Govt. in attempt to revive PM’s enforced disappearances Bill

(Courtesy of The Island)

By C. A. Chandraprema

The government had planned to take up the ‘Bill to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance’ for debate in Parliament in early July this year, but at the last moment they postponed the debate due to protests by the Joint Opposition and pressure from the Buddhist establishment.

This Bill had been presented to Parliament by Prime Minister Ranil Wickremesinghe himself.

However the government never really gave up on the aim of getting this Bill passed, and in the days after the postponement we saw government Ministers belonging to both the UNP and the SLFP trying to justify this proposed law by claiming at various televised meetings that the proposed legislation will not be retroactive and will not therefore apply to the war against terrorism but will only apply to the future in order to prevent incidents of enforced disappearances.

This was contested by the Joint Opposition on the grounds that the proviso to Article 13(6) of the constitution will automatically make this legislation applicable to the past. Now we see that the government’s attempt to sell this disappearances Bill to the public has become much more sophisticated with various legal arguments being put forward to justify it. The enthusiasm shown by the government to get this controversial Bill passed should be a matter of grave concern. How is it that the government is so interested in pushing this legislation when they show scant interest in everything else?

Can Sri Lankans be hauled before the ICC?

 

Spokesmen for the Joint Opposition have expressed the view that the signing of the International Convention Against Enforced Disappearances and the proposed enabling legislation in Sri Lanka will allow Sri Lankan nationals to be taken before the International Criminal Court by foreign countries.

The government has met this argument with the contention that no Sri Lankan can be hauled before the International Criminal Court even if the PM’s enabling Bill is passed, because Sri Lanka is not a signatory to the Rome Statute and therefore does not come under the jurisdiction of the ICC.

What matters here are the provisions of the ‘International Convention for the Protection of All Persons from Enforced Disappearance’ which has been signed and ratified by the Sri Lankan government. Article 10 of this Convention makes it clear that any State in whose territory a person (who can be a citizen of any other member state) suspected of having committed an offence of enforced disappearance is present, can take that person into custody. According to Article 11, after making an arrest in that manner, the member state concerned can take one of three alternative courses of action –

(a) extradite that person to another country in accordance with its international obligations,

(b) prosecute that person under its own laws, or

(c) hand him over for prosecution to an international criminal tribunal whose jurisdiction that member state has recognised.

These two Articles of the International Convention Against Disappearances read together gives a clear picture of the action that any member state of this Convention can take against one of its own citizens or the citizen of any other member state who may be present in its territory.

Article 13 of the international convention also states that any member state may request the extradition of a person suspected of being responsible for enforced disappearances in any other member state and all member states are supposed to respect such requests for extradition. Because Sri Lanka is now a signatory to the International Convention for the Protection of All Persons from Enforced Disappearance, the provisions of Articles 10, 11 and 13 form a part of our obligations under this Convention.

In this context, Clauses 8 and 21 of the ‘Bill to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance’ which was tabled in Parliament by Prime Minister Ranil Wickremesinghe assumes special importance. Clause 21 of the PM’s Bill says that the Minister may issue guidelines or directions to give full effect to Sri Lanka’s international obligations under the Convention.

Clause 8 says that where a request is made to the Government of Sri Lanka, by the Government of a Convention State for the extradition of any person accused or convicted of causing an enforced disappearance, the Minister shall, on behalf of the Government of Sri Lanka, forthwith notify the Government of the requesting State of the measures which the Government of Sri Lanka has taken, or proposes to take, for the prosecution or extradition of that person for that offence.

When you read Articles 10, 11 and 13 of the International Convention Against Enforced Disappearances together with Clauses 8 and 21 of the Bill that had been presented to Parliament to give effect to that convention in Sri Lanka, it is clear that once the Convention becomes operational in Sri Lanka, foreign countries which are members of the International Convention will have complete jurisdiction over Sri Lankans who are alleged to have been involved in causing enforced disappearances in Sri Lanka. This has been accepted by the yahapalana government by signing and ratifying the International Convention against Enforced Disappearances. Any member state of this international convention can get a Sri Lankan extradited to their country, and arrest, prosecute and punish a Sri Lankan for such an offence.

When a foreign country which has complete jurisdiction over Sri Lankans in that manner arrests a person on suspicion over an offence relating to this convention, and that foreign country also happens to be a member of the International Criminal Court, that person can be handed over to the ICC to be dealt with as they would a citizen of the foreign country that carried out the arrest.

