CHAPTER VI

Law Enforcement Mechanisms in Sri Lanka – A Comparative

analysis with selected Jurisdictions

Background

A number of law enforcement agencies engage in criminal justice

administration in SL. These state institutions have the responsibility to arrest,

investigate, adjudicate and impose punishment on the wrongdoers. Efficient

and effective law enforcement is inevitable to ensure a smooth criminal justice

process.

This chapter attempts to analyses the law enforcement mechanisms

available in SL regarding human smuggling. It has also adopted a descriptive,

analytical and a comparative methodology. For the purpose of the

comparative study, a few destinations, sources and transit countries have

been chosen. Furthermore, the responses obtained from the interview with

law enforcement officials both in SL and Canada (qualitative data) have been

incorporated to understand the law enforcement process and practical issues

connected therewith.

The objective of this chapter is to; (1) describe and analyze the law

enforcement procedure in SL and (2) examine the different legal frameworks

available in the selected jurisdictions pertaining to human smuggling and

make an attempt to see to what extent SL can adopt suitable and good

practices and mechanism that are available in those countries so that Sri

Lanka too can prevent human smuggling in a hasty manner. China and

- 251 -
Pakistan were taken as source countries. Australia, Canada, Europe and the

US have been identified as transit and destination states. Justification for the

selection of states has been provided in the introductory chapter.

This chapter has been divided into three parts. The first part deals with

SL: The second part is concerned with China and Pakistan while the third part

is dedicated to destination states namely Australia, Canada, EU and the

United States.

Part I

6.1 Law Enforcement in Sri Lanka

The substantial legal provisions of relevant laws governing human

smuggling and related matters have been analyzed in Chapter Five. This part

deals with the power and duties of law enforcement institutions and efforts

taken by those institutions to counter human smuggling. Further, challenges

that hinder smooth law enforcement are also detailed. In addition, Sri Lanka‘s

collective efforts with other states and regional forums are also enlightened.

Four local organizations work together in Sri Lanka to address the

issue of human smuggling.565 They are the Department of Immigration and

Emigration, Criminal Investigation Department, Attorney General‘s

Department and the Sri Lanka Coast Guard under the Navy. The foregoing

paragraphs will deliberately analyze the role of each authority.

565
Interview with AG1 (n 445 )

- 252 -
6.1.1 Department of Immigration and Emigration (DIE)

The major divisions of the DIE are the Administration Unit, Policy Unit,

Procurement Unit, Legal Unit and Training Unit. The role of the relevant units

of the DIE that administer the irregular movement of people has been

discussed below.566 Each department is complementary in nature to carry out

the functions. An overview of the units is given below.

The Policy Unit inter alia formulate polices and plans relevant to the

implementation of the functions of the DIE, amendment of laws and legislation

of the Department. The policy Unit, from time to time, takes part in meetings,

conferences and workshops to enhance or amend its policies567.

The Legal Unit was set up on the 15 th of October, 2004. This unit is

responsible for advising and providing necessary assistance to amend the

legislation, provide information on legislation to whom required, assist in

implementing the Court orders, submit observation reports to Courts, produce

the witnesses before the Court upon giving the required legal advice,

complete documentary work on behalf of the witnesses from the DIE and

investigate into various offences committed by persons under the IME and

initiate legal actions against them and also submit observation reports to the

Court568. Legal officer (Assistant Controller) of this unit expressed certain

concerns.

566
Department of Immigration and Emigration Performance report 2016
http://www.parliament.lk/uploads/documents/paperspresented/performance-report-
department-of-immigration-emigration-2016.pdf accessed 10 December 2018
567
Department of Immigration and Emigration, Performance report 2017
568
Ibid

- 253 -
According to him, the lack of human resources is a major obstacle in deposing the

cases. The unit is overburdened with work in the DIE and at the airport.569 Further, he

said that the lack of understanding the international legal framework regarding

human smuggling needs to be taken into account in the training given to the relevant

officials.

Ports Unit is responsible for managing arrivals and departures of

persons through designated ports. This unit also monitors the activities of the

authorized officers at the ports.570

The Ports Unit arrests and prosecutes foreigners who violate the IME

Act571, assists the relevant institutions in removing unauthorized persons,

administer airport passenger clearance activities and coordinate with other

institutions connected to the ports. The surveillance unit of the Ports Unit does

random checks on passengers prior to the boarding572.

The Investigation Unit is responsible for ensuring national security.

Although the responsibilities are compartmentalized among the units, in

practice, all the units are expected to work together in relation to the

regulation of movement of people.

569 th
Interview with Legal officer in-charge in the Legal Unit (DIE , 15 June 2017) - ―We have
no adequate staff to do our mandate, with limited staff we may sometime not able to finish
work on time. This causes delay in finishing domestic inquiry as well as court cases. Apart
from our main mandate. We are asked to work in the passport counter, immigration section in
the Airport. This will disturb our smooth functioning of the legal division. We have to deal with
large number of cases. There is backlog of cases
570
DIE report ( n 571 )
571
Ibid
572
Ibid

- 254 -
6.1.1.1. Mechanism adopted by DIE to implement the law

6.1.1.1.1Control of travelers exit and entry

In order to verify the legitimacy of passengers, they will be checked at

five points.573 They are; the (1) entrance to passenger terminal building by

the Airport Security Department (ASD) (2) entrance to the check-in counter

area by ASD (3) check-in counters by the Sri Lankan Airlines handling agent

staff 4) by DIE staff and agents of the Directorate of Internal Intelligence for

the purpose of establishing the bona fides of passengers. (5) pre-boarding

passenger by ASD staff. Finally, the passenger identification will be concluded

in the aircraft. Uniformed police officers are also placed at the clearance

points574.

The DIE keeps an alert system575 which contains data n related to

court orders, warrants of arrest, jumping bail, escaping from detention as well

as information from the Interpol and the SIS computer system.576 In view of

this data, the authorities stop the suspects for investigation. The August 2009

UK Operational Guidance Note states that the computer alert system found

702 suspected migrants in the year 2009. They were investigated. The report

noted that the alert basically shows that the DIE staff must allude passengers

573

Security controls at the international airport and ports [LKA103344.E] Research Directorate,
Immigration and Refugee Board of Canada, Ottawa, Airport Security (ibid. 19 Jan. 2010 (ibid.
19 Jan. 2010). < http://www.refworld.org/docid/5aa92d344.html > accessed 10 December
2017
574
Ibid.
575
ibid
576
Ibid

- 255 -
who are highlighted to the CID or the SIS.577 No more details are available

about the passenger.

6.1.1.2 2 Passport verification

The machine-readable zone (MRZ) of all passports is swiped into the

‗Computerized Passenger Clearance System‘. The MRZ maintains the entry

and exit records of all persons travelling through the designated ports. The

MRZ has the capacity to flag persons or passports of concern. But the

limitation is that it is not directly connected to the criminal information

databanks578. The tamper proof‖ passport system is implemented by the DIE

as a counter measure on human smuggling579.

6.1.1.2 3. Interview with Head Investigation Division (Entry of foreigners

including smuggled migrants) 580.

Summary

A large number of asylum seekers come to SL and they get registered with the UNHCR. The

unsuccessful refugee claimant will be deported to country of origin. The DIE tries to deport

them immediately to avoid unnecessary maintenance expenses. A statement is obtained from

the deportees before they bordered on the flight. The DIE puts names of those deported

migrants in the alert system to prevent them from coming to SL again. This could be a

temporary arrangement for a specific period. In certain cases, the Minister will make the

removal order. Those people have to appeal to enter into SL again.

6.1.2 Sri Lanka Police (SLP)

577
Ibid
578
Ibid
579
<http://mfa.gov.lk/index.php/component/content/article/2624-minister-gl-peiris-highlights-
need-for-cooperation-in-addressing-human-smuggling?fontstyle=f-larger> accessed 20
October 2018
580 th
Interview with DIE 1 ( n ) 15 June 2017

- 256 -
 SLP Performance Report 2017 highlight the good practices adopted to

enhance the criminal justice process. They are; (1) maintaining the arrested

suspect‘s monitoring system (AMIS technology) to check the status of the

arrested persons, dangerous criminals, deserters, escaped prisoners or

people who are wanted by the Police Stations. Immediately, the Police can

enter the relevant information of the arrested person into the system (2)

Introducing community awareness training programmes (3) taking steps to

establish a mobile surveillance network (4) using automated finger prints

identification systems so that the relevant reports can be collected within a

short period of time (5) participating of SLP in training regarding investigation

techniques on human smuggling, enhancement of cross border cooperation,

law enforcement and joint training courses in Australia.

6.1.2 .1 Criminal Investigation Department (CID)

Under Sri Lanka Police, the CID is tasked with carrying out arrest and

investigation and produces the suspects before a competent court581. It is

important to note that in the Sri Lanka Police Performance Report 2016, the

offences are listed under two categories namely grave offences and petty

offences. Human trafficking is listed but human smuggling / immigration

offences do not appear on this list. This indicates no data management is

maintained by the CID. Further, we could not get an idea on how many

persons have been convicted under the IME Act offences under Sections 45A

and 45C.

581
CRPC Act 1979

- 257 -
 The CID is entrusted with file charge sheets in certain cases under the

IME Act that come under the purview of the Magistrate Court. This power was

assigned in 2015 to avoid any delays from the AG‘s Department582. Once the

investigation is commenced, the CID conducts criminal background checks on

the returned migrants on such as arrest warrant, a prior arrest, investigation

record, bail order, conviction, an illegal departure from Sri Lanka so on so

forth583. An authorised officer of the BIA has to inform the CID about the
584
deported migrants. These records will be done within 24 hours as per the

CRPC Act585. All enforced returns were wet-fingerprinted. In some instances,

suspected deported migrants are referred to the State Intelligence Service

(SIS) and / or the Terrorist Investigation Department (TID) for questioning586.

Information related to Section 45 of the Immigrants and Emigrants Act

facilitators

2012 2013 2014 2015 2016 2017 2018

th
Number of 07 08 No data 21 36 37 13 As of 25

facilitators Septemb, 2018

deported arrested

under 45 C

Table 35

Source- Information obtained from CID through RTI application

582
Interview (n 450)
583
Ibid
584
Ibid
585
Sri Lanka Police have been able to foil 58 attempts of maritime human smuggling in the
year 2012, in which 57 vessels were confiscated and more than 4,000 persons, including
passengers, organizers, facilitators and crew members being taken into custody, he further
added. The Sri Lanka Police while realizing the gravity of the situation, had tackled the
problem at the correct time as it was given top priority in the Sri Lanka Police agenda
586
Report of the Information gathering Visit to Colombo , Sri Lanka 23-29 August 2009

- 258 -
 According to the Sri Lankan Law, ‗facilitator‘ is the term used for the

person / persons who organize the irregular journey. This information was

obtained from a written registry maintained by the Department. The data was

manually counted. It is regrettable to note that the 2014 Registry was missing

at that time.

