Columns

• 21-member commission to be set up with wide investigative powers; President to appoint chairperson
• Anti-Corruption Bill to be presented in parliament this month, President says it’s the toughest in South Asia; State sector and media personnel will need to declare assets
• Anti-Terrorism Bill delayed amid strong protests from opposition parties and human rights groups

By Our Political Editor

The purpose is to set up a Commission comprising 21 Sri Lankans. They will “represent the pluralistic nature of Sri Lanka, including gender.” Last week, the Cabinet of Ministers approved a concept paper for this purpose. Now, the Legal Draftsman has been called upon to draft legislation based on it.

This concept paper has also been circulated by the Government among key stakeholders in the ethnic reconciliation process. It notes that “all members shall be persons of integrity and credibility appointed on the basis of their knowledge of, or practical experience in, disciplines relating to law, human rights, humanitarian law, history, social sciences, psychology post-conflict and reconciliation studies and/or investigation and may possess other qualifications relevant to the carrying out of functions of the Commission.”

Members will hold office for three years and will be appointed by the President. The Constitutional Council (CC) will recommend three members of the Commission. The President will appoint one of them as Chairperson. The CC and at least three other members will be appointed on a full-time basis. Within three months of the start of the sittings, the Commission will appoint a member among themselves as the “Information Officer” in terms of the Right to Information Act.

Several elements of South Africa’s Truth and Reconciliation Commission have been factored into the proposed law. Originally, they were embodied in a draft law formulated in 2018 when Ranil Wickremesinghe was Prime Minister. It, however, was not presented in Parliament. Last month, Justice and Constitutional Reforms Minister Wijeyadasa Rajapakshe and Foreign Minister Ali Sabry were in South Africa to study the prevailing system. According to a diplomatic source, the two Sri Lankan ministers were told that unless they view the Commission from “the victim’s perspective” it would not be acceptable to them and therefore to the wider audience including the international community. They argue that accountability and scrutiny from the UN Human Rights Council in addition to support from South Africa would then become difficult. The key stakeholders are yet to react formally to the Government move. In a development related to human rights, a serious crisis is brewing in the Human Rights Commission of Sri Lanka. A formidable group has sought an urgent meeting with President Wickremesinghe to protest against what they call “arbitrary actions” of the chairman. They have formulated a dossier to be handed over to him. It lists several serious irregularities. A source close to the Chairman, claimed there was no misdemeanor.

Government doctors and other members of the Professionals' Trade Union Alliance adding their voice to the call to eliminate corruption in government

President Wickremesinghe declared recently that the economic crisis could not be separated from the ethnic issue. He underscored the importance of adopting both legislative and other measures without delay to resolve it. President Wickremesinghe had an interesting quip that prompted laughter among participants at a top-level conference attended among others by security officials. It came when Foreign Minister Ali Sabry told them that a member of the Lok Sabha in New Delhi had protested over an Army soldier carrying a small statue of Lord Buddha to the recently concluded festival of St Anthony in the northern Kachchativu Island. It is in Palk Strait, the seas that divide Sri Lanka and India.  “Why should anyone in India protest?” the President asked pointing out that “Lord Buddha was one of the greatest noble sons of India.”

The Commission is to be considered an autonomous institution not subject to the control or direction of any person or authority. However, it will report to Parliament and will be subjected to the jurisdiction of the Court of Appeal or the Supreme Court in accordance with provisions of the Constitution.