The only standing international criminal tribunal in the world is the ICC in the Hague. The other international criminal tribunals are ad hoc tribunals. What is important here is whether the country carrying out the arrest has accepted the jurisdiction of the ICC or not. If it has, then any Sri Lankan who is arrested in such a country or is extradited to such a country by our own government under the proposed enabling legislation can in fact be handed over to the ICC.

Even if a person believed by foreign states to have been involved in enforced disappearances in Sri Lanka happens to be in Sri Lanka, any interested foreign government can request the Sri Lankan government to extradite that person to their country to be prosecuted or handed over to an international criminal tribunal to be prosecuted. By signing and ratifying the International Convention against Enforced Disappearances Sri Lanka has accepted that its citizens can be handed over to an international criminal tribunal for prosecution under Article 11. Once the enabling legislation proposed by the PM is passed, the process will be complete.

Nobody will be able to argue that the ICC does not have the jurisdiction to prosecute a Sri Lankan handed to them by a third country because Sri Lanka has granted authority to all member states of the International Convention against Enforced Disappearances to take action against Sri Lankans for offences under this Convention and one of the actions specifically sanctioned is the handing over of suspects to an international criminal tribunal.

Retroactive operation

Another argument put forward by the government is that the ‘Bill to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance’ which was presented to Parliament by the Prime Minister will not apply to the past unless this enabling legislation expressly provides for retroactive application of the law. They have taken the example of the Offences against Aircrafts Act No. 24 of 1982 which was passed by Parliament for the purpose of prosecuting Sepala Ekanayake for hijacking an Alitalia aircraft. That 1982 Act was expressly made retroactively applicable in order to bring Ekanayake within its ambit. The contention here is that the Bill to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance has not expressly been made retroactive, therefore the proviso to Article 13(6) of the constitution will not apply to this enabling legislation when it is passed.

Article 13(6) of the Constitution says that “Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations”. When discussing the applicability of this constitutional provision It should be borne in mind that the Offences against Aircrafts Act No. 24 of 1982 was about a hijacking – an incident that had occurred in the past. It was not an ongoing situation so it needed to be made applicable retroactively in order to bring Sepala Ekanayake into the net. In the case of a disappearance, the condition of being missing is ongoing. A disappeared person may have disappeared during the war and is still missing. You don’t have to make the law retroactive to make it applicable to an ongoing situation.

This point can be illustrated by taking as an example provisions of the PM’s Bill to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance, itself. Clauses 20(1) & (2) of this Bill goes as follows:

“20(1) Without prejudice to any judicial or other remedy provided for by or under any written law, any person with a legitimate interest shall be entitled to apply by way of petition addressed to the High Court seeking the enforcement of sections 7, 14, 15, 16 or 19 of this Act and to plead for such relief or redress as shall be prayed for in such petition.”

“(2) The jurisdiction of the High Court may be invoked under subsection (1) of this section by any person with a legitimate interest, by himself or through any other person on his behalf, within three months of the date on which the non-enforcement of sections 7, 14, 15, 16 or 19 of this Act becomes known to such person, as the case may be.”

The mention of a period of three months in Clause 20(2) may give some people the impression that this is a three month time bar and that a disappearance has to be reported within three months of its occurrence or it becomes ineligible to be covered by this enabling legislation. If such an interpretation were true, then indeed the contention that the government is trying to make – that this law will not have retroactive effect – will ring true because the war ended many years ago and there would be a bar on the admission of complaints going back beyond three months. That however is not the case according to this proposed enabling legislation. You have to read Clauses 20(1) & (2) of this Bill together with the other Clauses mentioned in Clause 20. Take for instance Clause 14 which has found mention in both Clause 20(1) as well as 20(2). Clause 14 of the PM’s Bill goes as follows:

“14. (1) Every victim and relative of a victim shall have the right to know the truth regarding the circumstances of an enforced disappearance, the progress and results of the investigation as are carried out by the law enforcement authorities, and the fate of the disappeared person. (2) Every victim and relative of a victim shall, subject to restrictions placed by law, have the right to form and freely participate in organizations and associations concerned with attempting to establish the circumstances of offences committed under section 3 and the fate of disappeared persons, and to assist victims of offences under section 3. (3) Where there are reasonable grounds for believing that a person has been subjected to an offence under section 3, law enforcement authorities shall undertake an investigation, even if there has been no formal complaint. (4) Law enforcement authorities shall take all appropriate measures to search for and locate the disappeared person, and in the case of a person held in secret detention, procure the release of such person, and in the event of death, to locate, respect and return the remains of such person.”

