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Swiss wanted all issues to be concluded on December 16

Ambassador Hanspatrick Mock goes to Bern for consultations

EU envoys back Swiss appeals

 Accusations of bias against local media

The Bern government, the Sunday Times learnt, issued a virtual ultimatum last week urging Colombo to ensure all matters in the case of Garnier Banister Francis, their Assistant Migration Officer, be completed on December 16. This was with the case being taken up in the Colombo Chief Magistrate’s Court that day. In other words, the Swiss government expected the matter to end there and the ding-dong controversy brought to a halt. It did not work that way.

Chief Magistrate Lanka Jayaratne last Monday ordered that the Swiss Embassy’s local staffer be remanded until December 30. This came after instructions to the Criminal Investigation Department (CID) by Attorney General Dappula de Livera to arrest her and produce her in courts. This was for allegedly fabricating statements. Her first version was communicated to her boss, Ambassador Hanspatrick Mock. He gave Foreign Secretary Ravinath Aryasinha a text of that sketchy version. Later the envoy’s deputy Raoul Imbach made a statement to the CID when investigations began.

Without disclosing her name and identifying her only as “V” (meaning the Victim), deputy Imbach said that the alleged abduction in a white Toyota Corolla van took place outside St Bridget’s Convent between 5 and 6 p.m. on November 25. This was when she was returning from a Parent-Teachers’ Association meeting. However, the version given to the CID by Banister Francis was totally different. She had alleged that the abduction took place from an apartment at Palmyrah Avenue in Kollupitiya. She had gone there to assist a teacher at St Bridget’s Convent to help her obtain visa to Switzerland – if true, a highly irregular practice for any staffer working for a diplomatic mission in Sri Lanka, but that’s an internal matter for the Swiss embassy to go into.

As the officially designated Assistant Migration Officer, she was dealing with visa and asylum applications together with her Migration Officer, a Swiss lady. In her official capacity, she was privy to sensitive information on those who have obtained asylum as well as those who sought visas among related matters. This included the case of Chief Inspector Nishantha de Silva, head of the organised crimes division of the CID. He has now obtained asylum in Switzerland.

She had alleged that she was sexually abused and assaulted at the teacher’s apartment by unknown men according to what she told the CID. She had not complained to the Police because the unidentified persons had warned that her family members would be killed. One of these men had also pointed a pistol at her, she has alleged. This is in marked contrast. Either in her first statement to her bosses or the later one to the CID there was no reference to the purported abductors thrusting a pistol in her mouth. The charge was made by former Health Minister Rajitha Senaratne.

The Swiss Embassy local employee being brought to Courts on Monday. Pic by Lahiru Harshana

The first account she gave her Ambassador and later confirmed by his deputy, Imbach, runs completely against her version to the CID. She has told CID that she went to the apartment of a teacher at St Bridget’s Convent at 3 p.m. on November 25. However, she has claimed that the incident occurred just after 5 p.m. Surveillance camera footage in the vicinity had revealed that she had left the apartment by that time. An Uber taxi in which she claimed she travelled had no records of that journey. The CID had also found evidence to confirm she has told neighbours around the apartment she lived in Maligakanda that she and her family were leaving home since they were going abroad. Similarly, there have been many other statements that were contradictory leaving the CID and the Attorney General’s Department to conclude that she had fabricated the incident. Exacerbating the situation, they confirmed, was the fact that she was in a physically and mentally fit and proper condition. She was, however, in a confused state at times, said one source.

From Monday, she remains in the “Y” Ward of the Remand Prison at Welikade. This ward also houses a number of female drugs suspects whose cases are pending in courts. This came amidst reports that alleged she was found in possession of a sim card and a mobile phone. Prison sources said that the matter was now being investigated. Meals for Banister Francis were being delivered from outside. It has remained a common practice for prisoners and remand prisoners to smuggle in telephones into prisons by bribing their way through. A group of European envoys, a diplomatic source in Colombo said, urged Foreign Relations Minister Dinesh Gunawardena on Friday to provide her with “reasonably better” facilities in the remand cell. He has replied that it was possible to do so if her counsel made a formal request – a procedure that is usually followed.

EU envoys meet Dinesh

The EU envoys meeting with Minister Gunawardena had been fixed before the Swiss saga began. They raised issue after a number of other subjects were discussed. The envoys took up the same position as the Swiss government that “due process” should be followed. They asked that Banister Francis be “properly protected.” The EU envoys also complained that the local media were “biased” and “one sided.” Ironically, the champions of free media urged that the government act. Gunawardena had replied that the media in Sri Lanka “were free” and the government had no role to play in what they do, the same source said.

