The truth is more important than the facts | Sunday Observer

The truth is more important than the facts

Re: Lessons Learnt and Reconciliation Commission (LLRC), Presidential Commission to Investigate Complaints Regarding Missing Persons (Missing Persons Commission) and Permanent Office on Missing Persons

The writer has worked with the LLRC and the Missing Persons Commission and performed several multiple duties which facilitated the working of both Commissions.

The LLRC and the Missing Persons Commission played an important role in ascertaining proof of the fact of the persons who have disappeared, those abducted and their whereabouts, cogent factors or evidence that would help form an idea about the person or persons responsible for the said abduction etc. The Missing Persons Commission particularly was on the right track in arriving at a conclusion. However, it was prevented by doing so by President Sirisena’s government in August 2015 due to the pressure that was brought upon him and thereby presenting the truth contrary to the diluted facts and unfounded criticism that was levelled against the government and the security forces of Sri Lanka.

Since the ending of the war on terror on May19, 2009, the Government of Sri Lanka at the time headed by President Mahinda Rajapaksa took steps to address the allegations by LTTE sympathizers, NGOs and several human rights activist and Human Rights Organizations against the Sri Lankan Security Forces who were accused of violation of Human Rights.

On May 15, 2010 President Mahinda Rajapaksa promulgated the Lessons Learnt & Reconciliation Commission by appointing the following eminent persons.

The LLRC

1. Mr. C.R. de Silva – Chairman Former Attorney General and President’s Counsel.

2. Dr. Rohan Perera – President’s Counsel- Sri Lanka’s representative at the United Nations under the Yahapalana Government.

3. Mr. S.M.S. Paliakkara- One time Sri Lanka’s representative at the United Nations and a highly respected diplomat.

4. Mr. Maxwell Paranagama – Retired High Court Judge

5. Prof Karunaratne Hangawatta – Prof of Criminology at the University of Texas – USA.

6. Mr. Chandirapal Chamnugam- Former Finance Secretary

7. Mrs. Manohari Ramanathan – Retired Legal Draughtsman.

8. Prof Mohamed Thahir Mohamed Jiffry

In promulgating the LLRC President Mahinda Rajapaksa ssid he was of the opinion that an opportune moment had arrived to reflect on the conflict phase and the suffering the country has gone through as a whole and having regard to the common aspirations of all we have collectively resolved that the people are assured an era of peace, harmony and prosperity.

President Mahinda Rajapaksa also stated that it has become necessary that we as an independent and proud nation of multi ethnic polity undertake a journey of common goals in a spirit of friendship, we also learn from the recent history lessons that would ensure that there will be no recurrence of any internecine conflict in the future,

The LLRC submitted its Report to President Mahinda Rajapaksha in November 2011 who took immediate action to make public the Report which was also tabled in Parliament. Many critics expected the LLRC to white wash the government. However, as it turned out the LLRC findings set out in the report was highly acclaimed in Sri Lanka and throughout the world by interested parties as an unbiased report.

Based on the findings it was recommended by the LLRC that allegations of human rights violations by the security forces need to be further investigated. Accordingly on August 15, 2013 President Mahinda Rajapaksa by Gazette notification promulgated the Presidential Commission to Investigate into Complaints of Abductions and Disappearances (Missing Persons Commission).

He also appointed a Committee headed by Lalith Weeratunga, President’s Secretary known as the LLRC Implementation Committee.

The Missing Persons Commission

The following were appointed as Commissioners:

1. Maxwell Paranagama – Chairman Retired High Court Judge

2. Mrs. Manohari Ramanathan – Commissioner - Retired Legal Draughtsman

3. Mrs. Suranjana Vidyarathne- Commissioner -Retired Director General- Department of Census and Statistics.

Subsequently, President Maithripala Sirisesena appointed the following members as Commissioners.

4. Mr. Wijesekera Aratchchige Thilakaratne Ratnayake- Retired High Court Judge.

5. Mr. Hewa Hettige Sumanapla – Retired–Samurdhi Commissioner

Mr. H.W. Gunadasa- Retired Chief Secretary Sabaragamuwa Province and District Secretary/Government Agent Ratnapura functioned as Secretary.

Approximately 25,000 complaints were received by the Commission from families of missing persons from the Northern and Eastern Provinces of Sri Lanka.

Additionally, 5,000 complaints were received by the Commission from families of missing security forces personnel.

From 18/1/2014 to 17/12/2014 The Commission conducted the following public sittings.

1. Kilinochchi Twice

2. Jaffna Twice

3. Mullativu Twice

4. Batticaloa Twice

5. Vavuniya

6. Mannar

In 2015 the Commission conducted the following sittings.

1. Trincomalee Twice

2. Amparai

3. Batticaloa

The public sittings were open to the public, media and to the diplomatic community. During the conducting of the public sittings the Commission faced objections by LTTE sympathizers, certain NGOs held demonstrations at the venue of the public sittings. Nonetheless, the families of missing persons showed faith in the Commission and attended the sittings in large numbers.

