This is an expanded text version of a talk at a forum organized by the Law & Society Trust (LST) on “Recognizing the Struggle: State’s responsibilities towards families of the disappeared”, on Friday 18 March 2016.
By Ruki Fernando
It is significant for me to talk about civil society’s role on disappearances at an event organized by Law and Society Trust (LST) because it was at LST that I was thrust into working with families of disappeared persons. Families have always been and will remain central to the struggle against disappearances. They remain my primary inspiration, perhaps the reason I have not been able to give up, even when I often felt like giving up.
I remember that on this day, exactly two years ago, I was in detention at the Terrorism Investigation Division with another friend, Fr. Praveen. The nearest trigger for our arrest appeared to have been our efforts to look into the arrest of a mother of a disappeared child, Balendran Jeyakumary (who was also a vocal campaigner seeking truth and justice for disappearances) and other Tamils in the North. More than a year after “good governance”, Jeyakumary. Fr. Praveen and me are still being investigated under the Prevention of Terrorism Act (PTA).
Ironically, at the same time, I have been invited for various meetings of the government and to be part of an Expert Advisory Committee related to Transitional Justice (which I didn’t accept due to various other reasons), despite still being a “terrorist suspect” and having a court order restricting my freedom of expression.
Although Jeyakumary was conditionally released two months after President Sirisena took office, she was re-arrested last year under “good governance”. She also faces serious social isolation due to this and struggles to find livelihood and has been compelled to keep her young daughter in a hostel. There has been no news about her disappeared son, who she claims has appeared in a photo taken at a government rehabilitation facility.
We are also no closer to the truth or justice in relation to the disappearance of Lalith and Kugan, two campaigners against disappearances, who disappeared in Jaffna in December 2011.
Families of disappeared and activists don’t face the kind of attacks, threats, intimidations, discrediting etc. that we experienced under the Rajapakse regime. But monitoring of families of disappeared persons and activists in the North and East continues. And there is total impunity for the reprisals we faced in the past.
It is in this context that I talk about disappearances, the Government’s promises of Transitional Justice (TJ), and role of civil society.
Transitional Justice promises in the context of disappearances
The Government has promised to deliver Truth, Criminal Justice (prosecutions / convictions), Reparations, and Guarantees of non-recurrence. All these four are rights of families of disappeared persons.
The Government has also committed to set up four specific Transitional Justice (TJ) related institutions and has appointed a Task Force to conduct nationwide consultations regarding the setting up of these institutions. The institution proposed to solely focus on disappearances is the Office of Missing Persons (OMP). Given the nature of disappearances in Sri Lanka, the other three proposed mechanisms (the Truth Commission, the Judicial mechanism, and the Office of Reparations) will also likely be relevant. Commitments by the Government to criminalize disappearances, ratify the international convention against disappearances, issue certificates of absence and repeal the PTA are other key TJ promises of the Government in relation to disappearances.
As we focus on TJ promises and a TJ approach, we should also be careful of it’s limits, including addressing old injustices and inequalities pre-dating the war, such as class, caste, gender etc.
Civil society’s role in relation to disappearances
The Government has primary responsibility to prevent disappearances and address disappearances that have happened. But I will not dwell on this and will go on to focus on the role of civil society. I will take a broader definition of civil society to include lawyers, artists, academics, religious clergy, NGOs, trade unions etc. I will share some personal experiences and what I see as twelve challenges.
Personal experiences and reflections
I have given many talks in relation to disappearances in different places in Sri Lanka and overseas. I have written several articles and given interviews. I have shared individual stories, statistics, general trends, threats, intimidations etc. But last night, I struggled to think of what I will say today. As I was asked to talk about the role of civil society, and I consider myself to part of civil society, I felt it had to involve some personal introspection, which is often difficult.
None of my family members have disappeared. But I have worked very closely with a few families of disappeared persons and had chances to interact and join many more. They have included Tamils, Sinhalese, and Muslims.
Since 2015, some new possibilities have opened up to address disappearances of the past. I will deal with some when I talk of challenges.