There was heartburn in the Swiss capital when they learnt that their virtual ultimatum had not been heeded by Sri Lanka. According to Colombo-based diplomats who are privy to the Swiss embassy saga, Bern entertained serious suspicions that someone staged the so-called abduction though the sequence of events could be different. Until persistent denials, even the CID was not spared. This is on the assumption that the alleged abduction centres on Chief Inspector Nishantha de Silva of the CID.  The CID denied such accusations. Another suspicion is whether an outside party staged it with the intention of placing both President Gotabaya Rajapaksa and the government in an awkward position. In Colombo, the latter position has gained more substance as the investigations continue. It has come to light that an outside party who had allegedly colluded with the CID, has fled the country with his family. That a second person connected to the investigations, after CI de Silva, has flown away has angered the government leaders.

Herein lay a serious issue. The CID is being seen in very poor light by western countries in particular. The tragic irony is that the new government is in accord, but for very different reasons. In the recent years, this elite organisation of the Police department has been politicised to such a degree it has lost its credibility and reputation. In the past four and half years, the CID was handling a part of the so-called high-profile cases. In reality it was against the ruling party’s opponents.

These were the ‘plum’ cases whilst others were with the now disbanded Financial Crimes Investigation Division (FCID). Then came the incidents on April 21 Easter Sunday. No significant indictments have been made of those responsible. The CID head, senior DIG Ravi Seneviratne said publicly that the Islamic terror group IS was not involved. Elsewhere, it is widely known that IS was indeed involved. So much so, both President Gotabaya Rajapaksa and Indian Prime Minister, Narendra Modi concurred on this. This is why India extended US$ 50 million to fight IS backed terrorism together with associated groups.

Either agreed before or otherwise, the statements made by Banister Francis relate entirely to her two claims, one to her Ambassador and the other to the CID, only over the alleged incident. It is facts arising from this purported incident that the CID has been reporting to the Chief Magistrate’s Court. Being a Sri Lankan citizen, she does not enjoy any diplomatic immunity. Like all other citizens, during a Police inquiry where they are required to make a statement, they would have to sign it to affirm its authenticity. There is a paradoxical situation here.

Perhaps mindful of any undertaking given, or on their own volition to avoid accusations, CID detectives appear not to have dealt with the CI de Silva affaire during the interrogation – the sole cause why Bannister Francis claims she was purportedly molested sexually and assaulted. If the CID did so, answers to some questions would have surfaced. However, the CID complained “she was not co-operating.” That would have included details like for how long CI de Silva has the asylum application remained under consideration, who were the parties helping him and the telephone details that are linked. She has told investigators that her mobile phone was with the embassy. Of course, this is not to suggest that she has to violate confidentiality to which she is sworn into by her employers. This is only to make clear how knotty the issue has become for the investigators.

Of course, this is an area where the government too is disillusioned with the CID. It had in the past four years remained the striking arm of those in power before. A senior government leader, who did not wish to be named, remarked, “How come Chief Inspector Nishantha de Silva could leave Sri Lanka without a single person in the CID knowing about it?” The remarks came as the government is looking for a top Police officer to head the CID. The present incumbent, senior DIG Ravi Seneviratne, who is on a year’s extension of service, is due to retire this month. It was the Mahinda Rajapaksa administration that appointed him as head of the CID. This was after he finished a controversial stint as an Intelligence Officer at the Sri Lanka Embassy in Bangkok.

The role of the CID has also been one of the bones of contention between Bern and Colombo when efforts were being made to urge the local staffer to make a statement. After protracted discussion, it was agreed that the local lawyer representing the embassy staffer would be near when her statement was being recorded. In addition, two embassy staffers were also allowed to sit at a distance. They were able to see the statement being recorded but were not within hearing distance. The government agreed to these moves to obviate any complaints of the absence of transparency or complaints of impropriety.

Bern was angry that its request for the issue to be ended on December 16 did not materialise. The same day, it issued a strongly worded statement. The gravamen of the statement made clear that Bern did not have confidence in the Government of Sri Lanka over the way the ongoing inquiry has been handled. First to the full text of the statement issued by the Federal Department of Foreign Affairs (FDFA):

“An employee of the Swiss Embassy in Colombo has today been detained on the grounds that she allegedly made false statements. The FDFA is concerned about this development and calls on the Sri Lankan judicial authorities to ensure better protection of its employee’s personal rights in any further proceedings and compliance with national law and international standards. The FDFA and the Swiss Embassy in Colombo will continue to meet their responsibilities as an employer and do everything in their power to assist the member of staff concerned.

