A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Thiranjala Weerasinghe sj.- One Island Two Nations
?????????????????????????????????????????????????Monday, July 9, 2018
Only political action can stop govt. project to betray military personnel
In May this year, the government gazetted sweeping amendments to the
Mutual Assistance in Criminal Matters Act, No. 25 of 2002. The original
Act applied only to specified Commonwealth countries and
non-Commonwealth countries which have signed the relevant agreements
with Sri Lanka but the amendments now before parliament seek to extend
the scope of the Act to all countries that have signed any international
convention relating to a criminal matter to which Sri Lanka has become a
party. Furthermore, while the original Act applied only to States, the
amendments seek to bring international organisations as well within its
ambit. The purpose of the original Act was to facilitate the provision
of mutual assistance from foreign countries in the location of witnesses
or suspects, the service of documents on such persons, the examination
of witnesses, the obtaining of evidence, the execution of requests for
search and seizure, the temporary transfer of persons in custody to
appear as a witness, facilitation of the personal appearance of
witnesses, the location of the proceeds of any criminal activity, and
mutual enforcement of orders for the forfeiture or freezing of property,
etc.
The Secretary to the Ministry of Justice was to be the ‘Central
Authority’ for the purposes of that Act. Requests for assistance were to
be made to the ‘Central Authority’ in Sri Lanka by the appropriate
authorities in the countries that come under the ambit of this Act. The
amending Bill seeks to lay the country open completely to all foreign
states and organizations, vis-a-vis the granting of assistance in
investigations and judicial proceedings, connected with criminal
matters. This Bill furthermore seeks to make documentary evidence
obtained in a foreign country admissible in a judicial proceeding; and
also to make admissible evidence led from a foreign country through
video conferencing technology. Another new feature in the amending Bill
is that the Central Authority in Sri Lanka (the Secretary to the
Ministry of Justice) can authorize any other officer not below the rank
of a Senior Assistant Secretary, to act on his behalf and the Central
Authority can also designate ‘competent authorities’ (which can be a law
enforcement authority) who will process information to requests as
directed by the Central Authority.
The Central Authority is also enjoined to ensure prompt action in
respect of all requests from abroad and to have a dedicated unit to
maintain a proper system to manage incoming and outgoing requests.
Requests can also be forwarded by electronic means directly to the
relevant competent authority through the appropriate authority of a
foreign country or organization. The competent authority is then obliged
to immediately proceed to implement the request after forwarding a copy
of the relevant request to the Central Authority. The Central Authority
and the officers holding delegated authority from him including the
competent authorities are to maintain strict confidentiality with regard
to requests made under this Act. If confidentiality cannot be upheld,
the appropriate authority of a specified country or specified
organization, will be informed and this foreign body will then determine
whether the request should nevertheless be executed. Any person who
fails to comply with this confidentiality requirement commits an offence
and the High Court of the Province can impose a fine on that person
ranging from a minimum of Rs. 100,000 to a maximum of Rs. 5 million. The
Right to Information law will therefore, not apply to anything done
under this amended Act.
The context
These sweeping amendments to the 2002 Mutual Assistance in Criminal
Matters Act are being brought in a specific context. This government has
already established the Office of Missing Persons which is in reality a
tribunal for all practical purposes which can examine witnesses, issue
summons and hold hearings. Its officers can enter without warrant at any
time of day or night, any police station, prison or military
installation and seize any document or object they require for
investigations. Anyone who fails or refuses to cooperate with the OMP
may be punished for contempt of court. Government bodies at all levels
including the armed forces and intelligence services are mandatorily
required to render fullest assistance to the OMP and the provisions of
the Official Secrets Act will not apply to investigations carried out by
the OMP. The provisions of the Right to Information Act will also not
apply to the work of the OMP. 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. While the investigative mechanism has
been set up in the form of the OMP, the government has also passed the
International Convention for the Protection of All Persons from Enforced
Disappearance Act No: 5 of 2018 which makes applicable in Sri Lanka,
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. Even though the name of this international
convention would convey the impression that it has something to do with
‘preventing’ enforced disappearances, its actual purpose is punitive
and it has the effect of broad basing and sharing jurisdiction over
offences related to enforced disappearances among all the signatories to
the Convention. According to Article 10 of the International
Convention, 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 recognized. 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. After the Sri
Lankan government passed Act No: 5 of 2018 to make the International
Convention for the Protection of All Persons from Enforced Disappearance
operational in Sri Lanka, under Section 8 of this Act, 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.
