OMP Act: Yahapalana hegemony in action



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The passage of the Office of Missing Persons Bill in parliament once again saw the worst characteristics of the so-called yahapalana government on display last Thursday. All the decisions concerning the Bill was made by the yahapalana partners who dominate both the government and the opposition in parliament and the Bill was rammed through in just 40 minutes disregarding all the objections raised by the Joint Opposition which is the largest group in the opposition – twice as large as the TNA and the JVP put together. The JVP especially was once again confirmed at least in the eyes of the public, as a fellow traveller of the yahapalana project by the stand they took on the OMP Bill.


A little past 12 noon on Thursday, Dinesh Gunawardena the parliamentary leader of the Joint Opposition stood up and said that the party leaders’ committee of parliament had agreed that the debate on the OMP Bill would be held on Thursday 11th of August and that the vote on the Bill would be postponed to the third week of August. He also said that the JO had addressed requests to the President and the Speaker to leave more time for debate claiming that the Office of Missing Persons Bill violates the constitution and to take up the matter in the third week of August. However, on Wednesday the party leaders’ committee had convened again and changed the earlier decision and decided to schedule the OMP Bill for debate on Thursday and to take a vote on it on Friday.


Dinesh Gunawardene pointed out that the oversight committee had presented two amendments, the government had forwarded 17 amendments and in addition the JVP has also put forward some amendments. He said that in such circumstances the JO simply could not agree to take the vote on the Bill on Friday and that to restrict the time for debate in that manner was a violation of the right of parliament to debate a draft law properly. He suggested that the debate continue the whole of Friday and that the vote be taken in the third week of August as arranged earlier. Gunawardena requested that a party leader’s committee meet again and extend the time given to debate the OMP Bill.


To this the leader of the house Lakshman Kiriella said that this Bill had been presented to parliament on the 22nd of May, that it had been gazetted on the 27th of that month and that the opposition did not go the Supreme Court against the Bill either. Furthermore, he argued that a decision had been arrived at on Wednesday at the party leaders’ committee and that the debate could not be postponed. Karu Jayasuriya explained that at the party leaders’ committee Dinesh Gunawardena had asked for more time but the TNA and the JVP had agreed with the government to hold the debate on Thursday and to take the vote on Friday.


Wimal Weerawansa stood up in parliament and said that this was legislation being introduced in pursuance of the agreements reached in Geneva and that this Bill was of immense national importance because it is designed to betray the armed forces to satisfy foreign powers and the Tamil diaspora and therefore requested that this be taken up in the third week of August. The Speaker explained that the representatives of 175 MPs in parliament had agreed to hold the debate on Thursday and Friday while the representative of 50 MPs had disagreed and that he did not have the authority to change a decision made by the party leaders committee.


 


Steamrolling laws into place


When the Chief Government Whip Gayantha Karunatilleke proposed that the vote on the OMP Bill be taken on Friday, Joint Opposition parliamentarians invaded the well of the house. Thereupon Karu Jayasuriya suspended the sittings. Parliament met again at 1.30 pm. Dinesh Gunawardene stood up once again and reiterated the request he made earlier. JVP parliamentarian Vijitha Herath said that they had suggested that the debate on the OMP Bill be taken on Friday evening even though the government wanted to take the vote at 11 am. He said that if the VAT Bill had been taken up for debate, they could not have dealt with the OMP Bill at all.


Vasudeva Nanayakkara said that he was in the oversight committee that looked into the OMP Bill, and that three amendments had been suggested and that on Thursday morning they had received a further 17 amendments from the Government which had not been considered by the oversight committee. Wimal Weerawansa stood up again and said that they do not make such requests with regard to all Bills coming before parliament and that they are making such a request now due to the importance of this particular Bill.


Amidst much shouting and disturbances, Mangala Samaraweera began his speech to present the Bill to parliament at around ten minutes to two in the afternoon. He said that he was pleased to present to parliament a Bill of historic significance. Reading his speech was an uphill struggle for Mangala with Karu Jayasuriya speaking at the same time trying to maintain order in the house. Over Karu’s voice and the general din in the house, Mangala was heard talking about reconciliation and coming to terms with the tragedies of the past. Mangala was shouting at the top of his voice about the ‘blood of the minorities being shed’ and that the first step towards a Sri Lankan nation will be this Bill. He was surrounded by a phalanx of UNP parliamentarians as if to guard him from the Joint Opposition which was continuously disturbing his speech.


