The politics of the ‘missing’

The Paada Yaathra in March 1992 led by Mahinda Rajapaksa, the 47-year-old SLFP Parliamentarian from Hambantota, was epic. Over 17 days, the marchers travelled 280 kilometres from Viharamahadevi Park in Colombo to Kataragama, in the deep southern heartland that the Rajapaksa family calls home. 

The trajectory of the 1992 Paada Yaathra intentionally cut through Sri Lanka’s Southern Province, once a hotbed of Marxist activity, where the JVP ran its training camps and hideouts for insurgents. In the ensuing UNP Government crackdown on the JVP insurgency in 1988-89, thousands of young people disappeared from remote villages in the districts of Matara and Hambantota, on suspicion of being Marxist insurgents. 

For politicians like Mahinda Rajapaksa and his former SLFP colleague Mangala Samaraweera who represented the Matara District, the issue of disappearances was much more than only a question of human rights and state terror; the ‘missing’ were also their constituents. Mahinda Rajapakasa’s Paada Yaathra in 1992 was a campaign to pressure the UNP regime into investigating enforced disappearances during the JVP insurgency. Twenty-four years ago, his slogans were against state oppression, privatisation of state resources and ironically, demanding a negotiated settlement to the ethnic conflict. Joining him on the historic march from Colombo to Kataragama were leftist politicos Vasudeva Nanayakkara and Wickremabahu Karunaratne. 

Two years before the Paada Yaatra and Jana Gosha campaigns kicked off against the excesses of the Premadasa regime, Rajapaksa had travelled to Geneva to lobby country representatives at the UN Human Rights Commission, the international body that preceded the UN Human Rights Council of today. His brief: disappearances. 

Mahinda Rajapaksa carried 533 documents containing information about missing persons and 19 pages of photographs (Mahinda Rajapaksa v. Kudahetti & Others, 1992) to make his case to delegations at the UN. His actions angered the UNP Government of the day which accused Rajapaksa of treason over his attempts to ‘internationalise’ Sri Lanka’s domestic problems.

“Treachery?” raged Mahinda Rajapaksa the younger in Parliament in January 1991. “We have a right to tell this to the world. Tears of innocent grieving mothers compel us to tell their story of pain and sorrow to the world. We will do it today, tomorrow and always,” he charged, according to Hansard records from the time.

With Mangala Samaraweera, then a young politician from Matara, Rajapaksa co-convened the Mother’s Front, inspired no doubt by the Argentinean Asociación Madres de Plaza de Mayo (Mothers of Plaza de Mayo) whose children were disappeared by the military Government in that country between 1976-1983. The Madres de Plaza de Mayo were the first to mobilise against human rights violations in 1977, and the association went on to become the standard-bearers in the fight to end impunity and seek justice in Argentina. 

Sri Lanka’s Mothers Front, a grassroots organisation comprising an estimated 25,000 women who campaigned beside the SLFP against the disappearances of their husbands and children were a similarly powerful symbol, the visible victims of Government brutality and excess. They tried to storm Kaliamma temples to demand vengeance against their children’s oppressors and staged sit-ins in the capital Colombo. The Front’s objectives included the creation of an independent commission to investigate the disappearance of thousands of people since 1987 and an inquiry into the fate of the disappeared and compensation for dependents of victims. According to media reports published at the time, the Mothers Front also demanded that the Government remove all oppressive laws, disband paramilitary death squads and reveal the names of persons being detained by the state. 

Divergent paths

Two decades later, the paths of the two SLFP disappearance activists Rajapaksa and Samaraweera could not be more divergent. In accordance with commitments made at the UNHRC in Geneva in September last year, the Sirisena-Wickremesinghe Government is proposing to set up a permanent office to investigate and trace missing persons, with an open-ended timeline that does not restrict the institution’s mandate to the duration of the separatist conflict. 

Successive Governments in Sri Lanka have used enforced disappearances to stifle dissent and punish detractors for decades and the country has the dubious honour of being the second largest caseload before the UN Working Group on Enforced Disappearances. For the first time, in an acknowledgement of the seriousness of the issue, the state is attempting to establish a permanent institution with wide-ranging powers to visit sites of detention, seize documents, trace missing people and determine the circumstances of their disappearance, issue certificates of absence or death and identify avenues of redress for families of the disappeared. 

And in spite of claims that the legislation was drafted without sufficient consultations with victim families, the move to set up the office is a moment of victory for disappearance activists across the island whose campaigns against the crime of enforced disappearances have spanned four decades since the first JVP insurrection of 1971. 

