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Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Monday, October 3, 2016
OMP and the International convention on enforced disappearances
2016-10-03
The
concept of sovereignty of the people as stated in the 1978 Constitution
means the authority of the Government is created by the consent of the
people.
The Government is granted with the people’s power ‘sovereignty’, on trust, in order to serve the public. This is the reason why in most democratic countries, Governments are known to be ‘by the people for the people.’ Peoples’ Sovereignty is a fundamental right guaranteed under the constitution. The writer is of the view that the recent passing of the “office of missing persons” bill was a violation of the citizens’ fundamental rights.
The draft Bill to establish an ‘Office on Missing Persons’ (OMP) was passed with amendments in Parliament without a vote on 11th August 2016. The Section 27(iii) of the OMP referred to the ‘International convention on enforced disappearances’. On perusal of the bill one will realise that the OMP bill does not have annexures attaching this convention by way of a schedule.
Also there appears to be a procedural flaw in signing and ratifying the convention, as the due process has not been followed in ratifying the convention at the United Nations office on 25th May 2016 by the Ministry of Foreign Affairs of the Government of Sri Lanka. The real issue is the ‘International convention on enforced disappearances’ was ratified on 25th May 2016 without obtaining necessary parliamentary and cabinet approvals.
What was approved at the cabinet meeting on the 24th May 2016 (previous day) was not the convention itself but this controversial “OMP bill”, which was subsequently gazetted on 27th May 2016.
It is relevant to mention here that it was presented to the Parliament by the Prime Minister on 22nd June. The ‘convention on forced disappearances’ document has not been tabled in parliament either along with the ‘OMP’ bill or prior to presenting the said bill. Further it was revealed that the Foreign Ministry office did not have a copy of this convention in the Sinhala language, which is one of the official languages.
This shows that the passing of ‘OMP bill’ was not carried out with due care and caution. The procedure has not been followed and the members were not aware of the contents of the International convention as there was no attachment to the bill. According to the media reports, there are few more inconsistencies in the OMP bill. It could therefore be argued that the ‘OMP’ bill is inconsistent with the constitution and requires two-thirds’ majority and may be approval by the people at a referendum. It has to be expressly specified in the long title of a Constitutional Amendment Bill that the Bill is for the amendment to the Constitution, otherwise it is not valid.
It is noted that the four Presidential Commissions of Inquiry into the Disappearance of Persons, which were appointed in the 1990s, have made recommendations such as persons responsible for disappearances must be prosecuted no matter who the perpetrators are. It seems that so far no action has been taken in this regard. The OMP, if set up despite public protests, must first go into these matters and finality must be reached before initiating action on investigating new incidents.
As citizens we would like to verify these facts from the Secretary, Ministry of Foreign Affairs as to why the above convention was ratified at the UN (papers were submitted to UN by MOF on 5th May 2016) without following the due process of obtaining necessary parliamentary and cabinet approval.
It is not too late for H.E the President, MS to refer this controversial OMP bill to the Supreme Court under article 129 where if he feels that it is expedient to obtain the opinion of the Supreme Court on any question of law stated in the ‘OMP’. Thereafter the SC shall report to the President its opinion.
We speak about a limited Government under unlimited sovereignty. What we bind to the law is the Government and not the sovereignty. Sovereignty remains unrestricted but institutions executive, legislature, and judiciary will have to observe its limitations. Even if The President of Sri Lanka, the ‘executive’ violates the constitution on a serious breach, an impeachment against the president could be brought up by the ‘sovereign’ the citizens of Sri Lanka.
2016-10-03
The
concept of sovereignty of the people as stated in the 1978 Constitution
means the authority of the Government is created by the consent of the
people. The Government is granted with the people’s power ‘sovereignty’, on trust, in order to serve the public. This is the reason why in most democratic countries, Governments are known to be ‘by the people for the people.’ Peoples’ Sovereignty is a fundamental right guaranteed under the constitution. The writer is of the view that the recent passing of the “office of missing persons” bill was a violation of the citizens’ fundamental rights.
The draft Bill to establish an ‘Office on Missing Persons’ (OMP) was passed with amendments in Parliament without a vote on 11th August 2016. The Section 27(iii) of the OMP referred to the ‘International convention on enforced disappearances’. On perusal of the bill one will realise that the OMP bill does not have annexures attaching this convention by way of a schedule.
Also there appears to be a procedural flaw in signing and ratifying the convention, as the due process has not been followed in ratifying the convention at the United Nations office on 25th May 2016 by the Ministry of Foreign Affairs of the Government of Sri Lanka. The real issue is the ‘International convention on enforced disappearances’ was ratified on 25th May 2016 without obtaining necessary parliamentary and cabinet approvals.
What was approved at the cabinet meeting on the 24th May 2016 (previous day) was not the convention itself but this controversial “OMP bill”, which was subsequently gazetted on 27th May 2016.
It is relevant to mention here that it was presented to the Parliament by the Prime Minister on 22nd June. The ‘convention on forced disappearances’ document has not been tabled in parliament either along with the ‘OMP’ bill or prior to presenting the said bill. Further it was revealed that the Foreign Ministry office did not have a copy of this convention in the Sinhala language, which is one of the official languages.
This shows that the passing of ‘OMP bill’ was not carried out with due care and caution. The procedure has not been followed and the members were not aware of the contents of the International convention as there was no attachment to the bill. According to the media reports, there are few more inconsistencies in the OMP bill. It could therefore be argued that the ‘OMP’ bill is inconsistent with the constitution and requires two-thirds’ majority and may be approval by the people at a referendum. It has to be expressly specified in the long title of a Constitutional Amendment Bill that the Bill is for the amendment to the Constitution, otherwise it is not valid.
It is noted that the four Presidential Commissions of Inquiry into the Disappearance of Persons, which were appointed in the 1990s, have made recommendations such as persons responsible for disappearances must be prosecuted no matter who the perpetrators are. It seems that so far no action has been taken in this regard. The OMP, if set up despite public protests, must first go into these matters and finality must be reached before initiating action on investigating new incidents.
As citizens we would like to verify these facts from the Secretary, Ministry of Foreign Affairs as to why the above convention was ratified at the UN (papers were submitted to UN by MOF on 5th May 2016) without following the due process of obtaining necessary parliamentary and cabinet approval.
It is not too late for H.E the President, MS to refer this controversial OMP bill to the Supreme Court under article 129 where if he feels that it is expedient to obtain the opinion of the Supreme Court on any question of law stated in the ‘OMP’. Thereafter the SC shall report to the President its opinion.
We speak about a limited Government under unlimited sovereignty. What we bind to the law is the Government and not the sovereignty. Sovereignty remains unrestricted but institutions executive, legislature, and judiciary will have to observe its limitations. Even if The President of Sri Lanka, the ‘executive’ violates the constitution on a serious breach, an impeachment against the president could be brought up by the ‘sovereign’ the citizens of Sri Lanka.
