{"id":222208,"date":"2021-09-02T14:04:21","date_gmt":"2021-09-02T08:34:21","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=222208"},"modified":"2021-09-06T01:44:50","modified_gmt":"2021-09-05T20:14:50","slug":"september-came-now-its-time-for-gone-with-the-wind","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/","title":{"rendered":"September Came: Now It\u2019s Time For \u2018Gone With The Wind\u2019"},"content":{"rendered":"

By Austin Fernando<\/a> –<\/b><\/span><\/p>\n

\"\"<\/a>

Austin Fernando<\/p><\/div>\n

Earlier it was \u2018Come September<\/a><\/span>‘ (August 10<\/span>th,<\/sup><\/span> 2021 – Colombo Telegraph<\/em> ) Now September has come – quite an important dateline for Sri Lanka. <\/span><\/p>\n

Due to pressure from the European Union, which has, in keeping with UNHRC resolution<\/a><\/span>, in March 2021, decided to consider, the withdrawal of GSP+, action is pursued back home to adopt countermeasures. Justice Minister Ali Sabry has launched a website of the Office of National Unity and Reconciliation, and the Cabinet has approved policies and guidelines for the Office for Reparation, and the government opened an Office of Missing Persons (OMP) in Kilinochchi.<\/span> Minister Sabry has also confirmed that the President is determined to solve the issue of enforced disappearances, indirectly accepting past enforced disappearances, while some in the government denying such. (Thinakaran). <\/span>Too little, too late!<\/span><\/p>\n

However, the appointment of an Advisory Board, by President Gotabaya Rajapaksa<\/a><\/span> to recommend and advise as regards what action should be taken in respect of the persons imprisoned or detained over terrorist activities, should be appreciated. Speculation is that some of the detainees may be released soon, as an initial response. The government seems to be softening its stand following the US Ambassador\u2019s lunch with Minister Professor GL Peiris (PGLP) and MP MA Sumanthiran, which has loaded energy to sprint. MP Sumanthiran\u2019s interest for the US to intervene, become the \u201cthird faction\u201d\u00a0(Daily News<\/i>-.31-8-2021) also shows sprinting from the other end. News media was even saying about the third faction as \u201cMediator\u2019, which I doubt.<\/span><\/p>\n

Complaints that the government is using the Prevention of Terrorism Act to suppress people\u2019s rights, and its alleged interference in judicial decisions will aggravate Sri Lanka\u2019s problems in Geneva. With all promises by Minister Sabry, ex-parliamentarian <\/span>M.K. Shivajilingam\u00a0asserted that justice for the issue of\u00a0enforced disappearances can be rendered only through an international inquiry. (Thinakaran<\/em>)<\/span><\/p>\n

\u00a0Commitments to UNHRC<\/b><\/span><\/p>\n

The Government of Sri Lanka (GoSL) committed to Transitional Justice (TJ) by unilaterally placing UNHRC Resolution 11\/1 and co-sponsoring Resolution 30\/1. These commitments matched the \u2018Four Pillars of TJ\/ Reconciliation\u2019 \u2013 seeking truth, justice, reparation, non-recurrence. Its implementation was:<\/span><\/p>\n

Establishing the OMP, and the attempt to establish a Truth and Reconciliation Commission (TRC) through Cabinet Memorandum by PM Ranil Wickremesinghe (October 18, 2018), which failed with the \u2018Constitutional Coup\u2019 of October 26, 2018.<\/span><\/p>\n

Study of Accountability Mechanism (AM) by a Working Group during the\u00a0Yahapalana<\/i>\u00a0regime; no legislation was undertaken.<\/span><\/p>\n

Yahapalana government establishing the Office for Reparation.<\/span><\/p>\n

The expectation of non-recurrence through Constitution-making failed during the\u00a0Yahapalanaya<\/i>, and\u00a0Pohottuwa\u00a0<\/i>looking forward to Romesh de Silva Committee.<\/span><\/p>\n

The AM seems \u2018dead\u2019, though it is the most sought for, and alive among victims, their spokespersons, and internationals. Hence, AM will be addressed to understand its implications.<\/span><\/p>\n

Accountability Mechanism<\/b><\/span><\/p>\n

In terms of UNHRC Resolution 30\/1, GOSL has acknowledged that accountability is essential to uphold the rule of law and build community confidence in the justice system. The GOSL proposed (30\/1) to establish a judicial mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law. The credible judicial process included independent judicial and prosecutorial institutions and affirmed the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel\u2019s office, of Commonwealth and other foreign judges, defense lawyers, authorized prosecutors, and investigators.<\/span><\/p>\n

