19 November, 2018

Blog

The Hybrid Court

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

Dr. Nihal Jayawickrama

The hybrid court, which the UN High Commissioner for Human Rights has recommended for Sri Lanka, is a unique element in the human rights based approach to transitional justice in a post-conflict situation. Comprising international judges, prosecutors, lawyers and investigators, a hybrid court is designed to deal with those who bear the greatest responsibility for serious crimes arising from or during the conflict, such as war crimes or crimes against humanity, including sexual crimes and crimes against children. Countries emerging from conflict have often failed to incorporate such crimes into their penal systems. They have weak or debilitated law enforcement mechanisms, compromised judicial systems, and a legacy of serious human rights violations without adequate means to address them.

Commencing at the turn of this century, hybrid courts were established, or are functioning, in several countries, notably Kosovo, Timor Leste, Bosnia and Herzegovina, Sierra Leone, Cambodia, Burundi and Lebanon. It is not suggested that Sri Lanka is comparable to any of these countries. Yet, in many significant respects, the Sri Lankan legal and judicial system has, in the past few decades, failed its multi-ethnic and multi-religious population, and has demonstrated that it lacks the will and the capacity to address such serious crimes.

War Crimes and Crimes against Humanity

War Crimes and Crimes against Humanity, as well as Enforced Disappearances, have not been criminalized in Sri Lanka. Neither the International Covenant on Civil and Political Rights (which the Jayewardene Government acceded to) and its Optional Protocol (which the Kumaratunga Government ratified), nor the International Covenant on Economic, Social and Cultural Rights, have yet been incorporated in our law. No effective mechanism has yet been established for the protection of witnesses and victims of crime. In 2006, Chief Justice Sarath Silva suspended the application to Sri Lanka of international human rights treaties, holding that their ratification was an infringement of the Constitution. His judgment has been described by a world renowned jurist as “an example of judicial waywardness”, requiring a new judicial value to be added to the Bangalore Principles of Judicial Conduct to address “judicial eccentricity”. Another referred to it as “Alice in Wonderland reasoning”. Therefore, we lack the legal framework within which accountability can be established for such crimes. The process of remedying that deficiency may benefit from expertise, whether international or otherwise.

Culture of impunity

Sri Lanka is believed to have one of the highest rates of reported cases of enforced disappearances in the world, and yet no tangible steps have been taken for several years even in respect of the much publicised Ekneligoda disappearance. Over 300 political killings in 2005, and over 700 extra-judicial executions in the next two years have been recorded, with no action being taken to investigate them. The high profile killings of Lakshman Kadirgamar in August 2005 in circumstances that are still classified and shrouded in mystery; of Joseph Pararajasingham at a Christmas Eve church service in Batticaloa in 2005; of five Tamil university students in Trincomalee in January 2006; of 17 ACF workers in Mutur in August 2006; of Nadarajah Raviraja in Colombo in November 2006; and of Lasantha Wickrematunge within a high security zone in January 2009; have all remained uninvestigated. The Rajapaksa Government clearly demonstrated that it lacked the will or the desire to hold persons who have perpetrated such serious crimes accountable for their actions. Even if the present government wishes to reverse this culture of impunity, does it have at its disposal the expertise to successfully investigate several thousand cases of enforced disappearance and extra-judicial execution ?

Child soldiers

It is a notorious fact that one of the sources through which the LTTE secured the recruitment of children into its cadre was the group led by Karuna Amman. These children, who were under the age of 15, were used to participate actively in hostilities. That was a war crime as well as a violation of the Convention on the Rights of the Child which Sri Lanka has ratified. The UN claims that there are reasonable grounds to believe that, even after Karuna Amman defected to the government in 2007, the government security forces were aware that the recruitment of children continued in areas under their control. While the Rajapaksa Government elevated Karuna Amman and his deputy Pillayan to ministerial rank, the present government too has ignored the fact that the recruitment of children and their use in hostilities was criminalized as far back as 2006.

A debilitated prosecution mechanism

The Attorney-General’s Department, which was embedded in the Presidential Secretariat since 2011, did not possess the capacity or the inclination to view, with independence and impartiality, the crimes allegedly committed with the knowledge or connivance of those at the highest levels of the then government. Instead, its senior officers travelled annually to Geneva to deny before the international community that any such crimes had ever been committed. An Attorney General himself uttered what was later proved to be a lie in regard to a disappeared journalist. Is it being seriously suggested that these same officers should now be entrusted with the task of presenting the evidence which the OHCHR claims it has, and which they have so strenuously repudiated for decades ?

The apparent indifference with which investigations that commenced after the change of government are being handled by those in the commanding heights of that department suggests that the culture in that department remains the same. It is incomprehensible why the present government continues to rely for legal advice on the Rajapaksa Government’s principal legal advisers. If there is one high level appointment that the Prime Minister should claim the right to make, it is surely that of his own lawyer.

Failure of quasi-judicial bodies

Sri Lanka’s inability to conduct credible investigations through quasi-judicial bodies has also been demonstrated by the performance of a succession of commissions of inquiry headed by retired judicial officers. The report of the Tillekeratne Commission has not been published. Nor has that of the Udalagama Commission which lost its credibility very early in its proceedings. Meanwhile, the Paranagama Commission keeps rolling along, from month to month, year to year, signifying the urgency it attaches to Enforced Disappearances. One may well wonder whether the appointment of that commission was merely a means for President Rajapaksa to obtain expert legal advice, at state expense, from foreign lawyers who had built their reputations by defending heads of state on war crimes charges before international tribunals. The performance of the Human Rights Commission, which has the duty to investigate infringements of fundamental rights, has been so abysmal that the United Nations downgraded its status for lack of balance and objectivity.

