By Mahinda Rajapaksa –

Mahinda Rajapaksa

I address you thus, at a time of great peril to our nation. Various views have been expressed about the resolution passed against Sri Lanka in the Human Rights Council in Geneva. There was a debate in parliament about it as well. Some contentious points have been raised with regard to this resolution and as the former President and Commander in Chief I am duty bound to explain to the public my views on this resolution. The people of this country should be aware of the challenge confronting the country as a result of the government co-sponsoring the Geneva resolution against Sri Lanka.

I must first draw your attention to the operative paragraphs in the Geneva resolution which will have the most serious implications for this country. There are many dangerous operative paragraphs in this resolution. I wish to draw your attention to three of the most serious and unacceptable recommendations.

According to operative paragraph 6 of the Geneva resolution the government has agreed to establish a judicial mechanism to try war crimes. They have also agreed to the participation of foreign judges, prosecutors, investigators and lawyers in that judicial mechanism. What this means in effect is the setting up of an entirely new parallel criminal justice system in this country outside the existing system.

According to operative paragraph 4 of the Geneva resolution, the Sri Lankan government has already agreed to allow these mechanisms that are to be set up to ‘deal with the past’ to obtain financial assistance from foreign countries. What this means is that the mechanisms that will be set up to look into allegations of war crimes and other matters will be paid for and maintained by the Western powers.

If the Geneva resolution is implemented, the countries that sponsored resolutions against Sri Lanka in the Human Rights Council, will be the same countries that provide funding for the judicial mechanisms set up under that resolution and who provide the judges, prosecutors, investigators and lawyers to man those mechanisms. These will also be the same countries that tried their level best to stop the final phase of the war and failed. By what stretch of the imagination are we to believe that the cause of justice will be served by such an arrangement?

The government has been putting forward various arguments to justify their decision to implement the Geneva resolution. The appointment by Mrs Sirima Bandaranaike of an Egyptian judge to the Commission of Inquiry to probe the S.W.R.D. Bandaranaike assassination is taken as an example of a foreign judge participating in the Sri Lankan judicial system.

However Mrs Bandaranaike appointed that Egyptian judge to a Commission of Inquiry appointed under the Commissions of Inquiry Act and not to a court of law. The criminal case relating to the Bandaranaike assassination was heard in the ordinary courts of the country. Similarly the instance of the Commission of Inquiry into Missing Persons (Maxwell Paranagama Commission) appointed by me, being allowed to seek the legal opinions of several foreign experts in the law of armed conflict is also mentioned as a precedent for the participation of foreign legal experts in a Sri Lankan legal process.

My government did make arrangements for the Maxwell Paranagama Commission to obtain written legal opinions from several foreign experts on a written request made by the Chairman of that Commission.  Sir Desmond de Silva QC, Sir Geoffrey Nice QC, Professor David Crane, Professor Michael Newton and Rodney Dixon – all experts in the law of armed conflict – and Major General John Holmes formerly of the British SAS provided some very valuable written opinions to the Paranagama Commission. It should be borne in mind that we are referring here not to the Maxwell Paranagama Commission Report which was tabled in parliament recently, but to the legal opinions provided to it by the foreign experts.  The government should have circulated the written opinions of these international experts to the members of the UN Human Rights Council. There was plenty of time to do so before the UNHRC sessions but the government deliberately refrained from doing so.

“The Island” web edition published all these legal opinions in full some months ago. If the contents of those well argued legal opinions had been taken into account the war crimes project against Sri Lanka orchestrated by some western countries would have come to an end before it even got off the ground.

The Commission on Missing Persons is also a commission appointed under the Commissions of Inquiry Act and not a court of law. Furthermore the legal experts I mentioned earlier, only provided written legal opinions in an advisory capacity to this commission. All these opinions were very favourable to Sri Lanka. The difference between obtaining advisory opinions about the arguments that can be made in our favour from foreign experts and appointing foreign judges to hear court cases against our war heroes should be clear to everybody.

