KAMALIKA PIERIS

REVISED 18.7.18

Yahapalana government has gone out of its way to create a whole series of mechanisms by which the Sri Lanka armed forces could be tried for war crimes. These mechanisms are labeled ‘Enforced Disappearance’  ‘Torture’ and ’Missing Persons’ but they are all directed solely at the Sri Lanka armed forces. ‘Hybrid courts’ and a ‘Special Prosecutor’ have also been discussed.

UN CONVENTION ON ENFORCED DISAPPEARANCES

Sri Lanka signed the UN International Convention for the Protection of all Persons from Enforced Disappearances (ICPPED) in December 2015 and in March 2018 passed a Bill to incorporate its provisions into Sri Lanka law. The Bill was passed, without amendments, amidst disturbances from the Joint Opposition. There were 53 votes in favor, 16 votes against. The Joint Opposition voted against while the JVP walked out. This Act will be referred to in this essay as ‘Bill”.

The bill was withdrawn twice by the government, due to protests from the Maha Sangha and the Joint Opposition. They observed that that all matters that relate to an enforced disappearance, abduction, illegal confinement, murder and the illegal disposal of dead bodies  are adequately covered by the Penal Code and the existing criminal law in Sri Lanka. Further, the Joint Opposition pointed out that the Bill was directed only at the armed forces, not the LTTE, despite the many thousands of enforced disappearances that they were responsible for.

After withdrawing the Bill, the government launched a propaganda offensive to justify the proposed law. The persistent campaign of misinformation that the Yahapalana government  conducted on the matter and the fact that it was presented to Parliament twice despite public protests and the opposition of the Maha Sangha, shows how important this piece of proposed legislation is in the Yahapalana scheme of things, observed Chandraprema. Why was the Yahapalana government so interested in pushing this legislation?

Many countries have kept away from this Convention altogether, because of its intrusive nature, observed critics. Australia, Britain, Canada,  China, Russia and Pakistan and United States have not signed this Convention. Denmark, Finland, Ireland, India, Norway, and Sweden signed but never ratified it.” Sri Lanka was therefore signing a convention which other countries were avoiding, observed Mahinda Rajapaksa.

G.L.Pieris reported that ambassadors of several EU nations has been present at the meeting held in December 2016, to finalize the new Bill. Those present included the British High Commissioner, Ambassadors of France, European Union, Netherlands, Germany, Italy, and Romania. Pieris deplored the fact that the ambassadors of foreign countries were directly involved in the process of drafting legislation which related to the public security of the country.

We are replacing the notorious Prevention of Terrorism Act, said Mangala Samaraweera.  This Act is a draconian piece of legislation that has been frequently misused for political ends. It led to enforced disappearances, torture, and secret detention. The authorities used this legislation mainly against members of the Tamil community, said UN’s Emmerson.

However, analysts observed that abolition of the Prevention of Terrorism Act (PTA) would weaken the state security apparatus. The changes could result in members of the security forces and police, being subjected to legal action, at provincial level. Further, under the existing PTA, the detention order in the first instance is up to three months and can be extended up to 18 months with no court of law being able to question such detention. But under the Disappearances Bill a detention order is valid only for 30 days and cannot be extended beyond six months and if a detention order is to be extended beyond three months, a magistrate has to grant his approval. The suspect can challenge the magistrate’s ruling in the High Court. This gives terrorist suspects maximum protection

The use of the word ‘disappearances’ makes this Bill look like an attempt to trace missing persons. But the purpose of this Bill is not to trace missing persons but to hunt down and prosecute those who won the war. The proposed law is an attempt to subject our armed forces to an international court by rephrasing ‘war crimes’ as ‘disappearances’.

Article 2 of ICPPED says  “For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or those supported by the State followed by concealment of  the disappeared person. There are no exceptions to this. ‘Enforced Disappearances’ cannot be justified even in an emergency.

The armed forces have already categorized the thousands of soldiers who disappeared as ‘assumed to be dead’. Therefore, the only ‘disappeared’ persons, whose cases will be dealt with under this proposed law, will be the LTTE. LTTE combatants who have either died in battle or fled overseas are still categorized as having ‘disappeared’.