A compromised judiciary

Several Ministers of the present government have declared that, following the appointment of a new Chief Justice, “our judiciary is now independent”. This simplistic assertion appears not to recognize that the judicial culture of the Supreme Court, especially evident in the past decade, has been one of extreme deference to the presidential executive. Whenever fundamental rights were invoked, the court, composed as it was of judges appointed by President Rajapaksa, often from among his contemporaries at Law College, would, more often than not, capitulate to executive assertions of state security. Political opponents of the previous government and members of ethnic minorities, and indeed civil society, have rarely, if ever, obtained any relief. The judgments of the Supreme Court, especially in matters affecting individual rights, reveal an astounding ignorance or unfamiliarity with contemporary developments in the law in other jurisdictions. The failure of the present government to resort to a “vetting” process, which was successfully applied under the Constitution of Kenya, will only strengthen the belief among the international community that our judiciary lacks the competence or the integrity to address war crimes and crimes against humanity.

No constitutional impediment

The question which the government will need to address is whether it has, with the resources available to it, the capacity to effectively investigate, prosecute and try the serious allegations referred to in the report of the OHCHR investigation on Sri Lanka, including war crimes and crimes against humanity. To admit that we cannot undertake these tasks alone is not an admission of weakness. On the contrary, it will be a sincere and genuine commitment to achieving the objective of accountability on behalf of those who laid down their lives and the families who continue to live in grief.

There is no constitutional impediment to the appointment of non-citizens to our highest court exercising criminal jurisdiction – the High Court. Nor is there any constitutional impediment to Parliament establishing any other courts of First Instance, or other tribunals or institutions to exercise judicial power. As has already been demonstrated in respect of corruption and money laundering investigations, the assistance of the Stolen Assets Initiative of the World Bank and UNODC has proven invaluable. Similarly, in respect of war crimes and crimes against humanity, the expertise of lawyers skilled in dealing with such crimes, military analysts, crime scene investigators, trauma experts, psychological counsellors, and a host of others who are competent to address issues of victim needs and rights, witness preparation and protection, are essential, and international assistance in that regard ought to be welcomed.

Hybrid court not alien concept

In conclusion, those whose nationalist sensitivities are disturbed by the proposal of the High Commissioner need to be reminded of the fish who grew in the pond and considered itself the king of the sea until it was introduced into the ocean. They also need to be reminded that a hybrid court is not a concept that is alien to Sri Lanka.

For eight years after Independence, this country had a hybrid Supreme Court. Three non-citizens served on it with distinction. Sir John Howard was Chief Justice from 1948-49. Justice Ralph Windham served until 1951. Sir Alan Rose was Chief Justice from 1951 until his premature retirement on 31 December 1955. Until 1971, our court of final appeal – the Judicial Committee of the Privy Council – was a hybrid court in which Justice L.M.D. de Silva was once a member. We have had hybrid commissions of inquiry. One comprising judges from Ghana and Nigeria and chaired by Justice T.S. Fernando reported on the political aspects of the Bandaranaike assassination, while another consisting of judges from Ghana, New Zealand and Nigeria inquired into the circumstances that resulted in the death of Denzil Kobbekaduwa. Sri Lankan judges have served, and continue to serve, on hybrid superior courts in other Commonwealth countries, notably Seychelles, Uganda, Zambia, Cambodia and Fiji. Dr Joseph Cooray served on the hybrid UN Human Rights Committee, while Judge Weeramantry was a member of that ultimate hybrid court – the International Court of Justice.

*Dr Nihal Jayawickrama, a former Permanent Secretary to the Ministry of Justice, is the co-author of the UNDP study on “Fighting Corruption in Post-Conflict and Recovery Situations”, with a focus on Afghanistan, DR Congo, Timor Leste, Iraq and Sierra Leone.

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Latest comments

  • 11
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    Excellent piece of article.

    • 7
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      Yes, an excellent article,

      Culture of impunity- the legacy of MR regime, among all other things stand tall & perhaps validates call for foreign judges & prosecutors.

      But one thing is missing, our experience, if Hybrid courts, namely Privy Council, did manage to bring 1962 Ceylonese coup d’état attempt suspects to justice ? There can be hundreds of hair splitting arguments , but there was an attempt to overthrow the Govt. of Ceylon which is undeniable.

      Can hybrid court be proud of it ?

  • 12
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    Greetings Nihal Jeyawickrama

    The first knowlidgeble right thinking writer and directing the readers to
    Think out of the box and betterment of Sri Lanka.

    Thank you

  • 11
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    Brilliantly written article by Dr NJ clearly explaining that the hybrid court is nothing new and has been applied in several countries. His view that there is nothing unconstitutional about setting up such a court is good news and justifies the stance taken up by Mangala. It is heartening to know that the present judiciary needs to be cleaned up of the garbage established by the deposed king. Ranil should take serious note of Dr NJ’s comments on getting rid of the ex king’s puppets working in the AG’s office. Top priority is to fire the present AG. This should be done NOW, ASAP AND IMMEDIATELY.

  • 3
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    Dr. J:

    What is the impact of having foreign investigators and judges in such a court? Are the judgements pronounced by such foreign judges more “valid” in an international criminal court, than those pronounced by Sri Lankan judges?

    For example let’s say a Sri Lankan judge found Mr. X committed a war crime, while a foreign judge found Mr. Y committed a war crime. Can either Mr. X or Mr. Y be then referred to an International Court?

    Who would mete out the punishment to Mr. X and Mr.Y? Who would supervise and ensure that they pay for their crimes?

