{"id":116430,"date":"2021-07-23T16:11:39","date_gmt":"2021-07-23T23:11:39","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=116430"},"modified":"2021-07-23T16:11:39","modified_gmt":"2021-07-23T23:11:39","slug":"erasing-the-eelam-victory-part-20-c14","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2021\/07\/23\/erasing-the-eelam-victory-part-20-c14\/","title":{"rendered":"ERASING THE EELAM VICTORY Part 20 C14"},"content":{"rendered":"

KAMALIKA PIERIS<\/em><\/span><\/h2>\n\n\n

(Continued from C13)<\/p>\n\n\n\n

MUTUAL\nASSISTANCE IN CRIMINAL MATTERS ACT,  (2018)<\/strong> <\/p>\n\n\n\n

In May 2018, the government gazetted sweeping amendments to the\nMutual Assistance in Criminal Matters Act, No. 25 of 2002.  This amendment \nbecame Act no 24 of 2018.<\/p>\n\n\n\n

CA Chandraprema has commented at length on the Bill..The purpose\nof the original Act, said Chandraprema, was to facilitate the provision of\nmutual assistance from foreign countries in the location of witnesses or\nsuspects, the service of documents on such persons, the examination of\nwitnesses, the obtaining of evidence, the execution of requests for search and\nseizure, the temporary transfer of persons in custody to appear as a witness,\nfacilitation of the personal appearance of witnesses, the location of the\nproceeds of any criminal activity, and mutual enforcement of orders for the\nforfeiture or freezing of property, etc.<\/p>\n\n\n\n

Requests for assistance were to be made to the \u2018Central Authority\u2019\nin Sri Lanka by the appropriate authorities in the countries that come under\nthe ambit of this Act.The Secretary\nto the Ministry of Justice was to be the \u2018Central Authority\u2019 for the purposes\nof that Act. The Central Authority is also enjoined to ensure prompt action in\nrespect of all requests from abroad and to have a dedicated unit to maintain a\nproper system to manage incoming and outgoing requests.<\/p>\n\n\n\n

 The original Act applied\nonly to specified Commonwealth countries and non-Commonwealth countries which\nhave signed the relevant agreements with Sri Lanka  but the  2018 amendments extend the scope of the Act to\nall countries that have signed any international convention relating to a\ncriminal matter to which Sri Lanka has become a party.  Furthermore, while the original Act applied\nonly to States, the amendments  bring  in international organizations as well.<\/p>\n\n\n\n

The<\/em> amending\nBill seeks to lay the country completely open to all foreign states and\norganizations, when it comes to granting \nassistance in investigations and judicial proceedings, connected with\ncriminal matters,  observed Chandraprema.\n<\/p>\n\n\n\n

This Bill  also seeks to\nmake documentary evidence obtained in a foreign country admissible in a\njudicial proceeding. And to make admissible evidence led from a foreign country\nthrough video conferencing technology.<\/p>\n\n\n\n

 Another new feature in the\namending Bill is that the Central Authority in Sri Lanka (the Secretary to the\nMinistry of Justice) can authorize any other officer not below the rank of a\nSenior Assistant Secretary, to act on his behalf and the Central Authority can\nalso designate \u2018competent authorities\u2019 (which can be a law enforcement\nauthority) who will process information to requests as directed by the Central\nAuthority.<\/p>\n\n\n\n

 Requests can also be\nforwarded by electronic means directly to the relevant competent authority\nthrough the appropriate authority of a foreign country or organization. The\ncompetent authority is then obliged to immediately proceed to implement the\nrequest after forwarding a copy of the relevant request to the Central\nAuthority. <\/p>\n\n\n\n

The Central Authority and the officers holding delegated authority\nfrom him including the competent authorities are to maintain strict\nconfidentiality with regard to requests made under this Act. If confidentiality\ncannot be upheld, the appropriate authority of a specified country or specified\norganization will be informed and this foreign body will then determine whether\nthe request should nevertheless be executed. <\/p>\n\n\n\n

Any person who fails to comply with this confidentiality\nrequirement commits an offence and the High Court of the Province can impose a\nfine on that person ranging from a minimum of Rs. 100,000 to a maximum of Rs. 5\nmillion. The Right to Information law will therefore, not apply to anything\ndone under this amended Act. <\/p>\n\n\n\n

These sweeping amendments to the 2002 Mutual Assistance in\nCriminal Matters Act are being brought in a specific context. This government\nhas already established the Office of Missing Persons Act No: 5 of 2018 and Protection\nof All Persons from Enforced Disappearances Act. <\/p>\n\n\n\n