Various views were expressed about the report of the Maxwell Paranagama Commission appointed to look into Complaints of Missing Persons during the recent debate in parliament. I heard this commission being referred to as “Rajapaksa’s Commission”. I saw some politicians trying to justify their own plans by saying that Rajapaksa’s own commission had made such and such recommendation. I appointed the Paranagama Commission to look into Complaints of Missing Persons in August 2013. After January this year it has functioned under the present government. It is now a commission of the present government. From January this year the incumbent President had the power to make any changes he wanted in the functions of this Commission. So it is not correct to say that was a ‘Rajapaksa commission’. In any event what is of importance to us here are the implications of the Geneva resolution.

The involvement of foreign judges, prosecutors, investigators and lawyers implies the creation of a new criminal justice system parallel to the existing one. I am totally opposed to any such arrangement.  I regard that very suggestion to be an insult to our courts system, legal profession, Attorney General’s Department and investigative bodies.

Through operative paragraph 8 of the Geneva resolution, the government has already agreed to remove from office members of the armed suspected of having committed human rights violations   through an ‘administrative process’ even if there is no evidence against him that can be placed before a court of law. Some ministers claimed in parliament  that there is no such recommendation in the Geneva resolution. I state with the utmost responsibility that operative paragraph 4 of the resolution requires exactly that and nothing else.

When the Human Rights Commissioner addressed the UNHRC on 30 September the matter on which he placed the most emphasis was the need to remove from office through an administrative process members of the armed forces suspected of having violated human rights. The government has agreed even to implement this patently unfair recommendation. If there is insufficient evidence to place before a court of law, no one can be declared a wrongdoer according to our legal system. On what principle of justice are such individuals to be removed from office through an administrative process? This is nothing but a project to persecute our war heroes.

There is another ethical issue here. This war was fought in Sri Lanka. If our war heroes are to be punished for war crimes, many things that were not crimes according to our law during the time of the war will have to be entered into our laws as crimes and given effect retroactively. Our constitution does permit retroactive legislation especially to give effect to international law in this country.

However, one of the most sacrosanct principles of criminal law is that a deed that was not a crime when it was committed should not be declared a crime through new legislation and punishment meted out retroactively. Even though the constitution allows retroactive legislation, this is never resorted to except in the most extreme circumstances.

The last time retroactive legislation was passed in was in the 1980s when SepalaEkanayake hijacked an Alitalia plane. At that time hijacking a plane was not an offence in our law. So the government at that time had to bring in retroactive legislation to make hijacking a crime and to punish Ekanayake. But there is no such issue here. If any member of the armed forces has committed murder there are laws against that in our country. Likewise if there are allegations, of torture, assault, rape or threatening of people against any member of the armed forces, all those crimes can be dealt with under our law.

If any of these crimes can be punished in our law, many would be left wondering why new criminal laws would be necessary at all. If new laws are introduced, that will be for only one purpose – to water down the evidentiary requirements and to enable the expeditious jailing of our war heroes. This is similar to wanting to remove from office through an administrative process even those members of the armed forces against whom there is no evidence, but are suspected of having violated human rights. The evidentiary rules in international war crimes tribunals have a lower benchmark than in our courts and the national legal systems of most countries. Life sentences can be handed down on little evidence.

This is one of the main reasons why the United States of America has prohibited international war crimes tribunals from ever trying any of its citizens. In 2002 the American government passed the “American Servicemen’s Protection Act” which empowers the American president to use force if necessary to obtain the release of any American citizen taken before an international war crimes tribunal. That is how the Americans protect their war veterans and other citizens. But what we see here are politicians falling over one another in their eagerness to betray our war heroes. One of the main reasons why the Americans are against any of its citizens being taken before these international war crimes tribunals is because of the glaring shortcomings in the international law relating to  war crimes and the procedures of the war crimes tribunals.