Twenty years ago, Mahinda Rajapaksa would have been among them. But a nine-year Presidency marked by brutality against opponents has sullied his activist legacy and bolstered his Sinhala nationalist credentials. So when the debate on the bill to set up a Permanent Office of Missing Persons (OMP) kicks off in Parliament today, Mahinda Rajapaksa and his former colleague Mangala Samaraweera will find themselves on opposing sides. 

As Foreign Minister, Samaraweera has championed the OMP legislation, making a case for it nationally and internationally as Sri Lanka’s first tentative step in a four pillar transitional justice mechanism to come to terms with a violent past. 

In Parliament today, Minister Samaraweera will make a case for the establishment of the OMP, while the former President is expected to oppose the bill by proxy, through his cohorts in the hardline ‘Joint Opposition.’

MP Rajapaksa, whose office regularly dispatches statements attributed to him on questions of economy, international law and human rights, fired a first salvo against the OMP in July, one month after the bill was granted Cabinet sanction and tabled in Parliament. 

Resorting to his old mantra often used during his presidency to justify the denial of human rights and civil liberties, Rajapaksa warned that all MPs supporting the legislation in Parliament would be guilty of betraying the nation and the armed forces. While typical of Rajapaksa, the armed forces betrayal is an oddly premature claim. Naturally, the OMP legislation does not identify a perpetrator, being an attempt to set up an institution with the power to trace and investigate incidence of missing persons. 

The Rajapaksa faction appears to have jumped to the conclusion that the OMP will find military personnel responsible for enforced disappearances – a prospect that is not beyond the realm of possibility, but is nonetheless a matter for investigation and credible inquiry. The former President’s assumption not only amounts to a tacit admission that the armed forces he commanded for nine years were responsible for thousands disappearances during the final stages of the war. It also indicates that the Rajapaksa bandwagon will continue to prioritise the wellbeing and reputation of sections of the military that may have engaged in illegal activity above the grief and frustration of thousands of families still searching for loved ones disappeared without a trace. 

Myth-busting

MP Rajapaksa’s statement on the OMP bill is full of similar clues that are likely to frame the contours of the Joint Opposition’s arguments against the legislation over the course of the next two days. 

Concerns are likely to be raised about powers given to the OMP to raise funds for its operations outside of the financial support it will get from the Treasury operated Consolidated Fund. The Rajapaksa camp uses this provision in the OMP bill to ‘sound the alarm’ about the potential for Diaspora funding from organisations linked to the LTTE and other vested interests. 

However, Government lawyers involved in drafting the legislation explain that OMP accounts will be subject to audit by the Auditor General who will present the report to Parliament, meaning that any potentially ‘controversial’ funding can be checked by the legislature. 

The Rajapaksa-led Joint Opposition is also taking exception to provisions of the OMP bill that they claim will allow the Office to operate outside the “law enforcement and justice system” but as an independent body incorporated by Parliament whose members can enter “without warrant, at any time of day or night, any police station, prison or military installation and seize any document or object they require for investigations.” 

In truth, the OMP bill provides its officials with the power to enter places that a person was known to have been detained without a warrant and seize any documentation contained at the detention centre. 

To make visits to any other place, the OMP will require a warrant from a magistrate, which clearly places the office within the jurisdiction of Sri Lanka’s justice system. It bears mentioning that the Human Rights Commission of Sri Lanka is also empowered to enter detention centres without a warrant, and therefore, Government advocates of the Bill say the OMP will not be reinventing the wheel in terms of extraordinary powers. Like the OMP, the Human Rights Commission of Sri Lanka is also a statutory body, established through an act of Parliament. 

The campaign of misinformation about the OMP by the Rajapaksa faction of the UPFA has also caused serious concern for advocates of the Right to Information legislation that was enacted by Parliament last month. RTI activists, including Transparency International Sri Lanka and members of the Joint Opposition that backed the RTI Act, have urged the Government to refrain from passing laws that contravene the Right to Information, now enshrined in the Constitution as a fundamental right by the 19th Amendment enacted in April 2015. The furore over the OMP’s apparent conflict with the newly enacted RTI legislation stems from confidentiality the OMP promises to witnesses testifying before the Office on disappearance cases. The confidentiality clause directly addresses witness and victim protection that previous commissions of inquiry into missing people – including the recent Paranagama Commission – failed to address, often with disastrous consequences for witnesses and victim families. 

To protect victims, the OMP draft legislation guarantees non-disclosure for testimony given in confidence. The clause ensures that the OMP cannot be compelled to produce confidential testimony even before a court of law – meaning that this part of the OMP’s work will be an exception to the RTI Act. 

Interestingly, the Monetary Law Act of Sri Lanka also contains a similar confidentiality provision that will be a RTI exception. The Monetary Law Act guarantees confidentiality for testimony and evidence that cannot be produced in a court of law. In the case of the OMP, Government lawyers argue that the exception will only pertain to the specific testimony which will be covered by confidentiality, while the right to information would apply even to the rest of the information pertaining to that particular case and all other aspects of the OMP’s work. 

