Featured image courtesy IRIN News

On Thursday 11 August, 2016, Parliament pushed through one of the most sensitive and important pieces of legislation, the Office on Missing Persons (OMP) Act amidst the most uncivilised and ugly Parliamentary behaviour. That was not how such an important bill should have been passed in Parliament. The OMP allows for a permanent mechanism to be established to investigate “missing” persons. Set without a time period, by definition it includes enforced disappearances too. That awakened the present day JVP parliamentarians after more than 25 years. The death (or murder) of their leaders Wijeweera, Gamanayake and others they realised, could be investigated too. Yet that is not why this piece of legislation is so important to post-war Sri Lanka.

“The passage of the OMP law is a huge stride forward for Sri Lanka in advancing truth and reconciliation” said Nisha Biswal, U.S. Assistant Secretary of State for South and Central Asian Affairs within hours of passing the bill, when congratulating the unity government. US ambassador in Colombo Atul Keshap lost no time either in tweeting the same. Yet a notable silence came from the Indian quarter. Neither the Colombo High Commission nor the Minister of Foreign Affairs in New Delhi hastened to congratulate the unity government.

That apart, the importance of the OMP Bill is in how it would create a genuine space for promised reconciliation on Sri Lankan ground. With the US initiated UNHRC Resolution on Sri Lanka at the Council’s 30th Session co-sponsored by Sri Lanka, Foreign Minister Mangala Samaraweera told the general sessions on 14 September, 2015,

“From May 2009 post-conflict reconciliation eluded us as a result of the short-sighted policies and the triumphalist approach that was adopted immediately following the end of the conflict. The National Unity Government is now approaching reconciliation afresh as a matter of urgent priority”. Therefore Minister Samaraweera said, “The (present unity) Government of Sri Lanka recognises fully the process of reconciliation involves addressing the broad areas of truth seeking, justice, reparations and non-recurrence….”.

One therefore has to ask, “was the whole process of drafting the OMP Bill and adopting it in parliament, a seriously open process that allowed for confidence and trust building in post war Sri Lanka, recognising reconciliation ‘as a matter of urgent priority’ ?” The answer is “No”. The government leadership very consciously restricted the process to a closed-door exercise.

The OMP is the first of 04 such mechanisms to ensure the process of much needed and continuously talked of reconciliation. “Reconciliation” being the process of making “two opposite beliefs, ideas or conflicting situations agree to set aside differences with an understanding that leads to future compatibility, peace and stability”. In a conflict ridden, polarised post war society like ours, “reconciliation” is all about confidence and trust building, allowing social and cultural freedom and working for genuine sharing of political power.

That was what Foreign Minister Samaraweera told the UNHRC general debate and what the Sri Lankan government promised within the UNHRC Resolution 30/1. It promised a broad national consultation process of both victims and civil society in order to help design and implement these processes; a necessary pre-requisite in creating such sensitive and important mechanisms. Yet in October 29 last year, Foreign Minister Samaraweera told a select group of civil society leaders of the government’s choice, that they can have two weeks to make submissions on designing the public consultation process. That was followed by a lull during which nothing notable happened.

Almost three months later in January 2016, the government appointed an 11 member “Consultation Task Force on Reconciliation Mechanisms” to have national level consultations on transitional justice for reconciliation. While that cannot be called a credible task force, since what happened since January remained largely unknown to the public, the FM Samaraweera once again presented a draft to a select audience of civil society leaders in early May on what finally became the gazetted OMP Bill.

This approach of the government refused the opportunity to educate the public on understanding the necessity of an OMP and the need for a bill to establish it. It also completely denied any chance for confidence and trust building among affected families, ethnic and religious communities, trade unions, professional associations, artistes, provincial councils and society as a whole. Those in government and in the Colombo civil society circuit who were hesitant to engage in serious and open social dialogue instead resorted to “smuggling” in answers to satisfy international commitments. That gave more space for racist and extremist interpretations on both sides of the divide and also to unwarranted fears and suspicions.

The “broad national consultation process of victims and civil society” this unity government promised in establishing the 04 mechanisms including the OMP turned out a total lie in practise. While there was no broad national consultation, there was also no urgency that necessitated the bringing forward of the Parliamentary debate on the OMP bill by a fortnight. What does the government achieve by passing the bill on 11 August that it cannot achieve by passing the same bill two weeks later in late August? That unwarranted and undefined haste only led to a very serious bill being pushed through in 02 hours accompanied by howling and hooting.