The Convention is applicable only to ‘State Actors’ which means that this is aimed only at the armed forces.  Arrests, prosecutions, requests for extradition of Sri Lankans, handing them over to international criminal courts and so on, will only apply to the Sri Lankan armed forces and other agents of the State. No action will be taken by any foreign country against LTTE members, because ICPPED does not include non-State actors.

Not only are Non-state actors, like the LTTE expressly excluded from this legislation, they are protected as well. This Bill is designed to protect future terrorists, not to combat terrorism, said Chandraprema. Everything that this government does seems to go in a certain direction, he declared.

The provisions relating to the arrest and detention of terrorist suspects in the Bill has been designed with a view to ensuring the welfare of the terrorist suspect. Terrorists will be able to get away with minimal punishment by pretending to be remorseful or undergoing ‘rehabilitation’ or doing any of the other things recommended to win lighter sentences.

If the terrorist suspect agrees to fulfill conditions such as tendering a public expression of remorse or an apology, provision of reparations to victims, voluntary participation in a program of rehabilitation, giving a public undertaking not to commit any offence in this act and engagement in specific community service, he will win a lighter sentence

Even when a terrorist is found guilty, the sentencing guidelines proposed in the new counter terrorism law stipulate that publicly denouncing terrorism, expression or remorse, young age or old age at the time of sentencing, coercion or duress under which the offense had been committed, consent on the part of victims to pardon to the terrorist, voluntary provision of reparations by the convict to the victims of the crime, public denouncement of violence and terrorism, genuine commitment to the preservation of the territorial integrity and sovereignty of Sri Lanka, participation in a program of rehabilitation prescribed by the judge will act as mitigating factors to reduce the sentence.  This gives even a convicted terrorist a way to avoid long jail sentences.

Under Article 10 of the ICPPED any person suspected of causing enforced disappearances can be arrested in the home state or any other member state. After  the arrest, the individual concerned can under Article 11 of the Convention be either extradited to another country, prosecuted in the country carrying out the arrest or handed over to an international criminal tribunal,  regardless of whether there is an extradition treaty or not.

Article 13 states that any member state may request the extradition of a person suspected of enforced disappearances and all member states must respect such requests for extradition. Sri Lanka is now a signatory to the International Convention for the Protection of All Persons from Enforced Disappearance. Therefore, the provisions of Articles 10, 11 and 13 form a part of our obligations under this Convention.

Clauses 8, 21 and 23 of the Sri Lanka Bill read together with Articles 10, 11 and 13 of ICPPED   confirm the gravity of this legislation, said Chandraprema. Clause 8 of the Sri Lanka Bill enables foreign countries to seek the extradition of a Sri Lankan who is suspected of having caused enforced disappearances in Sri Lanka. Any member state of the ICPPED can get a Sri Lankan believed to have been involved in enforced disappearances in Sri Lanka, extradited to their country, to be prosecuted or handed over to an international criminal tribunal.

Clause 21 seeks to gives ‘full effect’ to the International Convention Against Disappearances in Sri Lanka. Clause 23 says the provisions of this Act shall have effect notwithstanding anything to the contrary in any other written law and accordingly in the event of any inconsistency or conflict between the provisions of this Act and such other written law, the provisions of this Act shall prevail.”  This means this Act will override all other written law  and the Extradition Act No. 8 of 1977 becomes ineffective.  The right of a Sri Lankan to move court against extradition is taken away.

The Bill accommodates disappeared persons irrespective of when they disappeared. It can apply to a person who disappeared 10 or even 20 years ago. Therefore this law is retroactive, said analysts.

A person could be extradited on a mere accusation. Such accusations could originate in Sri Lanka or in another State. Either way, the Bill has no provision for any procedures that should be followed within Sri Lanka or outside; not even a preliminary investigation, other than what the Minister proposes. The lack of any formalized procedures to establish the credibility of the accusation prior to extradition presents ample opportunities for victimization, said Ladduwahetty.

