine witnesses, issue summons and hold hearings. Its officers can enter without warrant at any time of the day or night any police station, prison or military installation and seize any document or object they require. Anyone who fails or refuses to cooperate with the OMP may be punished as if it were an act of contempt against the Court of Appeal.
2. Section 21 of the Act empowers the OMP to receive funding from any source local or foreign. Hence this body can receive funding from foreign governments, international NGOs and even from pro-LTTE Diaspora organisations that have not been banned.
3. Section 12 (c) (iii) of the Act allows the OMP to admit as evidence any statement or material disregarding all criteria laid down in the Evidence Ordinance. Disregarding the Evidence Ordinance will result in the common safeguards available even to the accused in ordinary criminal courts in this country being denied to those brought before the OMP.
4. Under Section 12(e) of the Act, all government bodies including the armed forces and intelligence services have to submit all required information and documents to the OMP even in contravention of the Official Secrets Act.
5. According to Section 15 of the Act, no court, not even the Supreme Court can order officers of the OMP to submit to courts any material communicated to them in confidence. The provisions of the Right to Information Act will also not apply to the Office of Missing Persons.
6. Under Section 25 of the Act, all officers of the OMP have been granted complete immunity from civil and criminal liability for any act or omission on their part or the contents of any report they may publish. Nothing that the OMP does can be called into question by any court of law except the Supreme Court under Articles 126 and 140 of the constitution. However, as the OMP can withhold information under Section 15 of the Act, there will be no practical use in moving even the Supreme Court against the OMP.
Under section 13(1)(i) of the Act, information gathered by the OMP can be referred to the relevant law enforcement or prosecuting authority. The Office of Missing Persons is one of several institutions that the yahapalana government has agreed to set up to ‘deal with the past’ in terms of the UN Human Rights Council Resolution 30/1 of 14 October 2015, and its purpose is to feed information to other mechanisms. Recently, the government introduced a Bill to incorporate into local law the contents of the International Convention Against Enforced Disappearances which allows foreign countries to request the extradition of persons suspected of being responsible for enforced disappearances in Sri Lanka to be either tried in that foreign country or handed over to an international criminal tribunal for prosecution.
The debate on this Bill was postponed because of the objections raised by the Maha Sangha and the public. However the government has said that the withdrawal was only temporary and that this Bill will be reintroduced in Parliament in due course. It can be observed that the various laws being introduced by this government complement one another. The Office of Missing Persons (which will be funded and maintained by interested foreign parties) can make an allegation against an individual in a report and on that basis a foreign country can ask for the extradition of the suspect to be either tried in that country or handed over to an international criminal tribunal for prosecution. After the government was forced to postpone the debate on the Bill to give effect to the International Convention Against Enforced Disappearances, ministers of both the UNP and the SLFP were trying to justify that proposed law by saying that it will apply only to the future and not to the past.
That was an outright lie. If this law to give effect to the International Convention Against Enforced Disappearances had been passed by Parliament, under the proviso to Article 13(6) of our Constitution, it would have applied to the past automatically. The enthusiasm of the yahapalana political parties – the UNP, the SLFP group in the government, the TNA and the JVP to pass laws designed to punish members of the armed forces and the political authorities that gave leadership to the war is evident. The yahapalana government has sought to give interested foreign powers a central role under our own law, in the persecution of our armed forces through the new laws they have already passed or have placed before Parliament. I trust the Venerable Mahanayake Theras and the Maha Sangha will give due consideration to these acts of betrayal being committed under the guise of promoting reconciliation.
Former President of Sri Lanka