    • 11
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      sinhalese buddhist

      “For example let’s say a Sri Lankan judge found Mr. X committed a war crime,”

      Why would a Sinhala/Buddhists Sri Lankan judge find his fellow Sinhala/Buddhist guilty of war crimes. For him he would have wished for more war crimes than actually committed.

  • 7
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    Dr. Nihal Jayawickrama

    RE: The Hybrid Court

    “The hybrid court, which the UN High Commissioner for Human Rights has recommended for Sri Lanka, is a unique element in the human rights based approach to transitional justice in a post-conflict situation. Comprising international judges, prosecutors, lawyers and investigators, a hybrid court is designed to deal with those who bear the greatest responsibility for serious crimes arising from or during the conflict, such as war crimes or crimes against humanity, including sexual crimes and crimes against children. “

    This is really good for many reasons, even though opponents may use sovereignty defense. Sovereignty for corruption and crimes?

    1. There are no internal checks and balances, and all the courts and judges are corrupt.

    2. Thre is accountability outside the Land.

    3. Most of the judges and courts may not have the intelligence and IQ to deal with such situations, and need guidance and help.

    4. Hybrid courts us the best, for checks and balances.

    After All games have referees and umpires.

    Will they take up LTTE war Crimes as well?

  • 8
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    The Hybrid Court

    Dr Nihal Jayawickrama has hit the nail on its head,

    The Hybrid Government may be proud of deleted names and word Hybrid from the resolution of UNOHCHR, should soon realize, that it is a pseudo pride and actual pride of the nation depends on
    “a sincere and genuine commitment to achieving the objective of accountability on behalf of those who laid down their lives and the families who continue to live in grief”.

  • 9
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    Well done Sir. This should be translated into Sinhala and Tamil and published in local news papers.

  • 11
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    I think tamils and Singelease are disqualified to be judges when the case between two community representatives ( so called peoples representatives of community) Are accused for killing of Sri Lankans.

    In order not to be bias toward a group of community we need external judge to ensure correct judgment also to satisfy all sections of communities and global community. Secondly the volume of cases require additional resources appart from exsisting on going local cases.

  • 1
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    Nihal jayawickreme, the Sri Lanka judicial system failed under your watch very badly.
    How many tamil youth did you have incaserated without trial and release them with instructions to work for SLFP in 1977.

    What did they do? Gun down Duraiappa, destroy electric pylons, rob banks and cooperative stores ect.,

    Take a branch of a coconut tree, Do you how many pices can it be cut to resemble persons like YOU ?

  • 0
    3

    In the latest co- drafted resolution submitted jointly by America and Sri Lanka, Hybrid Court is not suggested but a domestic investigation. Sri Lankan Government if they need, could obtain assistance from international body. There seems to be no criminal investigation as such. No one would be found guilty of any crime or any punishment. Therefore, It seems to me that all these ha ho by the Sri Lankan Tamils and OHCHR’ report has gone down the drain. The TNA, the Global Tamil Forum too supports the final draft resolution. Again the Tamils have been led down by the Tamil leaders and the International Community. That closes the chapter.

  • 0
    4

    The author is an acknowledged legal mind and his comments are welcome, even when unpalatable. He must bear some degree of responsibility for the deficiencies that he has exposed as they did not come about out of the blue, but over a number of decades including his own tenure at the Ministry.
    However, there are some bits of the article that do not rhyme well with reality. I agree that the Sri Lankan situation is NOT comparable to those in the countries he has mentioned. It is at least in part akin to what happened in Libya and is still today happening in Syria, though not as obvious at the time.
    A number of killings are mentioned, and I have none or little knowledge of many, but one killing, that of our eminent former FM Karthirgamar was celebrated within the higher echelons of the Sri Lankan diaspora (Tamil segment). This was NOT mere bravado, but positive bragging when they claimed that they had signed his death warrant, circulated amongst them by the LTTE, because Prabhakaran wanted to appear to be ‘democratic’. Was this the ONLY occasion ever, that he bowed down to democracy?.
    The alleged ‘disappearances’ over the thirty period also has been questioned. The figures put out by an utterly disloyal Christian cleric are among best known with no evidence produced to back them. The Paranagama Commission has come up with some believable figures which include some 5000 ‘missing/disappeared’ soldiers . As regards Karuna and Pillaiyan I believe they have paid their debt to the wider society, by breaking away from the LTTE and being helpful to the security forces in their fight to eliminate the terrorists. The human cost of the war, otherwise, would have been far far higher.
    The local black wigs do NOT write the laws. They can only interpret the law as it is written down
    here, not according to some law written down elsewhere. Hence my confusion about the following -“ in matters affecting individual rights, reveal an astounding ignorance or unfamiliarity with contemporary developments in the law in other jurisdictions. “ I am sure you are not advocating the same ‘Alice in Wonderland’ thinking. Neither is it necessary for our laws to be identical to those elsewhere.
    MR’s contemporaries at Law College overlap those of RW. When you argue that the PM/President should be able to appoint his own lawyer, was this NOT what happened when the AG’s dept. was taken under Gotabhaya’s wing under MR.. This certainly has it’s own problems. The Kenyan story is still ongoing and too early to draw conclusions from.

  • 6
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    Yoga

    If the mere fact that one is Tamil or Sinhala is an immediate disqualification to be involved in inverstigating war crimes, then the whole UNHCR did not have any validity for doing so in the last 6 years, as it was lead by a Tamil woman – Navi Pillay.

    • 2
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      sinhalese buddhist
      Point taken, so lets have no Sinhala or Tamil judges, we shall have a mixture of non-Sinhala, Non-Tamil International judges to conduct the case.