587
The following opinion was expressed by CID1

There is no clear understanding of the difference between human trafficking and human

smuggling. The lack of cooperation from the returned migrants affects the legal proceedings.

Members of the OCG are scatted around the world. Hence bringing them before the law is

difficult task. Lack of cooperation among the local and international agencies is also an

obstacle. Delay in getting instructions from the AG‘S department is affecting the legal and

judicial processes. Since several agencies handle matters coming under the IME Act, several

years are taken to finish a case. SL needs more technological development to improve the

criminal justice process.

6.1.3 Sri Lanka Navy (SLN)

Maritime human smuggling is a major threat to maritime security. Navy

Official Rear Admiral C D Gunawardena588 says that even after the LTTE‘s

defeat, its international shipping network still transports people to developed

nations.

As discussed in the previous chapter, SL Navy is given powers under

the IME Act to protect the maritime border and arrest suspected migrants. In

587
Interview with CID 1 ( n450 )
588
<http://www.defseminar.lk/media-
centre/pres/Rear%20Admiral%20C%20D%20Gunawardena%20RWP%20&%20Bar%20USP
%20psc.docx.pdf> accessed 1 January 2018

- 259 -
addition, SL Coast Guard by the Coast Guard Act, 2009 is empowered to

enforce the law in the coastal areas, the maritime zones of Sri Lanka.

A report has explained the mandate of the SLCG. Accordingly The

SLCG disrupts maritime access to organized criminal groups that operate

human smuggling and trafficking589. The SLCG is required to provide

assistance to the customs and other relevant authorities in counter smuggling

and trafficking operations and also narcotics and border management 590.

Further, the SLCG provides security to maritime transportation and render

assistance to ensure navigational safety591.

Another study found that the SLCG has limited physical assets and

sophisticated technology countering TOCs592. It has limited capacity to screen

the boats593. So, the movement of ships is unchecked. This limited capacity

may be a reason for transnational organized crime syndicates to use Sri

Lanka as a transit hub.

There are criticisms on the SLCG and Navy failing to cooperate in

terms of refugee handling, criminals and information sharing on terrorists

because of the lack of security strategy and unified command between the Sri

Lanka Navy and the Coast Guard594.

589
Mitchell Sutton and Serge DeSilva-Ranasinghe, (n419).
590
Ibid,
591
Ibid
592
) Ajith Panditha Wickramasekara, (n92 )
593
Transparency International, ‗Corruption Perception Index 2016‘
594
Sri Lanka Navy Modernization,‖ Global Security. Org,
<http://www.globalsecurity.org/military/world/sri-lanka/navy-modernization.htm> accessed on
th
24 January 2018

- 260 -
6.1.4 Department of Attorney General (AG‟S department )

AG‘s department is responsible for prosecution. There is a no special

unit established in the Department to deal with human smuggling. As such,

the matter comes under the Immigrants and Emigrant Unit. After finishing the

investigation, the CID officers send relevant files to the AG‘s Department.

With the instructions of the Department, they continue with the case. The

Senior State Counsel who was in the division has provided the following

observations and suggestions in 2015.

Interview with AG 1595 -Summary

Compared to the international law, our domestic legislation is broader. Because, the Protocol

confines human smuggling only to an organized criminal group. There is no need to bring a

new law. Like in the Protocol, SL law does not have specific provisions for aggravated

offences like in other countries. The AG‘s Department considers when they are to frame
596
charges against the culprits. Similarly, financial and other material benefits are not a

requirement under IME Act. Different people who engage themselves in the illegal venture,

share the profit. Instead of money, some passengers work as crew or cooks. In these

situations, payment will be either reduced or compensated. Sometimes, organizers promise to

pay for the services rendered by the migrants during the journey. In such circumstances, the

passengers themselves become the organizers. SL has to enhance the punishment for the

facilitators. Human smuggling is organized by a different set of people such as criminal

syndicates, friends and family members who live in multiple countries. Criminal syndicates in

SL are assisted by the members abroad. Generally, the leader of the criminal ring lives

overseas and the members of the group are scattered all over the world. Sub agents in SL

engaged in recruitment of prospective migrants, collection of money from the migrants and

595
Interview(n445)
596
Criminal procedure Code Act Amendment 2013

- 261 -
managing the logistics organizing the journey.

A dearth of human and technological resources is affecting the quick disposal of cases. Since

multiple agencies in local and abroad are involved, a long time is taken for investigation and

collection of evidence. When a long time is taken, the wrongdoers escape from the case and

go abroad. Lack of evidence and pleading guilty by the accused lead to low rates of

conviction. In most of the cases, the migrants fail to cooperate in initiating the court

proceedings. Corruption affects the smooth criminal justice process. Agents obtain forged

documents in multiple ways. They buy the documents from people living abroad and obtain
597
documents from the DIE by bribing . Smugglers teach the migrants to destroy the
598
documents while traveling . The officials are given the opportunity to attend training

programmes locally and abroad to enrich their knowledge on counter mechanisms. As in the

other departments, there is no data management regarding human smuggling. International

cooperation – SL sign MOU and bilateral treaties with destination and transit countries to get

international cooperation.

The Annual Performance Report of 2017 indicates the number of cases

filed under different acts. It is regrettable to note that there is no database

maintained by the AG‘s Department with regard to human trafficking, human

smuggling, money laundering and cybercrimes599.

6. 2 Challenges in extradition and mutual legal assistance

Extradition Law and MACMA Act are only applicable between common

wealth countries. For the Non-Commonwealth, Extradition and MLA are not

possible when there is no treaty between the states. Making a treaty is a time-

597
IME Act Section 45 (b) , 45(2) 45(1)(m)
598
Ibid Section 45(1) (F).
599
<http://www.parliament.lk/uploads/documents/paperspresented/performance-report-
ministry-of-justice-2017.pdf> accessed 10 October 2018

- 262 -
consuming process. Moreover, unlike the Extradition law, the MACMA Act

does not contain any provisions for urgent MLA requests. This is a major

challenge if there is an urgent request on the MLA. There is no provision for

extradition by consent and taking evidence via video conference600.

Since two separate bodies are entrusted with extradition and MLA,

delaying and duplication601 have become another challenge because the

provisional requests come from the diplomatic channels and this causes

delaying the process602.

Dual criminality in both extradition and MLA, prevent cooperation in all

cases. Further, Extradition law 1977 lists out the extraditable crimes. When

there is a MLA or extradition for non-listed crimes, there is no provision which

provides discretion to entertain such requests. As an example, under

Australian Law, people smuggling is an extraditable offence but not under SL

Law. Since the list is final and conclusive, there is no room for

accommodating such requests notwithstanding the fact that human smuggling

between Australia and Sri Lanka has been a serious problem during the last

decade. Corruption and money laundering are related to human smuggling

hence if any smuggler commits these two crimes, they can be extradited.

The above constraints are common to both extradition and MLA. Apart

from that, ADB / OECD Anti-Corruption Initiative for Asia and the Pacific

600
Sri Lanka, ‘The Legal Framework for Extradition, MLA and Recovery of Proceeds of
Corruption‘ <www.oecd.org/site/adboecdanti-corruptioninitiative/39984874.pdf> accessed 19
October 2018
601
ibid
602
ibid

- 263 -
Mutual Legal Assistance in Asia and the Pacific Experiences in 31

Jurisdictions603, SL has highlighted; (1) a lack of an effective legal basis for

cooperation, variances in the legal frameworks of different jurisdictions (2)

grounds upon which MLA can or must be refused (3) legal requirements for

obtaining certain types of assistance, procedural requirements for obtaining

assistance (4) approaches of common law versus civil law jurisdictions (5)

language barriers that are an obstacle to effective international cooperation

(6) a delay with no response at all, or insufficient response-obtaining a timely

response to MLA requests (7) lack of human and technological resource is a

constraint related to MLA.

The researcher cannot make a comment on how far pragmatically

these mechanisms are used in human smuggling.

6.4 Implementing the Bribery Act

An interview with an official and other literature review highlight the

involvement of public officials in transnational organized crime. For example,

according to Sutton and De Silva-Ranasingha, Navy personnel had

involvement in an attempt to transport human cargo to Australia604.

Lack of public awareness regarding the Act is a considerable issue.

As of now, the Bribery Act does not have provisions on Private Sector

Bribery, Gift Rules, Conflict of Interest Rule, Foreign Official‘s Bribery and also
603
Mutual Legal Assistance in Asia and the Pacific: Experiences in 31 Jurisdictions ( ADB-
OECD 2017),
<https://www.oecd.org/corruption/ADB-OECD-Mutual-Legal-Assistance-Corruption-2017.pdf>
accessed 8 August 2018
604
Sutton and De Silva-Ranasingha, (n 419) , 10.

- 264 -
how to investigate and prosecute money laundering offences and offences

related to victims and witnesses.

SL does not have any formal bribery and corruption prevention

mechanisms like in Hong Kong, Malaysia, Bhutan and even in Korea. Those

countries work by the ‗motto prevention‘ which is very effective compare with

investigation and prosecution‖.

Another challenge that the CIABOC has no power over is considering

the evidentiary material collected by the ‗Presidential Commission of Inquiry‘.

Based on these reports it has to re-summon the witnesses who appeared as

witness before the Commission. This is a time consuming task. In 2018

October, the Commission revealed that there are over 30 Presidential

commission reports pending in the CIABOC.605.

Under the 19th Amendment to the Constitution, a new Commission has

been established to investigate allegations of bribery or corruption (CIABOC).

Since the commission has been given the constitutional status it is not

possible to abolish this Commission by a subsequent legislation. Additionally,

it gives recognition to the UNCAC and its implementations along with other

international conventions related to the prevention of corruption provided that

Sri Lanka is a party to such conventions.

605
CIABOC, Progress of CIABOC and the Challenges faced by the (CIABOC Com. Report
2017<www.ciaboc.gov.lk/media/attachments/2018/10/10/english-progress-report-9.10.18-
.pdf> accessed 12 December 2018

- 265 -
 The CIABO is entrusted with take legal action against corruption and

bribery of public officials. There was an allegation that the CIABO file cases

were concerned only against the high-ranking officials prior to 2015606. The

CIABOC filed and convicted high ranking officials607. As a proactive measure

permanent trial at the Bar has been established to hear serious financial

crimes608.

