Photo courtesy of Maatram
There is a bagful of tricks that Sri Lankan governments have been using when it comes to the issue of revealing the truth and providing justice to the families of the disappeared.
In that bag of tricks, one that is very often used is to keep on requesting the families of the disappeared to narrate the stories of how their family members came to be counted as being among the disappeared over and over again. This happens every time when a government is criticized about having done nothing to deal with this horrible crime that was committed against tens of thousands of people in all parts of the country. Almost every family would have narrated their story at least a few hundred times. In fact, they are afraid or suspicious of people who come to inquire into the things that they have said so many times to official sources and also to unofficial sources such as the media.
After many years of complaints about complete evasion regarding the problem of disappearances, the government that came into power in 2015 was forced to do something a little different to demonstrate that it does care about the problem. So it created the Office on Missing Persons (OMP) and then delayed the appointment of the Commissioners for a considerable period of time. Then, it finally appointed the Commissioners. The Commissioners were serious and committed persons. However, for a long time, they did not get the facilities they needed to maintain an office and to carry on their work. After that, they used whatever space was available to them and tried to collect as much information as possible from the families about the names and other details about the disappeared persons, mainly from the North and the East. They did not have enough time to complete the job but by the time they had to leave office, they had already collected nearly 15,000 such complaints about disappearances. The Commissioners have also taken the trouble to preserve this information and also to create a database. Then the government changed and shortly thereafter the term of office of these Commissioners also ended. With that, the new government pulled another trick from its bag. That was to name some new Commissioners with a chief who did not enjoy a reputation in any way as being serious about the work of being a Commissioner. After some time, some of the Commissioners also resigned and no Commissioners were appointed in their place. This again was a trick employed in order to have the semblance of an office but to leave it without responsible persons to carry out the mandate.
An embarrassment that existed for the government was the fact that the original Commissioners had collected a lot of information about disappearances. The question asked by the public and the international community was what do you do with the information that is available? The answer was that more information is needed and asking the people once again to come back and tell their stories to a new set of people. In any case, this time there was not even a new set of people to take down their stories. It was only a public announcement that more information is being sought.
The heart of the problem is that the disappearances are a complicated system of actions that were approved from the top down. These actions were the creation of an environment within which many criminal activities could be done by law enforcement agencies such as abduction in the place of arrest, detaining people in places outside legally authorized detention centers, the torture and killing of these people and the disposal of their bodies. The entire process of carrying out all these activities was well supervised by the higher authorities that included certain Cabinet Ministers and Deputy Ministers.
The term missing persons is a misnomer. The disappeared are in almost all cases people who were taken into custody and who were killed and disposed of while they were in lawful custody. Thus they were not persons who were missing; they were in fact made to disappear by the security forces on the basis of written and unwritten rules that they were made to follow.
The truth is that nothing can be done within the existing framework of law in Sri Lanka to resolve the problem of disappearances. What needs to be investigated is the nature of the defects in the legal system, particularly the criminal justice system, which enabled the security forces to engage in committing serious criminal acts. It was not a simple task to degrade the criminal justice system to go to such low depths within a short period of time.
The process of derailing the law enforcement into a political instrument to achieve whatever end that is desired by the government in power at the given time was achieved through a number of critical changes in the entire legal structure. The displacement of the basic premise that the fundamental organizing principle of the country is the supremacy of the law is at the root of what happened step by step to bring down the entire law enforcement system in the country.
Such a fundamental transformation was possible only because of the 1978 Constitution that displaced the principle of equality before the law by creating a Head of State who was placed above the law and above the jurisdiction of the courts. This change amounted to the displacement of the foundation of the entire legal and social system. Once the foundation was removed, it was just a matter of time for the entire edifice to crumble. That is what Sri Lanka is experiencing now in every area of life; the economy, the agricultural crisis, rampant corruption that makes it impossible for an ordinary citizen to carry on with their lives with any assurance of legal protection, and possible bankruptcy in the coming months.
The fear of mass starvation or malnutrition is the most talked of subject in Parliament and outside.
It is the same crumbling of the system that is reflected in the criminal justice system that is sharply manifested through the phenomenon of disappearances. Thus, the moment that is available now to discuss what should be a new Constitution perhaps opens up a way to take up the issue of enforced disappearances within a wider perspective of creating a Constitutional framework for the protection of the life and liberty of all citizens. If this opportunity is wasted away, and if the same Constitutional structure as of 1978 is maintained with some artificial changes, then none of the problems will be solved. Instead, they will get aggravated.
Despite all the attempts of the families of the disappeared and concerned persons who have made much effort to deal with the problem of disappearances, nothing will come of their efforts if the overall framework of an evil system is allowed to continue.