The present attempt being made in this country is to introduce these faulty laws and procedures to Sri Lanka and to jail our war heroes expeditiously. No self respecting citizen should allow this to happen. If any member of the armed forces has done anything wrong, he should be tried according to our law and only in our courts.

In ruling a country governments do come under pressure from overseas. The government of the day has to find ways and means of dealing with that. There is no need for a government if we are going to agree to everything said by other countries.

The government has co-sponsored the Geneva resolution without considering its implications and without informing parliament and appraising the people about it. If a separate criminal justice apparatus is to be set up with foreign judges, prosecutors and investigators, our ordinary law as well as the constitution itself will have to be amended. Last week in an interview with The Straits Times in Singapore, the Prime Minister had said that foreign judges will in fact be involved in war crimes trials here.

The laws will be changed in this manner for the sole purpose of punishing our war heroes. Changing the constitution itself to punish the war heroes who brought an end to terrorism which had been stalking this land for forty years and which embroiled the country in a raging internal war for 30 years is a dastardly act.  People belonging to all communities are now able to live in peace in this country because of the sacrifices made by our war heroes.

If we change the law to enable foreign judges, prosecutors and investigators to serve in our legal system, what happens after they finish jailing our war heroes? If the amendments to the law continues to remain even after jailing the war heroes, foreign judges, prosecutors, investigators and especially lawyers will continue to work in Sri Lanka and that may pose a major problem for the legal profession. There are many lawyers in parliament. I too am a lawyer.

One of the matters under discussion in this country with regard to the CEPA agreement with India was the provision made for Indian professionals of all categories including lawyers to work in Sri Lanka. If the laws are amended as envisaged to punish our war heroes, one of the unintended consequences of that will be the opening up of the Sri Lankan legal profession to foreigners even without CEPA.

If however, the law is changed only to punish our war heroes and after all the war heroes are jailed the laws are amended once again to restore the status quo ante, then it will become obvious to the people that this government amended the law only to punish our war heroes. That is not an acceptable situation at all.

The government has been engaged in an attempt to justify the position they have taken. One argument they have brought forward is that everything that is happening now had been agreed to in the joint statement made by the UN Secretary General and myself on May 23 2009. They have been misquoting the final paragraph of that joint statement to find justification for their own actions. That final paragraph went as follows: “Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations.  The Secretary-General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law.  The Government will take measures to address those grievances.”

Joint statements contain the ideas of both parties signing it. The positions taken by Sri Lanka and the UN Secretary General are clearly stated. Sri Lanka has accepted that she is committed to upholding human rights to an international standard and we are doing that. We have a whole chapter on fundamental rights in our constitution. The UN Secretary General speaks about the need for an accountability process. We never accepted that. All that we did was to look into any grievances in that regard.

We never undertook to set up war crimes tribunals or to man them with foreign judges and prosecutors or to sack members of the armed forces who have not been proven guilty of any wrongdoing through an administrative process. As per the pledge we made we appointed the Lessons Learnt and Reconciliation Commission and the Commission to look into Complaints of Missing Persons.

These plans that are being made to persecute members of our armed forces cannot be implemented without amending the law. Parliament has the power to thwart all these plans being made to victimise our war heroes who sacrificed so much in the war against terror. I appeal to all Members of Parliament regardless of party affiliation, not to allow the passage of any legislation aimed at persecuting members of our armed forces. This is a matter that goes beyond politics and is about our country, our nation, our sovereignty and our self respect.

The people should be vigilant about what these powerful forces are trying to achieve by jailing our war heroes, sacking through an administrative process those who cannot be jailed, and breaking the back of this nation. It is my belief that we as a nation are now faced with the most perilous moment since independence in 1948. We are all duty bound to come forward on behalf of the nation at a time like this.

Victory to our country and nation!

May the blessings of the Triple Gem be upon you

*Text of a speech delivered by former President Mahinda Rajapaksa at the Abeyarama Temple in Colombo on Sunday 25 October 2015