RTI reveals ‘disappearance’ of Commission report on Ashraff 's death

The unexplained ‘ disappearance’ of a Commission of Inquiry (CoI) Report relating to the death of Sri Lanka Muslim Congress founder leader M.H.M. Ashraff, has surfaced in a recent appeal hearing before the Right to Information ( RTI) Commission of Sri Lanka

The disappearance came after it had been kept in a file at the Presidential Secretariat and sent to the National Archives 10 years ago, during former President Mahinda Rajapaksa's regime.

The appeal was filed under the RTI Act No.12 of 2016, by former Deputy Minister of Cooperatives & Internal Trade, Basheer Segu Dawood. The ‘disappearance’ of the Report is expected to fuel conspiracy theories that have swirled around the circumstances that led to the death of the former SLMC Leader and 14 others including party officials, in a helicopter crash in 2000, allegedly due to engine failure.

Responding to public agitation at the time, a CoI headed by Justice L. K. G. Weerasekera was appointed by former President Chandrika Kumaratunga to report on the incident. However, the Report was never released to the public. In the appeal filed by Mr Dawood, it has been

Trevealed before the RTI Commission that the file relating to the Ashraff Commission had been sent to the National Archives only in 2007, years after the inquiry was concluded, and during the time of former President Rajapaksa.

Mr Dawood’s initial RTI request to the Presidential Secretariat for a copy of the CoI Report had been reject- ed. Thereafter, he had filed an appeal to the RTI Commission. In the appeal heard before Commission Chair Mahinda Gammanpila and Commission members Kishali PintoJayawardena, Selvy Thiruchandran and S. G. Punchihewa, on Oct. 16, Additional Secretary ( Legal) of the Presidential Secretariat, appearing on behalf of the Secretary to the President, had informed that, though the Information Officer (IO) of the Presidential Secretariat had called for the file from the National Archives, upon the RTI request, the Report was missing. (http://www.rticommission.lk/web/images/pdf/basheer-segudawood-new.pdf). he draft Interim Report of the Steering Committee (SC) of the Constitutional Assembly (CA), was taken up for debate this week. Many MPs participated in the 5-day debate, which ends on Nov.8.

Following are excerpts of some of the speeches. Prime Minister Ranil Wickremesinghe:

This is another step the Govt of national unity is taking, to fulfil the promise made in January 2015 to bring about a new Constitution for the country. What is anticipated is the introduction of a new Constitution that would enable all Sri Lanka to live in unity and equality, putting aside ethnic, religious, and class differences. We must use this opportunity to broaden democracy and bring about stability to the country. This is a historic opportunity for the country

The SC appointed 6 Subcommittees to make recommendations in the areas of Fundamental Rights, Judiciary, Finance, Law and Order, Public Service and Centre-Periphery Relations. The subjects that did not come under the purview of those Subcommittees were taken by the SC. We have taken the initiative and made some progress in the process of making the new Constitution. We did it with the consent of all parties in Parliament.

The SC’s Interim Report being debated is based on recommendations from various parties. This is not a draft for a new Constitution. There are various suggestions, alternate views and recommendations included in the Report. We have provided opportunity for each and every MP to express his/her views on this Report.

We intend to discuss this with the Mahanayake Theras and other religious leaders. This should also be thoroughly discussed in the public domain. This process would go on till the next Sinhala New Year. Thereafter, we would discuss this as parties again. We would take into consideration the opinions of the general public. Only after that, the draft agreed by all parties would be presented to the CA again, and if it is not approved, this CA too would be dissolved. If it passes with a simple majority, it would be presented in Parliament. If it passes with a two-third majority, then it would be presented to the Cabinet of Ministers. Only after that, the final draft would be presented in Parliament again. On that occasion, a decision with regard to the new Constitution could be taken. If need be, we could go for a referendum. This cannot be done in haste. We need to discuss these matters at length. For the first time, all parties have come together. They may have diverse opinions and views, but they are here together for a common task. That is what is important.

We should make use of this opportunity to go forward. Going forward does not mean we would agree with every recommendation. We could iron out differences through discussions. Leader of the Opposition & Tamil National Alliance (TNA) MP Rajavarothiam Sampanthan:

This is a very important debate, a historic debate. Our first Constitution was the Soulbury Constitution enacted by the British, under which we obtained independence. The second Constitution was the 1972 Constitution, the first Republican Constitution. The third Constitution was the second Republican Constitution in 1978. These latter two Constitutions were enacted by the party and the Govt in power, and not on the basis of a consensus.