“On 25 November 2019, the local employee of the Swiss Embassy reported that she had been abducted in Colombo to force her to disclose embassy-related information. Both the victim and the Swiss embassy cooperated fully with the Sri Lankan authorities during the proceedings. The FDFA has repeatedly called for due process to be followed. In particular, the FDFA has criticised the 30-hour interrogation to which the employee was subjected over three days despite being in poor health and the public statements by senior Sri Lankan officials questioning her account before the investigations had been completed.

“Following the arrest of its employee, the FDFA expects the Sri Lankan law enforcement authorities to comply with national law and international judicial standards and to ensure that the employee’s rights are now better protected. As an employer, the FDFA calls on the Sri Lankan authorities to meet their obligations under applicable law and give due consideration to the employee’s poor state of health. Switzerland wishes to emphasise that in this high-profile case Sri Lanka’s reputation as a country that upholds the rule of law is at stake. The FDFA and the Swiss Embassy in Colombo will continue to support their employee as far as possible.

“The FDFA has reiterated to the Sri Lankan authorities that it is seeking a common and constructive way forward to resolve the security incident. On 16 December 2019, the Swiss ambassador in Colombo emphasised this again in a face-to-face meeting with Sri Lanka’s President Gotabaya Rajapaksa.”

Contestable issues in statement

The statement contains contestable issues as well as assertions that are correct. The assertion that “the FDFA has criticised the 30-hour interrogation to which the employee was subjected over three days despite being in poor health and the public statements by senior Sri Lankan officials questioning her account before the investigations had been completed” , is highly contentious. In other words, Bern, which is 8114.31 kilometres (or 5042 miles) from Colombo, does not believe in what the Government of Sri Lanka is saying. Banister Francis has been examined by qualified Sri Lankan doctors, psychiatrists and medical institutions which have pronounced her fit. This is in compliance with national laws. As for international laws, the practice has remained over decades. Therefore, how can Sri Lanka’s reputation as a country that “upholds the rule of law” be at stake going by only the current episode? This is particularly in the case of recording a statement from Banister Francis?

On the other hand, what Bern said about officials making public statements on the outcome of an investigation before it was concluded is correct. More than anything else, it brings the country into disrepute. This is also often resorted to by some politicians who do not realise the far-reaching consequences. “When a high- profile investigation begins, we look at newspapers to see what important people would say. We find the answers in the remarks they make,” said a western diplomat who did not wish to be identified. He added, “You don’t say it on matters where your own people have to be informed.” In this particular instance, the remarks by the official had created the impression in Bern that he was orchestrating the investigations and at the same time giving his views, said the diplomat.

Ambassador Hanspatrick Mock did meet President Gotabaya Rajapaksa last Monday. The President told newspaper editors and electronic media channel heads the next day that he had told Ambassador Mock that their staffer’s complaint about an abduction was false. He said he thanked the Embassy for the co-operation it had extended to the investigators. He said he had briefed the Swiss envoy of the progress of the inquiry and the technical evidence which proved there had never been an incident. Envoy Mock also met Attorney General Dappula de Livera last Tuesday to caution that “Sri Lanka’s reputation as a country that upholds the rule of law was at stake.”

In an official statement, among other matters, the Presidential Secretariat also said that; “ ’We wish to work together for the benefit of both countries. Also, we need to overcome this situation of tension and to remove any misunderstanding,’ the Swiss Ambassador said.

“In response President Rajapaksa explained to the Ambassador the progress of investigations into the incident so far. ‘It is very well established by now that the alleged abduction is a total fabrication. Irrefutable evidence such as Uber reports, telephone conversations and CCTV footages point to this fact. The Embassy official must have been compelled by some interested parties to bring myself and my government into disrepute. It is not clear why the alleged victims acted in such a manner,’ the President observed. President Rajapaksa said that he saw no wrong in the initial reaction by the Swiss Embassy when this incident was first reported. ‘It is justifiable. If a member of its staff is in trouble, the Embassy has to intervene”. President requested the Ambassador to cooperate with the government.’

“‘We wish to work together for the benefit of both countries. Also, we need to overcome this situation of tension and to remove any misunderstanding,’ the Swiss Ambassador said,” according to the statement.