Step to war crimes probe

Despite the OMP’s open-ended mandate to investigate and trace disappearances irrespective of when they occurred, there is little doubt that the Joint Opposition MPs will take pains to ethnicise the debate on the draft legislation. 

Already nationalist constitutional lawyers have claimed that the OMP is aimed at addressing disappearances in the North and East while ignoring cases in the island’s south. The pro-Rajapaksa Joint Opposition sees the establishment of the OMP as a first step towards a credible investigation into allegations of war crimes, which it is bound to oppose tooth and nail. Mahinda Rajapaksa’s determination to oppose any form of accountability for the violence and brutality during the final stages of the war over which his administration presided, supersedes considerations of his own activism in the 1990s and the evidence of 40 years that provides ample justification for just such a mechanism to deal with thousands of missing. 

Without denouncing the OMP, the first of four pillars in the Government’s proposed structure for truth seeking and justice, Rajapaksa cannot tear down the mechanisms to follow. Besides, families of the disappeared in the north and east have been the most potently visible victims of the Rajapaksa Government extrajudicial adventures, and they remain powerful symbols in the campaign to end impunity for gross human rights violations in Sri Lanka. 

So Rajapaksa will begin a campaign of sustained assault against the Government’s transitional justice efforts now, with the OMP. 

The Government itself acknowledges that the OMP will be the least controversial mechanism in a structure that will ultimately include the establishment of a Truth and Reconciliation Commission and a Special Court to prosecute alleged war crimes. With those next mechanisms the Rajapaksa-led Joint Opposition will take things further, mounting legal challenges and mobilising nationalist forces against attempts to “send the military to the gallows”. Political observers point out that the Joint Opposition may have refrained from challenging the OMP bill in court after it was gazetted in June, because it was almost certain to receive an endorsement by the Supreme Court, which would then invalidate many of the arguments against proposed legislation the pro-Rajapaksa faction is making. 

Paada Yaathra 2.0 

The Joint Opposition Paada Yaathra led by Parliamentarian Mahinda Rajapaksa was supposed to kindle some nostalgia. It was supposed to help people to recall his shining moments as a firebrand opposition activist, mobilising the masses against Government injustice and provide a springboard for his eldest son and Hambantota District MP Namal Rajapaksa to take over the mantle as an organiser of mass demonstrations against a predominantly UNP regime. In the end though, despite garnering a significantly large crowd, Paada Yaathra 2.0 lived up to few expectations. Rajapaksa MP, now a 70-year-old politician accustomed to the luxuries of presidential office, did very little marching. He joined the march by sandwiching the crowds with his Mercedes Benz, or through the sunroof of a vehicle. When he did a little walking, he made sure his car was never too far away. And this time, the former disappearances activist led a march that brandished slogans and banners vehemently opposing the establishment of an office to trace Missing Persons. 

In 2016, the tears of mothers will not move him. The victims will be sacrificed at the altar of political expediency and ethno-centric politics. This time, the human rights crusader of 1992 will mobilise his parliamentary group against the search for answers. Which begs the question: was political expediency and pandering to his constituency the sole aim of the Rajapaksa activism against enforced disappearances in the 1990s? In Mahinda Rajapaksa’s universe, does the fate of the missing from the North and East matter less than the fate of thousands missing in the South? 

Fortunately, the Joint Opposition sound and fury is unlikely to manifest in any major success in Parliament when the vote is taken on the OMP bill, but it could create enough noise to move amendments to the text of the draft in committee stage. 

The Tamil National Alliance with its 16 seats is widely expected to back the legislation, which also has the support of the sections of the SLFP currently ruling in coalition with the UNP. With only a simple majority required, the OMP Act should pass easily at Friday’s vote. 

The crime of disappearance is a terrible thing. Death is different. Death, painful and heart-breaking, also brings finality and closure. Uncertain of a missing person’s fate, families of the disappeared keep searching; hoping against hope that a loved one is languishing in a secret facility somewhere unable to find his way home. Until proven otherwise, families of the missing keep believing that there is someone worth fighting for, over months and years and decades. The Office of Missing Persons will try to put an end to that search, either by tracing the disappeared or determining the circumstances of the disappearance and providing redress. The truth about these cases may be difficult to deal with, or prove forever elusive, but the families of missing people deserve a real shot at finding the answers. 

There is no treachery in the search for answers, no betrayal of anything or anyone. The state is obligated to protect its citizens. When it reneges on that obligation it exposes itself to scrutiny and examination. Mahinda Rajapaksa, the ‘human rights crusader’ himself told us that 25 years ago.