Disappearances in Sri Lanka & Role of Civil Society

Twelve challenges

Primarily based on my personal experiences and considering the present context, I would like to share twelve challenges facing civil society in terms of addressing disappearances.

  1. Recognizing and addressing a deeply personal tragedy which has become immensely political and has legal dimensions. This will involve a holistic approach, including emotional, financial and legal support, advocacy etc.
  1. Sustained accompaniment and support to families of disappeared (not one off events and long gaps with no communication).
  1. Balancing intensive support for a few families in their struggles and the broader struggles against disappearances.
  1. Featured image courtesy ICMP

    Getting the support of fellow activists, lawyers, journalists, academics, clergy, politicians, etc.

  1. Recognizing the activism and agency of families and being careful not to undermine them.
    • Ensuring that families make informed decisions when we ask them to join activities we initiate and organize – like protests, seminars etc. Families need to be provided clear information about why their engagement is sought, including who is organizing an event, the nature of an event, the objectives of an event, the issues being protested at a protest, the demands being sought etc.
    • Looking critically and speaking out when we feel families are used as pawns of politicians, NGOs etc.
    • Being careful not to undermine families of disappeared as mere pawns without having minds and agency of their own.
  1. Civil society involvement in movements of families – how much leadership, influence do we take up and how much do families have? How much support is there from civil society when a family of a disappeared person or group of families initiate some actions, such as what Sandya has been doing?
  1. Finding ways to advocate for truth, criminal justice, reparations in a way that will not undermine families’ rights to all three, and will minimize the need for a tradeoff. This will also have to take into consideration different priorities of different families in terms of the above rights. Making available the full report of ICRC’s needs assessment survey to all families of disappeared who participated in it could be helpful tool in assessing this. Supporting and advocating for interim reliefs (not compensation for crime), such as scholarships for children and special assistance for the elderly and disabled in families, housing, employment etc. of disappeared should be taken seriously, in a manner that will not undermine but enhance capacity for families’ rights for truth and justice.
  1. Exploring multiple approaches to truth seeking.
    • Criminal investigations. The few cases I know where we are closer to the truth are based on this – such as the discovery of the body of my friend Pattani Razeek[4] and arrests and information related to Prageeth Ekneligoda.
    • When there is strong evidence indicating who the perpetrators are and when arrests, prosecutions and harsh penalties on conviction are imminent, alleged perpetrators could be encouraged to provide further and detailed information by providing incentives (such as reduced penalties) taking into consideration also wishes of families of disappeared.
    • Encouraging information to surface from alleged perpetrators and institutions implicated by providing them incentives like those used in ordinary criminal cases (such as confidentiality, anonymity and, on a case by case basis, possibly even assurances of immunity), taking into consideration also wishes of families of disappeared.
    • Soliciting information from independent eyewitnesses who are not part of primary perpetrator institutions.
    • Use of DNA and forensics – in relation to mass graves and discovery of human remains in various parts of the country
  1. Engaging and contributing to the proposed Office of the Missing Persons (OMP), considering the past failures and the lack of transparency of the process so far. Some considerations could be:
    • Maximum involvement of the families of disappeared in setting up of the OMP and its operations, including in oversight structures. Their exclusion from the discussions so far is ominous and should be rectified urgently.
    • Ensuring that criminalization of disappearances in Sri Lanka and ratification of the convention against disappearances happens before the enactment of legislature that will establish the OMP.
    • Discussion of how its work could facilitate the pursuance of criminal justice, reparations, and guarantees of non-reoccurrence while focusing primarily on truth seeking (clarification of the fate and whereabouts).
    • Ensuring that the domestic and international agencies involved in the OMP will advance and not block in anyway the pursuit of truth and justice.
    • Defining the scope of crimes that could be covered (based on clear definitions, such as enforced disappearances, missing etc.).
    • Not restricting the consideration of incidents based on date of disappearance (looking at all disappearances, irrespective of the date it occurred)
    • The structure and different units that will form the OMP (such as Forensics, DNA bank, investigations, psychosocial support, victim and witness protection etc.).
    • Who will be in it – overall leadership, leadership of specific units, oversight, staff etc. And who will make appointments.
    • Given the clear expression of the lack of confidence in domestic mechanisms by many families of disappeared, the importance of ensuring maximum international involvement.
    • Possible ways to transfer pending cases from previous Commissions of Inquiries (E.g. Paranagama Commission, Mahanama Tillekeratne Commission, LLRC etc.).
    • Dealing with findings and progress on complaints that have been lodged to the Human Rights Commission, Police and cases pending before Magistrate Courts, High Courts, and Supreme Courts, especially in relation to Habeas Corpus cases.
    • Complementarity and harmonizing of the existing database of the Human Rights Commission.
    • Security of the database.
    • What should be the powers – such as to request and seize any documents and materials, summoning of any persons, visit private or public spaces without prior announcement, conduct exhumations, dealing with institutions and persons not cooperating with its work etc.
  1. Advocating for quick realization of other key commitments of the Government. Criminalization of disappearances, ratification of the UN convention against disappearances, and issuance of certificates of absences and benefits based on that.
  1. Raising awareness amongst the general population and gaining more support from the public – especially the Sinhalese (the mainstream media will have to play a major role in this).
  1. Money.Can we sustain activism beyond donor funding? How do we use funding? E.g. is it ok to spend for one day for one person for a hotel room (to attend a meeting on disappearances), when the amount could be more than what most families of disappeared earns for a month? Gaining donor’s attention to support economic justice by stimulating local economies, generating sustainable employment, alongside their existing support to protests, seminars and such efforts. The private sector could also contribute, but their involvement should be looked at cautiously, to ensure that it will not exacerbate existing economic inequalities or damage to local economies.

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PREAMBLE

This is an expanded text version of a talk at a forum organized by the Law & Society Trust (LST) on “Recognizing the Struggle: State’s responsibilities towards families of the disappeared”, on Friday 18 March 2016.

It is significant for me to talk about civil society’s role on disappearances at an event organized by Law and Society Trust (LST) because it was at LST that I was thrust into working with families of disappeared persons. Families have always been and will remain central to the struggle against disappearances. They remain my primary inspiration, perhaps the reason I have not been able to give up, even when I often felt like giving up.

Context:

I remember that on this day, exactly two years ago, I was in detention at the Terrorism Investigation Division with another friend, Fr. Praveen. The nearest trigger for our arrest appeared to have been our efforts to look into the arrest of a mother of a disappeared child, Balendran Jeyakumary (who was also a vocal campaigner seeking truth and justice for disappearances) and other Tamils in the North. More than a year after “good governance”, Jeyakumary. Fr. Praveen and me are still being investigated under the Prevention of Terrorism Act (PTA).

Ironically, at the same time, I have been invited for various meetings of the government and to be part of an Expert Advisory Committee related to Transitional Justice (which I didn’t accept due to various other reasons), despite still being a “terrorist suspect” and having a court order restricting my freedom of expression.

Although Jeyakumary was conditionally released two months after President Sirisena took office, she was re-arrested last year under “good governance”. She also faces serious social isolation due to this and struggles to find livelihood and has been compelled to keep her young daughter in a hostel. There has been no news about her disappeared son, who she claims has appeared in a photo taken at a government rehabilitation facility.

We are also no closer to the truth or justice in relation to the disappearance of Lalith and Kugan, two campaigners against disappearances, who disappeared in Jaffna in December 2011.

Families of disappeared and activists don’t face the kind of attacks, threats, intimidations, discrediting etc. that we experienced under the Rajapakse regime. But monitoring of families of disappeared persons and activists in the North and East continues. And there is total impunity for the reprisals we faced in the past.