It is significant to note that the MPs giving protection to Mangala while he was speaking were all UNPer with no one from the SLFP’s Sirisena Faction present. At one point S.M.Marikkar and Ravi Karunanayake were seen saying something to Mangala who said as if in agreement with Marikkar and Karunanayake ‘Api chandayata yamu’ (Let’s put it to a vote). Unable to continue speaking, Mangala tabled the text of his speech and requested that it be recorded in Hansard. The next to speak was M.A.Sumanthiran of the TNA who thanked the government for taking this ‘baby step’ towards reconciliation. He said that ‘white vanning’ has now entered the dictionary as a verb and that this step has been taken only to ascertain the truth. Sumanthiran too spoke amidst constant disturbances and the chanting of slogans by Joint Opposition MPs. In the course of his speech Sumanthiran accused both Mahinda Rajapaksa and Vasudeva Nanayakkara of being interested only in the human rights of Sinhala youth.


The next to speak was Bimal Ratnayake who said that people had disappeared in this country in 1971, during the July riots of 1983, the JVP insurrection of 1987-90, the last few years of the war (against the LTTE) and also after 2009 when journalists and activists had disappeared. However he said that a permanent body to investigate these disappearances had not been formed. He said that the mothers in the south and the north had the same need to know what happened to their loved ones and that this was a question of justice. He said that the establishment of this body will not do justice to those who disappeared in 1971, in 1987-89 and in recent times in the South, but that they believe that this mechanism would serve such a purpose in the future.


He also said that the wars and conflicts that occurred in this country should be settled by those in the country and that international powers should have no role in it, especially those powers that went around the world igniting conflicts (which perhaps was a reference to the USA). Ratnayake then moved three amendments to the OMP Bill which related to removing the capacity of the OMP to enter into agreements with various foreign bodies and its capacity to collect funds directly from foreign sources (The JVP amendment would see the OMP obtaining foreign funds through the Department of External Resources). Furthermore, when it came to the power of designated officers of the OMP to enter any military installation without warrant, the JVP wanted such entry reported to the IGP within 48 hours so that he could take ‘judicial action’.


After Bimal Ratnayake’s speech, Karu Jayasuriya announced that the government will not be speaking on the OMP Bill and that if the Joint Opposition wanted to speak they should return to their seats and that they can be given an opportunity to address the house. The confusion in the house continued for a few more moments and suddenly people began shouting ‘aye’ and Jayasuriya said ‘sammathai’ (passed). That is how the second reading of the OMP Bill was passed by parliament. Then Karu J stepped down from the Speaker’s chair and moved onto the committee stage when he started reading out the numbers of the clauses of the Bill in rapid succession with interruptions to incorporate the amendments brought by the JVP. Having read out all the remaining clauses, Jayasuriya concluded the committee stage and recommenced sittings of parliament.


 


 


Then the third reading was announced and the OMP Bill was declared to have been passed. The entire process from the time Mangala began his speech to introduce the Bill to the point when it was declared passed into law would have taken all of 40 minutes. This marks a highpoint of the ‘good governance’ government and although not in the same league as the sacking of Chief Justice Mohan Peiris and the passing of the 19th Amendment it was nevertheless in many ways similar. To see what the government has gained (or the opposition has lost) by the passing of this draft legislation into law, it is important to know what the Office of Missing Persons seeks to achieve.


 


What the OMP Act is about


The Office of Missing Persons was the first of several institutions that the government undertook to set up to ‘deal with the past’ in the UN Human Rights Commission resolution it co-sponsored with the Western powers in September last year. The fact that the legal framework for this institution has now been set up is a plus point for the government in terms of the ‘commitments’ they made to their foreign allies. The reason why the Joint Opposition and Mahinda Rajapaksa himself vehemently opposed this piece of legislation is because of the following.


1.       According to Section 3(2) of the OMP Act, the Office of Missing Persons will not be a part of Sri Lanka’s state law enforcement and justice system, but an independent incorporated body which means that they will have the same freedom of action as a private foundation incorporated by Act of Parliament and they will have the power to make their own rules [Section11(b)].


2.       In recommending the seven members of the OMP, the Constitutional Council will have to ensure that the individuals they recommend will have experience in investigation, human rights law and international humanitarian law [Section 4 (2)] which makes it clear that all the appointees will be representatives of foreign funded NGOs and possibly foreigners.


3.       Section 21 gave the OMP the power to receive foreign funding directly from any foreign source. [This has now been slightly modified due to the amendments moved by the JVP. Now the OMP will still have the power to receive foreign funding from any foreign source but this will have to be channeled to them through the Department of External Resources. The Joint Opposition is fundamentally opposed to any foreign funding for the OMP whether it is channeled through the DER or not].


4.       According to Section 11(a) the OMP can enter into agreements with foreign persons or organisations concerning its work. [This too has been modified due to an amendment moved by the JVP. It is only after the Act is signed into law by the Speaker that we will know exactly what restrictions have been placed on the OMP entering into agreements with foreign organisations. The Joint Opposition is totally opposed to the OMP having the power to enter into agreements with foreign bodies].


