Our Missing Countrymen

August 30 – the International Day of the Disappeared and the Office on Missing Persons

by Rajan Philips

( August 28, 2016, Colombo, Sri Lanka Guardian) While the government has been equally commended and condemned for insistently passing the Office on Missing Persons Bill and signing it into law, it is also necessary to point out that the government has not done a commendable job in either making a strong case for, or providing effective answers to criticisms of, the new law. Instead, it has relied more on its numbers and procedural tactics in parliament than in the art of persuasion both inside and outside the legislature. This is unfortunate because more than a reasonably persuasive case could have been made in support of establishing an Office to deal with Sri Lanka’s missing and the disappeared. Honest explanations and broader acceptance are necessary for a successful implementation of the new initiative.

Equally important is the appreciation that enforced disappearances and missing persons are now a global phenomenon even as it is a national burden in many countries, especially those involving post-conflict situations. According to Amnesty International, these practices have become prevalent over the last several decades and “in every region of the world, from Syria to Mexico, and from Gambia to Sri Lanka.” In 2008, August 30 was created as the International Day of the Disappeared to draw attention to the plight of the disappeared and the missing, languishing in secret jails or just unaccountable by any government official to their families or legal representatives. The institution of the Office of Missing persons is being promoted to fill that void and provide a forum for the families of the missing to get at least a hearing.

Not that full information and efforts at persuasion would satisfy the Joint Opposition forces,whowould rather see every bill passed by this government reversed and rejected by the Supreme Court. The very limited purpose, for which the practice of judicial preview of legislation by a special Constitutional Court was first introduced in 1972, and inappropriately brought under the purview of the Supreme Court in 1978, is now being blown out of proportion by the absurd expectations of some that is tantamount to requiringevery government bill to pass muster in the Supreme Court before parliament could vote on it.

Suddenly, the Supreme Court is being called upon to be the ultimate protector of the country’s sovereignty. In common understanding, the role of the judiciary is to protect the rights of citizens against infringement by the executive or the legislature, and not to tell the other two branches of government how to do their job. Sri Lanka has had its bouts with parliamentary tyranny and presidential tyranny, and fatigued pundits now seem to be expecting the judiciary to dot the ‘i’s and cross the ‘t’s to overcome parliamentary incompetence. This remedy would be worse than the disease. The real answer is to have competent parliamentarians, a consultative president, and an independent judiciary to interpret the law and protect the citizens from unlawful acts.

From Habeas Corpus to Office onMissing Persons

Habeas corpus, the so called Great Writ, represents the long legal tradition in which courts performed the role of protecting people from unlawful arrest. Often traced to Magna Carta proclaimed eight hundred and one years ago in Runnymede, England, habeas corpus has been used to protect subjects from kings and,in modern democracies,to protect citizens from presidents and governments. But governments have found ways of circumventing the application of the Great Writ, first by defining circumstances in which the writ can be suspended, and more recently by using hired agents to make people ‘disappear’ and go missing.

Constitutional limitations and the use of ‘Emergency Powers’ have become common ways of suspending the application of habeas corpus in almost in all democratic countries. After 9-11, Bush Administration’s efforts to deny habeas corpus rights to ‘alien’ detainees in Guantanamo Bay in southeastern Cuba were rejected by the US Supreme Court. The US Constitution has among the most stringent conditions for limiting habeas corpus application, but President Bush’s Attorney General curiously and unpersuasively argued that the American constitution does not grant the right to habeas corpus but only protection against it being taken way. “How can you protect something that is not granted?” he was asked. Later, President Obama went so far as to (re)confirm by executive order – the right to habeas corpus to all detainees in Guantanamo Bay.

In ‘lesser’ democratic countries, often under military hegemony with compliant judiciary, the practice of causing enforced disappearances and creating ‘missing people’ has effectively scuppered the application of habeas corpus. Oftentimes, the motivation behind enforced disappearance is to silence a government’s critics and to instil fear into targeted groups. But the definition of disappeared or missing persons goes far wider, to include all those whose families have lost contact with as a result of war, conflicts, natural disasters or other tragedies. In situations of war and conflicts, the perpetrators of disappearance include both state and non-state political or criminal actors, often in equal measure.