It is in this context that I talk about disappearances, the Government’s promises of Transitional Justice (TJ), and role of civil society.

Transitional Justice promises in the context of disappearances

The Government has promised to deliver Truth, Criminal Justice (prosecutions / convictions), Reparations, and Guarantees of non-recurrence. All these four are rights of families of disappeared persons.

The Government has also committed to set up four specific Transitional Justice (TJ) related institutions and has appointed a Task Force to conduct nationwide consultations regarding the setting up of these institutions. The institution proposed to solely focus on disappearances is the Office of Missing Persons (OMP). Given the nature of disappearances in Sri Lanka, the other three proposed mechanisms (the Truth Commission, the Judicial mechanism, and the Office of Reparations) will also likely be relevant. Commitments by the Government to criminalize disappearances, ratify the international convention against disappearances, issue certificates of absence and repeal the PTA are other key TJ promises of the Government in relation to disappearances.

As we focus on TJ promises and a TJ approach, we should also be careful of it’s limits, including addressing old injustices and inequalities pre-dating the war, such as class, caste, gender etc.

Civil society’s role in relation to disappearances

The Government has primary responsibility to prevent disappearances and address disappearances that have happened. But I will not dwell on this and will go on to focus on the role of civil society. I will take a broader definition of civil society to include lawyers, artists, academics, religious clergy, NGOs, trade unions etc. I will share some personal experiences and what I see as twelve challenges.

Personal experiences and reflections

I have given many talks in relation to disappearances in different places in Sri Lanka and overseas. I have written several articles[1] and given interviews. I have shared individual stories[2], statistics, general trends, threats, intimidations etc. But last night, I struggled to think of what I will say today.  As I was asked to talk about the role of civil society, and I consider myself to part of civil society, I felt it had to involve some personal introspection, which is often difficult.

None of my family members have disappeared. But I have worked very closely with a few families of disappeared persons and had chances to interact and join many more. They have included Tamils, Sinhalese, and Muslims.

Since 2015, some new possibilities have opened up to address disappearances of the past. I will deal with some when I talk of challenges.

As a civil society activist, we had to sometimes deal with blurred lines of who is a victim and who is a perpetrator. In August 2012, when we were organizing a protest against disappearances in Vavuniya, I had to argue with Tamil activists why we should join forces with families of missing soldiers, when the Army itself stands accused of being responsible for many disappearances plus many other crimes and rights violations. Around 2010, I had to struggle within LST and argue with close colleagues why I was supporting the wife of a prominent LTTE leader who disappeared after surrendering to the Army, as this person has been accused of child recruitment and other crimes.

In some ways, looking back, our work on disappearances during the Rajapakse regime was simple, despite being dangerous and controversial. During the height of the war, my colleagues and I spent a considerable amount of time accompanying families of disappeared to hospitals, camps, and police stations in their searches. We spent time talking to them in their homes, offices, churches etc. We joined them in protests in the streets, in Colombo, Jaffna, Geneva. We joined them in religious services. We went with them to meet government officials and politicians. We went with them to Courts, the Human Rights Commission, and various other Commissions of Inquiries. We helped them write letters, speeches, and sometimes helped translate them and became their interpreters. We introduced them to others we thought who could help them – lawyers, journalists, clergy, writers, film makers, student activists, diplomats, UN officials, international and regional NGOs. We helped them organize events and we tried help link families with each other. We also tried to tell their stories to as many people as possible.

But in the recent past, I have found it difficult to do even the simple things we used to do with families of disappeared, which I believe is central to dealing with disappearances.

Sandya Eknaligoda, who is well known now, was one of my strongest inspirations[3]. She was a regular visitor to LST when I was working there, and I spent a lot of time with her. But lately, I have not been able to spend as much time with her as before. About two weeks ago, I was sad I couldn’t go to join Sandya at a religious service she organized. A few days later, I was very sad to read that Sandya had to go to courts alone – on International Women’s Day. And both days, I was also sad at my inability to convince any friends or colleagues to join her in solidarity.

A few months ago, a lady whose husband had disappeared called me and asked for help to buy milk food for her two young children. She was keen to pursue legal action, but I was unable to find a lawyer who was willing to appear pro bono. There are other families of disappeared who I have met in the last two months, whose cases I have not been able to follow up properly. In recent times, it has been difficult to find someone to help a family draft a complaint or letter to the UN, Human Rights Commission etc. or to do a translation.

Unlike in the past, in more recent months, my colleagues and I have been unable to have sustained long term relationships with families of disappeared persons we met. We have failed to communicate regularly and to go beyond one-off or occasional meetings and events. We have failed to respond to the specific needs of families and we have been unable to take forward the pursuit of truth and justice, even when opportunities and possibilities existed.

These have been real challenges, real frustrations.

Estela Carlotta from the Grandmothers of the Plaza de Mayo in Argentina described how they used to “cry at home and fight in the streets”. This is probably true for some of the most courageous and determined families of disappeared I have worked closely with. It’s also true for me. Working against disappearances has been traumatic and sometimes a lonely journey. Powerlessness and helplessness have been pre-dominant feelings. I have spent a lot of time, a lot of energy, took lot of risks, lost a lot, and achieved very little. Despite often feeling like giving up, I don’t regret what I have done.

Sampanthan Speech on Disappearances & Indefinite Detention of Political Prisoners

by R. Sampanthan, MP, March 8, 2016

PLAN OF ACTION REGARDING VICTIMS OF ENFORCED DISAPPEARANCES AND PERSONS HELD IN CUSTODY FOR A LONG PERIOD OF TIME

Sampanthan speech-8.3.2016 enforced disappearances indefinite detention

The former Government’s commitment to the ascertainment of the truth, it may be said, was highly questionable. The new Government needs to address this issue more purposefully so as to bring this extremely serious humanitarian issue to a satisfactory closure. Everyone is aware of the agitations that have been conducted by the affected families in regard to the missing persons. That they have a genuine complaint which needs to be addressed is unquestionable. They also quite justifiably complain that their grievance, apart from their going before a Commission and testifying, has not been addressed in a meaningful way. It is true that for most of the period of time it was the former Government that was in power which had no interest in addressing this issue seriously . The new Government has been in power for about one year and the victims would want to know how the Government is handling this issue. What are the Government’s plans? Does the Government have a definite plan to handle this issue? Of course, these persons have gone and testified before these Commissions. The Commissions record the evidence, but have they pursued the testimony of the victims or taken steps to investigate evidence of these witnesses who are victims? When a victim says that my son or my husband was taken to custody by a particular police officer or the police in a particular police station or the army in a particular camp, has the investigation been pursued further to try and find out whether that statement is correct and if so who that officer was? That is not being done. The new Government must accept responsibility for this situation and this issue needs to be addressed urgently…

Sir, I am aware that at the end of last year, I believe in December, 2015, you have signed the Convention on Enforced Disappearances, but it has not been ratified yet and I do not know what action you have taken in regard to the issue of certificate of absence which has been referred to in the Resolution adopted by the UN Human Rights Council. A certificate of absence is very different from a certificate of death. A certificate of absence does not accept that the man is not living any longer. But it enables the victims in such circumstances to use that certificate to be able to receive relief, maybe from the REPPIA, maybe from Samurdhi or maybe to stake their claims to right to succession, inheritance, various entitlements that the family would be entitled to. Consequent to being victims, these certificate of absence would certainly be a very strong document that would help them to rebuild their lives. Now what had been done in regard to this matter? How far have you gone? These are the questions that we would like to raise…

The agony of several thousands of families of these victims of disappearances cannot continue indefinitely. A decision needs to be arrived at as to whether the disappeared person is alive or not. If he or she is alive, his whereabouts should be made public; if not, other suitable and appropriate steps should be taken to reconcile the families with such reality and bring calm and normalcy to their lives. Truth, justice, reparation and all necessary steps to ensure non-recurrence must become effective urgently. This is the responsibility of the Government and I would urge that the Government defines a plan that would provide definite relief to these much traumatized families. I want to refer briefly, Sir, to a recent Report submitted by Mr. Pablo de Greiff, Special Rapporteur on Truth, Justice, Reparation and Guarantees of Non-Recurrence who visited Sri Lanka. He has stated, I quote:

“What is expected is, on the one hand, for the Government to pay immediate attention to certain issues on which it can certainly act without delay (for example, on the issue of the missing, on the prompt adoption of victim assistance programmes including psycho-social support, the lingering issue of land occupied by the armed forces, to name a few), ….”