Earlier, only the Magistrate Court was confined to hear the cases. Now,

under Sec.22 of the Bribery Act, the High Courts are empowered to hear

corruption cases609.

The Annual Report of the Commission for year 2015 indicates that

there is huge disparity between the complaints received and cases filed. Too

much time is taken for investigation610. Court delay (Courts are overloaded

with cases) causes may problems: (1) Slowing down of Commission work (2)

Loss of evidence, missing witnesses and documents (3) Officials fleeing the

country (4) Official changes (5) Victims and witnesses being harassed.

Eventually, it leads to a low number of convictions.

The level of cooperation between the CIABOC, Financial Crimes

Investigations Department (FCID), Presidential Commission to Investigate &

Inquire into Serious Acts of Fraud and Corruption & Abuse of Power and State

Resources & Privileges (PRECIFAC) is very low.

606
Ibid
607
ibid
608
Ibid
609
Ibid
610
<http://www.dailynews.lk/2016/12/12/law-order/101650> accessed 19 August 2017

- 266 -
6.3 Joint Efforts by Sri Lanka

Counter measures on TOCs are not a responsibility of individual states.

Along with domestic anti measures, joint efforts are crucial to counter human

smuggling. In this respect, Sri Lanka has taken joint efforts with transit /

destination countries. Also, it has promised to support the regional measures.

The measures are listed below:

Relevant officers of the DIE, CID and SLCG take part in capacity

building programme to by the Canadian CBSA611 and training Australia.

SL and Australia had jointly conducted a training programme for Magistrates.

Joint measures have been taking place between Indonesia and Sri

Lanka612 on (1) intensive communication for information exchange (2)

counter-terrorism, human smuggling and other transnational crimes (3)

enhancement of the skills of the police personnel in both countries through

training programmes and courses613

A MOU signed in 2009 with AFP to provide training to officials and

provide funding for operational support, investigation, networked case

management and to develop intelligence database between various police

units at CID and the International Airport.

611 th
Interview with CBSA 2 , Liaison officer CBSA (High Commission Canada Sri Lanka ( 12
September 2018)
612
A joint meeting was held in 2016 between Indonesia and Sri Lankan to tackle human
smuggling. The discussion especially focused on possible threats from ex-LTTE members
who may have entered Indonesia as refugees or asylum seekers,
613
<http://www.adaderana.lk/news/37234/indonesian-sri-lankan-police-chiefs-discuss-human-
nd
smuggling> accessed on 2 November 2018

- 267 -
 AFP and the Sri Lanka Police Service (SLPS) continue to cooperate

closely in transnational crime investigations including people smuggling

matters614.

In 2017615, another MOUs was signed to facilitate the returning of

human smugglers, enhancing information sharing on methods for tracking,

intercepting and investigating people smugglers and human trafficking and

stopping the movement of illicit goods and targeting acts of money laundering

and proceeds of crime.

Sri Lanka assists the states in investigations. Two have been notable

convictions:

The Australian high Commission has announced that a Sri Lankan has

been convicted in September 2018 on a people smuggling offence under

Australian Law616.

Another Sri Lankan was convicted for people smuggling in Canada in

2017617.

614
Attorney-General‘s meeting with His Excellency Admiral Thisara Samarasinghe, l
615
<http://www.defence.lk/new.asp?fname=Secretary_leads_delegation_
to_Australia_Sri_Lanka_Joint_Working_Group_meeting_in_Canberra_20170908_03>
accessed 12 July 2018
616
<https://srilanka.embassy.gov.au/clmb/110914PS.html> accessed 10 December 2018
617
<https://www.cbc.ca/news/canada/british-columbia/crown-asks-for-18-year-sentence-for-
smuggling -1.4251642> accessed 12 December 2017

- 268 -
6.4. Law Enforcement Constraints in Sri Lanka : At a glance

Constraints Relevant law enforcement Remarks

agency / agencies (as per

information provided in the

interview and literature review)

Resource constraint DIE, CID, AGD, Navy, CIABOC Heavily relied on

(Human, infrastructure high developed nations

technology)

Lack of understanding the Except ADG others do not have There is no law on TOC or

TOC and international legal human smuggling in SL

instruments (Although training is given)

Corruption DIE, CID, Navy

Delay in investigation DIE, CID Both blame each other

Delay in filing cases ADG and CIABOC Too many agencies

Lack of cooperation All institution facing

Loss of documents All departments Due to delay in

investigation and trail

Lack of space to foreign DIE Only one camp that can

maintaining asylum seekers accommodate 50 migrants

Non-cooperation from DIE , CID ADG Lack of victim and witness

smuggled migrants protection,

Low conviction ADG and CID Loss of evidence, no

cooperation from the

migrants

Main culprit live abroad

Extradition ADG Only corruption and money

(Time consuming, different laundering are extraditable

legal system, delay in offences

process)

- 269 -
MLA ADG Diplomatic mission handle

No response, delay, no

provision for urgent request

Evidence ADG, courts CIABOC Limitation in the Law

(Lack of computer evidence

video conference, picture

video in the court)

Bribery Act related CIABOC Private persons and

constraints foreign officials escape

no private sector bribery

and foreign official bribery

CIABOC lack in powers,

lack of public awareness

Back log of cases CID, DIE, ADG CIABOC and

Courts

Absence of centralized CID, DIE, ADG CIABOC and DIE and CID is in the

DATA absence Courts process

Table 35

Part II

6.5 Comparative analysis with source countries

Counter measures on TOCs by destination states are better than

source countries. Nevertheless, they also could not completely tackle the

issue due to non-cooperation from other countries, a lacuna in law, corruption

and resource constraints.

- 270 -
 It is not appropriate to adopt similar legal provisions and law

enforcement machinery available in these countries in SL for the following

reasons: (1) Different legal systems prevailing across the globe (2) No

uniformity in legal provisions (3) Causes and consequences of human

smuggling vary across the states (2) Lack of expertise (4) Destination states

have financial capacity to use high tech devices in disrupting human

smuggling operations.

While acknowledging these limitations, the below mentioned points

justify the reasons why a comparative methodology has been adopted: (1)

Human smuggling is not a domestic matter. It is a transnational crime. (2) The

UNCTOC and the Protocol impose transnational obligations by way of

international cooperation. (3) There are similar problems posed by TOCs such

as national security. (4) Understanding the treatment of smuggled migrants in

transit and destination states is very crucial in recognizing the failure of state

responsibility.

China

China is a major source country for human smuggling. The Chinese

migrate to the US, Canada and other Europe countries 618. Unlike SL, the

Chinese human smuggling issue is deep rooted and the venture is carried out

through well organized criminal groups called ‗Snakeheads‘. They have been

active for more than four decades.

618
Department of Economic and Social Affairs, International Migration report ( United Nations
New York,2017 )

- 271 -
 The Provincial Department of Public Security, Border Patrol Armed

Police and Provincial Public Security Bureau are the agencies which handle

human smuggling issues in China and the Provincial Department of Public

Security has a separate unit called ‗Anti- Smuggling Unit‘.

These agencies conduct joint investigations on criminal activities. The

Border Patrol Armed Police operates under the control of the Provincial Public

Security Bureau. County governments have anti-smuggling units within their

police forces. The Fujian Province has three specialized anti-smuggling units;

one within the DPS, another with the Fuzhou Municipal Police and another

within the Zhangzhou Municipal Police in the Southern Fujian Province619.

The Border Patrol Armed Police has been inspecting at checkpoints

and seaports. The law enforcement in China does not perceive illegal

emigration as a risk to the social order620. This insight undermines anti-human

smuggling activities.

As a successful step621, the police have established a list of

Snakeheads and distributed the roster to all district police stations. Every

station director is accountable for arresting them within a year. If they cannot

do so, they will be released from official duties and placed in the task force full

time to catch the Snakeheads. According to the police this was remarkable

measure and was able to catch 1.2 of the Snakeheads622.

619
S Zhang, (n 18) 223
620
ibid
621
Ibid
622
Ibid , 224

- 272 -
 Sheldon X Zhang, in his study, found a ‗non-traditional criminal

supporting process‘ in China. In this context, he suggests ‗instead of

targeting the ‗big fish‘, law enforcement resources should target the small

groups to disrupt the criminal groups. ‘623.

He further states that human smugglers use the legal channels to

transport migrants. Hence, he suggests that the movement of people have to

be severely monitored. i:e Measures should target to discourage the collusion

of immigration officers engaged in providing passport, issuing visa and border

protection624.

Pakistan

Pakistan is a source, transit and a destination country for human

smuggling and human trafficking625. These operations take place through air,

land and sea.

A Special Law

Pakistan has passed the Prevention of Smuggling of Migrants Act in

2018. The law aims to criminalize human smuggling, safeguard the rights of

victims of smuggled migrants and empower the law enforcement agencies of

Pakistan to effectively prosecute the organized gangs perpetuating and

benefitting from these crimes. The law is drafted by the Federal Investigation

Agency with the assistance of UNODC.

623
Ibid
624
Ibid , 229
625
UNODC, Recent Trend in Human Smuggling to and from Pakistan(2013) <
https://www.unodc.org/documents/pakistan/2013.12.26_Research_Report_HTMS_COPAK_H
TMSS_Designed_for_printing.pdf> accessed 5 November 2017

- 273 -
 As required by the Protocol, the Act expressly states that it does not

aim to criminalize the smuggled migrants626. This shows that Pakistan wants

to ensure the protection of the human rights of victims trapped by

unscrupulous migrant smugglers. Other salient features of the Act are; (1)

Definition of human smuggling (2) Definition of serious crime 627.(3)

Definition of organized criminal group (4) Definition of Smuggling of

migrants (5) Definition of smuggled migrant (6) Listing out the aggravated

offences.

Law Enforcement

FIA was set up in 1974. It is tasked with law enforcement. In fact, FIA‘s

initial mandate was to control the smuggling of goods and drugs. However, In

1996, when human smuggling from Pakistan was considered as a serious

threat by the Western countries, the mandate of the FIA was formally changed

on combating human smuggling628. Another positive step was establishing a

separate unit in the FIA called the Department of Anti Trafficking and Anti-

Smuggling629.

The FIA Task Force is supported by the Police and Maritime Security

Agency to prevent human smuggling. The major role of the FIA Task Force is

to examine the passports and interview suspected migrants. The Maritime

Security Agency is responsible for securing the sea border.

