OMP: the Facts
WHAT IS THE OMP AND WHY SET IT UP?
1) Why was a Bill pertaining to missing persons introduced in Parliament?
It is the responsibility of the government to bring closure to suffering victims and their relatives. In this context, the government of Sri Lanka has established an Office on Missing Persons. Sri Lanka has seen decades of conflict and political instability, in which thousands of people have disappeared. Although several Commissions of Inquiry have been set up, there remain a large number of families across the country who are unaware of the fate of their loved ones. Estimates on the number of missing persons range upwards from 16,000 .
2) Who is a missing person?
A missing person is defined as one whose fate or whereabouts are reasonably believed to be unknown:
in the course of, consequent to, or in connection with the conflict which took place in the Nothern and Eastern Provinces or its aftermath, or is a member of the armed forces or police who is identified as “missing in action”; or
in connection with political unrest or civil disturbances (such as the youth insurrections of 1972 or 1989); or
as an enforced disappearance as defined in the “International Convention on Protection of All Persons from Enforced Disappearances”;
This definition applies to people from any region, ethnicity or religion.
3) Are there other countries that have also used mechanisms to address the needs of missing persons?
There are a number of countries which have implemented or tried to implement Commissions or Offices to address the issue of disappearances, in different continents, including:
Asia – East Timor, Nepal;
Africa - Ghana, South Africa, Uganda;
Latin America – Bolivia, Argentina, Uruguay, Chile, El Salvador, Guatemala, Peru.
The establishment of the OMP and its mechanisms involves research into the mechanisms used successfully by the organisations around the world, and by previous Commissions in Sri Lanka.
4) Does the Act in anyway betray or condemn the armed forces?
Not at all; in fact, it does the opposite in also helping the families of those members of the armed forces also affected by this issue, for example those declared as “missing in action”. Setting up the OMP also included consultations with families and representative groups of the armed forces to ensure that the issue is dealt with in a sensitive manner, that protects the best interests of all sectors of society.
5) Does this Office only investigate cases of missing persons related to the armed conflict in Sri Lanka?
The armed conflict is only one of the situations in which the OMP investigates disappearances. It also conducts searches for those who went missing in other periods of political instability or civil disturbance, including for example the youth insurrection in the South in the 1970s and 1980s, or any case of enforced disappearance as defined in the International Convention for the Protection of All Persons from Enforced Disappearances.
6) What were the previous Commissions of Inquiry established to inquire into the status of Missing Persons?
Between 1994 and 1997, the newly elected president, Madam Kumaratunga, appointed three Commissions of Inquiry into the Involuntary Removal or Disappearance of Persons.
The cases left open by these commissions were mandated to be processed by a follow-up commission, headed by the Chair of the Commission on the Western and Southern provinces, Manouri Kokila Muttetuwegama.
On 15 August 2013, President Mahinda Rajapaksa appointed the Presidential Commission to Investigate into Complaints regarding Missing Persons, chaired by Maxwell Paranagama, to investigate complaints regarding the missing person during the period June 10, 1990 and May 19, 2009, following the LLRC recommendations.
However, the Paranagama commission was mired in allegations of witness intimidation, evidence tampering, outrageous mistranslations of testimony and procedural partiality. This led to a breakdown of trust and therefore a boycott of sittings by victims.
7) Will the OMP be as slow-moving as previous Commissions?
It is important to note that solving cases of missing persons is often time-consuming. However, the Office is better equipped for the task because:
This is set up as a statutory body by an Act of Parliament passed with a majority, so it already, legally, takes a more concrete form than previous Commissions.
The Office will comprise of the tools and expertise necessary to carry out investigations as efficiently and productively as possible.
Regional offices may be established if necessary.
8) Is the OMP also a judicial mechanism?
No. The OMP Act clearly states “the findings of the OMP shall not give rise to any criminal or civil liability”. The OMP is not a law enforcement or judicial agency but a truth-seeking investigative agency. If it appears a criminal offense has been committed, the OMP may, after consultation, report the same to the relevant authority, who will have to begin a new investigation. But the OMP itself cannot initiate a court case or any prosecutions. In any situation which may call for it, after consideration of the best interest of the victims, the OMP may at most pass on information to law enforcement authorities.
9) Would this office consider the Evidence Ordinance for its investigations?
The Evidence Ordinance is only applicable to evidence that can be used in a Court of Law. The OMP will also collect testimony, which cannot be used in a court of law, because the OMP is not a judicial mechanism. This is similar to provisions found in the Human Rights Commission of Sri Lanka Act, the Commissions of Inquiry Law, and the Special Presidential Commissions of Inquiry Act.
10) Are the Provisions of the OMP Act in contravention to the Right to Information Act?
Only information provided in confidence to the OMP is excluded from the RTI, since victims have safety and privacy concerns when giving details about perpetrators. This is provided for in the Act (Article 5), which states that “access to information shall be refused where… the information has been supplied in confidence to the public authority concerned by a third party and the third party does not consent to its disclosure.”
11) Was the OMP established due to international influences/pressures?
No. There has been for decades a lack of answers for those who do not know the fate of their loved ones. The government recognises the need for justice and its responsibility to such families, which is why it co-sponsored the UN resolution that calls for the establishment of the OMP. This is consistent with the continuing policy position of Sri Lanka to plan for a peaceful country, to fulfil obligations willingly made by the State, and to ensure the rule of law and justice.
