International convention for the protection of all persons from enforced disappearance -Sudarshana Gunawardana

Jul 06, 2017

A Bill to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance; to ensure the right to Justice and Reparation to Victims of Enforced Disappearance; and to provide for matters connected therewith or incidental thereto.

Presented to the Parliament by the Prime Minister on 07th March, 2017 and published in the Gazette on February 09, 2017.

Sri Lanka faced three rebellions after independence and especially during the second insurrection of JVP in 1989 and during the rebellion in the North, there were large scale enforced disappearances committed by both the State and non-state elements. Soon after the insurrection was over President Premadasa appointed a commission to probe into the reasons for the revolt headed by the then vice chancellor of University of Colombo G.L.Peiris. Similarly President Mahinda Rajapaksha appointed Lessons learnt and Reconciliation Commission headed by a former Attorney General C.R.De Silva after ending the Northern Rebellion. As a responsible State, firstly it is the duty of the Government to take steps not to have any rebellions in the country and secondly the Government should not be engaged in any illegal actions in suppression of such rebellions. The State should not fall into the level of rebels under any circumstances.

Therefore, Lessons learnt and Reconciliation Commission recommended as follows in relation to enforced disappearances. “….In order to address this issue comprehensively and to eliminate this phenomenon in the future as well as to fill an existing lacuna, the Commission strongly recommends that domestic legislation be framed to specifically criminalize enforced or involuntary disappearances.” 2011 (5.46)

Sri Lanka signed the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) in December 2015 and ratified it in May 2016. In order to give legal validity to the ICPPED in Sri Lanka, the Government of Sri Lanka introduced the International Convention for the Protection of All Persons from Enforced Disappearance Bill (Bill) which was gazetted on the 09th of February 2017 and subsequently tabled in Parliament.

This bill has no retrospective effect. The base clause of this Bill is the third clause where it is stated that who is responsible and under what circumstances that person is responsible. Those are tabulated below.

Enforced Disappearance
Clause 3(1)		Clause 3 (2)		Clause 3 (3)
Who	Any person who, being a public officer or acting in an official capacity, or any person acting with the authorization, support or acquiescence of the State		Any person		A superior of a person in clause 3(1)
Does What	arrests, detains, wrongfully confines, abducts, kidnaps, or in any other form deprives any other person of such person’s liberty; and (i) refuses to acknowledge such arrest, detention, wrongful confinement, abduction, kidnapping, or deprivation of liberty; or (ii) conceals the fate of such other person; or (iii) fails or refuses to disclose or is unable without valid excuse to disclose the subsequent or present whereabouts of such other person,		wrongfully confines, abducts, kidnaps or in any other form deprives any other person of such person’s liberty; and (i) refuses to acknowledge such wrongful confinement, abduction, kidnapping, or deprivation of liberty; or (ii) conceals the fate of such other person; or (iii) fails or refuses to disclose or is unable without valid excuse to disclose the subsequent or present whereabouts of such other person,		knowingly or consciously disregards information which clearly indicated, that subordinates under the effective authority and control of such superior were committing or about to commit an offence under subsection (1); exercises effective responsibility for and control over activities which were concerned with the offence of enforced disappearance;and fails to take all necessary and reasonable measures within his power to prevent or repress the commission of an offence under sub section (1) or to submit the matter to a law enforcement authority for investigation and prosecution,

These rights are the rights of the citizens of a just fair and civilized society and also these rights are in line with the values of any religion, especially Buddhism. It should be appreciated that the State of Sri Lanka which can be the possible oppressor in future, taking the initiative of introducing this Bill. It is praiseworthy in the point of view of the citizens of Sri Lanka who could be eventually the oppressed.