626
Section 8 - The Prevention of Smuggling of Migrants Act, 2018
627
<ttps://tribune.com.pk/story/1684025/1-national-assembly-passes-bill-prevention-migrant-
th
smuggling/> accessed on 10 August 2018
628
Ali Nobil Ahmad,, ( n16 ) 102
629
<http://www.fia.gov.pk/en/index.php> accessed 10 December 2018

- 274 -
 According to a research project, a FIA source stated that, “in general,

returned irregular migrants are not prosecuted unless they are multiple

repeaters.‖ Now, the prevention of human Smuggling Act expressly protects

the migrants from prosecution630.

If a smuggling agent has been involved, the FIA collects information

relevant to the whole operation631. A FIA top official claimed that,

―human smuggling through air routes has been made extremely difficult

as the agency officials strictly check each of about 18 million

passengers who use air-transport to fly out of Pakistan. The FIA is

facing challenges owing to a lack of resources632.

According to the sources, Pakistan has established a FIA Overseas

Pakistanis Complaint Cell (OPCC) under Section 7 of the Federal

Ombudsmen Institutional Reforms Act, 2013, to address the complaints of

overseas Pakistanis. Anyone who is affected by an act of the Federal

630
Section 8 - Non-criminalization of smuggled migrants. - Without prejudice to the
applicability of other laws establishing criminal offences, smuggled migrants shall not become
liable to criminal prosecution under this Act for the fact of having been the object of conduct
set forth in section 3,4,5,6 or 7 and may be a witness in the case.
631
such as regarding where and how the person met or got in contact with the agent,
mobile number or other means to contact the agent, amount of payment given for the
obtained services, means of payment (cash/transfer etc.), whether the person received
any receipt of the amounts paid, whether there were any written agreements or witnesses to
the transaction, the reason for their illegal status in the country of destination (i.e. illegal
entry, overstay, entering on forged or falsified documents, etc.), who facilitated the
procurement of illegal documents, and other information deemed necessary in the course of
the interview PK/A/9, PK/A/10 as cited in <https://ec.europa.eu/home-
affairs/sites/homeaffairs/files/what-we-
do/networks/european_migration_network/reports/docs/emn-
studies/a_study_on_smuggling_of_migrants_case_study_3_pakistan_turkey_greece.pdf>
accessed 10 November 2017
632
Federal Investigation Agency, ‗Claims Human Smuggling is on decline‘ The News <
ttps://www.thenews.com.pk/print/244834-fia-claims-human-smuggling-is-on-decline>
accessed 10 December 2017

- 275 -
Government Ministries is eligible to make such complaints.633. This is a very

good imitative for the affected asylum seekers, smuggled and trafficked

migrants.

Further, FIA has initiated in establishing its branches in Turkey and Iran

to gather first-hand information about human smugglers who are Pakistani

victims634.

Pakistan‘s ‗National Action Plan to combat human trafficking and

migrant smuggling‘ (2015-2020) was approved by the FIA635. It mainly focuses

on addressing prevailing gaps in inter-agency cooperation, public-private

partnerships, consistent data gathering and preventing corruption.

Additionally, the plan includes a section to explain the difference between

human trafficking and human smuggling. It will help to improve law

enforcement mechanisms in future. 636.

Pakistan has launched 40 e-Learning platforms. This programme

expect to focus on global best practices on law enforcement. This will deliver

knowledge to law enforcement officers especially on ‗personnel-searches‘ and

‗interdiction techniques‘, ‗evidence collection‘ and preservation, detecting and

633
< http://www.fia.gov.pk/en/complaintsOP.php> accssed 10 December .2018
634
Federal Investigation Agency (n 608)
635
< https://ec.europa.eu/home-affairs/sites/homeaffairs/files/case_study_3_pakistan_-
_turkey_-_greece.pdf
636
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-
do/networks/european_migration_network/reports/docs/emn-
studies/a_study_on_smuggling_of_migrants_case_study_3_pakistan_turkey_greece.pdf>
accessed 3 November 2018

- 276 -
investigating transnational organized crimes, criminal intelligence and crime

scene investigations637.

The UNODC and the Government of Pakistan have signed a ‗new

country programme‘ directing to combat TOC and illicit drugs in South

Asia.638. This programme mainly focuses a cross-cutting component on

research, analyses and eLearning. This initiative intends to provide and

promote modern methods of training. Numerous young and vulnerable

student are interest to study abroad who end up being misused by human

smugglers.

6.6. Law enforcement in Transit and destination states

Australia

Australia justifies anti-human smuggling measures based on issues

related to sovereignty, security, criminal and health risk. Further, it claims that

huge funding is needed to maintain the irregular migrants and criminals639.

Australia is one of the major destinations for Sri Lankan smuggled

migrants. Maritime human smuggling from Sri Lanka has become a major

concern for both Australia and Sri Lanka. As a result, Australia has changed

its immigration policies, most notably, considerable changes have been

brought into the immigration laws of Australia640.

637 th
UNODC, National Conference on e-Learning for Pakistan's Law Enforcement (12
November 2014) on e-Learning<www.unodc.org/pakistan/elconf.html>
638
Ibid
639
https://www.afp.gov.au/what-we-do/crime-types/people-smuggling accessed 20 October
2017
640
Schloenhardt, Andreas; Craig, Colin --- ‗Prosecutions of People Smugglers in Australia
2011-14‘ [2016] Syd Law Rw 49 available at
http://www5.austlii.edu.au/au/journals/SydLawRw/2016/3.html accessed 8 September 2018

- 277 -
 Australia has tightened its laws641. A special feature of the law is that it

includes a number of aggravated people smuggling offences642. The Act

stipulates a maximum sentence to their ordinary offence and carries out a

mandatory minimum sentence to aggravated offences. Various departments

have enforced anti-human smuggling laws643. Under Australia Law, human

smuggling is an extraditable offence. An important point that must be noted

here is that since SL is not listed on human smuggling in the Extradition Law,

Australia cannot request to extradite the offenders of human smuggling

making orders to SL.

Australia has adopted a wide range of measures with other countries.

Australia has signed MOUs with Sri Lanka with regard to mutual legal

cooperation644. The MOU,2017 facilitates the people who are involved in

people smuggling activities to return to SL

Australia is supporting the Indonesian National Police in gathering,

analyzing and responding to people smuggling intelligence645. Further, it

provides support to country operations through the establishment of an AFP

641
Schloenhardt, Andreas and Conner Daview,‘Smugglers and Samaritans: Defences to
People Smuggling in Australia‘, [2013] UNSW Law Journal ,954, 967, The offences are
organizing, facilitating people smuggling operation, make arrangements to get a forged
documents and visa, conceal and harbor non-citizens, and providing misleading or wrong
information about Australia‘s migration policies.
642
Aggravated offences include a danger of death or serious harm to the smuggled migrants,
bringing five or more persons to Australia, repeat offending, provide false documents or false
or misleading information relating to five or more non-citizens
643
Department of Prime Minister. Australian border force, department of foreign affairs and
trade including the Ambassador for people smuggling, Intelligence and Attorney General
Department work together to counter human smuggling. Australian federal police assist the
Department of Immigration and border protection. AFP and secret intelligence services have
taken crucial steps in regard to disrupting vessels before they reach the shore.
644
MOU between Gov. OF Australia and Gov. of Sri Lanka (2012) 4,
645
Australian federal Police, Annual report (2012 -2013)

- 278 -
liaison post in Sri Lanka646 and also by enhancing the People Smuggling

Strike Team's capability to combat Maritime People Smuggling Ventures

Establishment of dedicated people smuggling liaison and intelligence officers

in Asia647. It also expanded the UNODC's current computer-based training

facilities in Indonesia and Asia. In order to create a smooth running of both

Extradition and MLA, they posted AFP liaison personnel overseas. In 2011–

14, Australian authorities had some success in the extradition of migrant

smugglers from other countries for prosecution in Australia648. It is revealed

that in many cases, the accused entered guilty pleas.

The AFP and DIBP have jointly established a PSST team in 2000 to

combat maritime people smuggling ventures. It is now extended throughout

Asia. This team consists of investigators, intelligence and financial analysists.

Australia has expanded UNODC's current computer-based training facilities in

Indonesia and Asia649.

Another measure is AFP‘s introduction of a law enforcement

programme which is designed to include prosecution, disruption and capacity

building650. The prosecution is based on Extradition and MLA of source and

transit destinations. The disruption strategy informs the foreign law

646

<http___www.aphref.aph.gov.au_house_committee_jfadt_overseas%20representation_subm
th
issions_sub24.pdf> accessed on 10 December 2017
647

<https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Librar
y/pubs/rp/rp1314/PeopleSmuggling> accessed 10 December 2017
648 th
<http://www5.austlii.edu.au/au/journals/SydLawRw/2016/3.html > accessed on 8
September 2018 . Extraditions occurred from Germany, Indonesia, Malaysia, and the United
Arab Emirates.
649

<https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Librar
y/pubs/rp/rp1314/PeopleSmuggling> accessed 20 February 2018
650
Federal police ,Cooperate Plan Australia (Federal police 2018/19)
https://www.afp.gov.au/corporate-plan-2018-19 accessed 18 December 2018

- 279 -
enforcement regarding the movement of boats and they disrupted before

reaching the Australian territory. Under capacity building, Australia provides

training for Sri Lanka, Pakistan, Indonesia and Malaysia.

Another measure is the development of military based border security.

Further, a joint agency task force operation of sovereign borders was

established to combat human smuggling.

Australia claims that the above efforts brought down the number of smuggled

migrants entering its shores651.

Australia has also adopted deterrence measures to bring down the

arrival of boats652. It has been implementing push back operations. Further,

detention centers for boat migrants have been established in Christmas,

Nauru and Manus islands653. Under the Migration Act, they can claim refugee

status. Since 2012, Australia has been providing temporary visa for the
654
migrants to regulate their stay. But they are not allowed to work. Failed

refugee claimants are being deported to the source countries because many

of them are economic migrants and not genuine refugee claimants655.

651
<http://www.theaustralian.com.au/national-affairs/immigration/peoplesmugglers-downsize-
in-bid-to-beat-asylum-barricade/news-story/149610b3f255ea7167817407bed7b0b6>
accessed 20 September 2017
652
Caroline Fleay1 & Lisa Hartley ‗I Feel Like a Beggar‘: Asylum Seekers Living in the
Australian Community Without the Right to Work [2016] Int. Migration & Integration 1032
653
Claire Bergeron, ‗Current Development: Developments in the International
Field: Australia enacts new refugee law after high court halts "Malaysia Plan" ‗
(Fall2011) 26 Geo. Immigr. L.J. 201, Manus Island has been closed in 2017.
654
Caroline Fleay1 & Lisa Hartley (n 656) 1035
655
In 2012 , Australia's immigration minister Chris Bowen sent 26 men back to Sri Lanka who
had arrived by boat, suggesting they were economic refugees
<http://www.abc.net.au/news/2012-11-06/an-sri-lankans-27economic-migrants272c-not-
refugees/4355860 10/12/2016> accessed 12 December 2016

- 280 -
 Australia has been criticized for violation of international obligation

under International Human Rights Law and Refugee Law.

