By Jehan Perera –
The cloud of accountability that has dogged Sri Lanka since the end of the war has begun to spread. There was warning of this reality when the UN Human Rights Commissioner in her March 2019 report on Sri Lanka made a recommendation that the international community should utilize the principle of universal jurisdiction to bring to book members of the Sri Lankan state who had allegations of serious human rights violations against them. The High Commissioner justified this recommendation on the basis that Sri Lanka had not taken sufficient action with regard to resolving any of the emblematic human rights cases, including the assassination of former newspaper editor Lasantha Wickrematunge. There was also a list of about twenty other cases that she listed, including ones in which there were multiple victims.
The two cases in which summons were delivered simultaneously on former Secretary to the Ministry of Defence Gotabaya Rajapapaksa in a parking lot of a grocery store in Los Angeles were against individuals. But it has introduced a new element of uncertainty into Sri Lanka’s already uncertain political process. There is no certainty even about the date of the election at this time. Members of President Maithripala Sirisena’s party have begun to argue that the president’s five year term ought to end only in June 2020 and not in January 2020 as previously believed. Their argument is that the president’s five year term began to run only in June 2015 when the 19th Amendment to the constitution was signed into law, and not in January 2015 when the president took his oaths of office and commenced his presidency.
Such a shift in date would be to the president’s advantage, as he would then be in a position to determine the date of the general election. The incumbent president as of February 2020 will have be vested with the power to dissolve parliament, which reaches four and a half years as of that month and can be dissolved by presidential decree. It is generally believed that holding the presidential election first would be more favourable to the government than the general election. At a presidential election the government would be able to obtain the minority ethnic and religious vote for its candidate, which would not be possible at a general election where in which the ethnic and religious minorities are more likely to vote separately for their own political parties.
The cases filed against the former defense secretary also bring in a further element of uncertainty regarding his possible presidential candidacy. One of the cases concerns the unresolved murder of Lasantha Wickrematunge. Gotabaya Rajapaksa has been the front runner to be the candidate from the opposition. Not only is he a brother of former president Mahinda Rajapaksa, but he is also widely credited with leading the military victory over the LTTE and ending the three decade long war, albeit controversially which is one of the main reasons for his controversial status amongst the ethnic minorities, in particular the Tamil minority. He is also generally seen as a person who will get the country moving. However, his position as front runner from the side of the opposition is presently under threat from the president who gives every indication of wishing to be a presidential candidate himself. While he has not still publicly committed himself to running for the presidency again, his closest political allies have made it clear that the president may wish to offer himself as a candidate from either the government or opposition side at the next presidential election.
Apart from having rival candidates who would wish to be the opposition’s chosen candidate, front runner Gotabaya Rajapaksa has faced the problem of his US dual citizenship status which would prevent him from contesting the Sri Lankan presidential election. The 19th Amendment ruled out dual citizens from holding elected political office. A member of parliament was unseated after the passage of the 19th Amendment after being proved to be a dual citizen. Mr Rajapaksa’s dual citizenship status would necessitate a renunciation of US citizenship in order to be eligible to contest the presidential elections. This would ordinarily be only an administrative issue which can be done without much delay. One local politician has been cited as saying that he was able to renounce his US citizenship in a matter of ten days.
It is in this context that the court cases filed against Mr Rajapaksa take on significance. They are likely to have a bearing upon the administrative issues regarding renunciation of citizenship. An issue of consistency and coherence within the US system of government will arise if the actions of one branch of the government lead to him getting out of the reach of the other branch. A key issue here will be whether the legal cases filed against Mr Rajapaksa are dependent on him remaining a citizen. Mr Rajapaksa has said that he would take legal measures to have the cases against him dismissed. Those who have filed legal cases against him for violations of human rights that took place in Sri Lanka may be relying on the fact that he is a US citizen to have the charges against him stick in the US court system. Until such time as these cases are dismissed or decided upon, there could be a delay in the renunciation process.
In one of the plaints made to the court in Los Angeles, it is stated that “corruption, bias and lack of judicial independence still mark the Sri Lankan legal system. Political and military leaders enjoy effective impunity against legal accountability for human rights abuses. Given the lack of judicial independence and risk of reprisal, plaintiff has no adequate and available remedies in the courts of Sri Lanka.” One possible way to counter this allegation would be for the government to establish a special court system on the lines of the special anti-corruption courts that have recently been established. These special courts could fast track cases of human rights violations that stem from the past decades of violence that captured international attention, and which have made Sri Lankan citizens vulnerable to international courts. This is also what the resolution of the UNHRC which was co-sponsored by the government in Geneva seeks to do, and for good reason.
Finding a way to stop the cloud of accountability from spreading and darkening the future of Sri Lankans who have a connection with national security issues should be a national priority. It is worth mentioning that the higher Sri Lankan judiciary recently came into the international limelight in a positive light on account of being a key decisionmaker on controversial political issues on which it was difficult to get consensual answers. The judiciary’s role in sorting out the contentious issues that arose in October 2018 in the context of the attempted constitutional coup elevated its stature both domestically and internationally. The decisions of the Supreme Court and Appeal Court led to the complete rolling back of the coup. As a result, the judiciary gained credibility as being an institution that could deliver speedy and unbiased decisions if the cases were brought before them.
Those who wish to take on the mantle of nationalism will undoubtedly see in the decision of the US court to accept the case against the former defence secretary as part of the conspiracy against the country. However, while satisfying domestic audiences such arguments made locally are unlikely to stop the cloud of accountability from spreading internationally. Foreign courts are more likely to exercise their jurisdiction if those who come before them are able to show that they have no reasonable expectation of justice any time soon in Sri Lanka. It would seem in this context that the best course of action for Sri Lanka to follow would be to implement the pledge made by the government in terms of the UN Human Rights Council resolution of 2015 to establish a special judicial mechanism that meets international standards. The recent decisions of Sri Lanka’s higher judiciary show this can be done.