The OMP has the best potential among the other institutions that feel called upon to take a leading role in restoring to victims families a sense of the battle of good and evil in this world. At least 20,000 complaints have been lodged have so far been lodged with the different institutions that the government established on different occasions, the last being the Paranagama Commission on missing persons. However, dealing with this problem has been difficult. The manner in which the law was originally passed in August 2016 was an indication of the controversial nature of the problem of missing persons. The bill that introduced the OMP to parliament was hotly debated. Those who opposed the legislation saw consequences that would be detrimental to the security forces and political leaders who were responsible for ending the war.
There were and remain allegations that many who went missing surrendered, or were surrendered by their families and others, to the security forces. The original bill was approved by parliament whilst opposition members were protesting on the floor of parliament and their dissent was not recorded. In the rush to pass the law, an amendment that had been proposed by the JVP, which was agreeable in principle to the establishment of the OMP, failed to be incorporated into the law. This amendment sought to take away the power of the OMP to enter into agreements with outside agencies. It took ten months before this amendment was finally brought before parliament and approved. It took another month for the president to place his signature to operationalise the law.
The president’s signing of the OMP law has coincided with several other significant developments. There were a confluence of factors that suggest that the government is getting itself positioned to engage in constructive reconciliation and peacebuilding activities. The cabinet reshuffle that saw the ministries of finance and foreign affairs being exchanged between Ministers Ravi Karunanayake and Mangala Samaraweera has worked well in terms of pushing forward the reconciliation process. Even though the reshuffle may have taken place for other political reasons, it has served to strengthen the reconciliation process in the country.
Whether in power or out of power, Minister Samaraweera has had a long track record of commitment to the national reconciliation process. As Minister of Foreign Affairs, he was instrumental in bringing Sri Lanka back into the international community as a country that accepts international standards of human rights. He defended and explained the co-signing of the UNHRC resolution of 201 as being in the country’s national interests. Now as Minister of Finance and also of Media, he has been empowered to take forward his reconciliation mission through both the financial incentives at his disposal and also through the power of mass communication. At the same time, the shift of Minister Karunanayake to Foreign Affairs has brought to this position an efficient and businesslike ethos whereby commitments made by the government and timeframes that have been agreed to will be kept.
The manner in which the new Foreign Minister handled the criticism made by the opposition with regard to the meetings held with detained former LTTE cadre by the visiting UN Special Rapporteur on human rights Ben Emmerson demonstrated a firm and effective approach. He pointed out that the precedent of UN special rapporteurs meeting with detained former LTTE combatants had been set by the previous government. Bolstering the credibility of Minister Karunanayake’s observation has also been the fact that during the war he was not known as soft on the LTTE was indeed seen more as a hardliner in dealing with them. But as times have changed, in the post-war period he has emerged as a champion of the national reconciliation process.
Minister Karunayake has also announced that the Reparation Bill, which is part of the Transitional Justice process aimed at compensating the war affected, would be presented to Parliament soon. The purpose of the Bill under formulation is to restore displaced persons to their original positions where ever possible and also provide compensation to the injured and dependents of the persons killed in the war. The Transitional Justice process the government had undertaken comprises four mechanisms, namely the Office on Missing Persons (OMP) which was signed into law by President Maithripala Sirisena, a Truth and Reconciliation commission, an Office of Reparations and a special court for accountability purposes. The special court is the most contentious of these four mechanisms.
The recent arrest and investigation of the former navy spokesperson on the charge of being responsible for the disappearance of 11 Tamil persons in 2008-09 during the end phase of the war is an indication that existing laws can also be used to bring those who committed crimes during the war period to justice. However, a special feature of war crimes which are not in the Sri Lankan legal system is that they include the concept of command responsibility. This enables the indictment of those who were in effective control of armed personnel on the ground if they knew about the human rights violations taking place and did not intervene to stop them. The International Convention for the Protection of All Persons from Enforced Disappearance, which the government has ratified, is a means to achieve this end. Unfortunately, the government decided to postpone the debate on the bill to incorporate this into national law earlier this month following opposition protests that it will expose Sri Lankan security forces personnel to international tribunals.
However, the implementation of the convention against enforced disappearances will be prospective, for future offences, and not for past ones. Its incorporation into national law will protect citizens from future violations. These are laws that are in the interests of all people, whether they be Sinhala, Tamil or Muslim or students. While there can be lawful arrests, persons must be held in lawful detention centres and their arrest documented. This is to prevent torture, abuse and extra judicial killings. It is to ensure that the “white van culture” or a culture of illegal abductions and killings does not come again. It is necessary that like the Office of Missing Persons, these new laws are followed through. They give hope that Sri Lankan will move faster in reaching national reconciliation and a level of human rights protection that will reach international standards which will facilitate the economic take-off that the country awaits.