SL Should Learn from Swiss How to Say Sorry Without Feeling Sorry!

Gagani Weerakoon- Jan 05 2020

    

 

Swiss Embassy local staffer Garnier Banister Francis, who was arrested and remanded on the charge of making false statements allegedly discrediting the image of the country, was released on strict bail conditions by the Colombo Magistrate's Court on 30 December 2019.

The local employee of the Swiss Embassy claimed that she had been abducted and threatened by her captors to disclose 'Embassy-related information' on 25 November, a day after a high ranking police official fled to Switzerland seeking asylum.

Colombo Chief Magistrate Lanka Jayaratne banned the suspect from overseas travel and ordered her to hand over the passport to the court and the court should be notified if a passport is obtained under any other law.

In the immediate aftermath of these new developments, Swiss Embassy in Colombo issued a statement extending its compliments to the Ministry of Foreign Affairs of the Democratic Socialist Republic of Sri Lanka,  bearing a completely different tone from its previous statements issued since the end of November.

Switzerland and Sri Lanka have maintained excellent relations for decades, and have engaged in substantial cooperation in a variety of fields, to the benefit of both countries and their populations. Both countries value these relations greatly, it was noted in the statement.

"In the last few weeks, this relationship was marred by misunderstandings surrounding an incident involving a local staff member of the Embassy, who was subsequently taken into custody by the Sri Lankan authorities. In this context, uncorroborated facts made it into the public domain, putting an unnecessary strain on the otherwise cordial relationship between the two countries. At no point during this time did Switzerland have the intention of tarnishing the image of the Government of Sri Lanka.

The Embassy regrets that these developments have led to the Sri Lankan authorities' commitment to due process being called into question and reaffirms that Switzerland, like Sri Lanka, is committed to upholding good governance and the rule of law.

The Embassy hopes for a swift return to an environment conducive to resuming the positive cooperation between Switzerland and Sri Lanka. Recognising that local staff is subject to local laws, the Embassy is convinced that both sides will remain attentive to the working conditions and the wellbeing of all staff of diplomatic missions. Switzerland recalls that it is the responsibility of any Government to protect the diplomatic missions of other States on its territory.

Attaching great importance to its relationship with Sri Lanka, committed to maintaining and to further strengthening these relations in a constructive manner, and convinced that both countries will together continue to build relations which are based on mutual respect, the Embassy of Switzerland in Colombo avails itself of this opportunity to renew to the Ministry of Foreign Affairs of the Democratic Socialist Republic of Sri Lanka the assurances of its highest consideration," the statement further stated, even thought it was not clearly mentioned as to from which side the uncorroborated facts made it into the public domain, putting an unnecessary strain on the otherwise cordial relationship between the two countries.

The alleged incident of abduction, which now appears to have been a mere fabrication, took place on 25 November.

On 27 November, New York Times reported "...a Sri Lankan employee of the Swiss Embassy in Colombo was abducted on Monday by unidentified men and forced to hand over sensitive embassy information, Switzerland's foreign ministry said. Officials in Colombo said the men forced her to unlock her cellphone data, which contained information about Sri Lankans who have recently sought asylum in Switzerland, and the names of Sri Lankans who aided them as they fled the country because they feared for their safety after Gotabaya Rajapaksa won the presidency in elections this month."

The local staffer was arrested on 17 December by the CID on reasonable suspicion of committing offences under Sections 120 and 190 of the Penal Code and the Federal Department of Foreign Affairs (FDFA) in a strongly worded statement protested the move saying Sri Lanka has not followed 'due process'.

"An employee of the Swiss Embassy in Colombo has today been detained on the grounds that she allegedly made false statements.

The FDFA is concerned about this development and calls on the Sri Lankan judicial authorities to ensure better protection of its employee's personal rights in any further proceedings and compliance with national law and international standards.

The FDFA and the Swiss Embassy in Colombo will continue to meet their responsibilities as an employer and do everything in their power to assist the member of staff concerned.

The FDFA has repeatedly called for due process to be followed. In particular, the FDFA has criticised the 30-hour interrogation to which the employee was subjected over three days despite her being in poor health and the public statements by senior Sri Lankan officials questioning her account before the investigations had been completed.

Following the arrest of its employee, the FDFA expects the Sri Lankan law enforcement authorities to comply with national law and international judicial standards and to ensure that the employee's rights are now better protected.