Habeas corpus may not provide the same redress to those apprehended by non-state actors, even though the apprehension is always unlawful regardless of whether it is open or secret. But in a ‘private’ kidnapping case in Bihar, the Indian Supreme Court issued habeas corpus notice on the Central and Bihar governments on the ground that the central and state police have not taken sufficient action to rescue the victim. The victim was an 11 year old girl and was kidnapped (and later killed as it turned out) over a land dispute, and the court action was initiated by New Delhi Law Faculty students alleging that the police were being deliberately negligent and therefore complicit.

While there may or may not be any parallel between old Writ of Habeas Corpus and the new Office on Missing Persons from a strictly legal standpoint, it is possible to see similarities between the two from historical and human rights standpoints. Just as the old writ was initiated to offerredress from unlawful detention, the new Office is intended to provide assistance in investigating the fate of involuntarily missing people. Whereas habeas corpus may not have been effective against non-state actors unlawfully detaining people, the Office of Missing Persons can search for any and all missing persons regardless of who caused their disappearance and in what circumstances. The scope of the Office could include even those who go missing after a natural disaster.An important similarity is that the primary emphasis is on rescuing the victims from, or getting information about, unlawful arrest, detention or enforced disappearance, and not on punishing the perpetrators.

The Sri Lankan Situation

From the beginning of British rule in the island, the judiciary began the tradition of standing up to the colonial executive and offering occasional protection to ordinary Sri Lankans. The highwatermark for the writ of habeas corpus came at the tail end of colonial rule, in the celebrated Bracegirdle case. Sri Lankan governments after independence took quite easily to the mechanism of emergency rule to quell working class agitation, civil disturbances or political unrest. Even before independence, in 1947, the first UNP government enacted the Public Security Ordinance as a response to the General Strike of that year. Emergency rule under this ordinance became more the rule than exception in subsequent decades. The JVP’s April 1971 insurrection gave the pretext for emergency rule that lasted for six years until the change of government in 1977. JR Jayewardene, the newly elected Prime Minister-turned-President, vowed never to declare emergency again but placed Jaffna under emergency rule in 1979 “to eliminate the menace of terrorism in all its forms.”

The rise of the JVP and the LTTE within a decade ushered in the era of enforced disappearances and missing persons. They also brought the judiciary into a more compliant mode with the executive branch of the state. The judiciary that was somewhat truculent during the trial of the high ranking military coup suspects, in 1962, was more accommodative in the trial of the JVP suspects by the specially created Criminal Justice Commission (CJC). According to Lionel Bopage, the 1971 CJC exercise was the start of the erosion of judicial independence. The slippery slope got steeper with the arrival of the Prevention of Terrorism Act and other measures.Everything went from bad to worse with the second coming of the JVP in 1987-88, the IPKF intervention, and the protracted war between Sri Lankan armed forces and the LTTE.

Sri Lanka has a backlog of not only missing persons but also institutions that are either broken down or missing in action. And the government can claim a moral brief to put things right, but whether it has sufficient credibility to take on this task and whether it is doing it in the most appropriate ways are open questions. The government’s Foreign Minister was not only the lead but the only government speaker in parliament during the debate on the OMP bill. In fairness, he laid out a reasonable case for the initiative, but it was more formalistic than inspirational. And who was his intended audience – people in Sri Lanka, or his counterparts in Geneva? Considering the questions that have been raised, why did not the Minister of Justice speak to these matters in parliament?

In its eagerness to out-fox the Joint Opposition, the government may have shot itself in the foot by rushing in the vote amidst confusion over which amendments were in and which were not. The Prime Minister has now assured that the new Act will be amended to included changes proposed by the JVP and not included in the passage of the bill, even though the JVP was supportive of the bill and was proposing friendly amendments. This is hardly the way to demonstrate parliamentary competence. The Prime Minister later found time to address Law College students on the OMP, but his voice was missing in action during the debate in parliament.

From a human rights standpoint, itought to be extraordinary when a country’s parliament that passed the Public Security Ordinance in 1947 (the old LSSP then vowed to repeal it, perhaps after ‘permanent revolution’) and more draconian pieces in later years, should now pass a legislation that would enable the investigation of all state and non-state actions involving enforced disappearances and missing persons over the last 45 years. But what is extraordinary is that the government that has passed this new legislation is unable to genuinely celebrate it or claim kudos for it. The rub, if not the real elephant, is in the government’s inability to argue its case in the country at large, and more particularly among the Sinhalese. There is only one advocate in its ranks with some hope of successfully advocating this case and that, in my view, is President Sirisena. And he is not saying much.