OBJECTIVES AND MANDATE OF THE NATIONAL UNITY AND RECONCILIATION COMMISSION OF SRI LANKA:

i.     During, or reasonably connected to, or consequent to the conflict; or

ii.   In connection with political unrest or civil disturbances in Sri Lanka; or

iii.  Where such damage and/or harm being prolonged and grave damage and/or harm suffered by individuals, groups or communities or people of Sri Lanka

“Conflict” means the conflict that took place on or after July 24, 1983, and prior to May 18, 2009. Though not elaborated upon, this is the period of the separatist insurgency by the Liberation Tigers of Tamil Eelam (LTTE) and other armed separatist groups who waged a guerrilla war.  The mandate of the Commission or one of its panels will be the following:

• The promotion of national unity, peace, rule of law, co-existence, equality with tolerance and respect for diversity, and reconciliation among the people of Sri Lanka, by establishing a truthful, accurate, impartial, complete record of the alleged damage and/or harm caused to persons or property (in the conflict)
• Investigation and making recommendations in respect of the causes of the alleged damage and/or harm caused to persons or property referred to in (the conflict) hereof to the fullest degree possible, in the interest of prevention of the future occurrence or thereof;
• Helping restore the dignity of aggrieved persons by providing an opportunity for them to give an account of the alleged damage and/or harm caused to persons and/or property referred to (in the conflict), giving special attention to the experiences of women, children and persons with disability.
• Providing the people of Sri Lanka with a platform and opportunity for truth-telling and relating their narratives, including positive experiences, and providing them with the necessary protection.

• Recommending ways and means of effective remedies for aggrieved persons and diverse reparation measures in respect of them, including by the referral of matters to the Office for Reparations established under the Office for Reparations Act No 34 of 2018.
• Making recommendations about institutional administrative and legislative policy and resource allocation measures that should be taken or introduced to prevent and ensure non-recurrence of the alleged damage and/or harm caused to persons or property referred to (the conflict) and to promote reconciliation.

• Compiling a report providing as comprehensive an account of the activities, investigations and recommendations of the Commission, including

(a)   Recording positive experiences of aggrieved persons and the

(b)   potential to use them towards non-recurrence of alleged damage and/or harm caused to persons or property referred to (the conflict).

(c)   General recommendations on measures to prevent the future occurrence of the alleged damage and or/harm caused to persons or property referred to in (the conflict), and to include therein recommendations on promotion of reconciliation, co-existence among diverse communities, good governance, justice, respect for the rule of law and combatting impunity;

(d)   The Commission’s investigations and recommendations in respect of allegations of denial of economic, social, cultural, including language rights and/or making recommendations on how to address such issues.

Subject to the provisions of (the conflict), the Commission’s or a panel of the Commission’s mandate shall include but shall not be limited to the following:

i      Investigation and making recommendations in respect of the allegations of damage and/or harm caused to persons or property referred to in (conflict)

ii.         To make recommendations regarding the non-recurrence of, and addressing the root causes for

a.    The alleged damage and/or harm caused to persons or property referred to (conflict)

b.    The emergence of the conflict in the Northern and Eastern Provinces

c.    Political unrest and civil disturbances in Sri Lanka.

Among the powers, duties and functions of the National Unity and Reconciliation Commission of Sri Lanka, according to the 31-page concept paper are:

• To refer matters to the relevant law enforcement or prosecuting authorities of Sri Lanka for further investigation, where it appears to the Commission that an offence or offences punishable under the Penal Code or any other law of Sri Lanka has been committed, subject to the provisions of Section 13 thereof.
• To obtain assistance from the government of Sri Lanka to secure co-operation from authorities of foreign states in terms of the Mutual Legal Assistance in Criminal Matters Act No 25 of 2002 to access information available overseas.
• The Commission may seek assistance from community leaders and organisations to facilitate its public sessions and in resolving local conflicts in support of reconciliation and non-recurrence as the Commission may deem necessary.

The proposed law will make clear that the Commission’s recommendations shall not be deemed to be a determination of civil or criminal liability of any persons. Among other matters, some of the specific areas the Commission will make recommendations include are: the root causes of the alleged damage and/or harm caused to persons or property, addressing issues relating to women and children, child soldiers, their recovery and integration and recommendations for legal, political, socio-economic, including, in particular education, health, cultural, administrative and institutional reforms deemed necessary for non-recurrence.