Australia is heading this forum and has invested substantial financial

resource, and political capital in the Bali Process656. Sri Lanka, China,

Pakistan, Canada, Indonesia, Malaysia.

The objective of the forum is to raise awareness, encourage

cooperative action and develop practical regional measures to prevent,

intercept and disrupt people smuggling, human trafficking and transnational

crime657. Some of its major achievements are described below.

Assist governments to implement and harmonize domestic laws to

criminalize these offences with a model law on combating people smuggling

based on the UNCTOC and the Protocol. Australia and China jointly drafted

the law. So far, nineteen Member States have adopted the model law

domestically. It is notable that Sri Lanka has not adopted it.

A series of best practice guidelines have been prepared. But this is

largely on capacity building and nothing more than that.

A Regional framework agreement (non-binding) has been entered658.

This framework broadly talks on punishing the human smuggling syndicates

and protecting the migrants by resettlement, repatriation and other assistance.

656
Joseph H Douglas & Andreas Schloenhardt , Combatting Migrant Smuggling with Regional
Diplomacy: An Examination of the Bali process , [2012] 8 <
https://law.uq.edu.au/files/6723/Douglas-Schloenhardt-Bali-Process.pdf.> accessed 12
November 2017
657
Ibid
658
Australia and Indonesia (Co-Chairs), ‘Co-Chairs’ Statement’ (Fourth Meeting of Ad Hoc Group
Senior Officials, Bali, 9 March 2011) [16].

- 281 -
This should be done collectively. Since it is a non-binding agreement, there is

no fruitful outcome.

A Technical Experts Working Group has been developed in India, Sri

Lanka, Malaysia, Pakistan, Bangkok and Canberra called Regional

Immigration Liaison Officer Network (RILON) to help in alleviating information

sharing between countries in the region. However, this forum mainly

concentrates on irregular migration by air and sea.

Although the regional forum has been active for more than a decade, it

could not achieve its objectives because of a lack of technical cooperation,

intelligence sharing among the states, lack of funding and no regular

conducting of meetings. Further, the meetings are informal659.

Canada

Canada is one of the major destinations for Sri Lankans. According to

the CBSA 01 and 2, while Canada always welcomes the genuine refugees, it

criminalizes irregular migration and people smuggling. Further, they say that

although Canada has a special provision with regard to human smuggling,

due to various practical reasons, they are unable to bring the smugglers

before the Court.

The IRPA Act, 2001 has introduced the offence of human smuggling in

Canada. According to section 117, bringing people into Canada by lawful

means is an offence under this Act. Although people smuggling is not defined

659
Joseph H. Douglas & Andreas Schloenhardt , (n660) 8

- 282 -
under this Act, the Judiciary interprets this section taking into consideration

the UNCTOC and the Protocol660.

According to the Department of Citizenship and Immigration Canada,

the CBSA are responsible for regulating people movement. Each province

has branches of CIC and CBSA and CBSA screening of visitors, immigrants

and refugee claimants.

Inadmissible persons such as criminals or persons considered security

risks are not allowed to enter or remain in Canada.661 When anyone applies

for refugee claim, the CBSA performs background checks.662 If CBSA are

certain about anyone being a danger to their security, he / she will be

removed by the Minister of Citizenship and Immigration after following the due

processes.663

Information regarding the person will be obtained by the respective

agencies from the source country.664 For this purpose, agreements have

been signed. Example: Canada and US. The CBSA maintain information from

other countries. The credibility of the information will be confirmed by the

CBSA. Based on the information, the suspected migrants will be handed over

to the RCMP. Those who have committed people smuggling will be

prosecuted under Section 117 of the IRPA and they will not be allowed to

claim refugee status under Section 37 (1) of the IRPA.

660
R. v. Appulonappa, [2015] 3 SCR 754
661
Reasons you may be inadmissible to Canada, < https://www.canada.ca/en/immigration-refugees-
th
citizenship/services/immigrate-canada/inadmissibility/reasons.html > accessed on 10 November
2017
662 th
<https://www.cbsa-asfc.gc.ca/agency-agence/menu-eng.html> accessed on 10 November 2017
663
Ibid
664
Immigration and Refugee Protection Act 2001 Part 19(1) Sec. 315 .21-315.43

- 283 -
Summary of the Interview with CBSA 1 AND CBSA 2665

Border security officers are in charge of checking the passengers, documents and the

vessels. Biometric technology is available to identify the suspects and digital fingerprint

machines allow the transmission of electronic fingerprint data to the RCMP. CBSA arrest the

suspected migrants. During the investigation, the aggravated factors are taken into account.

Eligible refugee claims are referred to the IRB and the suspected migrants will be arrested by

the RCMP for criminal investigation. Credibility of the information provided by the claimant will

be confirmed by the CBSA before referring to the IRB and RCMP. Refugee claimants are

allowed to work in Canada.

Unlike Australia, Canada implements administrative detention on smuggled migrants.

Visitors are allowed see the migrants and food, medical and recreational facilities are

provided to the detained migrants. Special measures are taken to take care of children and

women. After the inquiry, the migrants will be released to the community.

The detention is supervised regularly according to law.

Regarding SL - Two notable incidents of human smuggling of Sri Lankans have been referred

in the interview namely MV Sun Sea and MV Ocean Lady. Migrants of MV Sun sea and MV

Ocean Lady were released in 2014 from detention. Eight migrants were charged for the

people smuggling offence under Section 117 IRPA. Around 150 got refugee status. There are

agreements between CBSA and respective airlines. The airlines have to bear the penalty for

not checking for proper visa and passport. Even for the airlines, it is difficult to identify the

forged documents. The two particular Sri Lankan cases led major amendments to the

domestic law (bill 31C was introduced). Under this amendment, the Minister was given

powers to declare the vessels as designated vessels. The migrants were declared as irregular

arrivals.

665 th
Interview with CBSA 01 (Manitoba, Canada 14 September 2017) , interview (n616 )

- 284 -
Canada has signed an agreement with these countries to share information regarding the

suspects and the migrants. However, there is no exchange of information agreement with SL.

Summary of the interview with York 01666

After the refugee claim is rejected a pre removal assessment is done by the IRB. There are

different options available for the refused claimants. They are Appeal, Humanitarian

assistance and appeal to the Federal court. They have no legal status. Canada respects

the principle of non- refoulment. Even if they fail they are entitled to health and other benefits.

According to him Law enforcement is failed in Canada Therefore, Canada has to use harm

reduction strategies. He suggested that Canada has to prevent the migrants accessing the

human smugglers. Source and destination countries have to introduce harmful reduction

strategies. Tough penalty is not a proper response to address human smuggling. When sever

punishments are introduced the smugglers charge high fee and there is possibility of the

migrants to be arrested and prosecuted. Canada has signed MOU with Airlines to detect the

people who possess the forged documents. Measures taken by Canada and Australia to

prevent the migrants coming in is unreasonable. They need to take humanistic approach

toward the migrants.

United States

The US law defines human smuggling667 and relevant punishment re-

stipulated under the US Immigration and Nationality Act668. The US has

signed the Extradition and MLA Treaties with many countries. Immigration

666
Interview with YK1 , York University( Centre for Refugee Studies, Yok University , Toronto
th
Canada 9 October 2017)
667
Human smuggling is the facilitation, transportation, attempted transportation or illegal entry
of a person(s) across an international border, in violation of one or more countries laws, either
clandestinely or through deception, such as the use of fraudulent documents.
668
Title 18 of the United States Code -Section 274(a)(1)(a) can include a fine , a prison term
of up to ten years, or both – and the punishment gets multiplied by the number of people
smuggled. If someone gets injured as a result of the crime, the penalty can be increased to a
20-year prison term; and if someone dies as a result, the prison term can be extended to life.

- 285 -
offences and human smuggling have been listed as extraditable offences in

bilateral treaties669. The US Bribery Law allows to take action against the

corrupt foreign officials. Example: The San Francisco Federal Court convicted

the former Ukrainian Prime Minister Pavel Lazarenko for twenty-nine counts

of money laundering, wire fraud, interstate transportation of stolen property

and conspiracy670.

The Human Smuggling and Trafficking Center (HSTC) was established

in 2004. This is a centralized body to brings all law enforcement agencies

together. HSTC analyses all the information related to activities of criminal

organizations. Further, it jointly engages in partnerships with foreign

authorities in relation to deterring, disrupting and dismantling criminal

networks involved in human smuggling, trafficking and document

production671.

The action against irregular migrants reveal that the United States do

not consider the smuggled migrants as victims. The Immigration Detention

Policy of the US is highly criticized as in the case of Australia. The irregular

migrants are detained in prison and jail672. Hence, the enforcement system is

like a criminal justice system. Similar to Australia, the US also has

implemented push back operations from the sea. It is a violation under the

human rights treaties and the refugee convention.

669
Example - treaty Between the US and Belize-Us department of State
670
Matthew J. Spence, ‗American Prosecutors as Democracy Promoters: Prosecuting
Corrupt Foreign Officials in U.S. Courts ‗ [(Mar., 2005] The Yale Law Journal, 1185-1192
671
https://www.ice.gov/human-smuggling-trafficking-center
672
Schloenhardt, Andreas; Craig, Colin(n645)

- 286 -
European Union

The EU has developed regional mechanisms to tackle human

smuggling. Belgium Germany, Italy, Greece and the Netherlands are the

major targeted states of human smugglers.

The Council Directive 2002/90/EC and the Council Framework

Decision 2002/946/JHA are the main instruments. A three-phase military

operation has been operationalized in the Southern Mediterranean by a

council decision673 to counter smuggling.

The European Commission launched an EU action plan against

migrant smuggling 2015–2020674. It aims to fight strongly against irregular

immigration and smuggling675. The main focuses of the plan are preparing a

list of suspicious vessels, creating platforms to enhance cooperation and

exchanging information. Another important element is removing

advertisement activities of the human smugglers through cooperate internet

service providers and social media676.