As a civil society activist, we had to sometimes deal with blurred lines of who is a victim and who is a perpetrator. In August 2012, when we were organizing a protest against disappearances in Vavuniya, I had to argue with Tamil activists why we should join forces with families of missing soldiers, when the Army itself stands accused of being responsible for many disappearances plus many other crimes and rights violations. Around 2010, I had to struggle within LST and argue with close colleagues why I was supporting the wife of a prominent LTTE leader who disappeared after surrendering to the Army, as this person has been accused of child recruitment and other crimes.
In some ways, looking back, our work on disappearances during the Rajapakse regime was simple, despite being dangerous and controversial. During the height of the war, my colleagues and I spent a considerable amount of time accompanying families of disappeared to hospitals, camps, and police stations in their searches. We spent time talking to them in their homes, offices, churches etc. We joined them in protests in the streets, in Colombo, Jaffna, Geneva. We joined them in religious services. We went with them to meet government officials and politicians. We went with them to Courts, the Human Rights Commission, and various other Commissions of Inquiries. We helped them write letters, speeches, and sometimes helped translate them and became their interpreters. We introduced them to others we thought who could help them – lawyers, journalists, clergy, writers, film makers, student activists, diplomats, UN officials, international and regional NGOs. We helped them organize events and we tried help link families with each other. We also tried to tell their stories to as many people as possible.
But in the recent past, I have found it difficult to do even the simple things we used to do with families of disappeared, which I believe is central to dealing with disappearances.
Sandya Eknaligoda, who is well known now, was one of my strongest inspirations. She was a regular visitor to LST when I was working there, and I spent a lot of time with her. But lately, I have not been able to spend as much time with her as before. About two weeks ago, I was sad I couldn’t go to join Sandya at a religious service she organized. A few days later, I was very sad to read that Sandya had to go to courts alone – on International Women’s Day. And both days, I was also sad at my inability to convince any friends or colleagues to join her in solidarity.
A few months ago, a lady whose husband had disappeared called me and asked for help to buy milk food for her two young children. She was keen to pursue legal action, but I was unable to find a lawyer who was willing to appear pro bono. There are other families of disappeared who I have met in the last two months, whose cases I have not been able to follow up properly. In recent times, it has been difficult to find someone to help a family draft a complaint or letter to the UN, Human Rights Commission etc. or to do a translation.
Unlike in the past, in more recent months, my colleagues and I have been unable to have sustained long term relationships with families of disappeared persons we met. We have failed to communicate regularly and to go beyond one-off or occasional meetings and events. We have failed to respond to the specific needs of families and we have been unable to take forward the pursuit of truth and justice, even when opportunities and possibilities existed.
These have been real challenges, real frustrations.
Estela Carlotta from the Grandmothers of the Plaza de Mayo in Argentina described how they used to “cry at home and fight in the streets”. This is probably true for some of the most courageous and determined families of disappeared I have worked closely with. It’s also true for me. Working against disappearances has been traumatic and sometimes a lonely journey. Powerlessness and helplessness have been pre-dominant feelings. I have spent a lot of time, a lot of energy, took lot of risks, lost a lot, and achieved very little. Despite often feeling like giving up, I don’t regret what I have done.
Primarily based on my personal experiences and considering the present context, I would like to share twelve challenges facing civil society in terms of addressing disappearances.
- Recognizing and addressing a deeply personal tragedy which has become immensely political and has legal dimensions. This will involve a holistic approach, including emotional, financial and legal support, advocacy etc.
- Sustained accompaniment and support to families of disappeared (not one off events and long gaps with no communication).
- Balancing intensive support for a few families in their struggles and the broader struggles against disappearances.
- Getting the support of fellow activists, lawyers, journalists, academics, clergy, politicians, etc.
- Recognizing the activism and agency of families and being careful not to undermine them.
- Ensuring that families make informed decisions when we ask them to join activities we initiate and organize – like protests, seminars etc. Families need to be provided clear information about why their engagement is sought, including who is organizing an event, the nature of an event, the objectives of an event, the issues being protested at a protest, the demands being sought etc.
- Looking critically and speaking out when we feel families are used as pawns of politicians, NGOs etc.
- Being careful not to undermine families of disappeared as mere pawns without having minds and agency of their own.
- Civil society involvement in movements of families – how much leadership, influence do we take up and how much do families have? How much support is there from civil society when a family of a disappeared person or group of families initiate some actions, such as what Sandya has been doing?