As an employer, the FDFA calls on the Sri Lankan authorities to meet their obligations under applicable law and give due consideration to the employee's poor state of health.

Switzerland wishes to emphasise that in this high-profile case Sri Lanka's reputation as a country that upholds the rule of law is at stake. The FDFA and the Swiss Embassy in Colombo will continue to support their employee as far as possible.

The FDFA has reiterated to the Sri Lankan authorities that it is seeking a common and constructive way forward to resolve the security incident.

On 16 December 2019, the Swiss Ambassador in Colombo emphasised this again in a face-to-face meeting with Sri Lanka's President Gotabaya Rajapaksa," it said.

This was following President Rajapaksa in one-on-one meeting with Ambassador Hanspeter Mock, made it clear that it was very well established by then that the alleged abduction is a total fabrication. Irrefutable evidence such as Uber reports, telephone conversations and CCTV footages point to this fact. The Embassy official must have been compelled by some interested parties to bring myself and my Government in to disrepute. It is not clear why the alleged victim acted in such a manner.

President Rajapaksa also said that he saw no wrong in the initial reaction by the Swiss Embassy when this incident was first reported. "It is justifiable. If a member of its staff is in trouble, the Embassy has to intervene".

The President requested the Ambassador to cooperate with the Government to conduct the investigation to its end so, that the truth would emerge.

Following the statement by the Swiss Government, Minister of Foreign Relations Dinesh Gunawardena reaffirmed to his Swiss counterpart that the rights of the Swiss Embassy employee who is in custody will be protected, and she will be granted all possible facilities.

The Minister conveyed these views when he received a telephone call from the Foreign Minister of Switzerland, Ignazio Cassis, regarding the status of the Sri Lankan employee at the Swiss Embassy, Garnier Banister Francis.

She is presently in custody on reasonable suspicion of committing offences under Sections 120 and 190 of the Penal Code, which could justify a criminal charge of disaffection towards the Government, and fabricating false evidence for the purpose of being used in any stage of a judicial proceeding, in her alleged abduction claim.

Considering the good bilateral relations between the two countries, the Swiss Minister has requested that all possible cooperation be extended to expedite the process.

Gunawardena noted that the Embassy employee is a Sri Lankan citizen, that the matter was presently before Court, and that the Government will do whatever it can, according to the law of the land.

Referring to the Swiss Foreign Ministry statement of 17 December, the Minister emphasised that Sri Lanka has fully complied with national law and international judicial standards, and that any assertion to the contrary was factually inaccurate.

He also detailed the steps taken from the time the incident was first reported, through the presentation of Francis by the Swiss Embassy to the CID 13 days since the alleged incident, to the present, and emphasised that due process has been adhered to at each step, in keeping with international norms respected by both countries.

It is in this backdrop, Switzerland sent Jorg Frieden, an experienced diplomat who once served as Ambassador to Sri Lanka, to explore possibilities for clarifying the security incident at the Swiss Embassy in Colombo.

"Cassis emphasised that Switzerland was keen to clarify the incident together with the Sri Lankan authorities, which is why an experienced diplomat, former Ambassador Jorg Frieden, had been sent to Colombo. Frieden is expected to explore possible solutions in communication with the Sri Lankan authorities, and thus lend support to the Swiss Embassy. This additional contact at the diplomatic level is also intended to strengthen the basis of trust between Switzerland and Sri Lanka," the FDAD said in a press release.

Switzerland, like many western countries have done in the past to get things done as the way they please, kept on indirectly intimidating the Government by repeatedly emphasising the entire incident may put Sri Lanka's reputation as a constitutional State is at stake. Sri Lanka on the other hand kept its foot firmly grounded from the beginning. The maturity displayed by the Minister and the officials of the Ministry of Foreign Relations and the President in this whole incident is commendable.

Even though the Foreign Ministry may have wanted to handle the issue diplomatically by not responding to the latest statement by the Swiss Embassy in Colombo, the Bar Association of Sri Lanka (BASL) on Friday (3), issued a statement wanting to set certain records mentioned in the statement straight.
The statement said;

"The attention of the Bar Association of Sri Lanka has been invited to the most recent statement issued by the Government of Switzerland on 30 December 2019, pertaining to the judicial proceedings currently pending in the Magistrate's Court of Colombo, involving an employee of the Swiss Embassy in Sri Lanka.

This statement refers to an incident which is alleged to have taken place on 25 November 2019 and in respect of which a court case is currently pending in the Magistrate's Court of Colombo.

