ERASING THE EELAM VICTORY Part 20 C14
Posted on July 23rd, 2021

KAMALIKA PIERIS

(Continued from C13)

MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT,  (2018)

In May 2018, the government gazetted sweeping amendments to the Mutual Assistance in Criminal Matters Act, No. 25 of 2002.  This amendment  became Act no 24 of 2018.

CA Chandraprema has commented at length on the Bill..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  2018 amendments 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  bring  in international organizations as well.

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

This Bill  also seeks to make documentary evidence obtained in a foreign country admissible in a judicial proceeding. And 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 Protection of All Persons from Enforced Disappearances Act.

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 countries in the  International Convention for the Prevention of Enforced Disappearances.

Furthermore, the amendment will make the Mutual Assistance in Criminal Matters Act, applicable to organizations associated with combating international crime as well  and this will automatically  take Sri Lanka to the International Criminal Court.

The  actions stipulated in  the International Convention for the Prevention of Enforced Disappearances cannot  be implemented without the facilities that are created through 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 and Ven. Maduruoye Dhammissara ,went before the Supreme Court asking for a determination that the Bill before Parliament was unconstitutional.

 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 organizations 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.  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 concluded Chandraprema.  ( end of Section 20C  , series continues)

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