Yet, the AM has not been put in place by the nationalist\u00a0Pohottuwa<\/i>, and the <\/span>undecided\u00a0Yahapalanaya<\/i>\u00a0governments for political reasons. The victims, politicians, and the Diaspora demanded the AM on humanitarian and political grounds.<\/span><\/p>\n

The unacceptability of the AM is based on several concerns:<\/span><\/p>\n

(i) After the war victory, the soldiers deservedly became \u2018war heroes. The terrorists who egregiously violated human rights and humanitarian laws were not affected by TJ, due to death, migration, etc. Therefore, a justifiable argument was put forth against prosecuting only military officers. The UNHRC wanted action against every violator.<\/span><\/p>\n

(ii) Many are those who claim that the AM proposal is an attempt by the Diaspora and LTTE supporters to launch a witch-hunt against the military. We overlooked that our international friends also support accountability, as recently expressed by Lanka-friendly Lord Naseby when inquired (Pathfinder Foundation Zoom Meeting) whether he precluded \u2018war crimes investigations\u2019 having quoted the White Flag incident.<\/span><\/p>\n

(iii) Even a deadlock could happen if the soldiers do not respond to AM summons. Such a situation could bring the military and the judiciary on a collision course. An AM, that is put in place with the ground reality being factored in, will fail.<\/span><\/p>\n

(iv) There are two schools of thought as regards TJ: the \u2018legalists\u2019 and \u2018realists.\u2019 The \u2018legalists\u2019 argue prioritizing judicial accountability to promote sustainable peace. In contrast, \u2018realists\u2019 argue for the prioritization of restorative justice, for example, TRCs or Reparation Offices. Some question the UNHRC\u2019s preoccupation with the \u2018legalist\u2019s viewpoint\u2019.<\/span><\/p>\n

(v) Existing domestic legal provisions conflict with AM implementation.<\/span><\/p>\n

(vi) Overall, it was politically unsound.<\/span><\/p>\n

Validation of AMs<\/b><\/span><\/p>\n

Public validation of AM was orchestrated by Prince Zaid Al Hussein, the former UNHRC\u2019s High Commissioner at a press briefing in Colombo. He declared: \u201cVirtually every week provides a new story of a failed investigation, a mob storming a courtroom or another example of a crime going unpunished. Sexual violence and harassment against women and girls are particularly poorly handled by the relevant State institutions \u2014 especially when the alleged perpetrators are members of the military or security services \u2014 and, as a result, it remains all too widespread.\u201d This had made the UNHRC suggest international participation in AM, he said. The Tamil Diaspora\u2019s and victims\u2019\/ spokespersons\u2019 mindsets remain unchanged even today.<\/span><\/p>\n

Another view was that alleged violators would be hauled before the International Criminal Court. At the briefing, Prince Hussein declared that it was not expected, and difficult, probably knowing our ability to muster a veto at the UN Security Council.<\/span><\/p>\n

Answering a journalist, Prince Hussein affirmed that the UNHRC wished that any decision-making was the sovereign right of Sri Lankans. He cautioned that whatever the recommendations, we must finally make victims feel that justice had been delivered to them. This balancing act is one of the challenges before PGLP.<\/span><\/p>\n

As for TJ, no order was given for establishing any institutions. Hence, first establishing the less controversial TRC, OMP, and Reparation Mechanism, allowing the public to understand the non-destructive nature of TJ was preferred. But, for political popularity, the victims\u2019 spokespersons thought differently and demanded AM.<\/span><\/p>\n

Prince Hussein wished the AM was established according to Sri Lankan laws. Most of the majority of community members detested the establishment of AM. The victims called for an AM to severely punish the military personnel, and they ignored the LTTE\u2019s crimes. Some legalists spoke of the potentiality of worst consequences such as universal jurisdiction if TJ is disrespected.<\/span><\/p>\n

I quote an Attorney justifying an accountability process, as anticipated by the UNHRC. She argued:<\/span><\/p>\n

(i) A credible accountability process against those most responsible for violations and abuses of human rights and humanitarian laws will safeguard the reputation of those, including within the military, who conducted lawfully.<\/span><\/p>\n