The first phase supports the detection and monitoring of criminal

networks through information gathering and patrolling on the high seas in

accordance with international law. The second phase conducts boarding,

searching, seizing and diverting vessels on the high seas suspected of being

used for human smuggling or trafficking acceding to international law and law

of the sea. The third phase takes all the necessary measures against
673
Adopted of 18 May 2015 the Council
674 th
<http://europa.eu/rapid/press-release_IP-15-4545_en.htm> accessed on 15 June 2018
675
This Agenda was complemented by the EU Action Plan against Migrant Smuggling in May
2015. Many member states have bilateral agreements with numerous third countries which
permit entry and residence for longer periods than the Schengen rules‘ 90 days, with no
formalities at all.
676
See http://europa.eu/rapid/press-release_IP-15-4545_en.htm. accessed 15 June 2018

- 287 -
suspected human smuggling and trafficking vessels in the territory of that

state with the consent of the coastal state and the UNSC resolution677.

These initiatives are non-binding in nature. Hence, the level of

implantation may vary in each EU Member State.

Frontex, European Border and Coast Guard Agency and Europol are

the main organizations in dealing irregular migration. FROTEX mainly focuses

on detection and prevention of weaknesses in the management of the EU

external borders.

With regard to smuggled migrants, the EU has developed directives to

regulate detention of irregular migrants. Accordingly, migrants are kept in

separate non-criminal related prisons.

Good practices of selected EU Countries

Belgium has successfully fought against human smuggling678. Belgium

has special networks of judges and police in the fight against smuggling.

Myria (the Belgian Federal Migration Centre) is an independent public body. It

analyses migration, defends the rights of foreigners and combats human

smuggling and trafficking. Myria promotes public policies based on evidence

and human rights.

Further, Belgium has a victim centric approach to smuggled migrants. It

offers the victim status for those affected by aggravating circumstances 679.

Myria requires the state to take a humane approach towards the human

677
EUROPOL had been supporting Operation Bouquet since 2013 and EUROJUST had been
providing judicial support
678
– MYRIA, Federal Migration Center Trafficking and Smuggling of Human beings - beggars
in the hands of traffickers , (Annual Report of 2016), 148
679
especially in cases involving extremely dangerous situations, such as refrigerated lorries.

- 288 -
smuggling victims and get more information on the smugglers because this

information is very crucial for interception and investigation680.

Social media is used as a means of identification of perpetrators and

investigation681. Google maps are also used as a tool. Further, the seized

smart phones, iPhones and computers are very important in gathering data.

Financial data is used as a tool to identify leaders of the criminal

organizations. By formal request supported by a warrant from the Police

collaborate with money transfer agencies to obtain financial data682.

Italy use the UNCTOC and the Protocol as a basis for international

cooperation. Italy has signed a number of information exchange agreements

with countries. Further, re-admission agreements have been signed with most

countries of origin683.

Italian law enforcement agencies have been equipped with special

high-tech devices684 and special investigative techniques to carry out

investigations. The International Police Co-Operation has also been

enhanced.

Since mid-2015, Italian authorities have launched a series of

operations, named Glauco, and arrested more than 70 smugglers, including

those responsible for coordinating and financing operations685.

680
MYRIA, Federal Migration Center (n650) 440
681
Ibid, 444
682
Ibid , 446
683
EU Commission, Italy.4. EU and International Cooperation, available at
ttps://ec.europa.eu/anti-trafficking/member-states/italy-4-eu-and-international-cooperation_en
accessed 15 June 2016
684
(i.e. mobile xrays and γ-rays to check containers; ―bio sounds‖ to check train carriages;
new fixed and mobile radars to detect small boats)
685
<https://www.occrp.org/en/blog/6028-in-sicily-anti-mafia-skills-used-in-the-fight-against-
people-smugglers> accessed 13 February 2018

- 289 -
 At national level, an interagency cooperation is regulated by standard

operating procedures and protocols. Special agreements to regulate the

actions of ship riders applicable to maritime operation have been developed.

A specialized agency has been created to prosecute against human

smuggling within law enforcement offices.

In respect of children, including non-accompanied children, trafficking

victims, refugees and asylum seekers, a special referral mechanism has been

created. Italy has a procedure to get formal consent of the migrants to

become witnesses to ensure their cooperation in order to secure the

conviction of the smugglers.

In these cases, Italy ensures the corroboration of evidence rather than

relying on isolated statements. There are measures to mitigate the risk of the

flight of witnesses to reduce the fear of retaliation of migrants. Witnesses are

given permits to stay for safety reasons.

Italy has established a common platform to share information among

law enforcement agencies from different countries. Italy also supports the

implementation of programmes that develop and / or enhance working skills,

small business models for migrants choosing voluntary return and to access

vocational training in the countries of origin686.

686
UNODC, Trans regional Workshop on preventing and Combating the Smuggling of
Migrants by Sea Affecting the Mediterranean region report (14-16 October 2015, ITALY) <

- 290 -
 CHAPTER VII

―WHEREAS it is the will of the People of Sri Lanka to establish a stable legal

order based on a Supreme Law in the form of a Constitution which –

Strengthens institutions of governance; assures a wider sharing of power;

enshrines democratic values, social justice and human rights; facilitates

economic, social and cultural advancement; and promotes peace, ethnic

harmony and good governance;‖ -Preamble of the Second Republic

Constitution

7. Conclusion and Recommendations

The first chapter provides a detailed introduction to the study

undertaken by the researcher. In the back ground of the research, the causes

for legal and irregular migration, meaning of human smuggling, the

relationship between human smuggling and irregular migration have been

explained. This part also clarifies the meaning of different terminologies which

are used in the area of human smuggling such as ‗smuggled migrants‘,

‗source country‘, ‗transit country‘, ‗destination country‘ and ‗irregular

migration‘. It also explicates the role of technological advancement in

transnational organized crime.

In order make a clear attention to the meaning of human smuggling

and human trafficking, the researcher had to grasp the variances between

these two offences with the assistance of the SM protocol, trafficking protocol,

journal articles, books and other reports. This part also outlines the

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development of international legal regime on human smuggling and

theoretical foundation underlying pertaining to human smuggling. Further, an

abstract of the responses to human smuggling by destination country and

source countries is presented.

A summary of literature review on Sri Lankan aspects is enumerated to

present the current gaps in the area of study and to support to the need of the

study.

Based on the literature review, the next part is devoted to the focal

point of the research, that is the statement of the research problem.

Researcher has described the research problem currently existing in SL,

research gaps and the rationale as to why it needs to be addressed. Keeping

the research problem in mind, the researcher has set out specific research

objectives to define the structure of the research thesis. Then, a set of

generated research questions have also been presented in order to find

answers to the intended objectives.

In light of the literature review and confronted with the research

problem, the researcher has arrived at two tentative hypotheses and these

are presented.

Last portion of the chapter has explained the research methodology

that is applied in the research. Further, this part provides a summary of the

primary and secondary data used. Justification for the tools of data collection

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and methodology is also presented. Finally, the chapter presents the

breakdown of chapters.

Chapter 11 is titled Theoretical Approaches to Human Smuggling: A

study - The first objective of the research thesis is to understand the

theoretical underpinning of human smuggling. To achieve this objective, a

research question is framed as ‗What are the theoretical models so far

developed in the area of human smuggling?‘ The second chapter explains

and analyzes the theoretical models that have been so far developed to

comprehend and explain the phenomena of human smuggling. Theoretical

models have been developed based on empirical evidences across the globe.

With the availability of literature, this thesis has analyzed mainly six models

namely the Business Model, Organizational, Criminological and Network

Approach Model, Human Rights-Based Model, Gender Approach, Demand

and Supply and Deterrence Theory Model. The last part provides a summary

of other models without going into an in-depth discussion. A summary

conclusion has been added.

The third chapter titled International Legal Regime on Human

Smuggling: A Critical Study - The core objective of the chapter is to assess

the extent international law impacts on human smuggling it was able to

address criminalizing of migrant smuggling and protecting the rights of the

smuggled migrants. This chapter has critically analyzed the UNCTOC and the

protocol. According to these two legal instruments, for certain matters such as

corruption, human rights and maritime human smuggling other international

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legal treaties have to be consulted. In this context, relevant provisions of

UNCAC, UNCLOS, IHR treaties and CSR are also dealt with. This chapter is

apportioned with definitional aspects of OCG, serous crime, human smuggling

and illegal entry and financial and other material benefits. Additionally, a

particular consideration was given to maritime human smuggling. The nature

of state party obligations under the UNCTOC and the Protocol was analyzed

in depth. Besides, liability of smuggled migrants and rights of such smuggled

migrants under international law were also discussed. The last part of the

chapter has summarized the findings of this chapter.

Chapter IV titled Magnitude of Human Smuggling in Sri Lanka: With

particular focus on field study narratives - The main objective of Chapter Four

was to discuss the different aspects of human smuggling in the SL context. In

the context of the dearth of literature, primary data was collected from

smuggled migrants and key informants in SL. Responses from two sets of

respondents were analyzed and presented. This chapter briefly describes the

modus operandi, routes, departure points, major destinations and process of

the venture. Opinions expressed by the officials were quoted in appropriate

places in the body of the discussion. An analysis of field data is presented in

the form of tables and graphs.

Chapter V titled Domestic Legal Framework in Relation Human

Smuggling: Critical Analysis - The main aim of this chapter was to evaluate

the ability of the existing Sri Lankan legal framework to criminalize human

smuggling and protect the smuggled migrants. The Constitutional provisions

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Immigrants and Emigrants Act 1948, Mutual Legal Assistance in Criminal

Matters Act 2000, Extradition Law 1977, Bail Act 1997, Extradition Law 1977

and Protection of Victim and Witness Protection Act 2015 have been given

due consideration. This chapter has identified strengths and weaknesses in

the national legislations.

Chapter VI is titled Law Enforcement Mechanisms in Sri Lanka: A

comparative analysis with selected jurisdictions - The objective of this chapter

is to explain and analyze the law enforcement procedure in respect to human

smuggling in SL. Opinions expressed by key informants from SL and abroad

were summarized and presented This chapter also aimed to study the best

practices followed in China and Pakistan, Australia, Canada, Europe the US.

Responses of selected government officials, NGO officials and academics

from Canada are also incorporated.

7.1 Findings

The researcher has briefly presented the findings of each chapter

below.

(a) Chapter II

The theorists of the Business Model reveal that the main parties of this

business are smugglers and prospective migrants. However, many other

parties such as immigration officers, border control officials‘ friends, relatives

and family. act as intermediaries in the business. The main beneficiaries of

the business are the smuggling network and government officials. Corruption

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plays a major role in the trade. In addition to these main parties, NGOs also

gain profit by providing counseling and other services to the effected migrants.