It denied an open debate in parliament. Some journalists were happy to report that the “government crept through the ear of the JO”. Not that this parliament is particularly capable of serious debate. They have never proved so. Even Prime Minister Wickremesinghe has often taken time to indulge in cheap and dull jokes and slander. Yet if Parliament had an open debate, it would have compelled government leaders to answer questions raised, clarify issues that were misinterpreted in media and in society by extremist elements and justify the need of having an OMP permanently when there’s a promise to have measures adopted that would ensure “non recurrence”. Though for the government and the TNA leadership such debate was not necessary, they are necessary and important for the public to know what took place and why.

The bill now carries with it the danger of being implemented as decided by the Southern Sinhala ideologies and not by its provisions. The Joint Opposition (JO) and Rajapaksa’s SLFP will continue to exploit unfounded and continuously sloganised Sinhala supremacist arguments against the OMP Bill that the government would continue to dodge. All such anti OMP campaigns would allow State security forces to continue with their interpretations of “national security” from a Sinhala ideological standpoint and push President Sirisena to further compromise on demands for undeclared immunity for “war heroes”. On that, this “unity government” has always been as Sinhala-centric as Rajapaksa was. Wickremesinghe has always given into Sirisena on “requests pandering to the Sinhalese community” and would never gamble on his premiership for the sake of affected families.

Despite promises and rhetoric by government leaders such unwritten compromises by Sirisena-Wickremesinghe leadership would leave the OMP vulnerable to Sinhala nationalist pressure and another usual Commissions of Inquiry (CoI). It would also push the JVP into a quandary having decided to request an investigation into the deaths of their leaders, after over 25 years. The JVP would never challenge the status of “war heroes” enjoying immunity against investigations on war crimes.

But for the North and the East, they cannot afford to allow this “opportunity” to go without being tested and with demands for purposeful and effective investigations. For which the North and East would want at least major contradictions removed and safeguards strengthened.

  • Exemption from RTI is one important amendment the affected families would want clarified. They would want the right to know how far their complaint had been investigated into and if there are delays, why these have occurred. They may want other information regarding the investigation too that the RTI Act allows without compromising “national security” and third party sources. The South could also see in it the possibility of this setting a precedent to have similar clauses in all future bills passed, making the RTI Act irrelevant. [Editor’s note: The media has since reported that the RTI will only not apply to information communicated confidentially]

  • Affected families especially in North and East will have a major issue with the “victim and witness” protection system and on how effective it would be. The National Authority (NA) established for that purpose on January 08 (2016) under the provisions of the “Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015” does not hold any trust as it is. Some ex officio members in the NA have been notoriously and savagely anti witness in their duties. An experience of those who went before the Udalagama Commission. Located in Denzil Kobbekaduwa Mawatha, Battaramulla and not publicly known either, the NA is without immediate reach to the provinces. In the North and East witnesses are under surveillance of military and police intelligence personnel. In the past, going before 03 previous CoI’s, they have had their share of intimidations and harassment. Trust in these mechanisms could have been built, if affected parties were allowed good representation in the drafting of the OMP bill. Not given such responsibility within the process of drafting, they wouldn’t trust any of them with the government pushing things through for the sake of having a name boards.
  • The PTA the government promised to repeal is one more issue the North and the East is facing with adverse impacts. This obnoxious piece of legislation could be used to threaten and silence witnesses evading the Protection of Victims of Crime and Witnesses Act. It is therefore important to have the PTA repealed before the OMP is established.

The TNA leadership could have if they wanted to, prevailed upon the government leadership to have at least a serious parliamentary debate. They could have then taken up these issues and even moved required amendments. They like the government leaders were only eager to have the bill passed. It seems the TNA leadership has mixed up their political responsibilities. These were therefore not taken care of by the TNA leadership that should first stand with the Tamil people who voted them to parliament, before they stand with this government. It thus becomes the responsibility of the affected families and others interested in genuine reconciliation to keep pressure on the government to see if these could be straightened out for the benefit of all people.

[Readers who found this enlightening may also want to view our video interviews on the process of setting up the OMP and Professor Ronald Slye’s lecture on crafting a coherent transitional justice process.]