Columns

Unfortunately, the Sri Lankan Government is yet to learn the lesson that statecraft is far more than bluster, bullying and ballyhoo. This is why we have got ourselves into an ugly tangle at the United Nations Human Rights Council (UNHRC) even as critical forces gather strength in calling for an international inquiry into wartime abuses. And all this while our representatives in world capitals engage in tactics that are better suited for the rough and tumble of Pettah’s meaner streets rather than the corridors of a global body.

No need for all this hysterical drama

Overt racism mixed with a dash of communalism of extremists on the lunatic fringe, to put it bluntly, who drive state policy in the Gotabhaya Rajapaksa Government has preciptated us into an unholy mess. Sadly it appears that this lunacy is not confined to crackpots. The recent sight of Sri Lanka’s Minister of Foreign Affairs calling for the blessings of the Sangha before facing the potentially hostile scrutiny of the UNHRC is certainly not an edifying sight. This is not a reflection of mature statecraft. Indeed, there is no need for this drama if only commitment to the democratic process had been evidenced on Sri Lanka’s part.

We need not have been put into the uncomfortable position of pleading with ‘friendly’ countries (the list is getting shorter by the day) for support at the Council if that was the case. It is all very well to protest of global hypocrisy in pursuing human rights violators on the international stage but this is realpolitik. The best strategy for Sri Lanka to guard herself was by putting her constitutional and legal ‘house’ in order and by showing that the Rule of Law is protected by the courts and the State. But what did we do? Quite the contrary.

A mockery was made of even remnants of fragile Rule of Law institutions which had, with great difficulty, survived decades of civil and ethnic conflict as well as the grotesquely shameless political chicanery of successive leaders who weakened Constitutions and laws for their own benefit. Not content with using a fact finding Commission of Inquiry to turn Sri Lanka’s legal system and the judicial institution on its head, the civil process of governance was relentlessly militarised. All this goes beyond even the pale of past infamies by our Governments.

Spectacular ironies at play

Finally, it seems, lawyers have found their voice to protest against the content of the report of the Commission on Political Victimisation, pointing out that it will undermine the Rule of Law. Even so, one wonders as to where these voices were when the Attorney General was summoned by the Commission to hand over files of ongoing court cases, when witnesses in those cases were questioned abrasively and the Commission rained threats of contempt on those who defied its orders? As an aside, it must be said quite categorically that a fact finding Commission of Inquiry has absolutely no power to find any person guilty of contempt of court. Rather, it is statutorily required to remit such cases to the Court of Appeal for inquiry.

On other fronts, we witness spectacular ironies at play. This week, counsel for detained lawyer Hejaaz Hizbullah requested access to all summaries of statements and evidence against him, objected to by the officers of the Attorney General reportedly on the basis that, confidential information could not be disclosed. In that same marvellously coincidental breath, as it were, the Government in turn, refused to hand over annexures of the Easter Sunday Commission of Inquiry report to the Attorney General, pleading confidentiality as the reason. Indeed, there is irony at play here which would be somewhat humorous if it did not have such deadly consequences for the Rule of Law.

In the case of Hizbullah, the magistrate struck a via media by directing that, counsel examine the material in the presence of the Registrar without taking copies. The magisterial reminder that, B-reports and statements filed in court do not belong to the category of ‘private exchanges’ between the court and the police is timely. This is, of course, a safeguard firmly entrenched in our law. It has even been taken to the level of a constitutional principle by the Supreme Court in the assertion of ‘equality of arms’ in a criminal trial, (Danwatte Liyanage Wijepala vs The Attorney General, 2001 (1) SriLR).

Right to a fair trial means not only legal representation

Opining for the Court in a criminal appeal, Justice MDH Fernando (with Justices Wadugodapitiya and Ismail agreeing) noted that Article 13(3) of Sri Lanka’s Constitution, not only entitles an accused to a right to legal representation at a trial before a competent court but also gives the accused, the right to a fair trial which would mean anything and everything necessary for a fair trial. South African law and practice was looked to for guidance on the basis of the right to information read with the right to a fair trial. Particularly, the Court referred to a seminal decision of the South African Courts in Phato v AG (1994) where the Supreme Court of South Africa (Eastern Cape) had held that an accused had the right to all information in the police docket, including statements made by witnesses.

Applying these principles, the Sri Lanka Supreme Court observed that the right to a fair trial recognised by Article 13(3) includes the ancillary right to all information necessary for a fair trial. There is a general duty on the state to disclose to the defence what it intends to use and even, what it does not intend to use but which could assist the accused in his defence. It is important however to note a judicial caveat; that right was subject to the limitation excluding privileged information or when information is delayed due to the investigation not being complete. In that context, the via media struck by the magistrate in the Hizbullah case is notable.

However, this device of examining documentation in the presence of the Registrar should not be used by the police and prosecutors to routinely deny information needed most fundamentally for an accused to prepare his or her defence. As the Supreme Court stressed in Wijepala, if that information is not given to the accused, a serious irregularity in the trial process ensues. Meanwhile, the refusal of the Government to give all annexures of the Easter Sunday Commission report to the Attorney General leaves one nonplussed. If the Attorney General of the country cannot be trusted to safeguard national security, who else is left?

There is a limit to lying

In sum, the travails and tribulations in the UNHRC process and its aftermath was eminently preventable, let me say quite clearly. We have failed our state obligations, inclusive of the ‘yahapalanaya’ experiment of cosmetic exercises of truth and accountability that were houses of cards, apt to be blown away by a merest whisper. That indeed proved to be the case. Even that pretence has been discarded to be replaced by the excuse of yet another Commission of Inquiry.

Assuredly, there is a limit to lying, to obfuscation, to engaging in overt racism on the pretext of fighting terrorism, Tiger, Southern Marxists, Islamist, as the case may be. ‘Lies, more lies and dastardly lies’ by the State waxing eloquent on the familiar platform of a small country unfairly victimised by terrorism is not a charm that works its magic every time.

We should have learnt this by now. If not, then we deserve all that we get, the guilty and the innocent regardless.