The Commission held regular discussions with the International Community of the Red Cross, the United Nations and sections of the Diplomatic Community and also with members of the Working Group on Enforced Involuntary Disappearances headed by UN Special Rapporteur Pablo De Greef.

The Head of the International Committee of the Red Cross (ICRC) and Subash Nendi, UN’s permanent representative in Sri Lanka appreciated the manner in which the Commission was implementing the Mandate and that the Commission met international standards in its inquiries.

Based on a recommendation of the LLRC in paragraph 4.359 of its Report, and at the behest of the Chairman of the Commission Maxwell Paranagama, President Mahinda Rajapaksa took further action by expanding the scope of the Commission’s Mandate by issuing a Second Mandate

On July 14, 2014 the Commission’s Mandate was expanded which was referred to as the “Second Mandate”. To assist the Commission a Legal Advisory Council was set up comprising the following international experts who have unrivalled experience of international law practice before the ad hoc international tribunals created or sponsored by the United Nations

1. Sir Desmond de Silva QC (UK) - Chairman

2. Prof Sir Geoffrey Nice QC (UK)

3. Mr. Motoo Noguchi (Japan)

4. Prof David Crane (USA)

5. Mr.Ahmer Bilal Soofi (Pakistan)

6. Mr.Avdhash Kaushal (India)

7. Mr. Paul Mylvagnam (UK)

8. Mr. Rodney Dixon QC (UK/South Africa)

9. Major General John Holmes, Military Expert (UK) DSO OBE MC SAS

10. Prof Michael Newton (USA)-Vanderbilt University USA

11. Commander William Fenwick (Canada)

12. Prof Nina Jorgensen of Harvard and the Chinese University of Hong Kong.

Part 2

The Commission with the assistance of the Advisory Council in dealing with the conditions of the Second Mandate limited its inquiry to the final phase of the war regarded as the period between the fall of the LTTE administrative capital Kilinochchi on January 2, 2009 and the conclusion of the war on May 19, 2009.

The decision by the Commission to restrict the temporal scope of the Second Mandate was based on several considerations. Most importantly, the principal questions raised in the Second Mandate relate to the period identified as the final phase of the war. Additionally, the Commission had to deal with the report prepared by the panel of experts appointed by the United Nations Secretary General on June 22, 2010 (Darusman Report) who were tasked with reporting on the obligations relating to accountability arising from the last stages of the war.

The Commission submitted its Second Mandate Report in August 2015 to President Maithripala Sirisena. Unlike President Mahinda Rajapaksa who took immediate action to make the report public, no one knows what President Sirisena did with the near 300 page comprehensive report prepared with the assistance of some of the best legal experts in the world. Had this report been made public similar to LLRC report which was made public all those interested in Sri Lanka and the world would have had the opportunity to analyze the contents of the report and make their own observations.

The government spent a large amount of tax payers’ money on meeting the expenses of the Missing Persons Commission and payments made to the foreign experts. Finally, the millions of rupees spent on maintaining the commission and the foreign experts was an exercise in vain.

The Commission submitted to President Maithripala Sirisena several interim reports on matters set out in the First Mandate and urged the President that effect should be given to its findings and recommendation. Such course of action would have helped communities particularly the families of missing persons would have realized and understood the manner in which their loved ones disappeared and who was responsible for such disappearances. Had President Sirisena acted upon the interim recommendations and the facts set out in the Final Report of the Second Mandate the continued agitation by families of missing persons and the local NGOs funded by the Tamil Diaspora calling for an international investigation would have to a considerable extent diminished.

The Commission in implementing the First Mandate conducted public sittings as set out in this article. At these public sittings families of missing persons gave evidence before the Commission in their own language which was Tamil simultaneously translated into English which was recorded in tape by the Commission in the presence of media organizations, diplomatic community in complete transparency.

In the Interim Reports submitted to President Sirisena the Commission by way of statistics relating to disappearances highlighted the fact that 90% of the disappearances that occurred were reported from Kilinochchi and Mullativu and was attributed to the LTTE and a small percentage attributed to armed groups.

The Commission also heard evidence from families of missing persons that a large number of abductions was attributed to the LTTE. This is something which should have been brought to the notice of the Tamil Diaspora and LTTE sympathizing NGOS because these are statements made in public by families of the very missing person. By not making public the Interim Reports that were submitted to President Sirisena the critics of the Commission took advantage of not knowing actually what was going on with the Commission and therefore went on a campaign of criticizing the Commission.

Election of President Sirisena in January 2015

In January 2015, President Sirisena was elected as President of Sri Lanka. Ranil Wickremesinghe was asked to form a government. Subsequently, Parliamentary elections were held which resulted in Ranil Wickremesinghe forming the Yahapalana Government. President Sirisena did extend the term of the Commission up to August 15, 2015. However, it was apparent to the Commission that the critics of the Commission were gaining momentum and were in a position to influence the Yahapalana government that maintaining the Commission any further would be of no use.

