The credibility of Sri Lanka in relation to the settlement of the 60 year old ethnic problem of Tamils can be judged from the fate of several pacts, agreements and undertakings which were made from 1956 to 2009 and the Sri Lankan Governments unwillingness to comply with the implementation of its own undertakings:- LLRC [Lessons Learnt and Reconciliation Commission] recommendations: The August 1 2015 UNHRC Resolution 30/1 and its delaying tactics in implementing the recent similar Resolution in March 2017.
This article tries to detail the failing credibility of Sri Lanka since then particularly after the Human Rights Resolution on October 1st 2015. This was a resolution adopted with the blessings of United Nations Human Rights Council and sponsored by USA with Sri Lanka being a co-sponsor. By co-sponsoring the resolution Sri Lanka unequivocally and fully committed itself to implement all the recommendations mentioned in the Resolution. Sri Lankan Prime Minister Ranil Wickremasinghe defended the Resolution and even vigorously justified the “establishment of a Sri Lankan Judicial Mechanism including the Special Counsel’s Office of Commonwealth and other foreign judges, defence lawyers and authorised prosecutors and investigators.”
These recommendations can be described as the corner stone of this resolution aimed to fulfill the targeted commitments of “accountability, justice and reconciliation”. Earlier Sri Lanka successfully killed the proposal mooted by the UN High Commissioner for Human Rights who recommended a “Hybrid court integrating foreign judges etc” and get the international mechanism with foreign jurist’s participation.
Having fully committed to implement this Resolution Prime Minister Wickremesinghe and President Sirisena defended all the recommendations and PM Ranil even stated that there have been instances where foreign lawyers have participated and contributed their skills and knowledge in the legal proceedings in Sri Lanka like the appearance of Mr. Quass, QC in the former Prime Minister Bandaranaike assassination case in 1960. There were instances when eminent Sri Lankan lawyers have served as judges in foreign countries particularly in Africa. It is to be stated that the Sri Lankan constitution does not in any of its section prohibit the participation of any foreign judges. What is not prohibited can be allowed provided the modalities of appointments are followed involving the President and/or Judicial Service Commission as required.
It is relevant to quote the confusing and conflicting statements made by Government Ministers including the Prime Minister and the President in relation to the judicial mechanism and investigation.
On January 11th 2015: Rajitha Senevaratne – The Government Spokesperson stated: “That Sri Lanka’s new Government will not hand over anyone to an international inquiry investigating allegation of war crimes”.
On February rd3, 2015: Foreign Minister Mangala Samaraweera- In an interview to ‘Swarajya’ said “We hope to have technical assistance from United Nations even perhaps judges from Commonwealth”.
On June 7th 2015: Justice Minister Wijeyadasa Rajapakshe – Vowed to set up a credible domestic mechanism.
On August 24th 2015: Prime Minister Ranil Wickremesinghe – In an interview with Hindu stated that “There is no legal basis for international investigation within Sri Lanka adding that any accountability mechanism has to be domestic in nature.”
On January 29th 2016: President Sirisena – In an interview with Al-Jazeera stated that “We definitely do not need outsiders. He also insisted that Sri Lanka was not being investigated for war crimes, but rather allegations of human rights”.
On January 31st: Prime Minister Ranil Wickremesinghe said: If we are to permit foreign judges to sit in judgement then our constitution has to be amended with the consent of the people at a referendum” [News Radio US]
On February 20th 2016: Prime Minister Ranil Wickremesinghe – While in India at Guruvayur stated that “We may not have the full expertise to identify the exact factors that led to the casualties, so international participation is welcome for determining such cases”.
On February 2016: foreign Minister Mangala Samaraweera – In an event at US Institute of Peace in Washington said that “The previous statements of the Prime Minister Ranil and the President Sirisena was their opinion and the final decision would be taken after wide consultation with all stake holders”
On July 8th 2016: President Sirisena – Stated that “As long as I am the President; I will not allow foreigners or organizations to interfere in the internal affairs”. [Ceylon News]
On July 15th 2016: General Sarath Fonseka – said that “Government had agreed to allow foreign monitors and obtain international technical assistance and the government was not in favour of including foreign judges”. [Daily Mirror]
On January 6th 2017: Minister of Justice – said that “He had no confidence in the Consultation Task Force [CTF] which called for a judicial mechanism with foreign involvement”. [Daily Mirror]
On January 7th 2017: State Minister Laxman Yapa – said “Only logistical and technical assistance would be obtained.” [Daily Mirror]
President Sirisena commenting on Consultation Task Force [CTF] expressed his disapproval of most of its recommendations including hybrid court and independent investigations into war Crimes.