Manohara de Silva pointed out the discrepancy in the meaning of the word ‘arrest’, in the English and Sinhala texts. The intentional discrepancy could result in a police officer, responsible for the arrest of a particular person, to be hauled up before war crimes for the subsequent disappearance of the latter for a different reason.

Article 32 of the ICPPED enables any member State to complain to the 10-member ‘Committee on Enforced Disappearances’ in Geneva that Sri Lanka is not fulfilling her obligations under this Convention and the Committee can investigate such complaints. Put together, this means that foreign countries which are members of the ICPPED will have complete jurisdiction over Sri Lankans who are alleged to have carried out enforced disappearances in Sri Lanka.

the Bill seeks to give foreign countries complete and untrammeled criminal jurisdiction over Sri Lankans with regard to ‘enforced disappearances, said analysts.’ The purpose of this law is to take our war veterans to be tried in other countries, pointed out Chandraprema. Those extradited to one country could be handed to another country pursuing war crimes allegations.

Allowing our war veterans to be tried in other countries is worse than being tried by an international criminal tribunal. An international criminal tribunal is a multilateral body with certain control imposed. ‘A single country is a different matter altogether’. No one who is prosecuted in the courts of a foreign country or by an international criminal tribunal which is controlled by a foreign country can really expect justice. Such prosecutions are always politically motivated.

Sri Lanka can be taken before the ICC, though Sri Lanka is not a signatory to the ICC. If the country carrying out the arrest has accepted the jurisdiction of the ICC then any Sri Lankan who is arrested in such a country or is extradited to such a country by our own government can in fact be handed over to ICC which is the sole standing international criminal tribunal in the world.

Yahapalana government wanted public support for this legislation. Therefore an article titled “Extradition Clause in Enforced Disappearances Bill is Identical to Section 7(2) of Torture Act Passed in 1994” appeared on a website. It said that there is absolutely nothing to worry about in Clause 8 of the Bill because this was a standard Clause and that we have had an identical provision in a very similar statute for over 20 years. Chandraprema challenged this.

Thereafter there were no more well argued articles from the Yahapalana camp on the matter. It appears that since it is not possible to argue the matter out, the best fallback position is to resort to an outright campaign of lies and misinformation, said Chandraprema.

Here are some of the false statements of Yahapalana regarding the Bill. Yahapalana said that nobody, especially those under suspicion of having caused enforced disappearances during the war, can be extradited because, said Yahapalana. the requesting state has to demonstrate that the offence, for which the person is requested to be extradited to the requesting state, is also recognized as a criminal offence punishable under the law of the sending state and that this principle is expressly provided for under Section 6(1) (c) of our Extradition Act No. 8 of 1977.  Yahapalana did not point out that the Extradition Act becomes ineffective once the Disappearances Bill is passed.

Here are three other whoppers. Yahapalana repeatedly claimed that
nothing in the Bill is retrospective and its content applies only to the offences committed in the future. That the law will take effect only after it is passed and will not therefore have retrospective effect. That no Sri Lankan can be hauled before the International Criminal Court because Sri Lanka is not a signatory to the Rome Statute and therefore does not come under the jurisdiction of the ICC. All three assurances were incorrect.

Chandraprema lashed out at the government for adopting the Disappearance Bill at the expense of various laws in place today. He said that the armed forces had never before been harmed in this way,

Ladduwahetty took a different view. This Bill   contains articles that contradict each other, he said. Also provisions in the Bill violate the Constitution of Sri Lanka. The Constitution permits arresting and locking up people   during an emergency, but the Bill does not.  Constitution does not permit retrospective legislation. The Bill is   retrospective. Since provisions in the   UN Convention also violate provisions in the Constitution of Sri Lanka, the Government should be held accountable for signing and ratifying the UN Convention on Disappearances. Further under provisions of Article 33 (f) the President does not have the authority to sign and ratify this UN Convention

Manohara de Silva said that the government was paving the way for Sri Lankans to be tried overseas, instead setting up accountability mechanisms here. Accountability mechanisms, comprising local and foreign judges, were unlikely to be set up here he said. I do not think they have any intention of prosecuting anybody in Sri Lanka. They will get the information and then prosecute abroad because our government has agreed to universal jurisdiction, he concluded.

