The tragedies of enforced disappearances have impacted Sri Lankans across the ethnic landscape for decades. The use of enforced disappearances during the “youth insurrections” of the 1970s and ’80s and during the protracted armed conflict by both, State and non-state actors is well documented. Despite several Commissions of inquiry, appointed by successive governments to investigate these incidents, the fate of thousands remains unknown.
Several such Commissions of inquiry have recommended legal reforms to address the issue of enforced or involuntary disappearances and to eliminate this phenomenon in the future. An overwhelming majority of these detailed recommendations remained unimplemented for decades. “….In order to address this issue comprehensively and to eliminate this phenomenon in the future as well as to fill an existing lacuna, the Lesson Learnt and Reconciliation Commission ( LLRC) strongly recommended that domestic legislation be framed to specifically criminalize enforced or involuntary disappearances.”
LLRC REPORT SAYS
Report of the Commission of Inquiry on Lessons Learnt and Reconciliation, 2011, 5.46 said that Sri Lanka signed the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) in December 2015 and ratified it in May 2016.
In order to give legal validity to the ICPPED in Sri Lanka, the Government introduced the International Convention for the Protection of All Persons from Enforced Disappearance Bill, which was gazetted on 9 February, 2017 and subsequently tabled in Parliament.
There have been various opinions expressed in the media by politicians of the ilk of Ministers Prof. G.L. Peiris and Mangala Samaraweera in this context.
However, what needs to be stressed is that neither of them, is a Drafter of the Laws.
This Bill, International Convention for the Protection of All Persons from Enforced Disappearance, was gazetted and tabled in Parliament and did not proceed from there.
The Bill was not passed in Parliament as there was opposition to it. It was not even debated and died a natural death. This was under consideration and Prime Minister Ranil Wickremesinghe, who has initiated the Bill, has withdrawn it from the Order Paper as well.
It is still a Draft Bill and could be rectified of any anomalies. The Bill, according to the introduction, is to punish any perpetrators who have been involved in disappearances of persons. It is a punitive act. The phase of it is, retrospective. If one analyzes it according to Case Law, it could be construed as retrospective from the date that the international convention had come into force. For instance, in the case against Sepala Ekanayake, who hijacked the Alitalia aircraft in 1976, it would go back to the date that the law was created internationally as an international crime and that it could date back to the date on which the international convention had come into force.
Although the law was enacted in Sri Lanka in 2004/2005,the law had been there from the date on which it (the Act) had come into force. This is because Sri Lanka’s laws provide for retrospective application in relation to international crimes.
GENEVA CONDITIONS STAY
So, when Sri Lanka creates offences and when it comes to breaches, the Geneva Conventions will apply. Then retrospective effects are given to international crimes.
There will be a large number of countries where the breaches will be given retrospective effects.
Therefore, it will have a wider net than expected and therefore, it will be difficult to agree to former Foreign Minister-turned Finance Minister Mangala Samaraweera that the laws should be prospective.
It will be also being difficult to agree with Prof. G.L. Peiris that there should be a net which is wider than necessary. It will go back to the time of the Convention.
OFFENSIVE PART OF THE BILL
However, the most offensive part of this Bill, is that anyone who is found to have committed this offence, could be tried either in Sri Lanka, if it is a crime committed here, or could be handed over to another country, to be tried in the Courts of that country!
So, to quote as an example, in the case of Sepala Ekanayake, he could have been tried in Colombo by virtue of the fact that he is a Sri Lankan or in Italy from where the Alitalia aircraft operated which is the country in which the airline operates, or in Thailand, as Bangkok was the International Airport where he forced the pilots and the Captain of that aircraft was to land.
However, the danger of the process lies in that if there is some person who has been found guilty of violating the Missing Persons Act, here in Sri Lanka, then the information which is available in Sri Lanka, could be transferred or transmitted overseas and he/ she could be tried by an international court of law.
The other danger is that the Government of Sri Lanka could also and always turn round and say: “Alright, if you found him guilty, you can try him in your country and we have nothing to do with it.”
The Government also has the option of telling the Government of the other country that they have the option of visiting the International Criminal Court as Sri Lanka is a signatory to all those laws. So, this act could be so damaging to the Sri Lankan politician.
This is not the way forward. There is also the option of bringing amendments to the Act so that extradition of a Sri Lankan, who has committed this offence in Sri Lanka, should not be allowed.
Then let the person who is guilty of the offence of enforced disappearance, face the music in Sri Lanka! That should be the way forward.
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