    • 2
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      I agree with you that either Tamil or Sinhalese judge hearing the crimes may look prejudiced to the world even though they act in a honourable manner. Please remember Navi Pillai was not recommended for the post by Tamils but by South African government. Also she did not conduct any inquiry, but appointed three independant persons of known international standing, who have acted fairly in this matter. So I think your criticism of Navi Pillai is unreasonable.

  • 0
    2

    The advantages to Sri Lanka by a Hybrid court is, (at laymen level)

    The judicial system will be able to have check point. From Kodeeswaran case the judgement of the Sri Lankan courts are one sided. For example the current American Supreme Court bench is seen as conservatives. But Obama administration has not lost any serious cases. The judges may have conservative value, but they are open to see logical bebates by lawyers.

    Court will not have obligation of protecting the parliamentary standing of UNP and SLFP. This release the genuine local judges to feel free of pressure and being straightforward.

    Certain amount of acceptance will be received from Tamil. This is the first step to reconcile. In all other cases they will be looking for opportunities until their options are exhausted.

    Government can implement the recommendation. Other than Dayan like PhDs, general opinion of the Sinhalese will be blaming for the results neither UNP nor SLFP. Specially if there is a national government there will be atmosphere to implement it.

    The project D.S.Senanayake started will come to an official rest. That is the great deed of conducting politics of grinding the Tamils. That will be lesson to the local political beyond the judicial process.

    This will enlighten politicians about the how the race relation is handled internationally. Even if that is not going to be political forum, Many basic laws of the international community will be discussed as an preamble part of formation the court formation. That will be the mandate of the judges and the crime definition and many the basic definition of the commission which will investigate.

    The Hybrid court will not start until it see witness protection is ensured. The Jeyakumari who was released rearrested by the UNP government. This is not just the simple order like Vidya’s case where UNP leadership decided to supress the case and send lawyers to represent Vidya’s family over and above the lawyer Thavarajah who was appointed by the Family. Jeyakunari’s arrest is connected with the powerful machinery which is put operational in North-East. This type of matters can be handled without the direct orders from the political leadership. Dismantling it is never possible for any local Mechanism. Dismantling that will be another element of convincing the Tamils of a genuine investigation. Unless that machinery, including the PTA from which that machinery draws its gas power is removed, there will be no case from Tamils side and no witness from Tamil side. That will bring back the 34 the sitting of UNHRC again and another resolution.

    The only escape route for the government under Hybrid is the government knows at any cost America will try to protect it unless a real change takes place in SLFP. The government may use that loophole to cheat on Hybrid mechanism. That will be again a disadvantage for government as it will prevent the mud settle through the Hybrid mechanism. That is in another word, the Hybrid may not possessing the power that is needed the government to be force act on the issues. That is, in reality there is no practical difference between the local and the hybrid mechanisms as the western countries need this government to service for their interest.

  • 0
    2

    Dear Dr Jayawickrame,

    With due apologies, each hybrid case is different from the other. When we think of the conflict among the two major races in S.L., an indigenous method , like the reconcilliation in South Africa is the best for us. The hybrid courts that you mentioned very admirably were very impressive. However, Mr Jayawickrame, majority of human beings and the so called elite are sometimes very low. Judges are another category of human beings as you will agree., who are very mundane.

    As a classic example, take the case of Sir Alan Rose who appears to be one of your heroes. I am sure that the ordinary man does not and did not know the following that happened after the Soulbary Commission:
    i. Sir Allan Rose was A.G….influenced by former PM Hon D.S.S.
    ii. Sir Allan agreed with D.S. when the latter was once sick, to appoint son Dudley as the next P.M. when the former became the Chief Justice later on the recommendation of P.M., D.S.Senanayake.
    iii. Sir Allan was a major player in the dirty and low conspiracy along with L.M.de Silva-Lawyer/Chairman of Lake House, Ranil’s father Esmond Wickramasinghe, former President JRJ , Lord Soulbury et al that made Dudley the 2nd P.M. of Ceylon. Majority of the conspirators knew through Drs Andreas Nell and H.O. Goonewardena that PM D.S. was going to die soon because of health reasons. The entire country even today thinks that a healthy man fell off a horse and died.

    This is just one case Dr NJ. With great respect, in Jurisprudence under a product of Oxford University , I learned that a decision of a judge on a particular day depends on the strength of the coffee he had or the type of quarrel he had with the wife on that day. Does not that mean that HYBRIDS and BIG PERSONALITIES with feet of clay are immaterial ? Let us have our own re-concilliation methods dear sir, without misdirecting the poor masses.

  • 0
    0

    I agree with all that is said here. The slide to corruption within the high judiciary had started many years ago. I remember as a schoolboy that whenever we disagreed with the verdict of an umpire at cricket, we would shout the name of a Supreme Court judge (Poor Mr Pathirana). That slide that began over fifty years ago is now complete. Mr Jayawickrema must disclose his own role in that slide because he was Permanent Secretary of the Ministry of Justice and had his own share in the escapades that afflicted the judiciary of the country. He helped to spill the milk.

    The hybrid tribunal will help in the reform of so many of the ills that afflict the judicial and legal system of the country.

    As regards the point that there were mixed commissions before, that may be right but they did not perform judicial functions. The constitution requires that judicial functions be performed by persons appointed in a certain manner. There may be difficulties in the appointment of foreigners to exercise judicial functions.

  • 1
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    An excellent analysis at especially an opportune moment. It would do well for President Sirisena to have it translated by his son Daham lest he miss the salient points. Bensen

  • 4
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    Greetings sinhalese buddhist

    I am sorry to write personaly to my sinhalese buddhist writer in public arena.