It is in that context that we have to view the changes\ncontemplated to the Mutual Assistance in Criminal Matters Act, No. 25 of 2002.\nOn the one hand the number of foreign countries coming within the ambit of the\noriginal Act has been expanded to include every country that is a party to an\ninternational Convention relating to mutual assistance in criminal matters, to\nwhich Sri Lanka has become a party – which automatically includes the countries\nin the  International Convention for the\nPrevention of Enforced Disappearances. <\/p>\n\n\n\n

Furthermore, the amendment will make the Mutual Assistance in\nCriminal Matters Act, applicable to organizations associated with combating\ninternational crime as well  and this\nwill automatically  take Sri Lanka to the\nInternational Criminal Court.<\/p>\n\n\n\n

The  actions stipulated in  the International Convention for the\nPrevention of Enforced Disappearances cannot \nbe implemented without the facilities that are created through the\nproposed amendment to the Mutual Assistance in Criminal Matters Act, No. 25 of\n2002. <\/p>\n\n\n\n

In view of the dangers posed by this proposed amendment to the\n2002 Mutual Assistance in Criminal Matters Act, several petitioners including\nAdmiral Sarath Weerasekera and Ven. Maduruoye\nDhammissara ,went before the Supreme Court asking for a determination that the\nBill before Parliament was unconstitutional. <\/p>\n\n\n\n

 One of the provisions in\nthe proposed amendment which engaged the attention of the Supreme Court was\nClause 5(3) which stipulated that when requests are forwarded by foreign\nnations or organizations by electronic means directly to the relevant competent\nauthority, the latter is mandatorily required to immediately proceed to\nimplement the request. (The word used was \u2018shall; which denotes a mandatory\nrequirement). <\/p>\n\n\n\n

The Supreme Court observed that Section 6 of the original Act of\n2002 obliges the Central Authority to refuse a request if it violates the\nConstitution, but that no such restrictions have been put in place to regulate\nthe conduct of the Competent Authority who is to be appointed by the Central\nAuthority under the terms of the proposed amendment. <\/p>\n\n\n\n

The SC observed that this omission carries significant\nconstitutional implications because Clause 5 (3) of the Bill makes it mandatory\nfor the Competent Authority to directly receive and immediately proceed to\nimplement requests from overseas and furthermore, this is given further impetus\nby Clause 5 (4) of the Bill which only requires the Competent Authority to\ninform the Central Authority by forwarding a copy of the relevant request\nbefore he responds to it. Therefore, the SC determined that Clause 5(3) is\ninconsistent with Article 12 (1) of the Constitution which guarantees that all\npersons are equal before the law and are entitled to the equal protection of\nthe law. The SC held that it is imperative that the Competent Authority have\nthe power under Section 6 of the original Act to refuse a request. This would\nenable both the Competent Authority and the Central Authority to filter\nrequests. <\/p>\n\n\n\n

The SC also made a reference to Clause 5B in the proposed\namendment which went as follows: “Nothing in this Act shall prevent the\nCentral Authority from directing a competent authority to spontaneously\ntransmit the information requested relating to a criminal matter to an\nappropriate authority of a specified country or specified organization on the\nassurance of reciprocity and on such conditions as may be necessary for the\npurposes of confidentiality.” <\/p>\n\n\n\n

In this regard, the SC held that to the extent that clause 5B sets\nan exception to the normal process, there must be a corresponding justification\nor a circumstance which warrants the invocation of clause 5B. The clause in its\npresent form permits digression from the normal process in an ad hoc manner and\nthereby violates Article 12 (1) of the Constitution. The SC stated that if\nClause 5B is amended reserving it as a response to exigencies, this\ninconsistency would cease to exist. <\/p>\n\n\n\n

The question that we have to ask ourselves is where we stand now\nafter the Supreme Court determination on the Bill to amend the Mutual\nAssistance in Criminal Matters Act, No. 25 of 2002.  With the SC determination on the proposed\namendment to the Mutual Assistance in Criminal Matters Act, No. 25 of 2002\nwhich will enable it to be passed with suitable amendments, we see that the Yahapalana\ngovernment\u2019s war crimes project is now ready for take-off.<\/p>\n\n\n\n

 If there was opposition to\nhaving foreign judges to hear war crimes cases, that problem has been solved by\nhaving a mechanism whereby members of the armed forces can be tried overseas\nand even if the person concerned is living in Sri Lanka where he can be\nrequested by a foreign country to stand trial in that country. The only way to\nprevent what the government has been angling for is through political action\nconcluded Chandraprema.  ( end of Section\n20C  , series continues)<\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[104],"tags":[],"class_list":["post-116430","post","type-post","status-publish","format-standard","hentry","category-kamalika-pieris"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/116430","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=116430"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/116430\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=116430"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=116430"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=116430"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}