The current process is based on a Resolution of Parliament; Parliament has been converted into a CA; there is a Committee of the whole Parliament; There was only one ‘Minute’ which said the relevant file had been sent to the National Archives by the Presidential Secretariat on 12.01.2007. The CoI Re p o r t itself was not available at the Presidential Secretariat. Assessing the matter, the RTI Commission had directed the responsible officer of the National Archives to be present on the next date of hearing, (Nov.20), along with the relevant file for the examination of the RTI Commission. Earlier this year, trade union activists appealed to the RTI Commission to obtain a copy of the CoI Report into the killing of Roshen Chanaka and injuring of the Katunayake Free Trade Zone (FTZ) workers by the police in May 2011, when they protested against a proposal by the Mahinda Rajapaksa Govt to privatise the Employees Provident Fund and transform it into a dubious pension scheme. there is an SC comprising MPs of all political parties; there have been 6 multi-party Subcommittees appointed, which have submitted their reports; a team of experts have assisted the process. There have been public consultations and public representations have been received. All these have taken place. There is a marked difference between the procedures being adopted now and the procedures which prevailed when the 1972 and 1978 Constitutions were enacted. All this takes place almost 40 years after the enactment of the second Republican Constitution. All these steps add to the credibility and the legitimacy of the process.

After wide consultation and consensus, the Constitution will have to be enacted and adopted by a two-thirds majority in Parliament, and approved by the people at a Referendum. It will reflect the exercise of the sovereignty of the people, by the people to the fullest degree. The supreme law of the land would have been made by the people and would command the respect and recognition of all the people; its credibility and legitimacy shall be unassailable.

It is for the first time in the history of this country that such an exercise is being undertaken, the totality of the people being involved. The Constitution, the supreme law of the country, will be framed so as to ensure and guarantee an undivided and indivisible Sri Lanka, belonging to all the people of Sri Lanka. This Constitution is being made to ensure that the country remains undivided and indivisible for all time, and that the country proceeds on a path of development and progress. The objective of the Constitution is to create a peaceful and prosperous Sri Lanka, so as to achieve its fullest potential for the benefit of all the people in the country.

Sri Lanka is a multi-ethnic and multilingual plural society. The proposals envisage that Democracy and the Franchise co-exist in harmony without distortion and that, pluralism receives meaningful respect and recognition. Hambantota District MP & former President Mahinda Rajapaksa:

We are taking up this debate for discussion at a time when the country is facing many issues. The elections to Provincial Councils have been postponed, the high cost of living is spiraling out of control and there are various other issues. The process of framing a new Constitution began about 20 months ago. We joined this process with a genuine interest. It was my Govt that brought about the greatest contribution to bring stability and development in the north, and we began the process to bring about a political settlement to this issue. We came forward with honesty. It is the United National Party (UNP) that has not been honest in its dealings. When former President Chandrika Kumaratunga Headed by former High Court Judge Mahanama Tillekeratne, the CoI Report was not released for many years, after it was handed over. An RTI request to the Presidential Secretariat this year, by the mother of the slain Roshen Chanaka, was refused on the basis that it violated national security. However, the Report was released shortly after she appealed to the RTI Commission. Celebrating the International Right to Know Day (IRTKD) last month, Roshen Chanaka’s mother praised the RTI Act for being instrumental in the release of the Report relating to her son’s death.

The Tillekeratne CoI Report strongly condemns excessive police force against the Katunayake FTZ workers, castigating the police as ‘ uncivilized’ and calling upon police officers to be made aware of the fundamental rights of FTZ workers. Police actions were stated to amount to a violation of the Penal Code, the Criminal Procedure Code, the Police Ordinance and the Constitution.

Appointed under Presidential warrant and often headed by retired or sitting judges, CoIs have been characterized by their Reports being withheld from the public, despite the public funds spent to establish and maintain them.

Under the law relating to the archiving of documents, the Secretary of a CoI appointed under the CoI Act, must deposit all records relating to such CoIs at the National Archives within 3 months of the final Report. This Legal provision is, however, rarely followed in practice. Regulations promulgated under the National Archives Law No.48 of 1973 (as amended), state such records are required to be kept at the Archives. They may be made available for public inspection after 30 years or, following the lapse of such time that, they have been closed for public inspection by the public office creating such records.

However, the RTI Act states in Section 4, that the provisions of the Act maximizing disclosure of information shall have effect, notwithstanding anything to the contrary in any other written Law. Accordingly, in the event of any inconsistency or, conflict between the RTI Act and other Law, the provisions of the RTI Act shall prevail. The National Archives Law has been listed among several Laws that will need to be amended, to be in conformity with the RTI Act.