    I agree with your comments regarding inverstigating war crimes by UNHCR’s validity issue raiseed by your self regarding Tamil lady – Navi Pillay the high commisioner for UN human rights who was fronting the investigation. The report is now validated by several candidates and finaly issued as a draft by non tamil UNHCR high commisioner Prince Zeid Ra’ad Al-Hussein.

    Your question related to validity is the same case will araise later when real legal case opens in near future. In case of using tamil and sinhalease judges can be used agaist positive reconsiliation between our communities and history can show inadequacy in our will to pass judgment on people who have commited crime agaist civilisation which may be tamil as well as singelease.

  • 5
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    Yoga

    Thanks for the response – it’s unusual for CT and I appreciate the gesture, since it’s an opening for a discussion.

    My personal opinion is that one’s ethnicity is irrelevant to one’s professional judgement and conduct, if one is a true professional. SO I don’t have any problem with Sinhalese/Tamil or member of any other ethnicity taking part in investigating and prosecuting crimes.

    My main concern is that justice is not one-sided. ALL who committed crimes against humanity (LTTE/SLA/IPKF,other Sinhala and Tamil paramilitaries/UNP/SLFP/JVP politicians) should be prosecuted for the abuse of human rights.

    That is what TRUE justice is, and what would lead to REAL reconciliation in this island of ours.

  • 0
    0

    Reading through all the comments what I realise is that there are no impartial judges any longer. Our judicial system has become so corrupt that only money will decide the judgement. If someone shows me one legal luminary who cannot be bought I will be very grateful. everything today is about money. So where does it leave the poor who do not have the money to influence the judges. What the ordinary citizen should do is do not go to the courts for redress. Sort out your problem in a personal capacity with the other party, in this case the sinhalese and the tamils, and live happily. The government plays politics and I can assure the ordinary citizen that they will not gain anything from all these courts hybrid or not. If the government has put forward their own lawyer for Vidyas case, that means the government has also been bought. So ordinary citizens please dont waste your time. Please keep writing here so others who read these pages will be informed of the real situation. Thank you.

  • 1
    1

    Today we are living in relatively peaceful times. I still remember the days when we were fearful of travelling to work and returning home , or sending our sons and daughters to school for fear of never seeing them alive again due to the daily suicide bombings of the Tigers in Colombo.
    I remember likewise getting up in the mornings to the horrendous news of regular bus or train bombings where passengers on legitimate business were maimed and slaughtered in some outstation town or in the suburbs of Colombo, or to the cold blooded murdering of men women and children in their sleep by machete wielding blood thirsty separatists. These were not military targets, they were civilians, ordinary law abiding civilians going about their day to day functions.But they were targeted by blood thirsty terrorists who were hell bent on eliminating all and sundry in their death defying drive to achieving their dream of dividing the Country through violence. It was mayhem at it’s worst form and the Country did not see an end to it as we were brought to our knees virtually “begging ” for peace.
    It was in such a situation that the winds of change blew when young soldiers with a new Command sprang up to confront the Tiger at Marvil Aru and onward to Toppigala gradually driving him out of the East and confronting him in his laird. The rest is history.
    All peace loving citizens of Sri Lanka did not dare believe that what was happening was true, until we realised that it was in fact true. We breathed a sigh of relief,as we found it possible to move around the streets in relative peace, as those courageous sons of the soil, those men of the Sri Lanka Army supported by those from the Navy the Airforce, and all other echelons of military authority gave our Country another day to live, a future to look forward to, by laying down their own lives, their young lives in the forward march of elliminating the dreaded tigers from their den.
    Today there are hundreds of young men without limbs,without a future to look forward to because they gave their today for our tomorrow; Hundreds of young men are today on life support machines lying on their beds in military hospitals with no hope of any future. They were the vanguard of the fighters who took the fight to the most dreaded terrorist organisation in the world and WON. They and their Officers are the true heroes of this Country.
    So, are we going to allow outsiders to sit in judgement of their action? Are we going to use peacetime yard sticks to judge those war heroes who were embroiled in a war of “life or death” with a criminal terrorist organisation? Are we forgetting that these young men were fighting with their all for their Country, for you and me ? Are we forgetting that they were fighting an enemy that had slaughtered their fathers, mothers, brothers, and sisters in cold blood? Are we expecting these young men to think and act rationally in all these circumstances? What did the soldiers of the US, UK, FRANCE, GERMANY JAPAN, and all the other Countries do when they fought their wars and are still fighting ? I do not need to elaborate on what they did and are still doing. Our young men were not as half as bad in war.

    If Sinhalese and Tamil judges are not capable of sitting in judgement of criminal acts committed by Sinhalese and Tamil citizens of our Country on the grounds that they are incompetent or biased how can we expect Hybrid judges to be unbiased given that they are tasked with an objective of finding our soldiers guilty? If that is not the case then why bring them at all? Then again if our Judiciary today is incapable of being professional in their decisions, all their judgments must be wrong, so where do we stand as a country?
    Again it may be true that our Judiciary has for the past ten years or so been influenced by Politics; they were appointed by the Political system and influenced by it . Further more they were obligated for their jobs to the Politicos, and gave their judgments accordingly . There was fear among the Judiciary too just as much as there was fear among the rest of society. But all this we know has changed and is continuing to change for the better. There will be no sword of Damocles hanging over their heads and decisions are now being given judiciary.
    One last point is that, for the above reasons the Judiciary of yesteryear was unable to act against war crimes if any, as they were fearful of their positions. Today however there is no fear for our Judiciary to sit on our own war crime tribunals and take judicial decisions of the highest order, far more than Hybrid tribunals can who in my opinion will be totally out of depth to make rationale decisions.