He identified the issue of missing persons as one that can be dealt with without delay, urgently, amongst others.

Why is the Government not acting?…

This is what the Hon. Minister of Foreign Affairs said. I quote; “Review and repeal the Prevention of Terrorism Act and replace it with anti-terrorism legislation in line with contemporary international best practices.”

“Review and repeal the Prevention of Terrorism Act”. That was what you said to the UN Human Rights Council, on the 14th of September, 2015 in your opening speech, Hon. Minister. Today we are five months down the road. How can you hold persons in custody continuously under that Act which you have agreed to repeal? The only evidence against most of these people are their extracted confessions; most of them are being charged on the basis of extracted confessions. I am told some of the senior police officers, ASPs, who recorded those confessions do not go to courts. That is the reason why the cases are postponed. When you have committed yourself to repeal the Prevention of Terrorism Act, can these persons be any longer held or charged under the Prevention of Terrorism Act? It is a contradiction of your own commitment. The reasons for their release are compelling. I would urge the Government to release these persons, without any further delay at the earliest.

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Speech made by R Sampanthan, the Leader of the opposition in Parliament on the 8th of March 2016:

I thank you, Mr. Deputy Chairman of Committees, and the House for the leave granted to me to raise the following matter of urgent public importance, on the Adjournment of Parliament today.

Sir, I move the following Motion with regard to a matter of urgent public importance that I wish to raise.

“The current position of the State/Government in regard to persons who have been victims of enforced disappearances and other disappearances and persons who continue to be held in custody under the Prevention of Terrorism Act in judicial proceedings where

i. The trial has been concluded and persons sentenced.
ii. Where persons have been charged and the trial is ongoing, and
iii. Where persons have not been charged but continue to be in custody.

Though initiatives have been taken by the State/Government to inquire into this issue and though a long period of time, very many years, have lapsed, there has been no tangible effective final result, so as to mete out justice and alleviate the extreme trauma experienced by the families and next of kin of all these persons.

This continuing uncertainty is a serious impediment to the commencement of the process of reconciliation, and it is therefore imperative that the State/Government should bring this state of uncertainty to an end, through a definite plan of action that will immediately mete out justice and set in motion the process of reconciliation and end the extreme trauma of these families and next of kin. It is incumbent that the Government defines its immediate action plan in this regard.”

Sir, before I discuss further this question of enforced disappearances, I think it would be useful if I was to give this House the definition of “enforced disappearances” as accepted by the United Nations. In accordance with the definition contained in the Preamble of the Declaration, “enforced disappearances” are only considered as such when the act in question is perpetrated by State actors or by private individuals or organized groups – for example, paramilitary groups – acting on behalf of or with the support, direct or indirect, consent or acquiescence of the Government.

That, Sir, would be the definition of the term “perpetrators responsible for enforced disappearances”. The definition of “enforced disappearances” is as follows: “As defined in the preamble of the Declaration, enforced disappearances occur when persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of, the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law”. Sir, the Declaration referred to in these definitions is the Declaration on Protection of All Persons from Enforced Disappearance adopted by the General Assembly of the UN in its Resolution 47/133 of 18th December, 1992.

Sir, it would appear from these definitions that the persons who are perpetrators of enforced disappearances are either persons who act on behalf of the State or persons who act with the explicit or implied consent of the State. We are concerned with disappearances that occurred at the hands of the State. The responsibility for such disappearances is primarily that of the State. We are also concerned with disappearances that had occurred at the hands of the LTTE, because we know that there were persons taken into custody by the LTTE, who have also disappeared. They may not strictly come under the term “enforced disappearances”, but all persons taken into custody by other paramilitary groups collaborating with the State would come within the definition of “enforced disappearances”. Since, however, it is accepted by everybody that all these disappearances occurred in the course of the armed conflict, we are concerned with all disappearances, both of civilians and even military personnel. In regard to disappearances that had occurred at the hands of officials of the State or persons acting with the implied or explicit consent of the State, while the State is answerable, the State is also, in a sense, bound to perform its duties in regard to the search for persons who may have been taken into custody even by the LTTE, if that be possible.

Sir, it would be relevant for me, before I proceed dealing with this matter, to also read to the House some of the observations made by the Working Group on Enforced or Involuntary Disappearances in a Report that they have submitted. It states, I quote:

“In a general comment adopted this year, the Working Group concluded that enforced disappearance represents a paradigmatic violation of the right to be recognized as a person before the law.

It stated that enforced disappearances entail the denial of the disappeared person’s legal existence and, as a consequence, prevent him or her from enjoying all other human rights and freedoms.”

Going on, Sir, in the next Paragraph it states, I quote:

“….enforced disappearance is a continuous crime as long as the fate or whereabouts of the victim remains unclarified. States should take specific measures under their criminal law to define enforced disappearances as an autonomous criminal offence and to bring their existing legislation in line with the Declaration.”

This Report of the Working Group, Sir, also contains a reference to women, which I think is important and I might place that before the House. It states, I quote:

“Women are particularly affected by enforced disappearances as the consequences at economic, social and psychological levels, are most often borne by them. If they are the victims of disappearance, they are particularly vulnerable to sexual and other forms of violence. In addition, as they are at the forefront of the struggle to resolve the disappearances of members of their families, they are subject to intimidation, persecution and reprisals.”

So, you would see, Sir, from these observations that have been made by the Working Group, the Declaration adopted by the UN and the definitions of “enforced disappearances” and “perpetrators” under that Declaration, the question of enforced disappearance is a matter of extreme gravity and we need to do everything possible to prevent, avoid disappearances and to address the issue of disappearances as a grave and urgent humanitarian issue, wherever it has occurred, because it not merely relates to the life of the immediate victim, but it also has a grievously serious impact on the lives of many others, whose lives are inextricably intertwined with the life of the victim. It also has an adverse impact on society; it destabilizes the society; it prevents the return to normalcy and impedes reconciliation. This situation emphasizes the need for the process of transitional justice to work expeditiously and efficiently for truth, justice, reparation and non-recurrence to become operative and functional. It is as much in the interest of the country as it is in the interest of the victims and their families for this issue to be addressed without delay.

I might also mention, Sir, that while we talk of enforced disappearances, as much as we are concerned about women, we are also concerned about children because even children, sometimes, are victims of enforced disappearances and this has an impact not merely on the children, but also on the families of those children. It is in this background, Sir, that I propose to address the facts relating to this issue and what needs to be done to address the issue of enforced or involuntary disappearances and what needs to be done to bring this to an acceptable and just closure. The Government has taken certain steps in this regard. These steps have been in the nature of inquires, but no finality has been reached. It is more than six years since the armed conflict came to an end, and I submit that it would be harmful for both the victims and the country for this state of uncertainty to continue.

