By C. A. Chandraprema Courtesy The Island

In May this year, the government gazetted sweeping amendments to the Mutual Assistance in Criminal Matters Act, No. 25 of 2002. 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 purpose of the original Act 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.

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

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 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.

The context

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 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. 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 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.

Changes made by the Supreme Court

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 represented by Sanjeewa Jayawardena PC. 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.