Even as Sri Lanka gradually recovers from the shock of Wednesday’s release of harsh (albeit fairly predictable) findings on ‘systemic’ war time atrocities by a United Nations mandated panel, soothing murmurs indulged in by this Government need to be taken with that proverbial pinch of salt. The faults of the past Indeed, some claims are [...]


On that ‘hybrid court’ and other misconceptions


Even as Sri Lanka gradually recovers from the shock of Wednesday’s release of harsh (albeit fairly predictable) findings on ‘systemic’ war time atrocities by a United Nations mandated panel, soothing murmurs indulged in by this Government need to be taken with that proverbial pinch of salt.

The faults of the past
Indeed, some claims are more than a little ridiculous. President Maithripala Sirisena’s assertion that the report was not as bad as expected and that specific names of individuals were omitted because of the January 8th change of presidency unfortunately falls into that category.

In actual fact, these are carefully nuanced and extremely grave findings of a ‘human rights investigation’ conducted under the auspices of the Office of the High Commissioner for Human Rights (OHCHR) as its authors have properly emphasized. It is not of an international criminal law character in which individual responsibility would be apportioned by name after due process is followed.

In any event, international inquiries of this nature, once laboriously initiated, are seldom altered in substance due to domestic political convulsions, in as much as ‘the mills of God grind slowly but they grind exceedingly well.’ Then as now, the State of Sri Lanka is deemed responsible for the treatment of its civilians, irrespective of the domestic power structure in play. To believe otherwise is to misunderstand the nature of the international process in question.

Fundamental differences in understanding
Other misconceptions are evident at a fundamental level. One striking difference arises in respect of the core OHCHR recommendation that a special ‘hybrid’ court integrating international judges, prosecutors, lawyers and investigators should be established to look into war time abuses. There is no doubt that this recommendation envisages the international component as central to the mechanism.

On the other hand, the Government’s spokesmen appear to concede the international element only as facilitatory or assisting the domestic mechanism. So for example, we see Minister Rajitha Senaratne’s statement that ‘even in President Mahinda Rajapaksa’s time, international experts had assisted local bodies.’ Therefore, as he said, the Government sees no barrier to similar such involvement this time around. That said, the example drawn of the international jurists who assisted the Udalagama Commission of Inquiry was lamentably ill conceived. This was the worst example that could have been cited. In that instance, reputed international legal experts left the process prematurely citing lack of confidence in the domestic inquiry and after an acerbic if not hostile exchange of words between themselves and the Department of the Attorney General.

But bringing in international judges to form part of a ‘hybrid court’ mechanism’ will certainly evoke the argument that this will amount to an untenable abdication of judicial power as specified by the Sri Lankan Constitution. In 2006, when former Chief Justice Sarath N. Silva declared in the Singarasa case that the Geneva based United Nations Human Rights Committee exercised judicial power within the country, this conclusion was legally erroneous as the recommendations of the Committee were merely recommendatory. At no point did members of this Committee exercise ‘judicial power’ within the territorial boundaries of the country.

However, this same logic will not apply to the involvement of international judges in a ‘hybrid court’ mechanism which will go beyond the sphere of the ‘recommendatory.’ The complex nature of the task that lies before us is therefore undeniable. It is wiser therefore not to minimize the challenges that lies before us through simplistic statements aimed at gaining political mileage.

Defying efforts to ‘ethnicise’ the justice question
Meanwhile, unfortunate attempts made by a segment of the Tamil political spectrum to ‘ethnicise’ the issue of justice do not help this process either. In recent weeks, the Northern Provincial Council’s issuance of a Resolution asking for an international tribunal to examine war time abuses has cited the Judicial Mind in Sri Lanka (2014, co-authored by this columnist with Jayantha de Almeida Guneratne and Gehan Gunetilleke) in support of its stand.

But the aim of this book and many other such efforts illustrating the troublesome collapse of our legal and judicial institutions was not to urge that the question of justice should only be confined to the minorities. An equally severe indictment has been made in meticulously documented form of the Sri Lankan judiciary in its response to the grievances of other minorities as well as the Sinhala majority, for example after the ‘enforced disappearances’ of the eighties.

For instance, extreme injustice has been perpetuated by the appellate courts in general in the statistically high dismissal of habeas corpus petitions filed by majority and minority petitioners alike. As of now, the habeas corpus remedy is rendered of no effect for persons who are ‘lifted,’ regardless of ethnicity, even though this constitutional provision remains in theory (see Theory and Practice of the Great Writ in Extraordinary Times, 2011).

Important not to minimize the task of reform
True enough, Wednesday’s report was a direct result of the monstrous flouting of the Rule of Law by the Rajapaksa Presidency. At that time, abusive government propagandists brought to Geneva at state expense hurled insults at anyone whom they wished. Sri Lankan lawyers daring to criticize the uncouth ousting of a Chief Justice during dialogue sessions of the United Nations were declared as ‘blacklisted’ by government representatives.

And for years, our calls to amend Sri Lanka’s Penal Code to criminalise enforced disappearances and enact the concept of command responsibility were in vain. Much the same had also been emphasized by enlightened appellate court judges. Now we see the inevitable result of this failure as the domestic criminal justice system is formally assessed to be incapable of dealing with ‘systemic crimes.’ This finding comprehensively dismisses a favourite state defence that, if at all, only ad hoc abuses were committed by a few rogue individuals. But efforts to correct the Sri Lankan justice system must not be blinkered by an ethnic lens which shuts out a majority of the populace rendering them sullen and disempowered and thus a malleable electorate for the Rajapaksas to subvert to their will once again.

This should be a pivotal concern for all of us.

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