The first Commission to be set up recently was the Lessons Learnt and Reconciliation Commission, set up in May, 2010. It came up with its Report in November, 2011. They recorded extensive evidence in regard to disappearances, enforced and involuntary, and also other disappearances. I must also mention that that was the Commission appointed recently, but there were other Commissions appointed earlier, during the incumbency of President Chandrika Bandaranaike Kumaratunga where the issue of disappearances all throughout the country was addressed. Sir, I would read some of the Recommendations made by the Lessons Learnt and Reconciliation Commission subsequent to their investigations. I would read paragraph 9.47 of the Report of the Commission which states, I quote:

“The Commission wishes to emphasize that it is the responsibility of the State to ensure the security and safety of any person who is taken into custody by governmental authorities through surrender or an arrest.”

Paragraph 9.48 states, I quote:

“A comprehensive approach to address the issue of missing persons should be found as a matter of urgency as it would otherwise present a serious obstacle to any inclusive and long-term process of reconciliation.”

Paragraph 9.49 states, I quote:

“The Commission also emphasizes that the relatives of missing persons shall have the right to know the whereabouts of their loved ones. They also have the right to know the truth about what happened to such persons, and to bring the matter to a closure.”

Sir, those are certain paragraphs from the Report of the Lessons Learnt and Reconciliation Commission which places the responsibility entirely in the hands of the State. Four years have lapsed since these Recommendations were made by the Lessons Learnt and Reconciliation Commission. What has the Government done in the last four years to implement these Recommendations of the Lessons Learnt and Reconciliation Commission? There was yet another Commission appointed – the Paranagama Commission on 15th August, 2013. This Commission is yet sitting; the Commission was also given a second mandate on 15th July, 2014. This related to facts and circumstances surrounding the loss of civilian life and violations of international law. A team of international experts were also appointed to assist the Commission. It is somewhat strange that the Commission was given a second mandate beyond the scope of the first mandate before it submitted its Report on the first mandate. The Commission has submitted its Report on the second mandate, but has submitted only an Interim Report on its first mandate.

The Commission has, as at 15th August, 2015, received 17,329 complaints from families of missing persons, of course this figure varies, and there are other Reports which seem to suggest a slightly higher figure.

There are also reports that about 5000 military personnel went missing. That is also a matter which needs to be investigated in regard to their whereabouts if they are alive. It would seem Sir, that in regard to these enforced disappearances, the persons responsible for such enforced disappearances, particularly in recent years, acted with a complete sense of impunity. They seemed to have come to the conclusion that the arm of the law would never reach them and that they could do whatever they wanted. They seemed to have had the guarantee that high persons in governance, in authority, would protect them and that they would never have to face any consequences as a result of being responsible for such disappearances. We know that most of what happened, if not all of what happened, happened during the term of the previous Government.

The former Government’s commitment to the ascertainment of the truth, it may be said, was highly questionable. The new Government needs to address this issue more purposefully so as to bring this extremely serious humanitarian issue to a satisfactory closure. Everyone is aware of the agitations that have been conducted by the affected families in regard to the missing persons. That they have a genuine complaint which needs to be addressed is unquestionable. They also quite justifiably complain that their grievance, apart from their going before a Commission and testifying, has not been addressed in a meaningful way. It is true that for most of the period of time it was the former Government that was in power which had no interest in addressing this issue seriously . The new Government has been in power for about one year and the victims would want to know how the Government is handling this issue. What are the Government’s plans?

Does the Government have a definite plan to handle this issue? Of course, these persons have gone and testified before these Commissions. The Commissions record the evidence, but have they pursued the testimony of the victims or taken steps to investigate evidence of these witnesses who are victims? When a victim says that my son or my husband was taken to custody by a particular police officer or the police in a particular police station or the army in a particular camp, has the investigation been pursued further to try and find out whether that statement is correct and if so who that officer was? That is not being done. The new Government must accept responsibility for this situation and this issue needs to be addressed urgently.

This matter is referred to in the Report submitted by the Paranagama Commission. I might refer briefly in regard to some of the matters that Report deals with. It states,

“The primary responsibility for preventing disappearances and ascertaining what has happened to people reported missing lies with the State. Disappearances are a tragedy not just for the individual but also for the families. The problems they faced are psychological, legal, administrative, social and economic.” It further states, “A great many families of missing people face economic difficulties linked directly with the disappearance, and are unable to meet their needs in terms of food, health, housing, or education of children.”

Most of those who disappear are adult men, so many families have lost their main breadwinner; often women then become heads of household and face limited options of earning a living. All this is very interesting. This is contained on paper; it is contained in reports. But, what has the Government done; what is the Government doing? The purpose of this Debate, Sir, is to find out from the Government what its Action Plan is, at least in the immediate future.

This matter is referred to, Sir, in the Resolution adopted on the 01st of October, 2015 at the 30th Session of the UN Human Rights Council. I wish to refer to some paragraphs of that Resolution dealing with this question. Paragraph 4 of the Resolution states, I quote:

“Welcomes the commitment of the Government of Sri Lanka to undertake a comprehensive approach to dealing with the past, incorporating the full range of judicial and non-judicial measures; also welcomes in this regard the proposal by the Government to establish a commission for truth, justice, reconciliation and non-recurrence, an office of missing persons and an office for reparations; further welcomes the willingness of the Government to give each mechanism the freedom to obtain financial, material and technical assistance from international partners, including the Office of the High Commissioner; and affirms that these commitments, if implemented fully and credibly, will help to advance accountability for serious crimes by all sides and to achieve reconciliation;”

You have made a commitment to the UN; you are a co-sponsor of the Resolution by agreeing to set up a commission for truth, justice, reconciliation and non-recurrence; to establish an office of missing persons which should have handled this issue and to establish an office for reparations. What has happened thus far? We would like to know. We would like to know what plans you have.

Sir, I also would like to refer to Paragraph 13 of the Resolution adopted by the UN Human Rights Council to which Sri Lanka was a partner. I again quote:

“Also welcomes the commitment of the Government of Sri Lanka to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance without delay, to criminalize enforced disappearances and to begin to issue certificates of absence to the families of missing persons as a temporary measure of relief;”

Sir, I am aware that at the end of last year, I believe in December, 2015, you have signed the Convention on Enforced Disappearances, but it has not been ratified yet and I do not know what action you have taken in regard to the issue of certificate of absence which has been referred to in the Resolution adopted by the UN Human Rights Council. A certificate of absence is very different from a certificate of death. A certificate of absence does not accept that the man is not living any longer. But it enables the victims in such circumstances to use that certificate to be able to receive relief, maybe from the REPPIA, maybe from Samurdhi or maybe to stake their claims to right to succession, inheritance, various entitlements that the family would be entitled to. Consequent to being victims, these certificate of absence would certainly be a very strong document that would help them to rebuild their lives. Now what had been done in regard to this matter?

How far have you gone? These are the questions that we would like to raise.

Sir, such disappearances have occurred in Sri Lanka even in the past – in 1971 such disappearances occurred; in 1988-89 tens of thousands of youth from the South of this country went missing. This was during the JVP insurgency. Some awful and dreadful things happened at that point of time. We all know that, that was when the former President Mahinda Rajapaksa despite much resistance from the Government of the day went to Geneva, in my view quite rightly, to espouse the cause of our youth from the South.

Nobody is seeking revenge or vengeance. But, these practices of enforced involuntary disappearances must in the interest of the whole country and all its people be brought to an end – they must not be allowed to continue indefinitely. Mr. Mahinda Rajapaksa went to Geneva because he wanted the UN to intervene. He did what needed to be done. That is what the UN is now doing – what he wanted done when the youth went missing in the South.

