Yahapalana Govt. seeks foreign assistance in war crime matters
Posted on May 26th, 2018

A few days ago, the government gazetted an amendment to the Mutual Assistance in Criminal Matters Act, No. 25 of 2002. Most members of the public would not see anything amiss with this, because the generally prevalent view in society is that Sri Lanka is a country that is in dire need of ‘mutual assistance in criminal matters’ so as to find the elusive former Governor of the Central Bank who is wanted in Sri Lanka over the bond scam and Udayanga Weeratunga the former Sri Lankan Ambassador to Russia whom the police are trying to get down to Sri Lanka to be arrested and remanded over the never ending MiG affair. The objective of the amendments that have now been gazetted to the 2002 Mutual Assistance in Criminal Matters Act however appear to be for a completely different purpose. In 2002, when the original Act was promulgated, it was to apply firstly, to specified Commonwealth countries and secondly, to non-Commonwealth countries which have signed agreements with Sri Lanka for mutual assistance in criminal matters.

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The purpose of this Act was to facilitate the providing and obtaining by Sri Lanka of help from foreign countries in the location and identification of witnesses or suspects, the service of documents on such persons, the examination of witnesses, the obtaining of evidence or other articles, the execution of requests for search and seizure, the effecting of a temporary transfer of a person in custody to appear as a witness, the facilitation of the personal appearance of witnesses, the location of the proceeds of any criminal activity, and the 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 this 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. When a foreign country makes a request from the Sri Lankan Central Authority, the latter can turn it down in certain instances such as when the request relates to an act which does not constitute an offence under Sri Lankan law, or  it relates to an offence of a political character, or to an act which constitutes an offence only under the military law of Sri Lanka, or if such person has been acquitted or convicted in accordance with the law of Sri Lanka in respect of that offence, or  compliance with the request would be contrary to the Constitution of Sri Lanka or prejudicial to national security, international relations or public policy, or where compliance with the request would facilitate the prosecution or punishment of a person on account of his race, religion, language, caste, sex, political opinions or place of birth.

However, even if a request relates to an act which is not an offence under Sri Lankan law, if the Central Authority deems such act to be of a serious nature and is a criminal matter within the meaning of this Act he can comply with that request at his discretion. Furthermore, an offence shall be deemed not to be an offence of a political character if it is an offence within the scope of an international Convention to which both Sri Lanka and the specified country making the request are parties and which imposes on the parties thereto an obligation to extradite or prosecute a person accused of the commission of that offence.

What the original Act sought to achieve

Where the Central Authority receives a request from the appropriate authority of a country coming under the ambit of this Act, for assistance in locating a person who is suspected to be involved in, or is able to assist in any criminal matter and who is believed to be in Sri Lanka, the Central Authority may refer such request to the Secretary to the Ministry of Defence for inquiry, and the resultant report is to be sent to the country making the request. Where the Central Authority receives from a foreign country a summons requiring a person to appear as defendant or a witness in criminal proceedings in that country, with a request that it be served on a person in Sri Lanka, the Central Authority may have the document served on the individual concerned through the Magistrate’s Court within whose jurisdiction such person is residing. The Service of any such summons on any person shall not impose any obligation on such person under the law of Sri Lanka to comply with it.

Where a foreign country makes a request to the Central Authority that evidence be taken in Sri Lanka or documents or other articles in Sri Lanka produced in relation to a criminal matter, the Central Authority may refer such request to a magistrate, authorized by an order made by the President of the Court of Appeal to take such evidence or to receive such documents and shall, upon receipt of such evidence or documents transmit the same to the appropriate authority of the country making the request. Where a court proceeding or an investigation relating to a criminal matter has commenced in a foreign country, and that country requests the removal of a prisoner who is in Sri Lanka, for the purposes of giving evidence or of assisting an investigation, the Central Authority may, if he is satisfied that such person has consented to giving evidence or to being removed to such specified country for the purposes of assisting in an investigation, take steps to facilitate such movement. If a foreign country requests the attendance, of a person who is in Sri Lanka who is not a prisoner, the Central Authority can facilitate the visit if the person concerned has consented to give evidence or assist the investigation.