5.       The OMP can appoint and dismiss its own staff and consultants [Sections 11 (d) and 16. (1)]. It is not specified that the staff and consultants have to be Sri Lankan or even public servants. Reading Sections 11(a) and 11(d) together makes it clear that the appointment of staff will be done in accordance with the agreements entered into by the OMP with foreign organisations.


6.       Section 11(e) empowers the OMP to establish units and divisions to which the seven members of the OMP will delegate their powers and functions.


7.       The OMP can receive complaints not only from relations and friends of missing persons but from any interested party both local and foreign. [Section 12(a)]


8.       The OMP functions as an investigative body. They can receive statements, examine witnesses in person and through videoconferencing, to summon any person to be present before the OMP or to provide a statement or produce any document or other thing in his possession. The OMP can also accept information on the condition of confidentiality [Section 12 (c)].


9.       All government bodies and officers at state, provincial, and local levels including the armed forces and intelligence services have to render fullest assistance to the OMP by producing documents and providing information [Section 12(e)]. The provisions of the Official Secrets Act No.32 of 1955 do not apply to the OMP. This is one of the provisions in the OMP Bill that had riled the Joint Opposition the most. It is significant to note that the JVP which has a history of being a terrorist organisation and the TNA which was once the proxy of the LTTE, showed no concern about this provision.


10.   According to Section 12 (c) (iii) the OMP can admit any statement or material even in contravention of the provisions of the Evidence Ordinance. This too is a matter that has earned the ire of the Joint Opposition.


11.   The OMP can authorize a ‘specified officer’ - who as we saw above could be even a foreigner - to enter without warrant and investigate, at any time of day or night, any place of detention, police station, prison, military installation or army camp in which people are suspected to be detained. This ‘specified officer’ is also empowered to seize and examine and take into his possession any document or object for the purposes of any investigation [Section 12 (f)]. According to Section 12 (g), even in instances when the OMP obtains a Magisterial warrant to search any premises for evidence, the search can be carried out by ‘specified officers’ of the OMP instead of the police. According to the tepid modification to this suggested by the JVP, if the OMP carried out a raid like this, they will have to report it to the IGP within 48 hours. It is not clear what purpose this reporting requirement suggested by the JVP is supposed to serve.


12.   According to section 13 (1) (b) if a missing person is found, his next of kin will be informed only if the missing person consents to it. So a missing person can opt to remain missing even if found and the world will be none the wiser!


13.   The provisions of the recently passed Right to Information Act will not apply to the work of the OMP and they can carry out their work without the need to maintain transparency [Section 15(1)]. No court, not even the Supreme Court can order any officer of the OMP to submit to courts any material communicated to him in confidence. [Section 15(2)]


14.   Anyone who fails or refuses to cooperate with the OMP in any investigation and is in contempt of the OMP will be punished by the Court of Appeal [Section 24 (1)]. 


The above are just a few of the objectionable features of the Office of Missing Persons. Needless to say, by passing this law, the government has given the opposition much grist to their mill. Every opposition needs issues to sustain their onslaught against the government. When Arjuna Mahendran was in the Central Bank, there were plenty of issues for the opposition to chew on. The moment he was removed, the opposition lost a major talking point. Now by ramming through the OMP Bill, the government has given the opposition an issue that they can take right around the country. When the OMP becomes operational, every act of that institution will come under constant media scrutiny. There will be protests and ‘voice cuts’ given to the media before hearings and after hearings. The OMP will feature often in the front pages and the headlines and none of that will be advantageous to the government. 


The yahapalana government has an incredible capacity to do the wrong thing exactly at the wrong moment. The news of the passage of the OMP Bill in less than satisfactory circumstances was accompanied by news reports that the courts had given permission to the police to obtain the records of no less than sixty bank accounts belonging to army intelligence officers in relation to the murder of Lasantha Wickrematunga. All this, taking place in the backdrop where the government was being criticised for arresting and incarcerating army intelligence officers can’t possibly be to the advantage of the government. As far as the opposition is concerned, it was politically more advantageous to them to allow this to be passed into law so that they can take it right around the country instead of blocking it and saving the government from itself.  


The opposition may have had an interest in blocking the VAT (Amendment) Bill because they could throw the government into disarray as a means of protesting against the tax increase. But politically speaking they had no advantage in trying to block the OMP Bill because it provides them with an issue to flog the government with. It should be remembered that the Joint Opposition did not challenge the OMP Bill in the Supreme Court even though there were good grounds for doing so. Why should they deprive themselves of a god-given opportunity to make the government drown in its own ordure?


 
 
 
 
 
 
 
 
 
 
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