The ‘non-enforcement’ of Clause 14 that is spoken of in Clause 20 is about people not knowing the whereabouts of disappeared persons irrespective of when they disappeared. The inherent retroactivity of this proposed enabling legislation has been cleverly concealed. Within three months of a person becoming aware that he has still not received news of what happened to someone 10 or even 20 years ago, that person can make an application to the High Court under Clause 20, asking for relief under Clause 14. If this is not a provision that ensures retroactivity, what is?

Sri Lanka’s Extradition Law

The government has also tried to say that nobody, especially those under suspicion of having caused enforced disappearances during the war, can be extradited under the PM’s ‘Bill to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance’ because according to the principle of dual criminality, the requesting state has to demonstrate that the offence, for which the person is requested to be extradited to the requesting state, is also recognized as a criminal offence punishable under the law of the sending state and that this principle is expressly provided for under Section 6(1)(c) of our Extradition Act No. 8 of 1977.

The first thing to note here is that Section 6(1)(c) of our Extradition Act No. 8 of 1977 will be of little avail when Clause 23 of the PM’s proposed enabling legislation for the International Convention Against Enforced Disappearances goes as follows:

“23. The provisions of this Act shall have effect notwithstanding anything to the contrary in any other written law and accordingly in the event of any inconsistency or conflict between the provisions of this Act and such other written law, the provisions of this Act shall prevail.”

In addition to Clause 23, one has to look at Clause 18(3) which says that “The Minister may make regulations prescribing the criteria upon which a person may be expelled, returned, surrendered or extradited to another State.”

When Clauses 23 and 18(3) are read together, does it not become plain that Section 6(1)(c) of our Extradition Act No. 8 of 1977 will be just a dead letter as far as this enabling legislation is concerned?

PM’s Bill aimed only at armed forces?

The Joint Opposition had also made the point that the PM’s Bill was aimed only at punishing the armed forces with the LTTE getting off scot free for the many thousands of enforced disappearances that they were responsible for. The government for its part has argued that the Bill is not one sided and that ‘anyone’ responsible for enforced disappearances will be liable under the provisions of the PM’s Bill to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance’.

To prove their point, the government quotes Clause 3(2) of the Bill which goes as follows:

“3(2) Any person who – (a) wrongfully confines, abducts, kidnaps or in any other form deprives any other person of such person’s liberty; and (b) (i) refuses to acknowledge such wrongful confinement, abduction, kidnapping, or deprivation of liberty; or (ii) conceals the fate of such other person; or (iii) fails or refuses to disclose or is unable without valid excuse to disclose the subsequent or present whereabouts of such other person, shall be guilty of an offence under this Act,…”

On these grounds, members of the government argue that this proposed new law will apply to members of the LTTE as well. However, it should be noted that the PM’s proposed law will not be a stand-alone piece of legislation and is meant to give effect to an international convention that the government has signed and ratified. The International Convention Against Enforced Disappearances states very clearly in Article 2 that: “For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”

A similar provision is to be found in the PM’s Bill to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance in the form of Clause 3(1) which goes as follows:  “Any person who, being a public officer or acting in an official capacity, or any person acting with the authorization, support or acquiescence of the State – (a) arrests, detains, wrongfully confines, abducts, kidnaps, or in any other form deprives any other person of such person’s liberty; and (b) (i) refuses to acknowledge such arrest, detention, wrongful confinement, abduction, kidnapping, or deprivation of liberty; or (ii) conceals the fate of such other person; or (iii) fails or refuses to disclose or is unable without valid excuse to disclose the subsequent or present whereabouts of such other person, shall be guilty of the offence of enforced disappearance,…”

We see that Clause 3(2) extending liability not just to representatives of the State but to ‘any person’ has been tagged on to Clause 3(1) for cosmetic purposes. Clause 3(2) has no real applicability because the Bill that the PM presented to Parliament is to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance and as we saw earlier, according to Article 2 of this Convention, it applies only to agents of the State. Hence any arrests, prosecutions, requests for extradition or handing over to international criminal courts of Sri Lankans by interested foreign governments under the PM’s proposed law, will only apply to Sri Lankan armed forces personnel or other agents of the State. No action will be taken by any foreign country against LTTE members using the provisions of the International Convention for the Protection of All Persons from Enforced Disappearance, because this international convention does not have any provision to include non-State actors within its ambit.

Who’s trying to prevent what?

Apologists for the government are trying to make out that those who oppose the PM’s Bill to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance are trying to prevent enforced disappearances from being made a criminal offence. But the question that needs to be asked here is whether enforced disappearances were ever legal in this country? All the elements that go into an enforced disappearance, abduction, murder, illegal disposal of dead bodies and the like are well covered in our Penal Code and the law will not lack anything even if the PM’s controversial Bill is never passed.

 

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