OFFICE OF MISSING PERSONS

Yahapalana government promised to create an Office of Missing Persons in accordance with the UNHRC Resolution on Sri Lanka, co sponsored by USA and Sri Lanka in 2015. the Office of Missing Persons Bill was duly passed in Parliament on 12.8.16.

The Bill on Enforced Disappearances differs from the Bill on the Office of Missing Persons. The latter is only a very specific instance of a “missing person” who could be “missing” for a variety of reasons, an “enforced disappearance” is carried out by agents of the State. It is on account of this difference that there are 2 separate Bills, said Ladduwahetty.  However, the OMP Act is nowhere near as dangerous as the Disappearances Bill, said Chandraprema.

There is need of an independent credible domestic mechanism, said Mangala Samaraweera. The Office of Missing Persons is truth-seeking investigative agency. It does not make judgments on disputes. In fact, the legislation states that the findings of the OMP shall not give rise to any criminal or civil liability.” Its primary function is to establish whether a missing person is dead or alive and, if they are dead, discover when, how and where they died, Samaraweera concluded.

Nowhere in Asia has a mechanism such as the OMP been set up, replied Dayan Jayatilleke. The only OMPs set up so far were for persons missing under military juntas in Latin America. Sri Lanka was a democratic state with democratically elected government, whose legitimate army fought a war within its borders against a secessionist group and won an outright victory.

The OMP bill was rushed through parliament amidst Joint Opposition protests, shouting and chanting, within less than two hours. The original plan was to have a two day debate and have a vote at the end, but this was not followed and the opposition was deprived of its time to speak on the bill. Sittings were suspended for a time, then it was suggested that they should go on debating till 9.30 that night but this was not agreed to.

The Bill was steamrollered through parliament, in an undemocratic manner, said Island editorial. It was rammed through in just 40 minutes disregarding objections of the Joint Opposition. The JVP voted for it.  The Bill was not referred to Supreme Court.

Joint Opposition refuse to accept OMP Bill as properly passed. Parliament had not followed proper procedures in adopting it.  It was passed against the Standing Orders of Parliament. Only a bill passed in accordance with the Standing Orders could be accepted as a proper piece of legislation.  Also, a Bill cannot be deemed to have been passed when more than half of the MPs were standing on the floor of the House. Even government MP were not in their seats.

There was a delay in getting the OMP going. The legislation regarding it had to be amended. Then there was a delay in allocating the OMP to a ministry. Finally in July 2017 President Sirisena allocated the OMP to the Reconciliation Ministry which comes under his direct purview.

The OMP is a permanent body with a standing not less than that of the Human Rights Commission of Sri Lanka. The four main functions for the OMP are : (i) searching and tracing of missing persons, (ii) clarifying the circumstances in which such persons went missing and their fate, (iii) making recommendations to relevant authorities in order to reduce incident of missing and disappeared persons, (iv) identifying proper avenues of redress. OMP can  establish committees, division or units for the administration of the OMP and can delegate its power to them. .

The OMP will consist of seven persons appointed by the Constitutional Council. but Its composition must reflect the pluralistic nature of the Sri Lankan society. OMP work need not be done by these seven, they can delegate it to others who  can be  foreigners.  Critics noted that the Constitutional Council is dominated by western funded NGOs   who work to an agenda.

The members of the OMP must statutorily have experience in investigating Human Rights Law (HR) and International Human Rights Law (IHL) and they need not be citizens of Sri Lanka. This means that the appointees will be mainly foreign. They can be representatives of Western funded NGOs or those who have worked with Western sponsored international war crimes tribunals, said analysts.

OMP   is allowed to   bring in foreign personnel   and OMP can appoint foreigners as officers and staff of the OMP. The OMP has complete authority to raise funds from national or international sources. They can receive foreign funding directly. OMP will have the power to enter into any kind of agreement with any foreign or domestic person or organization to obtain information, technical support and training, including  UN agencies like OHCHR. Since  these UN organizations have been taken over by the west through funding, it is a foregone conclusion that the OMP will be operated not so much by the government of Sri Lanka as by the West, said critics. OMP can have agreements with LTTE as well, observed critics..

