17th May, 2016

Hon. Minister Samaraweera,

We write to you pursuant to a meeting you convened to seek the views of civil
society on 9th May 2016 regarding the form and substance of the governments
proposals on an office to trace the fate of the missing and forcibly disappeared
persons. We wish to reiterate the concerns and observations raised by us in an open
letter to the President also dated 9th May sent by a large number of groups and
individuals from civil society.
In addition to these requirements to render the proposed institution credible, we
wish to draw your attention to more detailed concerns regarding the proposed
Office of Missing Persons (OMP). These concerns arise from your presentation made
at the meeting on 9th May and a leaflet circulated by your Ministry on 13 th May. The
concerns are as follows:
1. The sudden urgency shown by the government in what appears to be a
rushing through of a draft outline for an OMP and it being presented to
cabinet within a short period of two weeks as stated by the foreign minister
raises questions with regards to the governments commitment to a victim
driven process as promised by the foreign minister both at national and
international forums. It also undermines the actions of the task force set up
for the purpose just as they are preparing for island-wide consultations with
affected communities and civil society. The time frame effectively makes it
impossible for the Working Group tasked to draft legislation to review
submissions received via the consultations taskforce and include content into
the proposed draft legislation prior to it being submitted to Cabinet. Finally,
serious concerns are raised with a rushed processes with little or no concern
for views of victims and civil society. This comes when the government has
requested victims and civil society to trust and support the government,
setting with it a flawed precedent for the entire process of transitional justice
and reconciliation.
2. We urge that the OMP be mandated to share all information in its possession
regarding the fate and circumstances of missing and forcibly disappeared
persons with the families. In addition, in the event a person is discovered to
be dead, the OMP must share all information in its possession regarding the
fate and circumstances of death. This information must be provided in
writing.
3. We further insist that the OMP be required by law to provide periodic written
updates on the progress and status of investigations to the families of
missing and forcibly disappeared persons. This obligation cannot be subject
to the discretion of the OMP, as it is a fundamental part of the right to truth
which the government has promised to uphold.

4. Confidentiality granted by the OMP must be strictly limited to the identity of

the witness and identifying information in respect of statements explicitly
made on the basis of confidentiality. This confidentiality cannot be extended
to discoveries made on the basis of such statements.
5. The OMP should be required by law to proactively share all relevant
informationand not merely biographical information of a victimwith the
relevant prosecuting authority where it uncovers information/evidence which
prima facie indicates the commission of a crime. When doing so, it must keep
the family informed in writing of the nature of the information transmitted
and the fact of transmission.
6. No court or relevant prosecuting/investigative authority (whether in civil,
criminal or public law proceedings) should be barred from summoning and/or
otherwise procuring documents, productions and results of investigations for
purposes of advancing a criminal investigation. Likewise, no court or relevant
authority should be barred from summoning an officer of the OMP to provide
testimonyunder oath or otherwisefor the purposes of advancing an
investigation and/or judicial inquiry.
7. Where a missing or forcibly disappeared person is found to be alive, the OMP
should be required by law to inform this fact to the family, along with the
whereabouts and/or the custody of the person or institution in which the
missing person is. While the law could provide an exception in cases where a
missing person explicitly requests that information about his whereabouts be
withheld from his family, this exception cannot be applied in cases where the
state or state functionaries are responsiblein part or in fullfor the person
going missing or being forcibly disappeared. The exception should also not
apply in cases where the person is being held in the official, unofficial,
acknowledged or unacknowledged custody of the state or a state functionary.
8. We also believe the OMP would function most effectivelyand the model
would provide the greatest incentive for perpetrator-witnesses to tell the
truthif the relevant prosecuting authority is involved in interviewing all
witnesses. Prosecutors are permitted by national and international law to
enter into plea bargains and other such agreements with potential suspects.
Thus, such a model would provide a powerful incentive to perpetratorwitnesses to come forward. We urge the government to consider amending
its proposals to allow for the participation of an external prosecuting authority
or an internal prosecutor (on the lines of the Bribery Commission model) in
the interviewing of witnesses and other parts of the OMP investigation.
9. We also wish to highlight the importance of ensuring an effective victim and
witness protection programme. It is essential that the proposed OMP has a
dedicated victim and witness protection unit, and that it serves to ensure the
physical, psycho-social and legal protection of victims and witnesses.
However, this is insufficient by itself. The government has committed to

