Colombo, July 11: The Sri Lankan Minister of Media, Mangala Samaraweera, has deeply dismayed minority Tamils by saying that the proposed Act to punish those responsible for enforced disappearances will be applicable only to future cases and not those pertaining to the past.
Post-war ethnic reconciliation process hinges very critically on setting up a credible mechanism to trace the disappeared during the war years, and bring the perpetrators to justice.
But by saying that the proposed Act and the mechanism to be set up under it will deal only with the future and not the past war-time cases, the government appears to be scuttling the very purpose of enacting the legislation.
Apologists of the government say that the proposed Act will ensure that forced disappearances and abductions will not occur in the future, and that the Tamils should forgive and forget past transgressions on the part of the Sri Lankan Security Forces .But the Tamils are not ready to accept that.
Tamil political life revolves round securing post-war justice, restoration and reparations, which they deem necessary for a true closure of the dark chapter which formally ended with the crushing of the insurgency in 2009.
Faints Signs of Hope
However, moderate Tamil leaders and activists do not feel that the Tamils have been completely played out.
Some leading Tamil lawyers and human rights workers contend that the proposed Act can be applied retrospectively in the light of legal precedents in Sri Lanka as well as the relevant provisions of international humanitarian law which Sri Lanka subscribes to.
Enforced disappearance is frowned upon in international humanitarian law. Furthermore, Sri Lanka is signatory to the International Convention on Enforced Disappearances and had made an official commitment to the UN Human Rights Council that it will address the question of enforced disappearances in a concrete manner to the satisfaction of the Council.
Since the broader international law is against enforced disappearance, Sri Lankan courts will have to take that into account in entertaining cases, the lawyers say.
They also point to a Sri Lankan legal precedent for applying a new law which has no express provision for retrospective application.
In the early 1980s, the hijacker of an Alitalia passenger aircraft was sentenced by a Sri Lankan court even though the law banning aircraft hijacking was introduced only after the hijacking incident.
The judges had accepted the prosecution’s argument that retrospective application of the act stems from broader international law and practice in respect of aircraft hijackings.
Human Rights Angle
A leading human rights activist said that a case of disappearance cannot be disregarded until the affected party or family is satisfied that justice has been rendered.
It cannot be said that the case is outside the law’s purview just because it pertains to an event before the enactment of the law.
The rights activists hope that the weight of this moral argument will prevail.
The Enforced Disappearances bill was to be tabled in parliament last week, but it was not on the grounds that government MPs wanted more time to study it from the national security angle. In the meantime, the Joint Opposition led by former President Mahinda Rajapaksa and the Buddhist High Priests called Mahanayakes also opposed it publicly for being a danger to the heroic Sri Lankan military which defeated the Tamil separatists in a three year which ended in May 2009.
(The featured image at the top shows Sri Lankan Finance and Media Minister Mangala Samaraweera)