The Organized Criminal Model discloses that transnational organized

crime is committed by various types of groups such as well-organized crimes,

loose horizontal groups, flexible groups, unstructured groups and ad-hoc

groups. These groups engage in various transnational organized crimes

including human smuggling. Transnational crimes take place in multiple

countries. Some of these criminal groups have connection with terrorist

organizations and funds obtained by the criminal networks are used for

furtherance of terrorist activities. Generally, the main leader of the

organization never comes to the scene. The whole operation is carried out by

several intermediaries. Hence, the migrants have no idea about the

organization and its identity.

The third model discussed in this chapter is the Human Rights-Based

Model. Business and Organized Crime Models, mirror the migrants as clients

and offenders, whereas the Human Rights-Based Model perceives the

migrants as the sufferers. Scholarly studies based on this model emphasizes

that the states are required to implement legal provisions of the protocol and

other major international human rights conventions to ensure assistance and

protection for the migrants without any kind of discrimination.

The Deterrence Model expresses about the underlying basic principles

in deciding the amount of punishment and the purpose of the punishment.

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The major finding is that the punishment should not be arbitrary and

disproportionate to the crime committed. Further these principles require the

legislature to define the law, elements of the crime and the punishment. They

summarize that the object of the punishment has to increase the happiness of

the people by increasing the pleasure and lessening the pain of the

community. However, there is no universal application of the principles of

deterrence in regard to human smuggling. Each state is implementing it

according to its own wish.

The Demand and Supply model is applicable to both legal and irregular

migration. This Model reveals three significant points (1) The differences in

wages between sending and receiving countries is the major factor in

motivating people to migrate. (2) Western born natives do not like to do low

skilled jobs. (3) The source countries indirectly encourage the migrants to

move in order to solve employment issues.

The Gender Based Model argues that smuggled men are used for

labour exploitation and women are exploited for sex. This theory also looks at

the role of the women in organized crime. There are no evidential studies to

make any conclusion about the role of the women in organized crime.

(b) Chapter III

Chapter III aims to answer the research question namely ‗How far the

international legal framework has achieved the stated objectives of the

UNCTOC protocol, namely criminalizing migrant smuggling, protecting the

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rights of smuggled migrants as well as promoting the international cooperation

among the states to that end?‘

At the negotiation of UNCTOC, no consensus was arrived among the

states to define TOC. It is a major drawback of this convention. This

convention defines what OCG is? There are various elements immersed into

the definition such as structured group, number of persons in the group, time

period and the motive of the crime. The major drawback of the definition is

that it does not answer; How to fit flexible, small scale medium size groups in

the OCG definition? What is a structured group? What is the period of

existence and what is serious crime?

In order to reflect how far the definition of OCG has been adopted into

the few domestic legislations, Australia, Canada, the EU, the US, Pakistan

and Malaysia have been taken into account. In respect to punishment, all

these countries conform with the convention. The motive of the crime

(financial or other material benefit) is specifically stated only in the EU and

Pakistan. Australia and Canada do not define what a structured group is.

Only the EU comply to the explanation given in the convention. None of the

states require the period of existence.

Canada, Malaysia and Australia do not define the term ‗human

smuggling‘. Pakistan and the EU and the US define the term. The Protocol

does not consider human smuggling when the transportation is organized on

humanitarian grounds. Except Netherlands, none of the other countries have

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not included monetary benefit as a motive of the crime. Australia punishes

even if the pecuniary gain was not realized by the organizer. The Canadian

law does not expressly require the element in the IRPA. Nevertheless, the

judiciary clearly has laid down that transporting people on humanitarian

grounds does not amount to people smuggling. All these domestic legislations

do not identify human smuggling as an organized crime as recognized under

the UNCTOC and the Protocol.

Maritime human smuggling is considered more serious than smuggling

by air. In spite of this fact, the Protocol has failed to give sufficient attention to

that matter. Instead, it requires the states to adhere to the international law of

the sea. However, the discussion revealed that treaties relating to

international law of the sea do not have any provisions in relation to maritime

human smuggling. This is obvious because at the time of adoption of

UNLCOS, human smuggling was not in the international agenda.

The second objective of the Protocol is to provide assistance and

protection to the smuggled migrants. In respect of this objective, Protocol did

not give much attention from the drafting stage of the instruments. It mainly

focusses on criminalization of the offence than the protection of the rights of

the migrants. Protocol requires the states to not to punish the migrants and ,

provide assistance and protection for them and recognize the particular needs

of women and children. Nevertheless, it has failed to give any details as to

what kind of assistance, needs and rights should be extended as in the

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trafficking protocol. It simply asks the state parties to consider the rights

previously recognized in international human rights law.

The third objective is to extend international cooperation in eradicating

TOC including human smuggling. In respect to this subject matter, Protocol

and UNCTOC should be taken into account together. The important

transnational cooperation is extending MLA and extraditing the accused to the

requested state. These two matters are purely on the state‘s willingness.

However, in absence of treaty between states, UNCTOC provisions guide in

these matters. Apart from these two, UNCTOC encourages states to establish

extra territorial jurisdictions to punish the offenders and provide other

technical and technological cooperation.

Transnational obligation of these instruments is mandatory while

discretionary and few are optional. UNCTOC does not want to impose many

things on states, rather, it obliges the state parties to fulfill their duties subject

to the principle of sovereignty and territorial integrity of states. Hence, states

have the freedom to fulfill international obligations according to their own will.

There is no treaty-based mechanism to supervise the level of implementation

and provide necessary recommendations in any matters arising from it.

(c ) Chapter IV

The analysis shows that TOC is a serious issue in Sri Lanka. Human

smuggling is connected to drug and human trafficking, corruption and money

laundering. Inward and outward movement with the assistance of human‘s

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smugglers take place via different transit points. Transportation of people is

organized by OCG, flexible criminal groups, family, social networks and

corrupted public officials.

Large numbers of Tamils from the northern and eastern districts obtain

the service of criminal network. Relatively a small percentage of Sinhalese

and Muslims are eager to use this irregular channel. Majority of the migrants

remain between the age group of 18 to 44. They are from a less educated

background and belong to the low-income group.

The intended destination of the majority of respondents was Australia.

Smaller vessels have been used to carry large number of people. The

journey had started from authorized and unauthorized sea ports. Migrants had

not got basic facilities. Fifty percent of the attempts were unsuccessful due to

the actions of coast guards and airport authorities.

Poverty, unemployment, lack of job security and security threats are

the causes for this venture. Among these, the major reason is the source of

livelihood.

In general, a long time is taken to finish the cases against the migrants.

Fifty percent of the agents have not been arrested by the authorities.

Further, the migrants did not give evidence against the agents due to the fear

of being threatened. They also want to get their services in future. Some of

them were not given a chance to testify.

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(d) Chapter V

With respect to organized crime and human smuggling, there is no

specific legislation in SL. Other transnational crimes such as Corruption and

money laundering are dealt under special laws. The Bribery Act does not

address the private, foreign official bribery and corruption. SL does not have

arrangements to exercise extra- territorial jurisdiction in relation to these

offences.

Human smuggling is not defined and not treated as a transnational

organized serious crime. At present, the IME Act, Sections 45 A and 45 C

cover the essence of the crime. The objective of the IME Act is to regulate

immigration and emigration and not to penalize human smuggling. The above

two provisions namely 45 A and 45 C punish any person who brings in any

person to SL and transport any person from SL. Hence, it does not refer on

crimes that are committed by the OCG. Compared to 45 C section, 45 A

penalizes only the acts of harbor and conceal. Whereas, 45 C penalizes too

many acts. Therefore, 45C is broad enough in terms of actus reus. The

motive of the crime is absent in both these provisions. Soliciting benefits by

committing the offences under 45 C is one of acts that is considered to be an

activity coming under the meaning of ‗organize defined in 45 C‘. Both

sections do not refer to any aggravated offences.

45 C and 45 A (c) are non- bailable offences and the High court has

the power to grant bail under the Bail Act 1997. Concealing and harboring are

bailable offences for which the magistrate is empowered to grant bail. In

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relation to the punishment, the Act comply with UNCTOC; i.e. The maximum

punishment is five years. In respect to the punishment for falsifying and

possessing of fraudulent documents, the IME Act conform to the article 6 of

the Protocol.

Sri Lanka is obliged under international human rights treaties to protect

the rights of everyone without any discrimination provided that there are

enabling acts in SL to give effect to international obligations. Some of those

rights are enumerated under the ICCPR Act 2007, Right to Information Act

2016 and the Assistance to Victim and witness protections Act 2015.

Section 45 of the IME Act punishes migrants who violate the provisions

of the Act. Since they are considered as offenders, they do not have a remedy

under the Assistance to Victim and witness protections Act. If their

fundamental rights are violated, they can access to remedies through the

Supreme Court.

In respect to obligations, the MLA and Extradition specific legislations are in

place. The MACMA Act and Extradition Law govern these matters. The Major

lacuna is that there are no provisions for urgent MLA requests in the MACMA

Act. Only corruption and money laundering are extraditable offences under

Extradition Law and the immigration offences are not listed so.

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(e) Chapter VI

Except in Sri Lanka, all other selected countries have made human

smuggling a serious crime. None of the countries have a single law

enforcement agency to deal with the matter. Several agencies work together.

These agencies have administrative, quasi-judicial and criminal powers.

Irrespective of whether developed or developing nations, resource constraints

and corruption are major issues to implement the laws.

In Sri Lanka, there are no separate units established in the AG‘s

Department and CID to handle human smuggling related offences Lack of

cooperation among the agencies, backlog of cases, lack of understanding

about the crime, resource constraints and corruption and non- cooperation

from the smuggled migrants have been found as major impediments. Loss of

evidence and non-cooperation from the migrants are major problems to

commence the prosecution. Backlog of cases deny justice to the victims.

None of the organization have a database to record the number of arrests,

status of the cases and convictions.

A long time is being taken to finish the formalities of obtaining the MLA.

Similarly, extradition is also a lengthy process. Although there are two

separate bodies, the Ministry of Justice and the AG‘s Department are

entrusted to handle these matters, the process is carried out through

diplomatic channels. The diplomatic process eventually affects filing charges

against the culprits. The Ministry of Justice and the AG‘s Department

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duplicate their work because a similar process is followed in both the MLA

and extradition.

Like Sri Lanka, Pakistan and China also have similar law enforcement

measures. The major impediment in China is that they do not perceive human

smuggling as a threat but rather it is seen as a means of developing their

economy. A significant good practice followed in China is the registry of list of

suspected criminal networks / members which is maintained by all police

stations and a timeline is given to catch the snakeheads. If they fail, their

official duties will be withdrawn and the entire work is given to catch the

criminals. Since this is considered as a punishment, officers are motivated

and therefore put in more effort to arrest the suspects.

