| by Dr. Ruwantissa Abeyratne
( October 4, 2012, Montreal, Sri Lanka Guardian)
The Daily News of 3 October 2012 reported the disturbing news of a Sri Lankan
housemaid – Nandawathi Podimenike - who returned from Jordan with dashed
hopes after seeking the Middle East pot of gold, after she had suffered
fractured legs and a spine at the hands of a 26-year-old man at the household
she was employed, who had lashed her with a belt and pushed her from the second
floor of the house as a punishment for complaining to the Sri Lankan embassy
about ill - treatment meted out by the household.
The Daily News further reported that the
housemaid had claimed that the household where she worked as a housemaid had
entrusted her heavy unending chores which she could hardly cope with and even
denied her proper food. Unable to bear her tormentors she had run away
from the house after a year and sought refuge in the Sri Lankan embassy in
Jordan.
The woman had claimed that thereafter the owners
of the house had come to the embassy seeking to take her back followed by the
representatives of her agency but she refused to go back. Thereafter, the
Jordan Police had arrived at the embassy and the embassy had handed her over to
the Police. The policemen who took her back in a jeep, had hit her on the head
inside the vehicle and handed her over to the same household.
The author is not aware of the specific
circumstances of the case and therefore will not lay blame on the embassy for
doing what it did. However, this incident brings to bear several general
questions: What are the main functions of our embassies abroad? Are they
inter alia to look after the interests of Sri Lankan citizens who are in the
territory of the State in which the embassy is situated and/or accredited
to? Does a citizen have a right to expect the embassy of her State to
give her asylum and protect her?
Let us start with the first question. What
are the main functions of our embassies overseas? The Vienna Convention on the
Law of Diplomatic Relations states that the functions of a diplomatic
mission consist, inter alia, in: representing the sending State in the
receiving State; protecting in the receiving State the interests of the sending
State and of its nationals, within the limits permitted by international law;
negotiating with the Government of the receiving State; ascertaining by all
lawful means conditions and developments in the receiving State, and reporting
thereon to the Government of the sending State; promoting friendly relations
between the sending State and the receiving State, and developing their
economic, cultural and scientific relations.
In the present context the applicable function
of an embassy is to protect in the receiving State the interests of the sending
State and of its nationals, within the limits permitted by international
law. Therefore, within an embassy premises, which has immunity from the
laws and regulations of the host State, any citizen of the country represented
by the embassy should be protected, particularly if the citizen concerned has
been the subject of a criminal offence and if there is a continuing threat of
harm to that person. The Vienna Convention goes on to say that the
premises of the mission are inviolable and agents of the receiving State (or
host State) may not enter them, except with the consent of the head of the
mission. The receiving State is under a special duty to take all appropriate
steps to protect the premises of the mission against any intrusion or damage
and to prevent any disturbance of the peace of the mission or impairment of its
dignity. The premises of the mission, their furnishings and other property
thereon and the means of transport of the mission shall be immune from search,
requisition, attachment or execution.
The Convention also states that without
prejudice to their privileges and immunities, it is the duty of all persons
enjoying such privileges and immunities to respect the laws and regulations of
the receiving State. They also have a duty not to interfere in the internal
affairs of that State. The premises of the mission must not be used in any
manner incompatible with the functions of the mission as laid down in the
Vienna Convention or by other rules of general international law or by any
special agreements in force between the sending and the receiving State.
The above notwithstanding, it is submitted that
the use of diplomatic premises to protect an endangered citizen would not be
considered incompatible with the functions of the mission, as one of the
functions of a diplomatic mission is, under the Convention, to protect the
interests of the citizens of the State represented by the mission.
Now for the next question. Does a citizen of Sri
Lanka have a right to expect the embassy of her State to give her asylum and
protect her? The Consular Affairs Division of the Ministry of External Affairs
is vested with the responsibility for the implementation of the Consular
Functions Act No.4 of 1981 that ensures the protection of citizens abroad
through respective Sri Lankan Missions and Honorary Consulates abroad. The
Consular Affairs Division also assists / facilitates in attestation of
documents, registration of foreign births, deaths & marriages, repatriation
of stranded Sri Lankans, deaths and compensation. In terms of international
law, a multilateral treaty - International Convention on the Protection of
the Rights of All Migrant Workers and Members of Their Families, which
entered into force on 1st July, 2003, was acceded to by Sri Lanka on
11th March, 1996. In a response to a questionnaire
of the United Nations on the Convention, Sri Lanka stated: “Sri Lanka as a
labour-exporting country seeks to ensure minimum international guarantees
relating to the human rights of migrant workers and their families.
Although Sri Lanka has yet to enact national legislation specifically to give
effect to the Convention, Sri Lanka’s Constitution and existing national
legislation provide many if not all of the standards and the guarantees
required by the Convention. Sri Lanka’s Constitution in its
preamble assures to all people freedom, equality, justice, fundamental human rights
and the independence of the judiciary as the intangible heritage that
guarantees the dignity and wellbeing of succeeding generations of the People of
Sri Lanka and all the people of the world who come to share with those
generations the effort of working for the creation and preservation of a just
and free society”. Obviously, although this response was in regard to
migrant workers in Sri Lanka, the government would expect that it would
conversely apply to Sri Lankan citizens who work overseas.
Article 14 of the Universal Declaration of Human
Rights provides inter alia that everyone has the right to seek and to enjoy in
other countries asylum from persecution. The Foreign Ministry of Sri
Lanka has this to say in the public domain: “The Foreign Ministry seeks
to ensure the welfare of expatriate Sri Lankans through its network of
Missions, Consulates and Honorary Consulates abroad. The Sri Lankan expatriate
labour force, the larger part of which is in the Middle East, is estimated to
be around 700,000. In the face of labour problems, broadly falling into the
categories of non-payment of wages and harassment of workers by employers, Sri
Lanka Missions have taken remedial action within the limited resources
available, and in collaboration with the Ministry of Labour and Welfare and the
Sri Lanka Bureau of Foreign Employment, are exploring further measures to help
Sri Lankans who get stranded and fall into difficulty”.
If this be the case, what happened to poor
Podimenike in Jordan?
 The Daily News of 3 October 2012 reported the disturb...){kind=link}