JANAKI CHANDRARATNA Courtesy The Island

The international treaty known as the Vienna Convention on Diplomatic Relations of 1961 defines the code of practice for Diplomatic Missions. This treaty was based on principles of the UN Charter pertaining to the sovereignty of states, maintenance of peace and security and the promotion of friendly relations among nations.

Article 3 of the treaty explains the functions of diplomatic missions and they include to:

‘ a) Represent the sending State in the receiving State; b) Protect the interests of the sending State and its citizens in the receiving State; c) Negotiate with the govt. of the receiving State; d) Ascertain by lawful means conditions and developments in receiving State, and report thereon to the govt. of sending State; e) Promote friendly relations between the sending State and the receiving State, and develop their economic cultural and scientific relations’.

In order to fulfill the above functions, diplomatic missions are permitted to have diplomatic staff from the sending States subject to the approval of the receiving States. Diplomatic staff has diplomatic immunity from the local legal stipulations. Although Diplomatic Missions are able to supplement their staff numbers with local recruits, the diplomatic immunity provisions are not extended to local staff.

The alleged abduction case of Garnia Banister Francis, a local employee of the Swiss Embassy, is no doubt an embarrassment to both Sri Lankan and Swiss Governments and a speedy resolution is needed to avoid a potential diplomatic rift between the two countries. It is commendable that the Sri Lankan Govt. had taken timely action to inform the Swiss Mission that Garnia needed to be presented to the local legal system as per the Sri Lankan rule of law and the Vienna Convention provisions. However, a two-week delay was incurred by the Swiss Mission for Garnia to face the local Criminal Investigation Division (CID) for questioning in order to ascertain the veracity of her claims.

The said Garnia case however became murky after the preliminary investigations, as it was revealed that such an abduction had not taken place. The case became a Pandora’s box with so many unanswered questions as to why Garnia had made such claims to discredit the Sri Lankan Govt., whether anyone outside had instigated her to take this action and if so, for what purpose? The timing of the incident was also significant to the Sri Lankan Govt. as it was soon after the Presidential election, which gave a comprehensive victory to the incumbent President to run the country for the next 5 years.

There was finger pointing at several alleged stakeholders that may have had an interest in demonizing the current regime. Although the duty of care extended to Swiss Embassy employee was initially appreciated, the over enthusiasm of Embassy staff to airlift Garnia to safety to Switzerland, bypassing the local immigration processes, added an extra dimension to the case. Although the President’s observation that he does not believe in any Swiss involvement in the case did help to dowse the controversy temporarily, the potential allegation of a Swiss involvement is still fresh in the minds of Sri Lankan people. The decision of the Swiss Federal Council to send the former ambassador Jorg Frieden to Sri Lanka to resolve the controversy, perhaps because Ambassador Hanspeter Mock was too close to the incident, has given some hope for a speedy resolution. Yet the criticisms by the Swiss Federal Minister Ignazio Cassis of the Sri Lankan judicial process, in particular, the pretrial detention of Garnia despite her health conditions and the request to place her in a more conducive location such as a hospital, displays a lack of understanding of the Sri Lankan legal system. It is hoped that the Foreign Minister Gunawardena’s assurance that Sri Lanka has followed the due process in compliance with the national and international standards, and that medical investigations had cleared Garnia of any serious medical condition that necessitates her retention in a hospital, would allay the concerns of the Swiss Embassy.

It should be noted that Diplomatic Missions with many privileges are acceptable to any country, only if they comply with the Vienna treaty provisions and in particular, stay clear of local political matters. Sri Lanka has held such principled diplomatic relations for many years with hundreds of foreign nations until the last yahapalana regime. It is a well-known fact that the yahapalana regime was aided into governance in 2015 with Western support. During the yahapalana regime, the assistance of some western Diplomatic missions was actively sought to resolve political issues, in particular, during the aborted regime change in Oct. 2018. It appeared as if the govt. was incapable of dealing with the incident and the so called ‘independent’ Speaker of the House went to the extent of inviting Diplomats to witness the parliamentary meetings at the Sri Lankan Parliament premises, a feat possibly, not seen in any other sovereign State.

It stands to reason that Diplomatic Missions still believe that interference in local politics is acceptable in Sri Lanka, despite the recent change of the Presidency. They appear to have not noticed that there is a return to the ‘Rule of Law’ with the current President. The Diplomatic Missions may also not be aware of the new President’s policy of non-interference in the legal processes, and that it is difficult for local politicians to advise the judiciary on the places of detention for alleged offenders.

Sri Lankans are hopeful that the legal adjudication of Garnia case would satisfactorily resolve the Swiss diplomatic issue. It is also the hope that Diplomatic Missions would appreciate interference in local politics is not an option in Sri Lanka anymore with the current regime, if they are to enjoy the hospitality of Sri Lankan Govt., and continue with their mission roles as intended by the Vienna Convention.

JANAKI CHANDRARATNA