Positive steps made by the government to facilitate reconciliation have helped to rebuild the trust of international allies who contributed critically to the fight against terrorism. Increased engagement with the global community has brought significant economic and cultural benefits to the people of the nation, such as increased trade and tourism opportunities, a greater flow of Foreign Direct Investment, and better opportunities for foreign employment or scholarships.
The OMP was established to facilitate peace and prosperity, and to promote the best interests of all Sri Lankans.
1) Who makes the appointments to the OMP?
The OMP will be led by 7 Sri Lankan members appointed by the President, recommended by the Constitutional Council.
2) What qualifications should those employed by the OMP possess?
The members of the OMP must have 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.
1) Can international assistance be detrimental to Sri Lanka?
The OMP accepts all assistance as it will only help to achieve its objectives of advancing truth and reconciliation. There is nothing wrong with foreign collaboration. In fact, previous governments have noted that technical assistance from the ICRC has been beneficial – the ICRC has been working with Sri Lanka since the 1990s. The OMP’s model, including the collection of information from various sources, is designed to improve upon the flaws or weaknesses of previous commissions.
2) Will information be given to the international community by the OMP? What checks and balances exist on staff members to ensure that information will be processed or released in accordance with the appropriate regulations?
No. The OMP only reports to Parliament and to the affected victims, and if necessary for any kind of legal action, to the law enforcement authorities. The Office may receive information from any individual, including those living abroad, but this will be validated internally.
To ensure that the OMP is accountable to the people, checks include names and activities of all staff members of the Office being made public, since the OMP will submit annual reports to Parliament that must be made available to the public.
SAFETY AND PROTECTION
1) Will the confidentiality of witnesses be assured/protected?
If information is disclosed to the OMP in confidence, it will remain confidential. This is mandated by the OMP Act. The provisions of the RTI Act will not pertain to information of this type.
2) Can the security of witnesses be assured?
The OMP aims to establish a victim and witness protection service for all those that come before the Office, fully understanding the safety concerns of those who give information regarding the victims or perpetrators.
1) How is funding raised for this purpose?
The OMP will be financed by the Treasury (can receive funds from the Consolidated Fund) and can also raise its own funds to achieve its mandate. The OMP must submit annual reports to Parliament, and those reports must be made public. Accounts of the OMP will be audited by the Auditor General’s Department.
2) What sort of procedures would be followed in cases of financial irregularities?
The members of the OMP and the officers and staff of the OMP, will be considered “public servants” for the purposes of the Penal Code, the Bribery Act and the Evidence Ordinance. The processes listed in the above will be implemented if necessary.
OTHER PROCEDURES, POWERS AND PROCESSES
1) Does this office have unlimited powers inspecting any person, any document, or any object at any place or any situation?
No. The OMP must make an application to the relevant Magistrate for a search warrant in order to be able to carry out a search, EXCEPT in situations where the OMP suspects that someone was, or is, being detained without authorization. Only then can members or officers of the OMP enter without warrant and investigate the place of detention. Even then, the officer must receive the consent and authorization of the OMP. Additionally, after the search, the OMP will have to inform the local authorities.
Similar provision is made in the Human Rights Commission of Sri Lanka Act, which enables the HRC to enter places of detention without warrant. If a Sri Lankan victim has been abducted, this is a serious offence, and there should not be any unjustified delay in rescue.
2) What happens to the investigations done by previous commissions?
The OMP is mandated to use data related to missing persons that has been already collected or is currently being collected, by other organizations, government departments and commissions of inquiry. This is so that the OMP does not repeat the work of other organizations, and so that the efforts of other Commissions are not in vain. In addition, this will save money, time and other valuable resources. It also means that all the people who have already submitted their complaints do not have to do it again, which is emotionally taxing for the families.
3) How is priority awarded when considering different cases?
Priority will be accorded to cases which occurred most recently (so, by chronology). Additionally, cases considered to be of significant societal importance will be given primacy.
4) Will this office provide benefits not granted by the previous commissions to the victims?
The OMP will make full efforts to ensure the victims and their families are protected and provided for. This will be done in 3 main ways: administrative, informative and public services.
5) How would the OMP deal with a person who is listed as missing, but is found and does not want to disclose his/her whereabouts to his/her enquirers?
The OMP requires a person’s consent to disclose his or her location, so as to protect their safety and privacy. However, the person’s status will be updated as no longer missing, and their next of kin will be informed that the person has been found. It is simply information relating to their location that will not be released in this case.
6) Should you be physically present at the OMP to provide evidence?
No; video or written submissions can be used.
7) How long will it take to issue a Certificate of Absence?
Cases are individualised, so the time required to issue a Certificate of Absence will depend on the circumstances of the investigation.
8) How would the victims benefit from the Certificate of Absence?
It would enable the families of missing persons to address practical problems faced because of the fact that the status of missing persons is not recognised. Without this legal recognition, the next of kin have issues in accessing frozen assets and property deeds, or being eligible for compensation and social welfare benefits.
- Where appropriate, facilitate the provision Certificate of Absence or a Certificate of Death.
- Recommend that the relevant authority grant reparations to missing persons and/or relatives of the missing person.
- Consult affected parties with regard to above measures.
- Maintain a database.
- Provide status reports on an ongoing search as far as it does not hinder the investigation.
- Disclose information on the fate of the person, including circumstances in which they went missing, and their location if found alive (with their consent).
- Create public awareness towards such causes as facilitating access to legal support for missing relatives.
- Establish a victim and witness protection service for all those that come before the OMP.