In this aftermath, a leading opposition politician contacted Ambassador Mock to obtain details of what has been going on. In fact, some leading members of his side have been making public remarks against the government over the incident. The Swiss envoy, told the politician that his Foreign Ministry had given him strict instructions not to speak to anyone over the alleged abduction incident and related matters.

A subsequent development has made Foreign Relations Ministry officials to believe the Swiss were now looking at “de-escalating” the issue though there are several serious aspects to be looked at. On Wednesday night at 8 p.m. (local time) Foreign Relations Minister Dinesh Gunawardena told his Swiss counterpart, Federal Councillor (foreign minister equivalent) Ignazio Cassis that every citizen of Sri Lanka would have to follow the country’s laws. He said that the procedure adopted for the recording of a statement was transparent. The Police would have to report more facts to the Chief Magistrate’s Court on December 30. He said that the government would have to allow the law to take its course. Another issue raised was Bern’s concern over what it calls “high level” media reports. The Foreign Relations Minister was to explain that in any part of the world, media could not be restricted by a democratic government to follow its own line.

Chancellor Cassis, who is now keen to resolve issues before Christmas Day, told Minister Gunawardena that former Ambassador Jorg Frieden would visit Sri Lanka. A Federal Foreign Office statement said, “under the lead of this experienced diplomat, possibilities for clarifying the security incident (as the Swiss call it) …” Friedman and Ambassador Mock met Foreign Relations Minister Gunawardena on Thursday evening. Accompanying Friedman to Colombo was another foreign office official. This is whilst Ambassador Hanspatrick Mock has left for Bern for consultations.

The Federal Foreign Affairs Department noted in a statement that “…. The security incident has severely affected the health of the local staff member of the Swiss embassy in question. In its capacity as an employer, the FDFA prioritises the health and safety of all its staff. To this end, Mr Cassis noted that the Sri Lankan authorities are responsible for ensuring that the health and safety of FDFA staff are protected, which includes the embassy employee involved in the current proceedings.

“Cassis also expressed his regret at the decision by the examining magistrate to place the local employee concerned in pre-trial detention, where the conditions do not take into account her state of health in any way. He therefore asked Mr Gunawardena to transfer her to a more appropriate location, such as a hospital, on humanitarian grounds. Switzerland considers the Sri Lankan authorities to be responsible for the health and safety of all its embassy staff…..”

Banister Francis was examined by a Judicial Medical Officer (before being taken into custody) and her own lawyer was present when she was questioned. There were also the Embassy staff who kept watch from a distance. As for the argument that the Magistrate should have placed her “in pre-trial detention” is a matter that is left entirely in the hands of the courts. In this instance, there was medical evidence to confirm that she was fit enough to make a statement. There are no laws in Sri Lanka where local staff in a diplomatic mission should be given preferential treatment or granted any sort of immunity by a Magistrate or a Judge. It would have been wiser for the government to have set out some of the matters, perhaps without the outcome of investigations, in a formal statement in fairness to the country’s judiciary. That was not to be. It did not also react to the FDFA because some feared it may trigger a slanging match. There were others who were disappointed that it left a wrong impression in the minds of Sri Lankans that they were now turning soft, wilting under pressure.

Colombo not changing position

Notwithstanding the different claims made by the Swiss government, Colombo has so far not changed from its position that Banister Francis will be charged in courts. The two counts on which she was produced before the Chief Magistrate’s Courts were – exciting or attempting to excite disaffection, and giving false evidence. Both are under the country’s Penal Code. The Attorney General’s Department is also likely to add more charges on her under local laws instituted after the ICCPR – International Covenant on Civil and Political Rights.

As reported earlier, Ambassador Mock, once his Foreign Ministry’s spokesperson, played the role of an interlocutor shuttling among backers of Ranil Wickremesinghe, Mahinda Rajapaksa and Maithripala Sirisena during last October’s political crisis. The Sunday Times can now reveal that the role of a ‘peace maker’ came at the request of then President Sirisena. By then, he had realised he had erred over the foisting of Mahinda Rajapaksa as Prime Minister after ousting incumbent Ranil Wickremesinghe. The Supreme Court was to later pronounce the move as unconstitutional. Envoy Mock was the second diplomat from whom Sirisena sought help after the first person he consulted declined To intervene.

Notwithstanding the current deadlock, it is imperative that the government resolves the Swiss saga by ensuring that relations reach normalcy. The pronouncements of Bern and Colombo make clear their positions are well known. The issue over a local employee should not be allowed to irreparably sour relations between two nations.