By Basil Fernando
The attitude towards murder is one thing on which hardly any progress can be made in Sri Lanka. Murder is regarded as quite normal and not something to worry too much about. This attitude is also something that should worry everyone.
It is this attitude we see in the proposed Office of Missing Persons (OMP). In most cases, the simple truth about persons who go missing in Sri Lanka is that he or she is a dead. Very, very rarely does a missing person re-appear. Corpses of the missing are almost never found. That is the case in Sri Lanka, whatever may be the situation elsewhere.
We are told to assume that a dead person is merely a missing person. This means that we are expected to assume that the dead man or woman is not dead at all but only missing.
Why should the dead be assumed to be merely missing? The answer would that there is no proof of death because the dead body has not been found. The argument is that, in the absence of a dead body, there is no proof of death. So this whole exercise is about proof.
If the dead body is available, then we know a person is dead. If the person is in fact dead but their body cannot be found, we are expected assume that the person is only missing. However, what is really missing is not the person but the dead body.
If an office is established to look for the missing dead bodies, the task of that office would be different to that of one looking for missing persons.
It is again a different situation if you know, or have reasonable grounds to suspect, that the person is not only dead, but that they have in fact been murdered and that their body has been disposed of. In such a situation, the body itself has been disposed of in order to hide the fact of the murder.
In that situation, the starting point is that the murderers have disposed of the body in order to destroy evidence of the killing and, if we are to look for anything at all, we must look for who the murderers are.
Looking for murderers is not the work of a fact-finding office, which is what the proposed ‘Office of Missing Persons’ is. Investigating murder is the task of a country’s criminal investigation apparatus. A murder in which the dead body has been disposed of is a more gruesome form of murder, requiring even greater attention from those responsible for criminal investigations.
There is a further complication if there are reasonable grounds to suspect that the killing and disposal of the body are likely to have been caused by persons connected with the security forces and committed during operations conducted by such forces. This is known or at least suspected by everyone.
In such circumstances, it is the duty of the criminal justice institutions to act. If they fail to act, it is the duty of the executive to ensure that this most vital duty is complied with. If the executive fails to do that, it virtually fails to govern, for good governance requires that the government must enforce the law.
It is a good thing to have a database for missing persons, including those assumed to have been killed and whose bodies have been disposed of. However, the government’s primary obligation here is to investigate and prosecute murder through its investigative and prosecutorial departments, which in Sri Lanka means the Attorney General’s department. It is good to have an additional database, but criminal justice cannot be delegated to a database.
As for soldiers who are missing in action, it is for their units to account for what happened to each of them and to inform their families. If there is a failure to do this, it should be looked into under the relevant laws and regulations of the armed forces.
There is an established record of murders committed on large scale during security operations. In these murders, abductions take the place of arrest, and this itself is a key part of the plan. People are abducted in order to hide the identity of the arresting officers and authorities involved. This shows premeditation. From this mode of ‘arrest’, it is reasonable to deduce that those who carried out such ‘arrests’ are likely to know the final outcome, which is murder and the disposal of the body. These are matters that only the country’s crime investigators can deal with under its criminal and criminal procedure laws.
The next riddle is as to why the country’s investigators and prosecutors have failed to act. Again, the reason is commonly suspected by every one, which is that the political authorities have stopped the investigations from happening. This being the case, there is nothing that the proposed Office of Missing Persons can do about it, except to include their observations in the proposed database.
An issue that is not so openly discussed is about whether killings of this sort should be investigated and prosecuted as common murders. Some say they should not be, and it is usually for two reasons: the first is that people have generally approved such killings of ‘terrorists’; the other is that such investigations are not good for the morale of the security forces, which simply means that they might not do it again if such punitive actions are taken.
Don’t such considerations relativise the very notion of murder, if murder can be justified for the reasons given above?
The point of this article is not about opposing the establishment of an Office of Missing Persons. The argument is against such an office being made a substitute for immediate investigations and prosecutions in cases of enforced disappearances by the legitimate authorities in Sri Lanka. The Criminal Investigation Department (CID) needs to start investigations into all complaints that involved the real possibility of murder. No government has any legitimate power to stop such a department from carrying out the very functions for which it exists.
If the government wants to strengthen the CID, it could pass the law it promised to pass to criminalize enforced disappearances. Such a promise was made to the United Nation’s Human Rights Council by Sri Lanka’s Foreign Minister in June 2015. Not even a draft of the law has been presented to the parliament or is available anywhere.
Together with such a law, if a Special Unit (SU) of the CID is the given task of investigating into the alleged cases of enforced disappearances and given adequate personnel and resources, many mysteries hidden for many years will be resolved within a reasonable timeframe.
Basil Fernando is a Sri Lankan born jurist, author, poet, human rights activist, editor of Article 2 and Ethics in Action, and a prolific writer. He became a legal adviser to Vietnamese refugees in a UNHCR-sponsored project in Hong Kong. He joined the United Nations Transitional Authority (UNTAC) in 1992 as a senior human rights officer and later also served as the Chief of Legal Assistance to Cambodia of the UN Centre of Human Rights ( now the UN High Commissioner of Human Rights office). He is associated with Asian Human Rights Commission and Asian Legal Resource centre, based in Hong Kong since 1994