  • 1
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    El dorado thank you for the reminder of the times we went through. I think most sri lankans have forgotten all this. I would like to correct you on one point. The judicial system was politicised not during the last ten years but from 1978 from the time of JRJ when they changed the whole system. All the problems of corruption, politicization etc we are having today is due to that. That is when the government that comes into power changes all the high officials and the civil servants and appoints only people who are loyal to them. This is where the corruption comes in. Before that period all the top most adminstrative posts were held by civil servants who were already in the system and they had to be prepared to work with whatever party that came into power. These people were very experienced and where their job was concerned they could not support any political party. This is the reason now with the new government all the top positions have been changed and they have appointed their supporters. By this system it is the voter who gets played for a sucker because the politicians can carry on their corrupt activities without any fear as their own men will not let them down. So they all get together and make the money for themselves and their families.

    • 0
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      Dear Mr Nihal J, ELDORADO, msd,

      I like the analysis of ELDORADO. I know of judges of every caliber very well. I know of some Foreign judges also …some who were in the Hague and others elsewhere. What we must remember is that at a village level , Panchayat system and 1958 SWRD’s Concilliation boards were the best. At a higher level the Magistrates, the DJs and the HC Judges were the best. At another level, the SC & Appellate Judges and the Hybrid JJ were the best.

      As a student of Buddhism and as a person who had the ability to work with great, KCs and QCs and some abroad, I know how judges and Police were influenced. ANOTHER THING THAT ALL SRI LANKANS MUST KNOW IS THAT IF YOU KNOW SL JUDGES OR UK & SL LAWYERS/BARRISTERS EVEN SL LAW STUDENTS & UK SL LAW STUDENTS CAN BECOME BARRISTERS & AA-at-law with their help as it happened in the good old days. Mr Nihal J might bare witness to these as well as in instances where someone in Ceylon wanted a pass or a class in the LL.B., Advocates or Proctors’ exams… it happened then as it happens now. Same with London and Ceylon/SL Medical exams …and ARTS and Engineering. Family and connections always mattered in regard to achievements in Ceylon/S.L.

      Another famous exam was the CCS exam. A nice anecdote in my times was that a balled-headed high up and a Minister close to PM DSS was following the progress of a person who sat the CCS exam.He was no 7 for the exam when they were taking in only 6 as CCS cadets. The Minister approached the young man and asked him to marry his daughter , spoke to the Panel and got 7 Cadets in. Alas! The young man was a Buddhist and the proposed girl was not…he became the 7th CCS cadet…married another girl …and it was a disappointment to the Minister who later became a very big official in Ceylon.
      What happens now are not new. LET US NOT HAVE HYBRIDS dear Mr Jayawickrame. Let SL’kans be SL’kans and use their own methods. We know the Western ways tooooooo well Sir!We all are MUNDANE people subject to JATHI,JARA & MARANA. Especially , when those who come as HYBRID JJ do not know and have not practised ARYA ASHTANGIKA MARGAYA perfectly and become impartial, how can we Trust them. We Trust our Tamil Brethren …we all suffered under the LTTE. So let us have our own method. Thanks.

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    Well said Nihal. Pardon my familiarity but we were together at University studying law.
    Its a great pity that you did not enter politics because people like you would have resolved the issues between Tamils and Sinhalese in an honourable and decent manner.

    The fact that Sampanthan and even Global Tamil Forum have agreed that the INQUIRY will be held in the mutually agreed manner now proposed is a good indicator. Sadly, those families who suffered terribly will not be happy about this. Understandably so. The wounds will not heal easily. But the future is what we must address, and this can only be done by cooperation between the two communities. This feeling is now demonstrated by both communities. Let us pray that a satisfactory resolution of the differences will follow, particularly that of sharing power within a united country and within a quasi devolved structure.

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    Congratulations!
    Nihal J at his best.

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    Dr. Jayawickrama should ask himself one question. Was there ever a foreigner sitting as a judge in any of our courts after the 1978 constitution was promulgated? I am not referring to Commissions constituted under the Commission of Inquiries Act.

    Can also Dr. Jayawickrama quote a precedent where Her Majesty’s judges sat in judgement with judges who were not Her Majesty’s subjects? To my mind Justice L. M. D. De Silva is a born British by virtue if the fact that Ceylon was a British colony and at the point of appointment he was British. So there was no question that the Judicial Committee of the Privy Council was ever a hybrid court.

    He is aware that Article 3 of the Constitution deals with sovereignty which lies with the people of Sri Lanka and cannot be alienated. In other words a non-citizen cannot be in any of the processes dealing with sovereignty. Article 4 of the constitution describes how various aspects of sovereignty are exercised. Judicial Power is one of them. Now by virtue of the decision with respect to the 19th Amendment, even Article 4 is virtually an entrenched clause. Therefore any bill impinging upon Article 3 and Article 4 needs not only a two thirds majority but a referendum as well. I need to tell any one with an iota of common sense what damage can a referendum would do to reconciliation at this stage.

    What is needed is a process of revealing the truth and reconcile the all communities. As an example South Africa could be considered. As to whether there is complete reconciliation there is one thing but visibly there is no big publicized discord between the white South Africans and the Black South Africans. In the case of Rwanda there were trials, some are UN backed. Today, it so happens there are publicized stories of different communities living in harmony. Sri Lanka must perform its own exercise. To my mind there can’t be Foreign Judges sitting in our benches although our citizens may have sat in Foreign benches. But there can be foreign persons assisting our prosecutors, investigators and even our courts as Amicus Curiae. There could be Foreign Observers. Foreign participation or otherwise there has to be transparent fair process so that all parties concerned must be confident that the due process was followed.

