DISAPPEARANCES, REPARATION, MISSING PERSONS AND YAHAPALANA Part 2
Posted on January 2nd, 2019

KAMALIKA PIERIS

The Mutual Assistance in Criminal Matters (Amendment) Bill was passed amidst chaos in Parliament on 9.8.2018, reported the media. The Bill was passed with 95 members voting for it and 31 against. There was one amendment which was passed with 97 members voting for and 24 against.

The Joint Opposition including former President Mahinda Rajapaksa voted against it. Rajapaksa’s participation in the vote was a notable feature as he has been absent during the voting time of almost all Bills brought into the present Parliament, observed the media.

The Cabinet had granted approval to amend the Mutual Assistance in Criminal Matters Act, No.25 of 2002, for identifying the offences relating to Money Laundering and the necessity of criminalizing the offences related to bribery outlined in Article 16 of the Convention of the United Nations against Bribery and Corruption. It was also necessary to take into account recent developments pertaining to computer systems and data related criminal offences, and the international obligations of Sri Lanka.

However, Rajapaksa and the Joint Opposition thought otherwise. Rajapaksa had claimed that the amendments proposed to the Act are clearly aimed at assisting foreign courts in the trial of Sri Lankans for offences allegedly committed in Sri Lanka.

I present three sets of overlapping comments on the dangers of this Bill by the respected journalist, C.A.Chandraprema, Retired Navy Chief of Staff and ex-UPFA MP Dr. Sarath Weerasekera and Mahinda Rajapaksa.

Chandraprema commented on the Bill in March 2018. 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, said Chandraprema.( Sunday Island  27.5.18 p 11)

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 also  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, when the Minister in charge of the subject decides to extend and obtain assistance from that country. The original Act applies only to sovereign nations. The Amendment will make the Act applicable to organizations associated with combating international crime as well, which will of course automatically be applicable to the International Criminal Court.

The objectives of the original Act 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.

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 in 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 the Right to Information law will not apply to anything done under this amended Act.

This Bill makes Sri Lanka completely open to all foreign states and organizations,   through this process of the granting of assistance in investigations and judicial proceedings connected with criminal matters.

Chandraprema says these amendments are being brought in a specific context. This government has already established the Office of Missing Persons which though described as an ‘office’, is really a tribunal for all practical purposes, which can examine witnesses, issue summons and hold hearings. While the investigative mechanism has thus 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. But the punitive measures contemplated by this International Convention cannot 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.

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.

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 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 Yahapalana 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 this Mutual Assistance 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, concluded Chandraprema.

Retired Navy Chief of Staff and ex-UPFA MP Dr. Sarath Weerasekera, also spoke against the Bill at a press conference called by ‘Eliya’. He urged the government to withdraw the Bill He called it an attempt by the government to betray the country and its armed forces. (Island 13.6.18 p 4). The government gazetted the amended Act when the attention of the public was focused on flood situation triggered by heavy rains, he said.

The original Act applied only to specified Commonwealth countries and some other countries, but the proposed amendment would make it applicable to many other countries as well as to organizations associated with combating international crime.

“The Act is 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 as well as 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.

According to the original act, an accused for any sort of offence could be sent to any other country or institution only if that person agreed. Also, the country had a right to reject such request from any other country, if the said offence was not an offence under the Sri Lankan law. But through the proposed amendments, Sri Lanka would not be able to do so. Even though the government promised that there would be no international courts or judges, the proposed bill would allow not only foreign judges but also foreign investigators into Sri Lanka.

“By amending the Act, the government would open up Sri Lankans who are alleged to have been involved in causing enforced disappearances in Sri Lanka to international jurisdiction. He also pointed out the connection between OMP Bill, the Enforced Disappearances Bill, and now the amended Mutual Assistance in Criminal Matters Act,

Former President and Commander-in-Chief of the armed forces, Mahinda Rajapaksa, in one of the most scathing attacks on the current government yesterday accused it of being as committed and enthusiastic in their betrayal of the country as never before in its long history. (Island 18.6.18 p 1)

On May 18 this year, on the very anniversary of the victory against the LTTE, the government gazetted the Bill to amend the Mutual Assistance in Criminal Matters Act of 2002 at a moment when the people were preoccupied with the floods that affected many parts of the country. This country has had its share of traitors in its long history, but never anyone as committed and enthusiastic in their betrayal as the present government, said Rajapaksa.

The Bill to amend Act No: 25 of 2002 will repeal and replace entire sections of the original Act and substantially change its character, Rajapaksa said. The purpose of the original law was to facilitate cooperation between Sri Lanka and specified foreign countries in locating and identifying witnesses or suspects, the service of documents on such persons, the examination of witnesses, the obtaining of evidence, execution of requests for search and seizure, temporarily transferring a person in custody to appear as a witness, facilitation of the personal appearance of witnesses, the location of the proceeds of any criminal activity, and enforcing orders for the freezing of property, etc.

The earlier law applied only to specified Commonwealth countries and to other countries that had signed agreements with Sri Lanka to render mutual assistance in criminal matters. The proposed amendment will widen the applicability of the Act to every country that is a party to any International Convention that involves criminal matters. Though the original Act applied only to states, the proposed amendment will make it applicable to international organizations such as the International Criminal Court as well.

Another new feature in the amended 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. The Central Authority is given the power to designate competent authorities (which can be a law enforcement authority) who will process information to request as directed by the Central Authority.

The administrative machinery to respond expeditiously to requests from overseas is also to be expanded. It will also make documentary evidence and evidence obtained through video conferencing from persons resident in foreign countries admissible in judicial proceedings.

The proposed legislation complements two previous laws introduced by the present government – the Office of Missing Persons Act and the Act relating to the International Convention on Enforced Disappearances. Without the Mutual Assistance in Criminal Matters amendment Act, No. 25 of 2002 it would not be possible to prosecute Sri Lankans in foreign courts for offences allegedly committed in Sri Lanka. There has to be a mechanism to obtain evidence from Sri Lanka.

The amendments proposed to the Mutual Assistance in Criminal Matters Act of 2002 are clearly aimed at assisting foreign courts in the trial of Sri Lankans for offences allegedly committed in Sri Lanka.  This is the latest betrayal by the Yahapalana government. The manner in which this government has been implementing the demands of their foreign patrons should also be taken note of by the public.

I wish to add that these actions by the Yahapalana government show how carefully and thoroughly things have been thought out and planned. These changes would have been planned along ago, abroad, and kept aside, to be used once   regime change took place. It shows also, how far the west, probably USA, is prepared to go to extract their revenge from the armed forces that defeated their precious LTTE. Lastly, we now see that there is a solid block of MPs in Parliament, mainly UNP I suppose, who are prepared to vote blindly for laws which will injure their own people.

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