Pakistan is a major source country for human smuggling. It has taken

some progressive steps in relation to law and law enforcement. Pakistan has

a special law in line with the UNCTOC and the SM Protocol. FIA is fully

entrusted to handle human smuggling. It has developed a national action

plan, established an online complaint cell overseas, developed FIA liaison

posts in some countries and offered E-learning courses on law enforcement

procedures and investigative techniques.

Australia has introduced deterrence measures through legal measures.

It has added new offences in 2010 implementing mandatory detention for

smuggled migrants establishing off-shore detention camps and push back

operations from the high seas. To a certain extent, Australia has discouraged

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maritime human smuggling in the last five years. However, these measures

are against well-established international human rights principles.

Further, it has a good record of punishing foreign offenders of

transnational crimes including human smuggling through the extradition

process.

Australia has also taken joint measures with source countries and

transits. Notable measures are with Indonesia and SL. Australia and SL

exchange their cooperation in MLA and joint investigation. Australia providing

necessary training for law enforcement officers.

The US has given a definition on human smuggling. It is a serious and

an extraditable offence. The US has succeeded in punishing a notable leader

of a Chinese snakehead sister ring. She was extradited from China. The US

also has convicted a number of leading members of the human smuggling

network. Another good practice is that they have a centralized forum to bring

in all law enforcements together to discuss the matters on human smuggling.

Similar to Australia, it has taken several joint measures with foreign countries

to dismantle criminal networks. Like Australia, the US has faced severe

critiques regarding the treatment of smuggling migrants.

Like in the US and Australia, Canadian Law has punitive provisions to

punish the criminals. It is a serious and an extraditable crime like the above

two countries. However, with regard to the treatment of smuggled migrants,

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Canada is much better than the above two countries. Canada does not

practice mandatory detention. It respects the principle of non-refoulment.

Unlike in the US and Australia, once the migrants are released from

administrative detention, they are allowed to work.

Belgium was successful in convicting a large number of smugglers. A

network of police is created to execute arrests and conduct investigation. The

social media is playing a major role in investigation. A special network of

judges is available to hear the cases on smuggling. A public body has been

created and tasked with combat human smuggling and defend the rights of

the migrants. It follows the victim-centric approach toward the migrants. The

protection of the victim and the witness is highly ensured to bring the culprits

before the law to be punished.

Italy was pioneer in bringing the human smuggling protocol. Italy has a

special law on human smuggling. The transnational element is not required to

punish the offenders of human smuggling. Italy uses high tech devices to

catch criminal network. It has signed a readmission treaty with the country of

origin. This is a good mean to share the state‘s responsibility. There are

special arrangements in place to share information within the country and

outside the country. Similar to Belgium, the victim‘s and witness‘ protection is

ensured in Italy as well.

Two regional arrangements have been discussed in chapter VI. One is

the Bali process and the other one is the EU regional arrangements. The EU

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countries are more progressive in adhering to the regional arrangements.

They have made significant progress by joint actions and individual state level

measures. The Bali process has not progressed very much in reaching its

objectives. Compared to the membership of the two forums, the Bali process

consists more source countries whereas in the EU major countries are

destinations. Hence, in terms of resource, expertise, technology and

investigative techniques, the EU states are richer than the members of the

Bali process.

7. 2. Concluding remarks on the hypotheses

Based on the literature review, the following are the tentative

conclusions that were arrived at the beginning of the research.

o The existing Sri Lankan domestic Legal Framework with regard to human

smuggling has not adequately incorporated the core objectives set out in

the United Nations Convention on the Transnational Organized Crime and

the Migrant Smuggling Protocol, namely, to prevent and combat the

smuggling of migrants and protect the rights of the smuggled migrants.

o As a result of the non-incorporation of the stated objectives of the above

instruments in domestic legal framework, the smugglers escape from

punishments proportionately to the crimes that they have committed and

the violation of the rights of the smuggled migrants are not effectively

remedied.

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 The first hypothesis is proved based on the findings of Chapters V and

VI. Sri Lanka has ratified the UNCTOC in 2006. According to its legal system,

an enabling legislation is necessary to implement the obligations. Even after

more than a decade of becoming a party to this convention, SL has not made

any meaningful measures to bring in a law on TOC.

Nevertheless, other pieces of legislation such as the Bribery Act and

Money Laundering Act handle corruption and money laundering that are

connected to Human smuggling. Hence, in respect to penalizing the TOC, SL

has not taken adequate measures. In respect to international cooperation, the

MACMA Act and Extradition Law play a major role.

SL has not ratified the Protocol. Hence, it is not directly bound by the

obligations arising from the protocol. SL is a member of the Bali process

which aims to work according to the Protocol. The forum has drafted a model

law on human smuggling based on the Protocol for which SL has also

contributed. Additionally, the SL is a member of the drafting committee of the

UN Model Law on human smuggling. Further, SL has made expressed

commitments in the UN Human Rights Council in 2015 which addresses

human smuggling in a nuanced manner. SL has agreed in the bilateral treaty

with Australia to cooperate in matters relating to people smuggling.

Moreover, a number of Sri Lankans have been convicted in Australia,

Canada and the UK for people smuggling offences. By taking all these issues

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into account, it is clear that SL has failed to address the crime of human

smuggling adequately.

The second objective of the protocol is to protect the rights of the

smuggled migrants. SL is not directly obliged by this duty. However, SL has

obligations under international law treaties to protect the rights of the victims

of human smuggling.

Failure to take measures in accordance with the international

standards has contributed to a low number of arrests and proper

punishments. Even if SL brings in a new law to address, other constraints

found in the study have to be addressed. Rights of the smuggled migrants are

not effectively remedied.

7.3 Recommendations

As a signatory, Sri Lanka needs to give effect to UNCTOC by enabling

legislation to tackle transnational organized crime. It is recommended that a

definition on what is ‗organized crime group‘ should be given. Analysis under

Chapter III found that UNCTOC‘s definition is not suitable in today‘s context.

Hence, it is appropriate to create a definition which could accommodate all

types of criminal syndicates that carry out TOCs. The Act should give a

definition on serious crime. The motive of the crime should be included in the

definition. Further, the Act has to have an attached schedule to list serious

TOCs.

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 With regard to human smuggling law, two options are suggested.

Either (1) Sri Lanka can adopt a separate piece of legislation on human

smuggling to differentiate immigration offences or (2) IME Act can add a

separate chapter on this matter.

Human smuggling should be defined. This is very important to

understand the difference between trafficking and smuggling. The definition

should include the motive of the crime to release the people who have not

gained any benefit but to help the people on humanitarian grounds. The term

smuggled migrants should be defined in the Act.

As of now, section 45 C and 45 A punish bringing non-citizens to Sri

Lanka and facilitating irregular departure of persons outside Sri Lanka as two

separate crimes. The new bill has to combine both these together. A separate

section should be devoted to maritime human smuggling. Aggravated

circumstances have to be included in the proposed bill.

When deciding the punishment aggravated factors and the conditions

of the vessels, the number of smuggled migrants taken in the vessel have to

be given due consideration. Basic principles of punishment have to be

consulted to balance the interest of both the accessed and the victim.

Person / persons who are charged for maritime human smuggling

should be able to defend their case on certain grounds. Therefore, it is

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recommended that the proposed bill should specifically mention the defenses

available to them E.g.: necessity, distress, emergency situation ext

As in the Pakistan‘s Anti- Smuggling Act, 2018, an express statement

should be presented to say that ‗the smuggled migrants should not be treated

as criminals‘. In addition, it is important to educate the coast guard and the

immigration officials at the port to identify the smuggled migrants who have

faced mental, physical torture and sexual exploitation. A referral mechanism

has to be created to refer them for counselling, treatment and other necessary

assistance. An additional provision needs to be added to focus on special

needs of women, children and disabled migrants. Protection and remedies

available for the victims in the protection of the Victim and Witness Protection

Act, 2015 has to be extended to smuggled migrants.

Since private sector is also bribed in the process of human smuggling,

private sector bribery should be added as a punishable offence. Foreign

official‘s corruption too needs to be added. Awareness creation regarding the

Act is vital.

Law enforcement officers are not well informed regarding the offence of

human smuggling and international instruments which govern human

smuggling. It is appropriate to recommend that the Police Academy and the

Defense University have include a separate title on transnational organized

crime in their course curricula.

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 Although internal and overseas trainings are given to officials of the

DIE and AG‘s Department, they do have a vast knowledge about the crime,

international law and other regional mechanisms. Knowledge acquiring is

important to revise the laws, enact new laws and enforcing the law. Hence

the DIE, and AG‘s Department have to hire experts in this area to obtain an in

depth understanding. Officers attached to the legal unit in the DIE need to

engage in cross national studies to understand the laws of other countries.

This will enhance their knowledge.

Like what FIA Pakistan have, the CID and the AG‘s Department must

have a separate unit to handle TOCs. Since SL does not have the capacity to

create several agencies for multiple transnational crime, it is advisable to

create a centralized public body under the proposed organized crime bill that

could bring all law enforcement officials together. The body has to act with

separate units of other law enforcement agencies. This body can conduct

awareness programmes for the officers and the general public. This body can

collect data from various public bodies and create centralized data.

To get the cooperation from smuggled migrants, a victim-centric

approach should be followed. Officers have to build trust in them that they will

be protected during the trial. To get the details of the suspects, the social

media can be utilized. Further, the Computer Evidence Act has to be

amended to admit video conferencing and photographs as evidence.

The study found unemployment, lack of job security, low income as the

main causes to seek assistance from criminal networks to go abroad in

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search of greener pastures. The ESCR Covenant obliges SL to ensure

economic and social rights.

Directive principles of state policy enumerate certain principles with

regard to economic and social well-being. Article 27(7) of the Constitution

requires that the state shall eliminate economic and social privilege and

disparity and the exploitation of man by man or by the State. Further, 28(8)

requires to ensure that the operation of the economic system does not result

in the concentration of wealth and the means of production to the common

detriment. Hence, Sri Lanka needs to address the root causes of human

smuggling.

From time to time, Sri Lanka prepares a national plan of action to

promote human rights. Special issues and needs of smuggled migrants

should be focused in the future national plans. Awareness creation among the

general public is important to discourage the irregular movement.

It is very clear that the obligations under the UNCTOC and the Protocol

are transnational. Regional and international cooperation is necessary to

implement the above-mentioned suggestions. SL needs to express its issues

in the relevant forums/reports to achieve the goals of the international

community regarding transnational organized crime.

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