Sir, I must mention that there is a tendency in this country to sometimes look upon Resolutions adopted at the UN Human Rights Council as being Resolutions that to some extent infringe upon the sovereignty of Sri Lanka – nothing can be further from the truth.

I want to quote from item 2 of this Resolution, Sir:

“Promoting reconciliation, accountability and human rights in Sri Lanka.”

Paragraph 4 of the Resolution begins by saying that the Human Rights Council reaffirms its commitment to the sovereignty, independence, unity and territorial integrity of Sri Lanka. That is how the Resolution starts. So, these fears that are expressed by some people – that these are infringing on the sovereignty of our country – I would submit are utterly unfounded. We are parties to various commitments; we are parties to various conventions; we are parties to various treaties that we have accepted. We are bound by them; we have to observe them.

I would like to read, Sir, a statement that has issued recently by an organization called, “Friday Forum” comprising of very leading members of civil society, academics and intellectuals. This is what the “Friday Forum” has said in the statement issued by them on the 17th of October, 2015, a few days after the adoption of the Resolution at the UN Human Rights Council. It states I quote:

“Some elements consider support for the HRC Resolution as undermining the status of Sri Lanka as a sovereign and independent State. We need to remind ourselves that Sri Lanka has, from the time of independence, voluntarily become a party to international human rights treaties and global policy documents. Successive Sri Lankan parliaments have passed laws that have incorporated these international standards.

Local policies have been influenced by internationally accepted standards in many areas.

Some of the laws and policy initiatives have strengthened our response to common problems. Even as our government was responding to the armed conflict in the North and East, important laws like the Convention on Torture Act were passed by Parliament at the instance of the late Lakshman Kadirgamar, then Minister of Foreign Affairs.

It is those engaged in adversarial politics for what they perceive as short term political advantage who wrongly use the argument of State sovereignty to reject Sri Lanka’s voluntarily undertaken responsibilities as a member of the community of nations.”

This statement by the Friday Forum has been signed amongst others by Prof. Savitri Goonesekere, Ms. Suriya Wickremasinghe, Mr. Chandra Jayaratne, Prof. Camena Guneratne and Dr. Deepika Udagama. Are these persons traitors to the country? There are persons here who shout that the UN Human Rights Council Resolution – the Sri Lanka co-sponsored Resolution – is an attack on the sovereignty of this country. The Hon. Lakshman Kadirgamar was responsible for creating a part of the domestic law of this country, the Convention on Torture. Was he doing something that was treacherous to this country? In fact, I think, that if the Hon. Lakshman Kadirgamar had continued to be the Foreign Minister, this country would probably never have got into all these difficulties with the United Nations. It is after the Hon. Lakshman Kadirgamar ceased to be the Foreign Minister and others took over the Foreign Affairs Ministry that this country got into very serious difficulties.

Sir, the unity and territorial integrity of Sri Lanka is sacrosanct. All of us only want a more united and unified Sri Lanka, a better Sri Lanka where the universal principles of equality and justice prevail and are preserved, a more prosperous Sri Lanka where all Sri Lankans will lead a better life and an inclusive Sri Lanka where all of Sri Lanka’s citizens are included, not one where some are included and others excluded on parochial grounds.

Sir, I have placed before the House some of the thoughts of the Government as set out in the Resolution adopted by the UN Human Rights Council, co-sponsored by the Sri Lankan Government.

The agony of several thousands of families of these victims of disappearances cannot continue indefinitely. A decision needs to be arrived at as to whether the disappeared person is alive or not. If he or she is alive, his whereabouts should be made public; if not, other suitable and appropriate steps should be taken to reconcile the families with such reality and bring calm and normalcy to their lives. Truth, justice, reparation and all necessary steps to ensure non-recurrence must become effective urgently. This is the responsibility of the Government and I would urge that the Government defines a plan that would provide definite relief to these much traumatized families.

I want to refer briefly, Sir, to a recent Report submitted by Mr. Pablo de Greiff, Special Rapporteur on Truth, Justice, Reparation and Guarantees of Non-Recurrence who visited Sri Lanka.

He has stated, I quote:

“What is expected is, on the one hand, for the Government to pay immediate attention to certain issues on which it can certainly act without delay (for example, on the issue of the missing, on the prompt adoption of victim assistance programmes including psycho-social support, the lingering issue of land occupied by the armed forces, to name a few), ….”

He identified the issue of missing persons as one that can be dealt with without delay, urgently, amongst others. Why is the Government not acting?

Now, Sir, having dealt with the question of missing persons, I do hope that what I have said will be taken into consideration by the Government and that the Government will act without delay and act with a certain definite objective to be able to bring this question to a closure in some appropriate way so that the families will be satisfied and accept, maybe painful decisions, if that is the only decision that can be arrived at. Whatever arises, other steps will be taken to bring those persons out and make relief available to the respective families so that the families will be adequately compensated. There will be adequate reparation, adequate measures taken to give them peace, to give them tranquility, to enable them to start normal lives and forget the past.

Sir, I would now like to deal with the question of persons in custody. I do not want to go into figures. There are some persons who have come out on bail; there are some persons who have been convicted and who have been sentenced who are yet in jail; there are some persons against whom cases are pending; there are some persons who have not been charged. These are the different categories of persons. Nineteen persons who have not been charged are still in custody. Three convicted persons have been released: one by His Excellency the President and some others have completed their sentence. I believe, there are about 100 cases that are pending in the High Court. All these persons are still in custody except those persons who were recently released on bail.

This is not the first time that prisoners are sought to be released in special circumstances. They are not charged with crimes against society. They are being charged for acts which have a political dimension. Inequality in treatment between citizens, based on considerations that should have no relevance, is not compatible with transitional justice. In 1971, you have treated prisoners in a certain way. In 1988 and 1989 you have treated prisoners similarly. Why are you not treating prisoners now in the same way? If you are not seen to be even-handed in your treatment with our prisoners at different times, that is not compatible with transitional justice. Those families, those individuals are entitled to say, “We are being treated differently for certain parochial reasons.

That is discrimination against us.” Evenhandedness must be seen as the main determining factor. If evenhandedness is absent, there can be no trust. If there is no trust, there can be no progress. You will not take off towards progress.

The Government should not be afraid to do the right thing. That is why the Government was changed. Justice must not be denied on the basis of slogans. There would always be persons who will raise slogans and exaggerated fears. Let us do what the great religions- Buddhism, Hinduism, Islam and Christianity- that we follow teach us. Does Buddhism not teach us to forgive and forget?

How can you justify holding persons under the Prevention of Terrorism Act any longer, a law which you yourself have unequivocally condemned as being draconian in many ways, particularly when these persons have already been in custody for long periods of time, sometimes as much as 10 to 15 years and when it is almost six years since the war came to an end. If those persons have been convicted and sentenced by now some of them should have come out; lots of them should have come out.

The Mahinda Rajapaksa Government released some 12,000 persons who were LTTE cadres, who fought against the State, after rehabilitation. They may have had their own reasons for doing that. But they did that. Why are you afraid to act? Did those cadres also not rebel against the State and did Mahinda Rajapaksa not release12,000 of them? This is the question that is now being posed by the persons in custody. We have no answer to this question. There were some top LTTE cadres; one of them became the Chief Minister of the Eastern Province and some of them were in the Central Government as Ministers. One person who had been an arms procurer engaged in all manner of crimes and who was wanted by Interpol received right royal treatment. He was brought here and given right royal treatment. None of these persons raised slogans against them; none of these persons raised slogans against those acts. Why are you concerned about the slogans now being raised?