The Office of Missing Persons is no Office’. It is a fully fledged quasi judicial tribunal operating outside the state justice system, which can examine witnesses, issue summons and hold hearings. This is a tribunal which will operate entirely outside the country’s institutions, said G.L. Pieris. It can arrive at ‘findings’ relating to serious crimes like abduction and murder without any of the routine safeguards availed to suspects in ordinary courts. OMP can operate in complete secrecy, with no right to information available even to the highest court in the land.

OMP can summon any persons in Sri Lanka  before it.  Anyone who fails or refuses to cooperate with the OMP may be punished for contempt of court.” OMP is equated with the Court of Appeal of Sri Lanka.

the procedures to be used in the OMP are a gross travesty of natural justice, said Pieris.. OMP can initiate an inquiry on the basis of a complaint,  which is then kept secret. This means that people can charge  each other in secret.  The provisions of the Official Secrets Act will not apply The provisions of the Right to Information Act will not apply either.

OMP must preserve confidentiality with regard to matter communicated to them in confidence. 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. Not even Supreme Court of Sri Lanka can penetrate this fog of secrecy, remarked Pieris

All government bodies, including the armed forces and intelligence services are mandatorily required to give fullest cooperation to OMP   All local authorities are below the OMP. OMP officers have been conferred immunity.  they are above the law.  OMP officers can ,without warrant, at any time of day or night, enter any premises, including sensitive military installation and seize any documents or object they require for investigations.  Documents supposedly seized form military organization can be circulated all over the world. The OMP has extensive coercive power to compel the giving of testimony and production of documents and other material, observed G.L.Pieris.

The evidence Ordinance will not be operative, this is most dangerous,  said Manohara de Silva.. the OMP can admit as evidence statements which contravene the Evidence Ordinance  or is considered inadmissible in civil or criminal proceedings. Any    unreliable organization can made a complaint, false statements included, without having or face any consequences. They can admit any kind of evidence in building up a story against a person which could cause serious damage to that person’s reputation and career . The OMP is rigged in such a manner that a  person can be removed from the armed forces because a ‘case’ can be  built up against him in the OMP without safeguards of the Evidence Ordinance, observed Chandraprema,

If missing persons is found, the OMP need not announce the fact. if that person so wishes he can remain missing   though he may be hale and hearty and living abroad..  Unless he agrees, his relatives will not be informed. Many of those listed missing during the war could have obtained new identities courtesy of foreign governments, observed Gotabhaya Rajapaksa. Foreign governments including Australia had refused to assist Sri Lanka in investigations aimed at locating missing persons now living overseas under new identities,. Thousands have received new identities, especially in Europe.

National Peace Council issued a statement that the OMP bill was a good thing. The NPC welcome the new law and the legal foundation of the first of the four transitional justice mechanisms that the government has pledged to establish. The underlying rationale of the OMP was that people need to know what happened to their loved ones so that they can stop the endless search for them. It is to help in this that OMP was set up; to find out what happened to those missing. That is why evidence that is not admissible in courts of law is admissible in the investigation. The OMP will not find their task easy, observed Perera. The disposal of the bodies of the victims will mean it is going to be very difficult to find out what actually happened to them individually.

The Missing Persons Act places the terrorists and the members of the armed force on the same pedestal in entertaining the ’missing status’ of persons. When this was pointed out, Jehan Perera maintained that ‘both are human beings and therefore has to be treated equally’ reported a critic angrily. This is deranged thinking, treating those who perpetrated crimes against humanity with kid gloves he said..

Maxwell Paranagama, retired High Court judge  who headed the Presidential Commission on Missing Persons   told the media that investigations undertaken by his special team were terminated due to the Yahapalana government decision to set up Office of Missing Persons (OMP) in accordance with Geneva Resolution co-sponsored by Sri Lanka in Oct 2015.

UN CONVENTION AGAINST TORTURE

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) came into    force in Geneva in  1987. Sri Lanka ratified the Convention in January 1994 and incorporated the Convention into Sri Lankan law by enacting the ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act, No. 22 of 1994’, more commonly referred to as the ‘Convention against Torture Act’ (CAT ACT).   Sri Lanka should never have acceded to this Convention, said Chandraprema. it was signed at the tail end of the UNP government.