In promoting the new laws, the concept paper has noted: “And whereas a truth-seeking mechanism, anchored in the right of all Sri Lankans to know the truth as an integral part of their right, will contribute to the promotion of national unity, peace, rule of law, co-existence, equality with tolerance and respect for diversity, and reconciliation among the people of Sri Lanka and non-recurrence for

the wellbeing and security of all Sri Lankans including future generations; And whereas achieving the goals of Democratic Socialist Republic of Sri Lanka, and having solemnly resolved to constitute Sri Lanka into a Democratic Socialist Republic whilst ratifying the immutable republican principles of representative democracy and assuring all peoples freedom, equality, justice, fundamental human rights as the intangible heritage that guarantees the dignity and wellbeing of succeeding generations of the People of Sri Lanka, a National Policy of advancement of National Unity and Reconciliation furthers the State’s assurance to all Peoples of Sri Lanka FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS and the INDEPENDENCE OF THE JUDICIARY recognised under the Constitution.”

Tough new anti-corruption law

Another significant development is the Government’s plans to introduce tough new Anti-Corruption laws in Parliament later this month. It was only days earlier President Wickremesinghe dubbed this legislation as the toughest in South Asia.

Already gazetted is the draft Anti-Corruption Bill running into 150 pages. New provisions in this will enable the Commission to Investigate Allegations of Bribery or Corruption (CIABOC), which is being re-modelled, to probe complaints ex moro motu or on their own accord. At present, the CIABOC is restricted to entertain complaints. Other new provisions include the receipt of information by the Commission of an inquiry-based on any other material received by it.

A major highlight in the proposed new law is the inclusion of a draft Part II on the Declaration of Assets and Liabilities. It will have a four-fold objective:

• Compel all public officials to make periodic declarations of their assets and liabilities within and outside Sri Lanka.
• Provide a centralised electronic system for the submission of such declarations.
• Provide for reference to be made to such declarations by appropriate authorities and for investigations to be conducted, upon the receipt of any information against a person to whom this provision applies.
• Provide for appropriate measures to be taken in respect of late submissions and non-declaration of assets and liabilities, and for furnishing false declarations
• Prevent illicit enrichment and conflicts of interest arising in the discharge of public functions or official activities, through public scrutiny.

Here are the categories that are required to make a declaration of their assets and liabilities:

State sector: the President, the Prime Minister, Members of Parliament, Governors of Provinces, Members of Provincial Councils and staff officers of the Provincial Public Service, elected members and staff officers of local authorities, Judges and public officers appointed by the President, Public Officers appointed by the Cabinet of Ministers, Judicial Officers and scheduled public officers appointed by the Judicial Service Commission, Members of the Constitutional Council appointed in terms of Article 41A(1)C of the Constitution, persons appointed as Chairmen or members as the case may be of any of the Commissions specified in the Schedule to Article 41B of the Constitution;

staff officers of the Central Bank of Sri Lanka, staff officers of the Independent Commissions of Sri Lanka established under Article 41A (1) of the Constitution or under any Statute, Chairpersons, Commissioners, members and staff officers of independent regulatory and supervisory Commission or bodies established by or under any Statute; Chairmen, Directors, members of the Boards and executive officers of any public corporation established by or under any Statute; Private staff Members of Parliament, Members of Provincial Councils and members of local authorities; Officers of the Sri Lanka Army raised and maintained in accordance with provisions of the Army Act (Chapter 357); Heads of Sri Lanka Diplomatic Missions; Officers appointed by the Cabinet of Ministers to Sri Lanka diplomatic missions.

MEDIA: Proprietors, editors and members of the editorial staff of newspapers in receipt of which declarations have been made under Section 2 of the Newspaper Ordinance (Chapter 180); Proprietors, editors, and members of the editorial staff of media companies licensed under section 17 the Sri Lanka Telecommunications Act, No 25 of 1991; and such categories of other officers as may be prescribed by regulations taking into consideration the vulnerability of such officers to bribery or corruption having regard to the nature of the work they perform in their respective offices.