Section 21 of Act No: 5 of 2018 made it clear that its purpose was to
give nothing less than full effect to Sri Lanka’s international
obligations under the International Convention. When you read Articles
10, 11 and 13 of the International Convention Against Enforced
Disappearances together with Sections 8 and 21 of Act No: 5 of 2018 it
is clear that foreign countries which are members of the International
Convention now have complete jurisdiction over Sri Lankans who are
alleged to have been involved in causing enforced disappearances in Sri
Lanka. 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.
It is in that context that we have to view the changes contemplated to
the Mutual Assistance in Criminal Matters Act, No. 25 of 2002. On the
one hand the number of foreign countries coming within the ambit of the
original Act has been expanded to include every country that is a party
to an international Convention relating to mutual assistance in criminal
matters, to which Sri Lanka has become a party - which automatically
includes the International Convention for the Prevention of Enforced
Disappearances. Furthermore, the amendment will make the Mutual
Assistance in Criminal Matters Act, No. 25 of 2002, applicable to
organizations associated with combating international crime as well –
which will of course automatically be applicable to the International
Criminal Court. The punitive measures contemplated by the International
Convention for the Prevention of Enforced Disappearances cannot really
be implemented without the facilities that will be extended by the
proposed amendment to the Mutual Assistance in Criminal Matters Act, No.
25 of 2002.
Changes made by the Supreme Court
In view of the dangers posed by this proposed amendment to the 2002
Mutual Assistance in Criminal Matters Act, several petitioners including
Admiral Sarath Weerasekera went before the Supreme Court asking for a
determination that the Bill before parliament was unconstitutional. He
was represented by Manohara de Silva PC, with Canishka G. Witharana.
Another petitioner Ven.
Maduruoye Dhammissara was represented by Sanjeewa Jayawardena PC. The SC
Bench hearing the petitions consisted of Justices B. P. Aluwihare PC,
Sisira J. de Abrew and H.N.J Perera. One of the provisions in the
proposed amendment which engaged the attention of the Supreme Court was
Clause 5(3) which stipulated that when requests are forwarded by foreign
nations or organisations by electronic means directly to the relevant
competent authority, the latter is mandatorily required to immediately
proceed to implement the request. (The word used was ‘shall; which
denotes a mandatory requirement)
The Supreme Court observed that Section 6 of the original Act of 2002
obliges the Central Authority to refuse a request if it violates the
Constitution, but that no such restrictions have been put in place to
regulate the conduct of the Competent Authority who is to be appointed
by the Central Authority under the terms of the proposed amendment. The
SC observed that this omission carries significant constitutional
implications because Clause 5 (3) of the Bill makes it mandatory for the
Competent Authority to directly receive and immediately proceed to
implement requests from overseas and furthermore, this is given further
impetus by Clause 5 (4) of the Bill which only requires the Competent
Authority to inform the Central Authority by forwarding a copy of the
relevant request before he responds to it. Therefore, the SC determined
that Clause 5(3) is inconsistent with Article 12 (1) of the Constitution
which guarantees that all persons are equal before the law and are
entitled to the equal protection of the law. The SC held that it is
imperative that the Competent Authority have the power under Section 6
of the original Act to refuse a request. This would enable both the
Competent Authority and the Central Authority to filter requests.
The SC also made a reference to Clause 5B in the proposed amendment
which went as follows: "Nothing in this Act shall prevent the Central
Authority from directing a competent authority to spontaneously transmit
the information requested relating to a criminal matter to an
appropriate authority of a specified country or specified organization
on the assurance of reciprocity and on such conditions as may be
necessary for the purposes of confidentiality." In this regard, the SC
held that to the extent that clause 5B sets an exception to the normal
process, there must be a corresponding justification or a circumstance
which warrants the invocation of clause 5B. The clause in its present
form permits digression from the normal process in an ad hoc manner and
thereby violates Article 12 (1) of the Constitution. The SC stated that
if Clause 5B is amended reserving it as a response to exigencies, this
inconsistency would cease to exist.
The question that we have to ask ourselves is where we stand now after
the Supreme Court determination on the Bill to amend the Mutual
Assistance in Criminal Matters Act, No. 25 of 2002. The first thing to
learn is that petitioning the Supreme Court is not an alternative to
political action. There are many things that may not necessarily be
unconstitutional but are politically and morally unacceptable. With the
SC determination on the proposed amendment to the Mutual Assistance in
Criminal Matters Act, No. 25 of 2002 which will enable it to be passed
with suitable amendments, we see that the yahapalana government’s war
crimes project is now ready for take-off. If there was opposition to
having foreign judges to hear war crimes cases, that problem has been
solved by having a mechanism whereby members of the armed forces can be
tried overseas and even if the person concerned is living in Sri Lanka
where he can be requested by a foreign country to stand trial in that
country. The only way to prevent what the government has been angling
for is through political action.