The Bar Association of Sri Lanka being the largest representative body of the legal professionals in Sri Lanka and as a body that has been in the forefront in protecting the Rule of Law and equal application of the Law is mindful of certain material contained in the said statement which conveys a wrong and misconceived impression about the role of the judiciary in Sri Lanka and the concept of 'Due Process' as referred to in such statement.

Hence, in our capacity as the largest professional body of the members at the legal profession we believe that it is our duty to set the record straight in this instance.

In this regard, we would invite the attention of the Swiss Government and the Swiss Embassy in Sri Lanka and any other individual or institution which views the incident on the same footing as the makers of the above statement, to the following matters:

1. The alleged incident of abduction is claimed to have taken place on 25 of November 2019, nine days after the recently concluded Presidential Election in Sri Lanka.

2. However, according to the Reports filed in Court, no complaint was made regarding the alleged abduction of the employee of the Swiss Embassy until 27 of November 2019.

3. It is elementary knowledge that under any criminal justice system spontaneity and consistency of a complaint is considered to be extremely vital in the assessment of the credibility of such a statement.

4. When such a complaint is made, it is imperative that the legal enforcement mechanism requires the launch of an immediate investigation. The proceedings in the Magistrates Court reflect that this requirement has been satisfied by the investigators.

5. The record bears out that, for several days, the Swiss Embassy took up the position that the employee concerned was unwell and could not make out a testimony.

The word 'testimony' is generally referred to evidence given in a Court of Law under oath and is not referred to an instance where a person has to make a statement to the Police or the investigating authorities at the stage of investigations and interrogation. To this extent, this term has been wrongly used.
6. The sequence of events would reflect that investigations have taken its normal pace. No ad hoc arrests have been made. The employee concerned was permitted to be free without being called upon to make a statement, for the purpose of the judicial proceedings, for a considerable period. She has been permitted legal representation at the CID.
Embassy officials were permitted to be present as observers at the point of recording her statement. All material emanating from the investigations and the surfacing evidence had been placed before the Court.
7. In these circumstances, the BASL is of the view that the investigations have proceeded in this case as expected by the Law and on the basis of the normal legal norms accepted domestically and internationally.

The statement issued by the Swiss Government is a basic and a bare statement. Even though the statement makes an allegation of 'Due Process' not being followed, the issuer of the statement has failed to identify, at least one single ground that has not been followed by the Law enforcement officers in this instance.

'Due Process' is a concept which can be traced back to the Magna Carta of 1215. The essential requirements of the 'Due Process' lay down that no person shall be arrested or produced or harassed without proper evidence or material or a charge.

8. In fact, a few weeks ago when a reference was made regarding the right of certain members of the legal profession to appear in this case on behalf of the Swiss Embassy, the BASL immediately issued a statement confirming that every person who is aggrieved or is a party to a court proceeding has a right of representation under our law.

The matter is before court and whenever a matter is sub judice, it is wrong and incorrect for statements to be made in respect of such matter before court. The statement issued by the Swiss Government dated 30 December 2019 violates this basic Rule.

Also, it is relevant to note that none of the lawyers representing the Swiss Embassy has gone down on record regarding the failure to observe due process as alleged in the statement.

In these circumstances, the Bar Association of Sri Lanka strongly condemns the statement issued by the Swiss Government where it is alleged that the 'Due Process' has not been followed. We request the makers of this statement to immediately disclose the areas of 'Due Process' that has not been followed in this instance. Without mentioning such specific instances, to issue a bare statement, as has been done in this instance, amounts to a serious undermining of the judiciary and the other Law enforcement agencies in Sri Lanka which are more than equipped to follow the accepted norms.

We request the Embassy to refrain from making such baseless statements and if there is any concern that they have, to bring it before the relevant forum without making ad hoc and inconsistent statements which undermines our legal system and the judiciary.

Furthermore, being a responsible nation as claimed, the Government of Switzerland should be mindful of Article 41 of the Vienna Convention which clearly states that all persons enjoying such privileges and immunities have an equal duty to respect the Laws and Regulations of the receiving State - in this instance Sri Lanka. It is further illustrated in Article 41 that there should not be any interference in the internal affairs of the State.

It is best if the Government of Switzerland would make an attempt to understand their role in making comments about the judicial system and the Law enforcement system of a separate, independent and a sovereign State.