At the beginning of August 2015 the Commission had made arrangements to hold a public sitting in Batticaloa as a large number of complainants’ evidence had to be heard. This public sitting had to be cancelled at the request of the Presidential Secretariat. A request made by the Chairman of the Commission to extend the period of the Commission for a further period of 6 months was refused by the President which resulted in the Commission’s activities coming to a close on August 15, 2015 without even having the opportunity to submit its Final Report.

Upon the termination of the Commission, the Yahapalana government attempted to please the international community particularly the USA and agreed to sponsor a joint statement with the USA at the UNHCR sessions. The Sri Lankan Government agreed to set up a Permanent Force of Missing Persons in Sri Lanka.

It should be noted that sections of the international community and human rights organizations and human rights activists exerted similar pressure on President Mahinda Rajapaksa but to the credit of President Rajapaksa he did not accede to any of their request and allowed the Missing Persons Commission to take its own time and was prepared to give the Commission whatever time it wanted.

Had the Yahapalana government not bowed down to the pressure upon it and allowed the Missing Persons Commission to complete its mission and submit its final report together with the Final Report submitted to President Sirisena on the Second Mandate prepared with the assistance of international legal experts Sri Lanka would have been stronger in answering the critics.

The LLRC and the Missing Persons Commission was given complete independence, the facilities and the budget by President Mahinda Rajapaksa. Also credibility was derived from the persons that were appointed by President Rajapaksa to both Commissions.

Government’s responsibility

The primary responsibility for preventing disappearances and ascertaining what happened to people reported missing lies with the State. Considering the Government’s responsibility President Mahinda Rajapaksa fulfilled Sri Lanka’s’ obligation as a signatory to several Geneva conventions on Human Rights and respect for International Humanitarian Law by establishing two Commissions regarding missing persons. Further, President Rajapaksa commenced an accelerated development process in the North and East which life the Tamil speaking people particularly in the North and East did not enjoy for many years. The fruits of freedom are now being enjoyed by the Tamil people in the North and East.

Recognizing the government’s responsibility to assist families of missing persons, Secretary H.W. Gunadasa, former Chief Secretary Sabaragamuwa Province and Government Agent/District Secretary played a major role in assisting relatives of families of missing persons to obtain relief by recommending payment of compensation and expediting the payment of compensation to those who had made applications to REPPIA in terms of Cabinet Memorandum no:06/1722/1260/020 dated September 6, 2006 issued by way of a circular by the Ministry of Disaster and Relief Services in February 2008. Hundreds of families of missing persons availed themselves of this payment.

Among other assistance the Commission was able to provide the families of missing persons with the personal intervention of the Secretary Gunadasa were as follows:

1. Assisting persons requesting death certificates in terms of Registration of Death (Special Provisions) Act No:19 of 2010.

2. Identifying relatives of missing persons who have not been provided with livelihood assistance (Samurdhi/Social Service Grants/Elderly People’s Grant/Employment Assistance.

3. The Commission wrote to 79 Divisional Secretaries to provide the Commission with details of assistance provided to families of missing persons. Details were provided in the Interim Report that was submitted to President Sirisena.

4. Assisted persons who failed to get employment permanently due to the period of service affected by the conflict which was a recommendation by the LLRC.

Permanent Office on Missing Persons

The following were appointed as members of the Permanent Office on Missing Persons.

1. Mr. Saliya Peiris - President’s Counsel - Chairman

2. Ms. Jayatheepa Puniyamoorthy Human Rights Activist

3. Dr. Sriyani Nimalka Fernando Human Rights Activist

4. Retd. Major General Mohanti Peiris

5. Mr. Somasiri Gamage Attorney At Law

6. Mr. Mirak Raheem Human Rights Researcher

7. Mr. Kanapathipillai Venthen Human Rights Activist

The above members were appointed by the Constitutional Council of Sri Lanka on March 1, 2018. If one compares the quality of persons appointed to the Permanent Office on Missing Persons with the quality of persons that were appointed to the LLRC and the Missing Persons Commission there is definitely a lack in quality apart from the Chairman Saliya Peiris.

President Maithripala Sirisena expressed doubts regarding some of the Commissioners appointed by the Constitutional Council and questioned the impartiality of several of the Commissioners given the fact that of the seven Commissioners four are human rights activists and raised questions as to whether some of the Commissioners would act independently of the OMP. Particularly the appointment of Nimalka Fernando who is a member of the Democratic People’s Movements which is a coalition of People’s Movements, NGOs and Trade Unions.

Ms. Jayatheepa Puniyamoorthy’s appointment as a Commissioner is a significant appointment given the fact that she is a victim as her husband went missing just a few days before the ending of the war. She works as a Counselor at the NGO known as Women in Need in Batticaloa.

The appointment of Nimalka Fernando as a Commissioner was strongly criticized by several persons given her close association with the families of missing persons and considering her close connections to an NGO.

(To be continued)

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