By Rajeewa Jayaweera –

Rajeewa Jayaweera

Former Sri Lankan Defense Attaché in London, Brigadier Priyanka Fernando had to be recalled post-haste after he was seen making a throat-slitting gesture at demonstrators in front of the High Commission during Independence Day celebrations on February 04, 2018.

In October 2018, The Public Interest Law Centre, on behalf of one Majuran Sathnandan (Complainant) filed a private petition against Brigadier Priyanka Fernando (Defendant) in the Westminster Magistrates Court. Sathanandan accused Fernando with offenses under section 4 of the Public Order Act 1986 of having repeatedly threatening protestors with a throat-slitting gesture while in full military dress uniform and produced video footage to the effect.

As background information, Sathsnandan had provided Fernando’s supposed wartime track record of having been active in the Mullaitivu Front while being attached to the 59^th Division. He claimed, ‘battled hardened Fernando’ played a crucial role in the Mullaitivu offensive including the attack on the Mullaitivu Hospital and was a key member in military decision making and therefore performed a leadership role.

Fernando was charged for acting Contrary to S.5 (1) and (6) of the Public Order Act of 1986 (use of threatening/abusive/ disorderly behavior, display of writing, or any other threatening or abusive visible sign. He was also charged for acting Contrary to S.4 (1) and (4) of the Public Order Act of 1986 for making signs with intent to cause that person to believe that immediate unlawful violence will be used against him and others. Sathanandan sought for Fernando to be held accountable for his actions in the UK.  

Since Brigadier Fernando had left his post a few days after the February 4 incident, summons had in fact not been served. 

Meanwhile, the Sri Lanka High Commission in London, vide Note Verbal dated October 29, 2018, had informed the British Foreign & Commonwealth Office (FCO) that in the first instance, Fernando was no longer in the UK and secondly, he enjoyed all privileges and immunities accorded to a diplomatic agent under Article 31 of the Vienna Convention.   

Under the standard diplomatic practice, it was the duty of the FCO to inform the Court through appropriate channels of the fact, Brigadier Fernando, on the date of the incident had been an accredited diplomatic agent of a foreign State and enjoyed immunity from judicial prosecution.

When the case was taken up for hearing on January 21, 2019, it was stated, the Defendant had not responded to a court summons issued earlier. It resulted in the issuance of a warrant for his arrest.

The FCO in this instance had either failed to inform relevant court authorities of Fernando’s diplomatic status or else it is a case of total breakdown of communications. Either way, the competence of the British bureaucracy has been found wanting in a relatively uncomplicated issue.

The Sri Lankan State often has failed to assert itself on both bilateral and multilateral issues. Its Ministry of Foreign Affairs has been notoriously shy in dealing with Colombo based foreign diplomats stepping out of line. In a surprise and welcome development, Foreign Secretary Ravinatha Ariyasinghe summoned British High Commissioner James Dauris last week. According to reliable sources, he had reiterated contents of Note Verbal 29 sent earlier by the Sri Lankan High Commission in London and requested Dauris to communicate same to his superiors at FCO without delay. The High Commission in London too had been directed to take up the issue with FCO.

Hopefully, Dauris will act with the same speed and alacrity with which he turned up at the Foreign Ministry in Colombo to register his government’s views after the incident on February 04, 2018.

The FCO would do well to investigate and establish if its communication to the Magistrate’s Courts stating Fernando’s diplomatic status was deliberately held back by saboteurs or delivered and lost within the Magistrates Courts. If it had been received and ignored by the Panel of Magistrates at the January 21 hearing, urgent steps need be taken to educate British Magistrates on International Law.                   

Meanwhile, the arrest warrant has now been withdrawn and relisted for another hearing on February 01 in the Chief Magistrate’s Court. 

London based International Centre for the Prevention and Prevention of Genocide (ICPPG), a Transnational Government of Tamil Eelam (TGTE) initiative, in a statement called the withdrawal of the arrest warrant “A shame to the independence of the British Judiciary” and a “disgrace to the integrity of the British legal system.”       

There is a lesson to be learned. Proponents of the UNHRC 30/1 Resolution, namely the USA now replaced by Canada, and the UK have been advocating the introduction of foreign judges in local tribunals to investigate war crimes and other accountability issues. Sri Lanka should resist such a move with all available resources. Sri Lanka could well manage without the likes of West Minster Magistrates not familiar with International Law!