We strongly condemn the statement issued by the Swiss Government as we see that, as an attempt to undermine our core values in the judicial system which we have followed and treasured for more than two centuries."

President's policy statement

UNP MP Champika Ranawaka did not greet President Gotabaya Rajapaksa when the latter arrived at the chamber of Parliament to deliver his Government's policy statement to inaugurate the Fourth Session of the Eighth Parliament on Friday.

When the President was escorted to the main chair by Sergeant-at-Arms Narendra Fernando and his Deputy, the MPs and Ministers on both sides of the well stood up from their chairs to welcome the President and they were seen joining their hands to greet the President.

However, MP Ranawaka, who is on bail following his recent arrest, only got up from his chair, but refrained from greeting the President. The other MP on bail, Dr. Rajitha Senaratne, was absent.

President Gotabaya Rajapaksa who at the last minute cancelled the guard of honour, motor parade and 21 gun salute traditionally given to any President who comes to inaugurate a Parliament session and make the induction speech also drew attention due to his attire. He, for the first time wore a full-suit after being elected to office as the President and is also considered the first Executive President to enter the House in full European suit.

Setting out the policy statement he said the 1978 Constitution should be changed in order to safeguard the security, sovereignty, stability and integrity of the country.

 "But the 1978 Constitution, which has been amended 19 times, has created many problems at present due to its inherent ambiguities and confusions. In order to safeguard the security, sovereignty, stability and integrity of our country, it is essential that changes be made to the existing Constitution."

"My intention is making Sri Lanka a proud nation which has a recognition in the international arena, he noted. If we all work together as a one nation, we can overcome all the challenges in our path.

"Our country's unique position has resulted in considerable attention being given towards Sri Lanka in global geopolitics in recent times," he elaborated.

"Sri Lanka follows a neutral foreign policy. We must maintain friendly relations with every country. However, we can never give up our Independence and the sovereignty to other nations. We must establish a honourable governance that will allow this country to maintain its sovereignty, security, national pride, and deal with all nations on equal terms, without demonstrating weakness in our diplomatic or trading relationships," he said.

He pledged that other countries will never be allowed to take over lands and other physical resources which are economically valuable.

"The people who elected me to office desired a profound change in the political culture. They rejected political agendas founded on race. The majority of the people proved that it is no longer possible for anyone to manipulate and control politics by playing the role of kingmaker. I invite the politicians concerned to understand this reality. I call upon all to join together in the national undertaking to develop this country, and to reject the politics based on petty agendas that have sown division in our society in the past.

 We must always respect the aspirations of the majority of the people. It is only then that the sovereignty of the people will be safeguarded. In accordance with our Constitution, I pledge that during my term of office, I will always defend the unitary status of our country, and protect and nurture the Buddha Sasana whilst safeguarding the right of all citizens to practice a religion of their choice."

Furthermore, the President said that the people's respect for the Parliament as an institution has eroded. "When I was a little boy, I remember listening to the fruitful discussions which took place in this very same Chamber. Unfortunately, that situation has changed now. This Parliament should once again become an exemplary institution where real issues of the people are discussed, matters concerned with national policy are subjected to debate, and the responsibilities of the legislature are duly fulfilled," he added.

While noting that the country's development after Independence was not at a satisfactory level, the President said that there is a social, economic and political crisis at present. To change this situation, everyone should be prepared to make sacrifices necessary for that, he explained.

"In our policies, national security will be given the highest priority. We have already strengthened the coordination between the military and the Police. We have reformed the State Intelligence Service structure as well. Firm action against terrorism, extremism, underworld activities, theft and robbery, extortionists, the drug menace, disruptors of public order, and the abuse of women and children will be taken to protect the country".

"Our primary purpose is to create a productive citizen, a happy family, a disciplined society and a prosperous nation. We must ensure that the benefits of development reach every group of persons."

"Eliminating poverty is a priority of our Government. We must understand the causes of poverty and find solutions to eliminate such causes. There will be practical approaches to issues such as the lack of proper education or skills, the lack of land for cultivation, or the lack of capital for self-employment. The Government has made plans to find employment opportunities for 100,000 young men and women from low income families within the next month as well," the President said.

"Each member of the Rajapaksa family who was elected to Parliament wore the maroon shawl.
Even though I do not wear this shawl, I stand for the same profound philosophy of constant dedication to the poor that is symbolised by the maroon shawl," he noted.

The President tabled the 'Visions of Prosperity and Splendour' Policy Statement as well.