Will The OMP Address What Is Missing In The Justice System – The Law?

By Basil Fernando –August 26, 2016

Basil Fernando

The law relating to the Office of Missing Persons (OMP) is now part of Sri Lanka’s statute books. That is a good enough reason for all citizens to learn what is involved in an enforced disappearance. Some clarity on the matter may help in making use of this statute in many different ways. Enforced disappearances in Sri Lanka often involve five stages: illegal arrest, illegal detention, torture and other ill treatment, killing and the disposal of the body. There are therefore many illegalities involved at every stage of an enforced disappearance.

Illegality 1: Under the normal law of Sri Lanka, an arrest must be done according to the due process of law. Making any arrest in violation of the due process of law is prohibited by the constitution itself, under Article 13(1). Illegal arrest is also a crime. However, in most instances of enforced disappearance, the perpetrators make a deliberate attempt to secure arrests without following any of the steps required by the due process of law. The rationale is that, if the due process of law is to be followed, the result would be to leave traces of evidence about the arrest as well as those who did the arrest; when we look at how disappearances have been carried out in the past, we see that the officers who came to make arrests did not come in their uniforms. Often they even wore hoods or other disguises to ensure that they would not be identified.

Illegality 2: The law requires that a person who has been arrested should be told the reason for his arrest. This is also a right guaranteed under Article 13(1) of the Constitution: “…Any person arrested shall be informed of the reason for his arrest.” However, when a person is taken in the course of an enforced disappearance, no such reason is given; if the actual reason was to be given, the officers would have to say that the person is being taken for the purpose of making him or her disappear.

Illegality 3: The lawful bases for securing an arrest are “on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the Courts to stand his trial, or because he has been duly convicted of some offence and must suffer punishment for it.” (AV Dicey, An Introduction to the Study of the Law of the Constitution). The purpose of arresting a person for an enforced disappearance is to make him or her disappear, which, going by the past experiences in Sri Lanka, means to kill someone and to dispose of their body in secret. Thus, the very arrest is illegal as the purpose for which it is done is illegal.

Illegality 4: The law requires that officers engaged in the arrest of a person should keep notes of every event relating to the arrest in as minute detail as possible. The purpose of such a provision is to protect the arresting officers in the case of any inquiry into a complaint by demonstrating that the officers have acted in the proper manner under the given circumstances as revealed by the notes taken by them at the time of the arrest. When a person is being arrested for the purpose of causing an enforced disappearance, the relevant officers are exempted from maintaining any records about the arrest. In fact, keeping any records may amount to an admission of the arrest. By such admission the officers become answerable for the subsequent disappearance. The purpose of not keeping any records is a precautionary measure to avoid liability by denying the arrest itself. Thus the officers who engage in such activities are aware that they will be under an obligation to deny the very acts that they are now engaged in. In this manner these officers get entrapped in a pit of deception and thus behave very much like criminals, who also take precautions so as to be able to deny that they engage in any act connected to any crime that they may be charged with.

Illegality 5: Under the law, arrested persons can only be detained in places that are authorised to be used for detention. Such places of detention are gazetted and known to the public. Keeping a person in detention in a place which is not thus authorised is illegal. However, in the case of arrests made for the purpose of causing an enforced disappearance, they are not usually kept in authorised places of detention. Even when they are taken to an authorised place of detention, they will be kept there secretly and they will not be registered in the usual forms on which all the names of persons who are detained are supposed to be recorded. Thus, again, the officers who engage in such activities are well aware that they are detaining the person in an illegal manner and in an illegal place.

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