The Sri Lanka Act was better than the UN Convention,  said analysts. It made torture a separate non-bailable criminal offence punishable with a prison sentence of between 7 to 10 years and a fine. Most importantly, its application was not restricted to officers of the state but to citizens of Sri Lanka and non-citizens who are within the jurisdiction of Sri Lanka. The Act also provides for extradition of a foreigner suspected of committing torture to his own country or another country asking for his extradition. These provisions were already in operation in the Sri Lankan legal system even  before the Sri Lanka Act.

The Convention against Torture  envisages the setting up of a  UN Committee against Torture made up of representatives of member states to investigate allegations of torture in member states. All member states are required to co-operate in the investigations of the committee. The Convention specifically states that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be cited in mitigation of any violations..

Under the   UN Convention against Torture every member state is required to make torture a separate criminal office which will apply only to the police and armed forces and other forces of the state.. Non –state actors, like LTTE  are exempt from the provisions of this Act. Furthermore, the provisions of the Convention against Torture give foreign countries that are member states of the Convention the power to arrest former or serving state officers suspected of committing torture in any other member state.

What this means is that officers of the state will be hunted not only by their own government but the governments of foreign countries as well whereas terrorists will not be hunted either in Sri Lanka or overseas for committing torture.  the armed forces of the State will get hauled up for the graver offence of torture while a terrorist who does the same or worse will get hauled up if at all, only for a lesser offence like ‘assault’ and that too only in instances when crude physical torture has been used. Physical torture that leaves no marks or psychological torture by terrorists will never even make it to a charge sheet. Pottu Amman’s group can never be brought to justice under the provisions of the Convention against Torture, observed Chandraprema.

There are two important provisions in the Convention against Torture to which Sri Lanka has mercifully not acceded. Those two provisions  would have given  foreign countries a direct handle over Sri Lanka’s internal affairs and for individuals in Sri Lanka to be able to make complaints directly to the Committee Against Torture.

The provisions state that a member state has the option of declaring that it recognizes the competence of the Committee against Torture to receive and consider communications by one member state that another member state is not fulfilling its obligations under this Convention.

This would have enabled a foreign state to write directly to Sri Lanka  saying that there are allegations that Sri Lanka  is not fulfilling its obligations under this Convention and Sri Lanka  will be obliged to explain things to that foreign country. If the foreign country is not satisfied with the answer provided by SL, it can take the matter before the Committee against Torture and the Committee in turn can set up an ad hoc conciliation commission to resolve the matter.

This Convention has an ‘Optional Protocol’. The decision to join the Optional Protocol of the International Convention against Torture” was taken by the Yahapalana Cabinet on 14 November 2017. The decision was implemented soon afterward on 5 December and  would come into force from 4 January 2018.

Despite the gross inefficiency that this government has demonstrated in the day-to-day running of this country, they have demonstrated incredible in efficiency in implementing anything that gives the Western powers a handle over Sri Lanka’s internal affairs. The latest move made in this regard is acceding to the Optional Protocol of the Convention against Torture,  said  Chandraprema in December 2017.

The question now is what the Optional Protocol to the Convention against Torture to which Sri Lanka has just acceded requires us to do,  continued Chandraprema.

The primary objective of the Optional Protocol is to establish a system of regular visits  by a UN committee to  places of detention. Therefore, the optional Protocol established a  UN Subcommittee of the Committee against Torture. The members of this Subcommittee will serve not as representatives of their countries but in their individual capacity. Members of this Subcommittee will visit member states and make recommendations to the relevant governments. The Subcommittee must pay regular visits to places of torture, and make confidential reports.

The  Sub Committee may designate one or more of its members to make a confidential inquiry and to report back to the Committee and this may entail a visit to the country concerned. Once the Committee has completed the inquiry, their findings and their observations will be submitted to the state party concerned. The proceedings will be confidential and the Committee will include a summary of its findings in their annual report  with the agreement of the member state concerned.