I found that one of the persons in the Opposition has said yesterday that by releasing the LTTE cadres, you are going to create Eelam. Can anything be more stupid? Can anything be more absurd? After the conclusion of the war, has there been one single act indicative of a revival of violence? Surely these persons are entitled to ask that they be released. Some of these persons were protected by the MR Government. No slogans were raised at that time. Why are you hesitant to act? Tamils in custody in prisons have had bad experiences. I do not want to refer to such incidents. These persons are the breadwinners of their families. The time has surely come for them to be integrated with their families and for them to start life afresh.

We have discussed this matter with both His Excellency the President and the Hon. Prime Minister. I must say that both the President and the Prime Minister were quite positive. In fact, one day at a conference in Parliament presided over by the Hon. Prime Minister, where the Attorney-General’s staff were present, police officials were present and many of us were present. We discussed the matter and there was a decision taken to appoint a committee which would look at this issue not purely legally but politically because these have a political dimension and take steps to release these people. Unfortunately for certain parochial reasons that committee did not become functional. I think, the time has come for the Government to take some such decision and arrive at a conclusion in regard to this matter.

There has to be a political decision. This is not purely a legal issue. They are not charged with having committed crimes against society. They are charged with crimes which have a political dimension; with acts which had a political motive. Political decisions were made in the past, in 1971, in 1988 and in 1989 when you released a large number of people who were held in custody. Why can you not take the same decision now? Are the prisoners not justified in concluding that you are discriminating against them and would that not be, before long, the view of the international community too?

So, I think the time has come for the Government to act. Sir, You must not be scared by scaremongering. What is your position in regard to the Prevention of Terrorism Act? What is the position that the UN Human Rights Council has adopted in its Resolution which you have co-sponsored and accepted with regard to the Prevention of Terrorism Act? I wish to read that part of the Resolution. I read paragraph 12 of the Resolution. It states, I quote:

“ Welcomes the commitment of the Government of Sri Lanka to review the Public Security Ordinance Act and to review and repeal the Prevention of Terrorism Act, and to replace it with anti-terrorism legislation in accordance with contemporary international best practices;”

“And to review and repeal the Prevention of Terrorism Act”. That was your position. When you have undertaken to repeal the Prevention of Terrorism Act, on the basis that that is a law which should never have been applicable in the country, how can you hold in custody the persons you have taken into custody under that law? How can you convict persons under that law? How can you even detain persons who have been sentenced under that law? How can you hold persons without being charged under that law? I think you cannot do so. The Hon. Minister of Foreign Affairs made a categorical statement in the course of his opening statement at the UN Human Rights Council, on the 4th of September, 2015. This is what the Hon. Minister of Foreign Affairs said –
ගරු නියෝජ්‍ය කාරක සභාපතිතුමා
(மாண்புமிகு குழுக்களின் பிரதித் தவிசாளர் அவர்கள்)
(The Hon. Deputy Chairman of Committees)
Hon. Member, you have only two more minutes.
ගරු රාජවරෝදියම් සම්පන්දන් මහතා
(மாண்புமிகு இராஜவரோதியம் சம்பந்தன்)
(The Hon. Rajavarothiam Sampanthan)
Mr. Deputy Chairman of Committees, I will wind up my speech in two minutes.

So, this is what the Hon. Minister of Foreign Affairs said. I quote;

“Review and repeal the Prevention of Terrorism Act and replace it with anti-terrorism legislation in line with contemporary international best practices.”

“Review and repeal the Prevention of Terrorism Act”. That was what you said to the UN Human Rights Council, on the 14th of September, 2015 in your opening speech, Hon. Minister. Today we are five months down the road. How can you hold persons in custody continuously under that Act which you have agreed to repeal? The only evidence against most of these people are their extracted confessions; most of them are being charged on the basis of extracted confessions. I am told some of the senior police officers, ASPs, who recorded those confessions do not go to courts. That is the reason why the cases are postponed. When you have committed yourself to repeal the Prevention of Terrorism Act, can these persons be any longer held or charged under the Prevention of Terrorism Act? It is a contradiction of your own commitment. The reasons for their release are compelling. I would urge the Government to release these persons, without any further delay at the earliest.

Thank you.

——————

The Issue Of Missing Persons & PTA

By Mangala Samaraweera, Colombo Telegraph, March 11, 2016– 

Mangala Samaraweera - Minister of Foreign Affairs

Mangala Samaraweera – Minister of Foreign Affairs

“The Government has taken steps to have a new draft law formulated by the eminent members of the National Law Commission and this has recently been handed over to the Ministry of Justice. We want to make sure that the draft legislation also is in line. We want to repeal the PTA but replace it with new legislation in keeping with international best practise.”

The Honourable Leader of the Opposition, Mr. Sampanthan has raised several important questions in this adjournment motion debated today but due to time restraints, I will speak out first on the matter of families of the disappeared and the missing.

Mr. Chairman,

The issue of missing persons is one that is very close to my heart. In fact way back in 1989, I along with Hon. Mahinda Rajapaksa at that time were the core joint conveners of the Mothers Front Movement which was formed to deal with the missing people in the South during that era. In fact over the years, I have personally fought for the rights of the families of the missing, the pain and anguish of parents who have lost their children both in the North and the South, wives who have lost their husbands, sisters and brothers who have lost their siblings, is the same everywhere. In fact human grief has no colour, no race, no caste, no religion. Since the new government assumed office in September following the general election, we signed as Hon. Sampanthan said earlier, the Convention against Enforced Disappearances. Actually I believe on the Human Rights Day on the 10th of December last year with the clear objective to ensure that the white van culture and the years and years of enforced disappearances that took place all over the country would be confined to the history books (and) would be a thing of the past. This we are determined to achieve through firm action. In fact we are now in the process of drafting the legislation and hopefully within the next two months, the legislation will also be brought here to the house. No other government has taken this step for long years despite repeated calls to take action in this regard. We took the first step of signing the convention and I said we are now proceeding to work on enabling the legislation and I can assure the house that the work is currently underway to give legislative effect to the provisions of this convention hopefully within the next two months. As a measure of immediate relief to the families of the missing, the Cabinet of Ministers approved the issuance of Certificates of Absence in September, 2015. It is a matter of regret that the legislative amendment that is required to give effect to the issuance of this certificate has still not reached Parliament but my colleague, the Hon. Minister of Justice, has assured us that it will be done so in the very near future. However this matter is being closely followed by the Office of National Unity and Reconciliation and I’m hopeful that this much needed and much awaited piece of legislation would soon be passed enabling the families of missing persons to obtain Certificates of Absence. Just recently the ICRC also completed as you know, a needs assessment of the families of the missing and this was shared with the government late last month. ONUR and my ministry with a host of other line agencies are in the process of studying this to identify and address pressing issues of the families of the missing. I pledge that we will expedite action to explore what interim relief can be provided to the families of the missing. I urge the Honourable Members of the Parliament to also join the Government in assisting this task by suggesting measures that can be taken. In the meantime as I have mentioned before, the Government has worked on a concept note together with the ICRC for the establishment of an Office of Missing Persons by statute which will carry out its work on the basis of the families’ right to know.