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    Had Justice T.S. Fernando been amongst us today,he would have been very proud of his Nephew Nihal.

    I had the privilege of meeting N.J.at Harrow more than 10 years ago.
    Felix Dias,of course,would have spotted his talent in the 70s.

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      Prof Jayawickreme and Pygmalion,
      Intending no offense to you both , I comment:

      1. I wondered why with all that experience even Justice T.S. Fernando and/or Justice Minister Felix Dias did not think that T.S. Fernando J’s appointment by the M. of Justice was flawed…as far as separation of powers was concerned and that 1962 ” Catholic coup d’etat” suspects in Queen Vs Liyanage would be freed in Appeal at the Privy Council level. I hope they did not take Mrs B. and Dr Mackie Ratwatte for a ride! I believe that Prof N.J. was still a student/ a new lawyer in 1962- then.

      2. In these columns why do people use nom-de-plumes like “Pygmalion” and throw in the writer’s family connections or credentials? What for ? Let me also join the club and say that Mrs Nihal Jayawickrema was a daughter of Mr H.W.Amarasuriya, State Councillor-1936,Philanthropist,Planter,a granddaughter of Muhandiram Amarasuriya of Galle, a Cousin of Social worker Ms Wimili Amarasuriya, Mr Gomin Dayasiri’s Mom, Mrs N.Q.Dias (bless her… one of the sweetest ladies one could meet…was a great social worker…spending the evening of her life at No 21 Bagatalle Rd, Col.3) and a niece of Senator Thomas Amarasuriya.

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    Here is THE person who should be our minister of Justice…..when O when will the deserving people get the jobs they deserve ?!!!

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    My article has evoked several responses, including some compliments and also some brickbats. Thank you. Interesting issues have also been raised. I will attempt to respond to a few of these.

    1. JOHN asks whether the “hybrid” Privy Council delivered justice in respect of the 1962 attempted coup d’etat. What the PC held was that Parliament had devised a “legislative plan” (the Criminal Law Special Provisions Act) after the event in order to secure a conviction and that it was therefore unconstitutional. Is that not what the Rule of Law is all about? Fortuitous circumstances had enabled the coup to be aborted and a traumatized government had hurriedly prepared legislation to legitimize the steps it had taken to abort it.

    2. SINHALESE BUDDHIST asks whether any persons found guilty of a war crime could be referred to an international court. The only such court in existence is the International Criminal Court and Sri Lanka is not a party to the Rome Treaty that established it. In any event, once a person is found guilty by a court, he cannot be referred to another tribunal.

    3. RAM refers to a sentence in my article and very correctly points out that “local judges do not write the laws”. That was my mistake. I should have written: “The judgments of the Supreme Court, especially in matters affecting individual rights, reveal an astounding ignorance or unfamiliarity with contemporary developments in jurisprudence in other jurisdictions”. The judgments of the Supreme Court delivered since 2000, especially in the area of human rights, reveal that many of our judges are unaware how these rights are now progressively interpreted at national, regional and international levels. Either those law reports are not available, or because of language constraints the judges do not read them.

    4. RAM also questions my reference to the Attorney General. The AG is the government’s chief legal adviser on all matters, whether constitutional, civil or criminal. I believe that a new government ought to be able to choose its own principal legal adviser, as in India, UK, USA, Australia, etc. Unfortunately, at present, the constitution does not permit that. There is also a retirement age of 60, which is the age when a lawyer begins to blossom. The office of AG is, of course, quasi-judicial and there should be no political interference with his judgment.

    5. CHANAKYA’ s reference to the events that occurred following the death of D.S. Senanayake requires a small correction. The CJ Alan Rose, who was Officer Administering the Government at the time, had been requested by Lord Soulbury before he left for London on holiday, that should the need arise to appoint a new Prime Minister, he should refrain from doing so, and instead await the return of Soulbury. That was what happened. If DSS had given any instructions, it would have been to the GG and not to the CJ.

    6. P.SIVAKUMARAN argues that the downward slide of the judiciary began over fifty years ago, and asks me to disclose my own role in that slide. I was in active practice until 1970 at a time when the judiciary had reached its high-water point. In 1974, when the strength of the Supreme Court was increased from 11 to 21, many who would not ordinarily have been appointed found themselves in that court. That was unfortunate and, in my view, it was an unwise political decision to have only one appellate court. He has also referred to the maligning of Justice Pathirana on cricket grounds. Mr Pathirana was regarded as a good judge in civil matters, but his performance on the re-constituted Constitutional Court, where proposed legislation was scrutinized, was open to question. I take responsibility for one decision – the fusion of the two branches of the legal profession. It was well-intentioned, but resulted not only in an over-crowded profession, but also in a dramatic lowering of standards, in respect of knowledge as well as ethics.

    7. ELDORADO says that now, since there is no fear, the judiciary can take decisions of the highest order. I disagree for the reason that our present judiciary is not grounded in a culture of integrity or independence. Our judiciary has not yet implemented even the Bangalore Principles of Judicial Conduct. Nor does its knowledge and experience extend into areas of international human rights and humanitarian law, war crimes and crimes against humanity.