The Protocol  stated firmly, that the Sub Committee has the right to choose the places it wants to visit and the persons it wants to interview  Objections to a visit to a particular place of detention may be made only on urgent and compelling grounds and  that can only be temporary. The existence of a state of emergency cannot be used as an objection. Persons and organization  must be free to communicate with the Sub Committee. The state  must not prevent this. The state must also not retaliate against these groups for having communicated information  to the Subcommittee, whether true or false,

Under the Optional Protocol, Each member state is also expected to set up at the domestic level one or more national preventive mechanisms. The state must            guarantee the independence of these mechanisms” and their staff. Mechanisms established by decentralized units may  also be designated as national preventive mechanisms. The national mechanisms are to have unrestricted access to places of detention and information and exercise all the powers the international Subcommittee is entitled to.

The Sub Committee will  maintain direct, and if necessary confidential, contact with the national preventive mechanisms and offer them training and technical assistance.  the national mechanisms must be given unrestricted contacts with the Subcommittee, to send it information and to meet with it and no sanctions can be applied to anybody who provides information, whether true or false to the national mechanism.

A special fund   set up within the Office of the High Commissioner on Human Rights of the UN   finances the activities of the Subcommittee of the Committee on Torture. This special fund is financed through ‘voluntary contributions’ made by governments, intergovernmental and non-governmental organizations. Western governments provide funding to UN bodies for particular projects. Needless to say the Sri Lankan project will receive plenty of funds. This is the first physical intrusion into Sri Lanka that the foreign powers have managed to make since the Yahapalana government came into power, observed Chandraprema.

Thus by acceding to this Optional Protocol, what we have done is to agree to give a body functioning under the Office of the UN Human Rights Commissioner unrestricted access to all places of detention in Sri Lanka and to provide them with all such information regardless of the situation prevailing in the country and to set up local mechanisms which can maintain direct links with the international Subcommittee and feed information to foreign parties without any restriction, he said.

Yahapalana  government has, through its hasty action   given foreign powers the opportunity to intervene directly in Sri Lanka’s internal affairs. This shows that if these foreign powers are unable to get in through the front door, they will enter through a window or even a chink in the roof. . The question is whether we need foreign parties  nosing around in Sri Lanka and maintaining fifth columns in this country at this point in time?

Previous attempts to bring in foreign judges, investigators, and prosecutors fell by the wayside due to stiff public opposition. The attempt to use the Office of Missing Persons as an entry point also failed. The provision that would have given the OMP unrestricted power to enter into agreements with foreign parties was dropped also due to public opposition. Now the government has signed this Optional Protocol to the Convention against Torture to give their foreign masters an opportunity to intervene directly in Sri Lanka, said Chandraprema.

SPECIAL PROSECUTOR

It appears that the Prime Minister Ranil Wickremasinghe  has given a personal assurance to Ben Emmerson, UN Special Rapporteur on Human Rights and Countering Terrorism, that…the Government would…set up an Office of the Special Prosecutor to bring criminal charges against those involved in the most serious atrocities committed on both sides of the conflict.  Emmerson reported this at a media conference. It was seen and heard by anyone who watched the TV news said Dayan Jayatilleke  this information was also posted on a UN website and re-posted on Groundviews, he added.

The job description of the Office of the Special Prosecutor, as contained in Ben Emmerson’s statement is “to bring criminal charges against those involved in the most serious atrocities committed on both sides of the conflict”. The wording of the written statement clearly presupposes that “serious atrocities” were committed by both sides, meaning by the Sri Lankan armed forces as well. As for “both sides”, since the Tigers are either dead, in self-exile, rehabilitated and released or (a handful) in jail, this means the only target that’s left standing is Sri Lankan military, observed Dayan.

HYBRID COURTS

The only UN  body that can institute  an international war claims tribunal against Sri Lanka is the UN Security Council. Security Council refused to do so when approached by USA in 2015. The  alternative  therefore was  to get  Sri Lanka to cooperate voluntarily with the UN to set up a hybrid war crimes tribunal. The OISL report of the UNHRC  obligingly   recommended that Sri Lanka cooperate voluntary with the UN to set up a hybrid war crimes tribunal.   There was no other  way of instituting  an inquiry except by getting it done internally, by getting the government itself to set up a war crimes inquiry, confirmed analysts.  .