Honourable Speaker,

This House is very well aware of the many commissions of the past that were established to look into missing person issues. There were several in the past including the current one which we intend on winding up that was appointed by the previous administration. This House is aware that these commissions were all established on an ad-hoc basis and in a hurry with no consultations locally or with experts outside who are knowledgeable on these issues. As a result, the commissions have been plagued with problems and shortcomings and the families of the missing have had little or no relief. In fact we want to ensure that we avoid these mistakes of the past, neither do we wish to establish mechanisms just to please the international community or to meet various deadlines. As Hon. Bimal Rathanayake very correctly said, we are meeting our commitments to the long suffering people of this country not because of international pressure, not to appease the international community but because our Government, the Government of President Sirisena and Prime Minister Wickremesinghe sincerely believe that we must address the past, we must come to terms with our past if we are to move forward boldly as a nation. I know very well however that for the family members who suffer daily, for those who grieve each day, is a nightmare. Any delay in the part of the authorities even if such a delay is to ensure that they are better served is no solace to them. However I urge you to bear with us a little longer, perhaps until the end of this month or before, allowing us time to consult experts to ensure that before we go to Cabinet to seek approval to establish this permanent office, we get things right at least this time. In fact at the moment we have also a team in South Africa, a technical team, who is also looking at the various aspects of the South African Truth Commission. Of course, I personally believe that while there are many things that we can learn from South Africa, what we finally decide for Sri Lanka must be uniquely Sri Lankan, addressing the needs of our own country and this Government is determined to what is right by the victims and the families of the missing.

And also Mr. Chairman,

As for the other, another important issue Hon. Sampanthan raised, the Prevention of Terrorism Act, I believe and I believe and know that our Government believes is that the PTA has no place in its current form in a democracy such as ours. I did say this in my address to the governing council of the Community of Democracies just last Wednesday in Geneva.

“The Government has taken steps to have a new draft law formulated by the eminent members of the National Law Commission and this has recently been handed over to the Ministry of Justice. We want to make sure that the draft legislation also is in line. We want to repeal the PTA but replace it with new legislation in keeping with international best practise.”

In fact the Honourable Leader of the Opposition, I urge you to know what our views are on this subject and we also agree with your argument and as you know we have been discussing with the various authorities involved in expediting the release of these prisoners as soon as possible. In fact the Government I agree has given repeated commitments to this very House to look into the question of detainees. Some who are on trial have been released on bail but there are some who continue in detention while on trial. The problem for those who are facing trial is that their cases have not been concluded as speedily as expected and continues to drag on. In fact I’m aware of the efforts, and we appreciate the efforts taken by the Honourable Leader of the Opposition here and some members of the Parliament of TNA to urge the detainees who have commenced a fast unto death, to discontinue its action and allowing us space to address this serious issue in a meaningful and sensible manner. Some have listened to reason and given up their fast while some still continue. The lives of each of these detainees, I say with all sincerity, matters a great deal to us. We are a Government that has pledged to uphold and promote and protect the human rights and dignity of all. We lost too many lives on all sides in all parts of our country for long years as a result of action of this nature and as a result of violent conflict. We cannot afford repetition. We don’t want to see repetition and we cannot lose any more lives in connection with the conflict that is long over and if we want to ensure non-recurrence, this is the moment in time, moment in history where we have to win everyone over. The hearts and minds, as President Sirisena constantly says, are more important than the bricks and mortars of development. I admit that there have been delays in addressing this important issue. It is against our collective conscience in this House to allow this situation to continue this way and we must as a Government make a special effort even at this late hour to address this issue expeditiously. In fact tomorrow some of our Ministers want to go and meet some of these detainees ourselves and speak to them and we have also asked the Minister of Justice to expedite this process and to get the Attorney General’s Department to take some action speedily in this regard.

There’s much more I would have liked to have said but due to restraints of time, I’d like to thank you again for allowing me to speak.

*Statement made by the Minister of Foreign Affairs in Parliament on Missing Persons on 08 March 2016

Of Rape, Killings, Impunity and our Collective Amnesia

The passion and commitment of local women’s rights activists and others, although largely unsung, is awe-inspiring and we have the deepest respect for their work. However, this is not a struggle that they alone can accomplish. The state of violence against women and children in Sri Lanka, is our collective reality. The only way by which we can achieve any significant success in this regard, is if we also realise the collective responsibility – the government, the criminal justice system and society as a whole.

So, the question here should not be, if or not we should protest, but rather, that we recognize that protests are an integral part of the process, but, that it cannot achieve much on its own.

Images provided by WATCHDOG
As women’s rights groups and activists mark International Women’s Day tomorrow (8th) and the month of March as ‘Dark March’[1], we hope that we can take a long, hard, reflective look at ourselves and our actions and decide to join the long, hard struggle to end violence against women and children in Sri Lanka.The rape and killing of little HarishnaviOn the 16th of February, 2016 afternoon, 13 year old Kankatharan Harishnavi, was found raped and killed at her home in Ukkulankulam, Vavuniya. A bright young student of Vipulananda Vidyalayam, Vavuniya, Harishnavi had stayed home from school that day as she was feeling slightly unwell, and had complained to her mother that her new uniform was too short for her. As the school bell had rung by then, and her mother who was also a teacher at the school had to leave for school, she had told Harishnavi to stay indoors, and left for school with her two other children (aged 15 and 10), at about 7.50am.As her mother’s time-table had been quite full, she was unable to come home before the end of the day, so when she came home after school around 2.15pm and was parking her bike, her son had walked into their home and run out shouting for their mother to go inside and see what had happened to his sister. When the mother had run inside, she’d seen her daughter standing upright, about a foot off the floor, with a saree wrapped loosely around her neck, with the other end tied to the roof. Thinking that her child was just playing around and trying to scare her, she had immediately removed the saree, at which point her daughter’s body had fallen to the floor. The mother had immediately picked her up and laid her down on the bed assuming that she had fainted, whilst instructing her son to go fetch help to take Harishnavi to the hospital. Meanwhile a doctor from a nearby private clinic had come and checked on her and pronounced her dead.Thereafter, the Police had appeared on the scene and carried out inquiries, and the Coroner had come and checked the body and taken it from the house. There had been some bite/teeth marks on her stomach.

Clothes and books were strewn all over the floor and the wall clock had fallen to the floor and stopped at 11.30. There had been no chairs or anything she could have climbed onto to tie herself to the roof said the family, when people speculated that she might have committed suicide. The family had also found a plate of food served, mixed together and left untouched on the kitchen floor, with all the pots and pans still with their lids off, almost as if Harishnavi had been called out by someone, the family said. When the neighbours were asked if they had heard any noise, they said they had not heard anything.

The JMO report released on the 19th of February, 2016, stated that Harishnavi had been raped and killed by strangulation.

The family said that they had no enemies and that they didn’t suspect anyone, but, that they had some boundary fence issues with their immediate neighbor and that they were not on talking terms. The family also mentioned a young local man living abroad, now on holiday in Sri Lanka, who would frequent the cycle shop next door, and how he had disappeared from the village after the incident. The Police had taken in the neighbours for questioning, but had released them soon after, and have now arrested the owner of the neighbouring cycle shop, and are in the process of questioning him.

Harishnavi’s father had left for India in 2007 and thereafter moved to Germany, where he still resides. The family had applied for visa last year but, been rejected, and were going to re-apply this year.

The family said that whilst cleaning out the room they had found a blood soaked Cotex (sanitary napkin) in the corner of the room, but that Harishnavi was not having her period at the time. Therefore, they assume that the perpetrator had used it to mop up any blood from the floor. The family had put the Cotex (brand of sanitary napkin) and everything else they found whilst cleaning up the room in a bag, in case the Police needed anything for their investigations.

“Harishnavi was such a gentle sort, quiet and studious – she even got 170 marks at her Grade 5 Scholarship examination. She rarely studied at home but, was able to retain everything she learnt at school. She was very friendly with everyone and loved animals. She loved to watch TV and didn’t like doing much house work, but she’d never bother anyone” her aunt said fondly. She would take part in district competitions in Social Sciences and also the Maths and Science Olympiad.