On January 29th 2017: Foreign Minister Mangala – Revealed that “Sri Lanka will be pushing for a technical rollover due to the controversy around the judicial mechanism”. [Sunday times]
On February 2nd 2017: Former President Chandrika – Who earlier supported war crimes investigation backtracked and said “With new constitution and Office of the Missing Persons Act, there is no need for war crimes probe by any court”. [Daily Mirror]
On February 20th: Foreign Minister Mangala – said that “Judicial mechanism will be a domestic one with foreign participation, having foreign judges would need an amendment of the law on judiciary”.
On March 3rd 2017: President Sirisena – In an interview to Hindu news paper stated that “He has shown the strength of his backbone in dismissing a United Nations demand for seeking foreign judges to probe alleged war crimes”. [At a Sri Lanka Freedom Party Executive meeting]
On March 5th 2017: Prime Minister Ranil – said that “It is not a practical proposal to set up a hybrid court”. [Hindu News Paper]
On March 17th 2017: Foreign Minister Mangala – stated that “Government cannot bring in foreign judicial officers under constitution” and further said that “the inclusion of foreign judicial officers was just a recommendation from the United Nations Human Rights Council [UNHRC]”
On March 21st 2017: Prime Minister Ranil – again reiterated that “We will not join International Criminal Court, we will not include foreign judges in Sri Lankan judicial mechanism but there may be foreign experts and observers”. [Daily News]
On March 22nd 2017: State Minister of Defence Rowun Wijewardene – said that “This is our country’s issue, it should be dealt with domestically, and we do not need international involvement.”
On March 22nd 2017: Deputy Foreign Minister Harsha de Silva – in his twitter said that “There is no reference to hybrid court in the Resolution of October 01, 2015”.
On March 23rd 2017: Justice Minister Wijayadasa – said that ” UNHRC, European Union insisting on foreign judges amounts to a threat independence and sovereignty of the country”. [Daily News]
On March 24th 2017: Harsha de Silva – in a reversing statement said that “Foreign judges will participate but not hear cases, and participation does not mean ‘hybrid court’ consisting of foreign judges”. [Asian Mirror]
The above misleading and contradictory statements made to suit the occasions do however reveal the true intention of the Government which is only the rejection of foreign jurists reiterated in defiance of the operative recommendation No. 6 in the UNHRC Resolution. In the face of this plain rejection, to expect Sri Lanka to fully implement the measures identified by the UNHRC in the October 1st 2015 Resolution 30/1 is nothing but an illusion.
The statements of Government in relation to war crimes etc. are also relevant to evaluate the question of accountability and the necessity for a local judicial mechanism.
On March 18th 2017: Foreign Minister Mangala Samaraweera – stated that “We are going around telling the international community that there have been no war crimes. Our Army is disciplined” [comments on Book “Road to Nanddikadal]
President Sirisena on various occasions made the following emphatic statements:-
On October 27th 2016: “I have the duty and responsibility to protect the honour of war heroes”. [Lankadeep news paper]
On January 1st 2016: “Investigation against war heroes will never take place”.
On October 16th, 2016: in Colombo: “Military commanders who led the successful campaign to crush separatist Tamil tiger rebels in 2009 should not be humiliated in any way”. This remark targeted the prosecutions and investigations by Bribery Commissioner for corruption against military officials
On March 14th 2017: “I will not leave room for true war heroes to face any accusations and will do everything possible to safeguard the dignity and respect of the armed forces”.