revising the witness and victim protection law to bring it in line with
international standards. This commitment has not been fulfilled. Instead, the
government has constituted an ineffective victim and witness protection
authority which is plainly lacking in credibility. The government must make
good on its promises, revise the existing law, and reconstitute the Witness
and Victim Protection Authority and Division on the basis of international
standards.
Thanking You,
Signatories:
Individuals
1. Amalanayaki Amalaraj Batticaloa
2. Ameer M. Faaiz
3. B. Gowthaman
4. Bhavani Fonseka
5. Chandraguptha Thenuwara
6. Christine Perera Activist
7. Damaris Wickremesekera
8. Deanne Uyangoda
9. Deshamanya Godfrey Yogarajah
10.Dr. Muhammed Muzzammil Cader
11.Dr. Selvy Thiruchandran
12.G.A. Prabath Kumara
13.Gayathri Gamage
14.Isabelle Lassee
15.Ishan Jalill
16.Ithayarani Sithravel - Trincomalee
17.Jensila Majeed - Mullaitheevu
18.Juwairiya Mohideen - Puttalam
19.Kalani Subasinghe
20.Kumari Kumaragamage
21.Kusal Perera
22.Mahalaxumy Kurushanthan - Mannar
23.Malathi de Alwis
24.Marisa de Silva
25.Neil Priyantha Fernando - Social Activist
26.Nicola S.
27.Niran Anketell
28.P. Selvaratnam
29.Peter Rezel
30.Philip Setunga
31.Prema Gamage
32.Prof. Jayantha Seneviratne
33.Rajani Chandra - Jaffna
34.Rev. Fr. Emmanuel Sebamalai
35.Rev. Fr. Jeyabalan Croos
36.Rev. Jason J. Selvaraja - Assembly of God, Chavakachcheri
37.Rohini Hensman
38.Ruki Fernando

39.S.C.C. Elankovan
40.Shehan de Alwis
41.Shenali De Silva
42.Shreen Abdul Saroor
43.Sumi Kerison
44.Vanie Simon - Ampara
45.Zahabia Adamaly
Organizations
46.Action Against Apathy
47.Future In Our Hands Development Fund
48.Mannar Citizens Committee (MCC)
49.Mannar Women's Development Federation (MWDF)
50.National Peace Council (NPC)
51.SAMADANA/M - (Centre for promoting Nonviolence, Conflict Resolution &
Handling and Peace Building)
52.South Asian Centre for Legal Studies (SACLS)
53.Women's Action Network (WAN)
Letter Copied to:
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13.

Hon. Ranil Wickremesinghe, Prime Minister.

Madam Chandrika Bandaranaike Kumaratunga, Chair, Office for National
Unity and Reconciliation (ONUR).
Hon. M.A. Sumanthiran, Spokesperson, Tamil National Alliance (TNA).
Hon. Rauff Hakeem, Leader, Sri Lanka Muslim Congress (SLMC).
Hon. Mano Ganesan, Minister of National Co-existence Dialogue and Official
Languages.
Manouri Muttetuwegama, Chairperson, Consultation Task Force.
Suren Fernando Members of the Government Working Group
Austin Fernando Members of the Government Working Group
Mano Tittawella, Secretary-General, Secretariat for Co-ordinating
Reconciliation Mechanisms.
Dr. Deepika Udagama, Chair, Human Rights Commission of Sri Lanka.
Claire Meytraud, Head of Delegation, International Committee of the Red
Cross Sri Lanka.
Juan Fernandez, Human Rights Adviser, Office of the High Commissioner for
Human Rights (OHCHR), Sri Lanka.
Una McCauley, Resident Coordinator (ai), United Nations, Sri Lanka