IMG_20160222_171242 copyThe Culture of One-Offs

On the 23rd of February (Tuesday), large crowds of angry parents, teachers, activists, clergy and local societies took to the streets in protest of the rape and killing of 13 year old Harishnavi. More than 500 people marched through the town from Gamini Maha Vidyalayam to the District Secretariat Office, Vavuniya, demanding justice for the rape and killing of Harishnavi and all others cases of violence against women and children.

Last year, the rape and killing of 18 year old Sivaloganathan Vithiya from Pungudutivu, sparked large scale protests across the country. Even President Sirisena visited Vithiya’s family in Jaffna and assured them that a Trial-at-Bar[2]would be set up to ensure they receive speedy justice for the senseless rape and killing of their daughter. Almost a year later, with 10 suspects in custody, the family is yet to see justice. Similar spontaneous and organized protests have taken place after most such cases of rape and killing of women and children. The gang rape and killing of Saranya, the rape and killing of 13 year old Luxmy from Delft, the rape of two school children from Karainakar by the Navy, the killings of little Seya and Jerusha….and the list of protests following such cases go on and on. And the results of these protests, public statements, articles, petitions, letters to the President etc., have all been the same. The police make some arrests, appoint multiple teams to “investigate” into the incidents, Government authorities make public assurances to end violence against women (depending on the “profile” of the case of course,) and then once the momentum dies down, the latest case like most other cases before it, sinks into the ‘black-hole’ that is our justice system.

IMG_20160223_101230 

Legal, social and economic injustices faced by victim families and survivors

Our justice system crippled by its own back log of cases, the methodology followed during the entire court process including lack of witness and victim protection, harassment of witnesses during trial by defense attorneys and untrained police officers to do professional investigations in to cases of sexual violence, have been slow at handling cases on sexual violence.

This is not to imply that there have been no convictions over the years, i.e. the cases of Jesudasan Rita (Dec. 2015), a 27 year old mother from Vishwamadu (Oct. 2015), Divya (May 2012), but they have been very few and far between. Hence it does not act as an effective deterrent to cases of such nature.

One of the gravest aspects of this entire issue is that at every juncture, be it legally, socially or culturally, it is the victim, survivor and their families that are most vulnerable. Whilst legally, the system almost seems to protect the perpetrator, by way of rape still being a bail-able offence, constant delays by the Police and the courts, and a complete lack of protection for survivors and their families. Socially and culturally, we are positively brutal. Society is ever ready to place the entire blame of rape or sexual violence on the victim or survivor, stigmatize and ostracize them from society and victimize them all over again. This behavior by the society at large not only contributes to protecting the perpetrator, but also to perpetuate a culture of impunity.

We also teach our children to uphold and pass on all the wrong values, as they are made to believe that the victim/survivor of sexual violence somehow brings it upon themselves. A further obstacle survivors and their families face is the practical difficulty and economic burden of pursuing justice, as most cases are dragged on for multiple years. This is yet another blatant indicator that there is no systematic or community-based support mechanism for such families. These challenges coupled with the intimidation faced by families, by perpetrators out on bail or their goons, makes it almost inevitable that most families are unable to pursue justice.
Supporting victim families and survivors

However, families do, and have courageously withstood intimidation and relentless pursued justice. Some have succeeded after years and years of waiting, whilst some still continue to wait. We, as a society must applaud their courage and support them in their struggle, instead of shunning and stigmatizing them. We should work with local organizations and families to volunteer our time and support to accompany families to court and show our solidarity, initiate fundraising campaigns to cover their legal, travel and other related costs, sustain media and community pressure on government departments and the judiciary to expedite convictions and stop delays etc.,.

The passion and commitment of local women’s rights activists and others, although largely unsung, is awe-inspiring and we have the deepest respect for their work. However, this is not a struggle that they alone can accomplish. The state of violence against women and children in Sri Lanka, is our collective reality. The only way by which we can achieve any significant success in this regard, is if we also realise the collective responsibility – the government, the criminal justice system and society as a whole.

So, the question here should not be, if or not we should protest, but rather, that we recognize that protests are an integral part of the process, but, that it cannot achieve much on its own. Whilst fully understanding the multiple difficulties faced by activists, most of whom are already spreading themselves very thin, the main challenge before us is how to move beyond the one-off protests, meetings, write-ups and appeals, and identify creative and practical means by which to commit to, and spearhead this long-term struggle. Until and unless we, the general public, take ownership of this struggle, and realise that it’s only then that real change can come about, we will never be rid of this problem. There’s no quick fix to ending violence against women and children. It’s a long and winding road and we need to go the distance together. It really is as simple or impossible as that.


[1] Journey Towards Justice, Dark March Campaign –https://www.facebook.com/JourneyTowardsJustice/posts/600971690050331

[2] Daily Mirror, Maximum punishment for perpetrators – President in Jaffna – http://www.dailymirror.lk/73839/maximum-punishment-for-perpetrators-president-in-jaffna

Missing Persons & Beginning of Consultations

Secretariat for Coordinating Reconciliation Mechanisms under the Prime Minister’s Office has a website with an English questionnaire that is open until mid-April, 2016 for collecting opinons on transitional justice mechanisms at http://www.scrm.gov.lk/#!consultations/cjg9

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Meeting Held in Trinco to Discuss Missing Person Issue

by Colombo Gazette, March 15, 2015

MissingThe International Commission on Missing Persons (ICMP) and the Guatemalan Forensic Anthropology Foundation (Fundación de Antropología Forense de Guatemala: FAFG) held a roundtable discussion in Trincomalee to analyze requirements for a systematic and effective process to account for those who are missing as a result of more than 25 years of conflict.

The event will be followed by a roundtable in Colombo on Thursday. This is part of an initiative organized by a consortium of agencies operating as part of the International Coalition of Sites of Conscience (ICSC). The Roundtables are co-hosted by the Centre for the Promotion and Protection of Human Rights (CPPHR) in Trincomalee and the Centre for Human Rights Development (CHRD) in Colombo.

In November, ICMP and FAFG conducted a series of consultations in Sri Lanka with families of victims, victims’ and survivors’ associations, religious leaders, civil society organizations, government representatives, human rights advocates, lawyers, and forensic experts.

The roundtables being held this week are designed to prioritize and explore in more detail issues that were raised in November.

These include an examination of the overall objectives of the missing persons process in Sri Lanka, including the need to establish a clear and accurate estimate of the total number of missing; the obligations and responsibilities of the state, reflected in the proposal for an Office on Missing Persons; the role of other State agencies, including the judiciary; policy and legal requirements in respect of victims’ and survivors’ ability to access their rights, including access to financial support, participation in missing persons processes and protections that are available, including privacy and data protection;  technical capacity requirements, including access to official and other records, and data processing requirements, as well as processes for the location and identification of remains; and capacity building for civil society, including effective advocacy and monitoring capacities, as well as inter-communal confidence building and mutual support, such as steps to prevent intimidation of victims, or address perceptions of intimidation.

ICMP is an international organization whose mandate is to secure the cooperation of governments and others in locating and identifying missing persons from conflict, migration, human rights abuses, disasters, crime and other causes.

ICMP is participating in a consortium of organizations called the Global Initiative for Justice, Truth and Reconciliation (GITJR) led by the International Coalition of Sites of Conscience (ICSC) and supported by the U.S. Department of State’s Bureau of Democracy Human Right and Labor (DRL).

The consortium aims to address new challenges in countries in conflict or transition struggling with legacies of or ongoing gross human rights abuses.

In Sri Lanka, consortium members ICSC, ICMP and FAFG are working together to address reconciliation and accountability needs, especially related to missing persons, through local and high-level consultations, participatory needs assessments and a technical fund to provide targeted transitional justice technical assistance to the government of Sri Lanka. (Colombo Gazette)