Where there are reasonable grounds to believe that a thing relevant to a criminal proceeding or investigation is located in Sri Lanka and the appropriate authority of a foreign country requests the Central Authority to search for that thing the Central Authority may, authorize a police officer to make an application to the Magistrate within whose jurisdiction that thing is believed to be located, for a search warrant. If the relevant objects are found, they will be placed under the custody of the Inspector General of police in Sri Lanka.  The Magistrate issuing the warrant will forward the object to the Central Authority for transmission to the appropriate authority of the foreign country.

Where it is believed that any property obtained directly or indirectly, from the commission a crime is in Sri Lanka, and the appropriate authority in a foreign country requests the Central Authority for assistance in identifying, locating or assessing the value of such property, the Central Authority may in his discretion give the assistance requested wherever it is practicable to do so. Where a court in a country coming within the ambit of this Act has, in a proceeding relating to a criminal matter, made an order confiscating any property, or restraining any person from dealing with any property and there are reasonable grounds to believe that the said property is located in Sri Lanka, the Central Authority may, require the Attorney-General to apply for the registration of the order in the High Court of the province in which such property is located.

The same facilities mentioned above were to be made available to Sri Lanka by the foreign countries coming under this Act.

What the amending Bill aims at

We see that the Bill to amend the Mutual Assistance in Criminal Matters Act, No. 25 of 2002 seeks to repeal entire sections of the original law and replace them with new provisions. The original Act applied only to specified Commonwealth countries and countries that had signed agreements with Sri Lanka to render mutual assistance in criminal matters. However, the proposed amendment seeks widen the scope of the Act by making it applicable to 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. The Act is to be made applicable even to a country which has not entered into any agreement with Sri Lanka for mutual assistance in criminal matters if the Minister in charge of the subject decides to extend and obtain assistance from that country. Another new thing in the amendment is that while the original Act applies only to sovereign nations, the amendment will make the Act applicable to organizations associated with combating international crime as well.

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. The objectives of the original Act to facilitate the provision and obtaining by Sri Lanka of assistance in criminal and related matters, have been expanded to include such matters as the infringement of intellectual property and cybercrime but this appears to be a cover for the actual purpose of the Bill. It will be of interest to note that this Bill seeks to make documentary evidence obtained in a specified country admissible in a judicial proceeding; and also to make admissible evidence led from a specified 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 of the Central Authority for the purpose of this Act 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 specified country or specified organization. Such competent authority shall, then immediately proceed to implement the request after forwarding a copy of the relevant request to the Central Authority. There is the additional provision that no court in Sri Lanka may reject a request on the grounds that the Central Authority did not receive such request directly from the appropriate authority of a specified country or specified organization.

A new section has been added to the original law, enjoining the Central Authority and the officers holding delegated authority from him including the competent authorities to 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. five million. Needless to say that in such circumstances, the Right to Information law will not apply to anything done under this amended Act.

Relationship to OMP and Enforced Disappearances Acts

It has to be understood that 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 though described as an ‘office’, 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. Complaints can be received by the OMP not only from relations and friends of missing persons but from any interested party both local and foreign.

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 had 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.

This Bill seeks to make documentary evidence obtained in a specified country admissible in a judicial proceeding; and also to make admissible evidence led from a specified country through video conferencing technology. The proposed provisions to allow the Secretary to the Ministry of Justice to authorize officers below him to act on his behalf, and also to designate competent authorities (which can be a law enforcement authority) 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 shows that this is the final set up necessary to begin the war crimes investigation that international sponsors of the yahapalana government have been angling for. The provisions of the proposed amendment to the Mutual Assistance in Criminal Matters Act, No. 25 of 2002 indicate that the Sri Lankan side is being prepared to handle a large volume of requests from overseas. Instead of having a local tribunal with foreign judges what yahapalanaya has done is to enable foreign judges in foreign tribunals to take action against Sri Lankans with the full cooperation of the Sri Lankan government.

The OMP does the local investigation, the International Convention against Enforced Disappearances confers jurisdiction on foreign nations and indirectly on the ICC as well to hear Sri Lankan cases and the latest Bill seeks to put in place the remaining requirements by making it incumbent on the Sri Lankan authorities to comply with requests for information, documents, witnesses and the like made by foreign governments and international organizations to carry out criminal investigations or prosecutions of Sri Lankan individuals. This entire set up beginning with the OMP and ending with the mechanisms to be set up under the proposed amendment to Act No: 25 of 2002 will operate under a shroud of secrecy with the Right to Information Act rendered inoperative in relation to action taken under those laws.

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