News Item in Island, 4 January 2019,where the title reads thus …. “BASL takes umbrage over Swiss Govt. statement”
The Bar Association of Sri Lanka yesterday took umbrage over the high handed statement issued by the Swiss government on December 30 relating to proceedings pending in the magistrates Court of Colombo over the purported abduction of one of its Colombo embassy’s local employees.
Hanspeter Mock
The text of the BASL Statement: The attention of the Bar Association of Sri Lanka has been invited to the most recent statement issued by the Government of Switzerland on 30th December 2019, pertaining to the judicial proceedings currently pending in the Magistrates Court of Colombo, involving an employee of the Swiss Embassy in Sri Lanka.
The Bar Association of Sri Lanka being the largest representative body of the Legal professionals in Sri Lanka and as a body that has been in the forefront in protecting the Rule of Law and equal application of the Law is mindful of certain material contained in the said statement which conveys a wrong and misconceived impression about the role of the judiciary in Sri Lanka and the concept of “Due Process” as referred to in such statement.
Hence, in our capacity as the largest professional body of the members at the Legal profession we believe that it is our duty to set the record straight in this instance.
Garnier Banister Francis under arrest
In this regard we would invite the attention of the Swiss Government and the Swiss Embassy in Sri Lanka and any other individual or institution which views the incident on the same footing as the makers of the above statement, to the following matters ;
1. The alleged incident of abduction is claimed to have taken place on the 25th of November 2019, 9 days after the recently concluded its Presidential Election in Sri Lanka.
2. However, according to the Reports filed in Court, no complaint was made regarding the alleged abduction of the employee of the Swiss Embassy until the 27th of November 2019.
3. It is elementary knowledge that under any criminal justice system spontaneity and consistency of a complaint is considered to be extremely vital in the assessment of the credibility of such a statement.
4. When such a complaint is made, it is imperative that the legal enforcement mechanism requires the launch of an immediate investigation. The proceedings in the Magistrates Court reflect that this requirement has been satisfied by the investigators.
5. The record bears out that, for several days, the Swiss Embassy took up the position that the employee concerned was unwell and could not make out a testimony. The word “testimony” is generally referred to evidence given in a court of Law under oath and is not referred to an instance where a person has to make a statement to the police or the investigating authorities the stage of investigations and interrogation. To this extent this term has been wrongly used.
6. The sequence of events would reflect that investigations have taken its normal pace. No ad hoc arrests have been made. The employee concerned was permitted to be free without being called upon to make a statement, for the purpose of the judicial proceedings, for a considerable period. She has been permitted legal representation at the CID. Embassy officials were permitted to be present as observers at the point of recording her statement. All material emanating from the investigations and the surfacing evidence had been placed before the Court.
7. In these circumstances, the BASL is of the view that the investigations have proceeded in this case as expected by the Law and on the basis of the normal legal norms accepted domestically and internationally.
The statement issued by the Swiss Government is a basic and a bare statement. Even though the statement makes an allegation of “Due Process” not being followed, the issuer of the statement has failed to identify, at least one single ground that has not been followed by the law enforcement officers in this instance.
“Due Process” is a concept which can be traced back to the Magna Carta of 1215. The essential requirements of the “Due Process” lay down that no person shall be arrested or produced or harassed without proper evidence or material or a charge.
8. In fact, a few weeks ago when a reference was made regarding the right of certain members of the legal profession to appear in this case on behalf of the Swiss Embassy, the BASL immediately issued a statement confirming that every person who is aggrieved or is a party to a court proceeding has a right of representation under our law.
The matter is before court and whenever a matter is sub judice, it is wrong and incorrect for statements to be made in respect of such matter before court. The statement issued by the Swiss Government dated 30th December 2019 violates this basic Rule.
Also, it is relevant to note that none of the lawyers representing the Swiss Embassy has gone down on record regarding the failure to observe due process as alleged in the statement.
In these circumstances, the Bar Association of Sri Lanka strongly condemns the statement issued by the Swiss Government where it is alleged that the “Due Process” has not been followed. We request the makers of this statement to immediately disclose the areas of “Due Process” that has not been followed in this instance. Without mentioning such specific instances, to issue a bare statement, as has been done in this instance, amounts to a serious undermining of the judiciary and the other Law enforcement agencies in Sri Lanka which are more than equipped to follow the accepted norms.
We request the Embassy to refrain from making such baseless statements and if there is any concern that they have, to bring it before the relevant forum without making ad hoc and inconsistent statements which undermines our legal system and the judiciary.
Furthermore being a responsible Nation as claimed, The Government of Switzerland should be mindful of Article 41 of the Vienna Convention which clearly states that all persons enjoying such privileges and immunities have an equal duty to respect the Laws and Regulations of the receiving State, in this instance; Sri Lanka. It is further illustrated in Article 41 that there should not be any interference in the internal affairs of the State.
It is best if the Government of Switzerland would make an attempt to understand their role in making comments about the judicial system and the Law enforcement system of a separate, independent and a sovereign State.
We strongly condemn the statement issued by the Swiss Embassy as we see that, as an attempt to undermine our core values in the judicial system which we have followed and treasured for more than 2 centuries.”
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ALSO NOTE
BBC News, 16 December 2019: “Sri Lankan worker at Swiss embassy arrested over kidnap claim,” https://www.bbc.com/news/world-asia-50815439
… all the PIX of Garnier Banister Francis on web seem to have technical barriers which block reproduction…… Volare!!
AN EMAIL COMMENT from Harsha Perera, 4 January 2020
Political aspects of the Swiss Embassy saga are also under investigation. This is after wild allegations that President Rajapaksa and his government had a hand in the Swiss saga. A highly authoritative source, who cannot be identified for obvious reasons, said yesterday, “A pattern is clearly emerging to confirm that there was indeed a conspiracy. We are sure of that. That is all I will say for the moment. More will be revealed soon.”
However, the source said that a report in the world’s prestigious New York Times (NYT) that ‘white van’ abductions have resumed after Rajapaksa was voted President was “one major piece of jigsaw” that threw more light on the matter. Though it has turned out to be fake news, the government is yet to take up issue, not even with the Ombudsman of The New York Times. A response is now being studied. The NYT will then know that the report was fake news and a handmade product of “Gotabaya haters” who want the world not only to believe them but also learn to hate the President.
They were busy during the presidential election and are now gearing themselves for the impending parliamentary polls. A cabal responsible for this ‘operation’ have fled the country preventing detectives from questioning them. It has come to light that they are now carrying out their campaign from a foreign capital by buying their way through some obliging social media, bankrupt for news and fiercely opposed to President Rajapaksa and his government. Telephone records have revealed hectic activity and identified some of those linked.
This has connected the cabal to the fleeing from the country of Chief Inspector Nishantha de Silva who has now obtained asylum in Switzerland. One of them had described the CID officer, who fled without official permission, “the Sherlock Holmes of modern Sri Lanka.” This was contained in a note prepared earlier to stop his transfer outside the CID. The note, instead, had called for his promotion. Despite Gotabaya Rajapaksa winning a 1.3 million majority votes at the presidential election, a huge public endorsement, their target remains him. “We have found that the aim is twofold — one to set the ground for the UN Human Rights Council sessions in Geneva in March where the resolution on Sri Lanka will be taken up. The other was intended to launch a campaign during the upcoming parliamentary elections that people live in fear because of the white van syndrome,” said the source.
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