On March 28th 2017: Former President Chandrika Kumaratunga – Who is head of National Unity and Reconciliation stated in Jaffna that “Sri Lankan soldiers who fought in the civil war will not be dragged into court because of the demand of Tamil Diaspora: We have no intention to drag the soldiers before the courts and send them to gallows”. She further said that “Tamils are not demanding punishment or trials for Sri Lankan soldiers”. How she ascertained the views of 2 [two]million and other Tamils living abroad is only a six million Dollar question.
On March 24th 2017: Justice Minister Wijeyadasa Rajapakshe – stated that “Investigating war crimes without promoting reconciliation was not realistic at all. Prosecutions for war crimes will actually create tension among ethnic groups”. [Daily Mirror]
In March 2017: Foreign Minister Mangala Samaraweera – On the eve of UNHRC session in March 2017 said that “Priority will be given to drafting a new constitution and the Government has put on the backburner the task of setting up the war crimes accountability mechanisms including a judicial mechanism” . [Ceylon Express]
On March 28th 2017: President Sirisena – made a climaxing statement when he said that “I would take fullest responsibility on behalf of war heroes”. By this sweeping statement President has taken over all the allegations of war crimes etc. made against the security forces.
On April 3rd 2017: Minister Rajitha Senaratne – while in Jaffna said “We do not agree with war crimes”
Besides the above confusing and contradictory statements of top officials of present government, Former President Mahinda Rajapaksha and his brother Defence Secretary Gotabaya Rajapaksha are also joining the band of opposition to any investigations into war crimes with Gotabaya saying that “They are baseless allegations and politically motivated. After a war what can we do”?
Above all, President Sirisena’s requesting help from newly elected US President Donald Trump is only showing his desperation and troubling position of Sri Lanka in the United Nations and/or UN Human Rights Council while exploring all avenues to extricate itself from the mess resulting from the war.
In conclusion, nothing is more obvious than the Sri Lankan Government’s stand to deviate and or reject and disregard the UNHRC recommendation calling for foreign lawyers, judges etc. All the contradictory statements are leading to the above conclusion only, with each actor dishing out differing excuses and reasons to placate and stifle the opposition in the South and derail the accountability, justice and reconciliation process.
The argument that war crimes investigation will create ethnic tensions and act as an obstacle to reconciliation is nothing but an empty rhetoric. A victim of a criminal offence always demands appropriate punishment before everything else. Accountability is the universally accepted principle in the criminal justice system all over the world in democratic countries. By denying or keeping it away is only an assault on the rule of law, an insult to the criminal judicial mechanism and a slap on the victim of crime. Above all, it accepts and promotes impunity. It encourages commission of crimes with no fear of prosecution and fails to prevent recurrence. It is like asking the husband to behave as friends with the killer of his wife or any family member with no charges filed against the killer.
The Government’s argument is that the constitution does not permit foreign judges or jurists is also hollow and baseless. No constitution in the world is drafted with a provision to allow foreign judges or personnel. If there is no prohibition, it is perfectly legal to allow foreign judges etc. provided the proper procedures are followed by the President and or Judicial Service Commission.
In the face of the Government’s firm decision rejecting foreign jurists and the firm undertakings to protect the security forces with declared impunity, the necessity to establish an internal judicial mechanism also does not arise, except only to haul up the released and rehabilitated Liberation tigers of Tamil Eelam cadres including K. Pathmanathan known as KP
This internal judicial mechanism is all the more irrelevant and will be an exercise in futility in the face of the Government’s denial of any war crimes etc. committed by the security forces, as declared by the Foreign Minister Mangala Samaraweera on March 18th 2017 in Colombo.
Sri Lanka is sitting in a position employing its time tested tactics on promises, friendly cajoling, delaying, diplomatic manoeuvring and lobbying to avoid the punishment of UN or other countries and expect the Resolution to become stale. There is no doubt that the Resolution on March 23, 2017 requesting Sri Lanka to implement the 30/1/15 resolution fully will surely remain fully unimplemented until another UNHRC Resolution is passed with another extension of time.
With an embedded system of impunity in the Sri Lankan Judicial system, international community and UN are the only hopes for the suffering Tamils to secure the long denied justice and not leaving them in the lurch opting for radical options.
*Kumarathasan Rasingam – President: Tamil Canadian Elders for Human Rights