Every person required to declare their assets or liabilities, the draft law specifies, will be required to also declare the assets and liabilities of their spouses, the assets and liabilities of each of his dependent children irrespective of their age and the assets and liabilities of any other person’s dependent on them irrespective of their age. Such declarations are required to be made within six months of the new law taking effect and annually thereafter.

Legal provision has been made in the proposed Anti-Corruption law for wiretaps and surveillance among other matters. These provisions state:

55. (1) The Commission may, in an investigation under section 42 of this Act, use any investigation technique including the following:- (a) authorize a person who has reported to the Commission of a demand for a bribe, to directly or indirectly, give or receive it as demanded; (b) surveillance and observation; (c) undercover operations; (d) video recording; or (e) using, listening and bugging devices.

(2) The Commission shall ex parte obtain an order from the High Court for the purposes of paragraphs (d) and (e) of subsection (1). Confidentiality in respect of any application made to the High Court shall be maintained and the proceedings pertaining to the same shall be held in-camera.

56. The Commission shall by way of rules specify the criteria for the protection and preservation of information received or collected by the Commission by way of a data message, electronic document, electronic record or other communication in electronic form.

The Commission may require any telecommunication, satellite, digital service or data service provider, to provide– (a) information pertaining to services provided or being provided by such service provider to any person; (b) information pertaining to services enjoyed by any person to whom such services have been made available; (c) any information, data or document or record that may be stored, archived or otherwise kept, by such service provider; and

(d) information pertaining to the uploading or downloading of data or information, to or from any instrument through the service provided by such service provider, where in the opinion of the Commission such information may be of use in the investigations conducted on any act which may amount to an offence under this Act.

Obtaining information from service providers:

(1) An authorised officer of the Commission may apply in writing to the High Court for a warrant authorising the covert monitoring of any conduct and recording of any communication if such officer has reasonable grounds to suspect or believe that a person has committed, is committing or is about to commit an offence under this Act.

A High Court Judge may, upon receiving a written application under subsection (1), issue a warrant after being satisfied that there are reasonable grounds for such suspicion or belief to authorise the covert monitoring and recording, by any means, of the conduct and communications, including telecommunications, of the person. Confidentiality in respect of any application made to the High Court shall be maintained and the proceedings pertaining to the same shall be held ex parte and in-camera.

A warrant issued under this section may be renewed by further application made in that behalf by the authorised officer.  A warrant issued under this section may authorise any officer-

(a)   to overtly or covertly enter or, in the case of a renewed warrant, re-enter any place specified in the warrant, by force if necessary, for the purpose of executing the warrant; and (b) in the case of a renewed warrant, to continue monitoring and recording pursuant to the original warrant.

If the circumstances are such that a written application under subsection (1) is not reasonably practicable, an oral application may be made.

Controversial Anti-Terrorism Bill

The government also gazetted an Anti-Terrorism Bill with the intention of presenting it in Parliament. However, in the wake of strong opposition to many of its provisions, Justice and Constitutional Reforms Minister Wijeyadasa Rajapakshe declared it would be delayed. Civil society groups and opposition party members point out that the provisions in the proposed law contained clauses which were stronger than the existing controversial Prevention of Terrorism Act (PTA). There is also criticism from some international groups.

As the National New Year draws near, the holiday mood has set in. When that is over, one of the priorities for the Government will be the passage of the new anti-corruption law. The International Monetary Fund has already committed an initial amount from its Extended Fund Facility to Sri Lanka and has emphasised that measures to tackle bribery and corruption should be stringently followed. A government source said yesterday that once the new laws become effective, staffing at the highest levels of the re-modelled Commission to Investigate Allegations of Bribery or Corruption would be changed. There would be a team of resolute staff, a source said.