By 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 ?
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.