- Finding ways to advocate for truth, criminal justice, reparations in a way that will not undermine families’ rights to all three, and will minimize the need for a tradeoff. This will also have to take into consideration different priorities of different families in terms of the above rights. Making available the full report of ICRC’s needs assessment survey to all families of disappeared who participated in it could be helpful tool in assessing this. Supporting and advocating for interim reliefs (not compensation for crime), such as scholarships for children and special assistance for the elderly and disabled in families, housing, employment etc. of disappeared should be taken seriously, in a manner that will not undermine but enhance capacity for families’ rights for truth and justice.
- Exploring multiple approaches to truth seeking.
- Criminal investigations. The few cases I know where we are closer to the truth are based on this – such as the discovery of the body of my friend Pattani Razeek and arrests and information related to Prageeth Ekneligoda.
- When there is strong evidence indicating who the perpetrators are and when arrests, prosecutions and harsh penalties on conviction are imminent, alleged perpetrators could be encouraged to provide further and detailed information by providing incentives (such as reduced penalties) taking into consideration also wishes of families of disappeared.
- Encouraging information to surface from alleged perpetrators and institutions implicated by providing them incentives like those used in ordinary criminal cases (such as confidentiality, anonymity and, on a case by case basis, possibly even assurances of immunity), taking into consideration also wishes of families of disappeared.
- Soliciting information from independent eyewitnesses who are not part of primary perpetrator institutions.
- Use of DNA and forensics – in relation to mass graves and discovery of human remains in various parts of the country
- Engaging and contributing to the proposed Office of the Missing Persons (OMP), considering the past failures and the lack of transparency of the process so far. Some considerations could be:
- Maximum involvement of the families of disappeared in setting up of the OMP and its operations, including in oversight structures. Their exclusion from the discussions so far is ominous and should be rectified urgently.
- Ensuring that criminalization of disappearances in Sri Lanka and ratification of the convention against disappearances happens before the enactment of legislature that will establish the OMP.
- Discussion of how its work could facilitate the pursuance of criminal justice, reparations, and guarantees of non-reoccurrence while focusing primarily on truth seeking (clarification of the fate and whereabouts).
- Ensuring that the domestic and international agencies involved in the OMP will advance and not block in anyway the pursuit of truth and justice.
- Defining the scope of crimes that could be covered (based on clear definitions, such as enforced disappearances, missing etc.).
- Not restricting the consideration of incidents based on date of disappearance (looking at all disappearances, irrespective of the date it occurred)
- The structure and different units that will form the OMP (such as Forensics, DNA bank, investigations, psychosocial support, victim and witness protection etc.).
- Who will be in it – overall leadership, leadership of specific units, oversight, staff etc. And who will make appointments.
- Given the clear expression of the lack of confidence in domestic mechanisms by many families of disappeared, the importance of ensuring maximum international involvement.
- Possible ways to transfer pending cases from previous Commissions of Inquiries (E.g. Paranagama Commission, Mahanama Tillekeratne Commission, LLRC etc.).
- Dealing with findings and progress on complaints that have been lodged to the Human Rights Commission, Police and cases pending before Magistrate Courts, High Courts, and Supreme Courts, especially in relation to Habeas Corpus cases.
- Complementarity and harmonizing of the existing database of the Human Rights Commission.
- Security of the database.
- What should be the powers – such as to request and seize any documents and materials, summoning of any persons, visit private or public spaces without prior announcement, conduct exhumations, dealing with institutions and persons not cooperating with its work etc.
- Advocating for quick realization of other key commitments of the Government. Criminalization of disappearances, ratification of the UN convention against disappearances, and issuance of certificates of absences and benefits based on that.
- Raising awareness amongst the general population and gaining more support from the public – especially the Sinhalese (the mainstream media will have to play a major role in this).
- Money.Can we sustain activism beyond donor funding? How do we use funding? E.g. is it ok to spend for one day for one person for a hotel room (to attend a meeting on disappearances), when the amount could be more than what most families of disappeared earns for a month? Gaining donor’s attention to support economic justice by stimulating local economies, generating sustainable employment, alongside their existing support to protests, seminars and such efforts. The private sector could also contribute, but their involvement should be looked at cautiously, to ensure that it will not exacerbate existing economic inequalities or damage to local economies.