    8. JAYAGATH PERERA has asked several questions, and I shall endeavour to answer them. (a) No foreigner has sat as a judge in our courts under the present constitution. (b) L.M.D. de Silva was a citizen of Ceylon who was nominated by the Government of Ceylon to be a member of the Judicial Committee of the Privy Council. To qualify for that appointment, he served briefly as a Judge of the Supreme Court. (c) What article 3 says is that the “people” are sovereign, and that their sovereignty (which includes their power of governing themselves, their fundamental rights and their franchise) cannot be alienated; say, to the military or to a dictator or to a foreign state. This is a legal fiction with little or no meaning, included in a constitution drafted not by the people but by the people’s representatives. Will the “people” be consulted before a foreign invader occupies the country? If, indeed, this article has any meaning, why was it invoked to prevent the people’s wish, expressed on 8 January 2015, that the executive presidency be abolished? (d) Article 4 is not an entrenched section – see article 83. Justice Wanasundera attempted to give it an entrenched status in a dissenting opinion in the 13th Amendment Case, and our present CJ has inexplicably chosen to follow that dissenting opinion. It is an interpretation that Sarath Silva CJ gave in 2003 to strike down a constitutional amendment through which the UNP government sought to protect itself against a possible dissolution of Parliament by President Kumaratunge. Can a judge legislate to alter an express provision in the constitution?

    9. CHANDRAGUPTA MUDIYANSE has referred to Queen v. Liyanage. The Criminal Law (Special Provisions) Act that was hastily enacted in 1962 following the abortive coup d’etat, empowered the Minister of Justice to nominate the judges for the Trial-at-Bar of the accused persons. The Minister, Senator Sam P.C.Fernando, nominated Justices T.S. Fernando, L.B. de Silva and P. Sri Skanda Rajah. After several days of argument, the three Judges unanimously held that the power to nominate judges was part of the judicial process, and that the Minister could not exercise that power. Accordingly, the three judges held that they had no jurisdiction to proceed with the trial for the very reason that they had been so nominated. They declared that section of the law invalid. It was a strong assertion of judicial independence. While serving my apprenticeship under Mr.A.H.C.de Silva QC (who was one of the counsel in that case), I sat in court throughout the arguments.

    10. CHANDRAGUPTA MUDIYANSE’s information about my wife Sarojini is somewhat incorrect. She was the daughter of Mr Thomas Amarasuriya, and not of his brother, Mr H.W.Amarasuriya.

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      Dear Mr NJ,

      I did some research on the DSS-Alan Rose – initial conspiracy…. Since D.S. helped him to come from the position of Secretary to the S’bury Commission…to become the A.G….and then the C.J. it was an open secret that during that time that he had directly indicated to Sir Alan that its his wish that his son should succeed him.

      When D.S. had a very bad heart condition and Diabetes together , he was going to live for a couple of months only, according to Dr H.O. Goonewardena( was it Hillary, I cannot remember) – D.S.’s own personal Physician. To be certain, he had got down the Harley St specialist, one Sir James Parkinson, who also had agreed with Dr H.O.G.’s diagnosis.

      The rest is what I wrote …where D.S. had indicated to Lord Soulbury-the G.G. as well re his wishes as he thought that “Lionel”( Kothalawela)was not suitable for the post. However, I remember reading the details about the “Conspiracy” to bypass Sir JLK from
      his Autobiography , “An Asian Prime Minister’s Story” (LOL :) by Ananda Tissa de Alvis), KMDES’s “A HISTORY OF SRI LANKA”,OXFORD, 1981 AND JRJ OF SRI LANKA BY KMdeS & HOWARD WRIGGINS,HONOLULU,1988.

      I appreciate your reply, in spite of your other onerous duties Sir.

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    Chandragupta Mudiyanse.

    Most people who comment on these columns use their Nom-de- plumes for different reasons.True,it is like wearing a mask.But in these tragic times it is somewhat like a motorbike Helmet!
    Pygmalion,as you may know,is a creation of that laughing ICONOCLAST and Great playwright George Bernard Shaw.The film of the 60s My Fair Lady,was based on Pygmalion.Frankly,I have lost count on the no:of times I had seen this film.While typing this,I have an urge to see it again!
    I was rather surprised that with your knowledge of the family connections of NJ you had left out-The Prince of Denmark,so to say,Prof:G.L.Pieris.
    Unfortunately,GLP,.was a classic example of a Mountain Spring flowing into Mud.
    I say this without intending to hurt either NJ or you.

    Cheers.

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    Chanakya,

    The circumstances leading to the appointment of Dudley Senanayake as prime minister in 1952, as recounted by you, are, I believe, correct. However, I am not so certain about the role which, you suggest, was played by Sir Alan Rose.

    Rose was appointed a Judge of the Supreme Court in January 1945, and Legal Secretary in October 1945. Both appointments would have been made by the colonial government. In 1947, when the new Constitution came into force, the office of Legal Secretary ceased to exist, and Rose was appointed Attorney General. At the time of his appointment as AG, he was informed by the Prime Minister by letter that his appointment as AG would not prejudice his seniority on the Supreme Court (to which he had been appointed in 1945), and that he would be entitled to be appointed to the office of Chief Justice after the two judges who were senior to him (Sir Arthur Wijewardene and Sir Edward Jayetilleke)retire after serving in that office.

    It is unlikely that any occasion would have arisen for DSS to discuss with Rose the question of his successor, although it is quite possible that Soulbury indicated to Rose, before he left on holiday to London, what DSS had wished to be done in the event of his death. In fact it is on record that Soulbury had informed Rose prior to his departure that he should await his return should the need arise for a new prime minister to be appointed.

    As you are probably aware, Sir John Kotelawela, in 1955, suggested to Rose, after the three-judge bench headed by him had acquitted Theja Gunewardene on the charge of criminal defamation of Governor-General designate Sir Oliver Goonetilleke, that it was time he took premature retirement. In his farewell speech at the ceremonial sitting of the Supreme Court, Rose stated that he was taking early retirement because he felt the time was opportune for “Ceylonisation” of his office !

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