With the UNHRC Resolution  30/1 of 2015 in Geneva, Sri Lanka gave an assurance that it would establish a  ‘judicial mechanism’ to try war crimes, which will include the participation of foreign judges, defence lawyers,  authorized prosecutors and investigators.  No firm decision has been taken by the Yahapalana government yet  on ‘hybrid courts’ for Sri Lanka   But there has been  vigorous discussion on the subject.

The Tamil separatists wanted the  Hybrid court. TNA MP Sumanthiran told the  US  ‘Congressional caucus for ethnic and religious freedom in Sri Lanka’ meeting  in Washington  in 2016, that a tripartite consensus has been reached, regarding ‘foreign judges, attorneys, and investigators in the Sri Lanka judicial mechanism to probe war crimes’. The tripartite  group  consisted of the government of Sri Lanka, representatives of the Tamils and a ‘core group from the UNHRC.  Global Tamil Forum’s Surendiran said they settled for a hybrid model though they had originally asked for an international inquiry. The agreement on foreign judges was not negotiable..

U.S. Senator Patrick Leahy, of the  Senate Judiciary Committee, speaking on Sri Lanka at the U.S. Senate, in June 9, 2015 strongly recommended hybrid mechanism to address post-war accountability issues in Sri Lanka. Tamara Kunanayagam reported that Human Rights Watch, an NGO closely linked to the US foreign policy elite and one of the most influential pro-interventionist lobbies, was campaigning  in 2016 that the proposed hybrid court for Sri Lanka contain a majority of international judges and an international chief prosecutor “to best insulate the court from improper political and other interference”.

There was support in Sri Lanka too for a Hybrid Court. The victims are demanding an international or hybrid system of courts in which foreign judges will be active as they are mistrustful of the efficacy of the national system of justice  said Jehan Perera.  J.C. Weliamuna, Attorney at Law, formerly head of Transparency International said   the Sri Lanka judiciary lacked the capacity to investigate system crimes.  He also said that International community could not be expected to have faith in our judiciary since we ourselves have no faith in it.

Hybrid courts are a parallel system of justice to the normal system. They are composed of both foreign and domestic judges, hearing cases prosecuted and defended by local and foreign lawyers  using both international and national law..  Hybrid courts  are generally funded, managed and run by Western countries and cater to Western interests,. They cost too much for the host country  alone. Sri Lanka  also has agreed  to accept financial assistance and its hybrid court will be also  paid for by the west, said analysts.

Hybrid courts have functioned in Kosovo, Timor Leste, Bosnia and Herzegovina, Sierra Leone, Cambodia, Burundi, and Lebanon. Sri Lanka is not comparable to any of these countries , observed critics, contemptuously. They also wanted d to know, what is the impact of having foreign investigators and judges in such a court? Are the judgments pronounced by such foreign judges more valid”, than those pronounced by Sri Lankan judges .

Hybrid courts have now lost credibility, said Kunanayagam, they have undermined the domestic judicial system, wherever they have been established. Evidence rules are lower than those in the  national legal systems and life sentences can be handed down on little evidence.

MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT, NO. 25 OF 2002.

In May 2018, the government gazetted sweeping amendments to the Mutual Assistance in Criminal Matters Act, No. 25 of 2002. The Bill was to be tabled in 26 June 2018, but this has been postponed due to a technical flaw in the draft. The bill is expected to be submitted within the next two weeks. .

The purpose of the original Act, said Chandraprema, 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.

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 Secretary to the Ministry of Justice was to be the ‘Central Authority’ for the purposes of that Act. 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.

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 amending Bill seeks to lay the country open completely too all foreign states and organizations, regarding the granting of assistance in investigations and judicial proceedings, connected with criminal matters,  observed Chandraprema.

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.

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.

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 Act No: 5 of 2018 and the passed the legislation to make International Convention for the Protection of All Persons from Enforced Disappearance operational in Sri Lanka

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.

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 also  petitioned.

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.

( continued)