(ii) An accountability process is essential for non-recurrence, as unredeemed violence is one of the greatest contributory factors for recurrence.<\/span><\/p>\n

(iii) The only way to prevent recurrence is by combating the causes of conflict, which can be done only through a process that properly addresses past violations.<\/span><\/p>\n

(iv) The GOSL needs to fulfill its constitutional obligation to investigate and prosecute past crimes. To renege on that will not only taint the credibility of the GOSL in the eyes of the international community, but it will also erode public confidence instilled in the government concerning its commitment to uphold human rights, including combating impunity.\u201d (Sri Lanka\u2019s Time to Try: Editors \u2013 Dr. Isabelle Lassee\/ Zahabiya Husain [SLTT] Page 135: \u2018Dealing with the past\u2019: Prashanthi Mahindaratna)<\/span><\/p>\n

Her arguments are difficult to counter and were repeated. I quote Attorney Achala Seneviratne: \u201cBy punishing real criminals we create an opportunity to prove that we do not favor criminals because they are war heroes. Hiding criminals make the whole military criminals.\u201d<\/span><\/p>\n

Additionally, Mahindaratna stated the existing legal means. Quote:<\/span><\/p>\n

\u201cIn fact, in terms of the Commissions of Inquiry Act, the Attorney-General is permitted to institute criminal proceedings solely based on the findings of a commission of inquiry appointed under the said Act, and in terms of the Code of Criminal Procedure (CCP), a police officer is required to \u2018forthwith\u2019 communicate to the magistrate having jurisdiction, or to his superior, \u2018any information which he may have or obtain respecting\u2019 (a) the commission of or attempt to commit any offense; (b) a sudden or unnatural death or death by violence; and (c) recovery of a dead body where the cause of death is unknown. Thus, by law, the police are required to initiate an investigation into an alleged crime upon learning of its commission by whatever means. As such, the oft-repeated justification for inaction that a criminal investigation could be initiated only where there is a formal complaint filed by a complainant is without merit.\u201d (Ibid: Page 122).<\/span><\/p>\n

Though this validation is acceptable, literature speaks negatively about its operability. Quote:<\/span><\/p>\n

\u201cWhile some international observers believe the new government (2015) should be generously afforded the time and space to develop its own mechanisms, the reality is that Sri Lanka\u2019s record of domestic accountability throughout its post-independence history has been characterized by a lack of political will, lack of capacity, political interference, and chronic failure. To expect victims to put their trust in familiar domestic mechanisms that have failed time and again is unfair and unwise.\u201d (SLTT- Page 139: \u2018A hybrid court: Ideas for Sri Lanka \u2013 Rhadeena de Alwis and Niran Anketell).<\/span><\/p>\n

The Special Rapporteur on the Independence of Judges and Lawyers (June 2017) also noted serious drawbacks in our judicial mechanism. It highlighted: \u201c\u2026 the inadequacy of the constitutional jurisdiction of the Supreme Court; lack of independence of the judiciary; lack of clear and transparent process for the appointment of judges, AG, and State Counsels; and the language barrier in making justice accessible to the Tamil community.\u201d (SLTT \u2013 page 108: \u2018Extraterritorial Prosecutions and Transitional Justice: Seeking Criminal Justice in and outside Sri Lanka\u2019- Kalika Metha, Raquel Saavedra, Andreas Schuller)<\/span><\/p>\n

Mahindaratna also quoted previous instances where justice had not been served, for example, Black July, JVP insurgency, the killing of journalists like Richard De Zoysa, Lasantha Wickrematunge, lethargy on bringing to book Bond Scam perpetrators, the ethnic cleansing of the Muslims, no-action against Kumaran Pathmanathan, Kattankudy mosque attack and killing of 600 policemen in Kalmunai. (SLTT: Pages 123-125t). The foregoing proves that legalists are not partisan to any political or ethnic, or religious group when discussing accountability. As such, any government that does not accept the legalists\u2019 standpoint is likely to play into the hands of the UNHRC.<\/span><\/p>\n

Recent events<\/b><\/span><\/p>\n

It appeared that de Alwis and Anketell agree with Mahindaratna\u2019s thinking. The issue is that with such legal provisions being in place because investigations, prosecutions, and punishments do not follow. Instead, some recent events exhibited legal laxity.<\/span><\/p>\n

The pre-Geneva pressure is still on from those such as the parents of the eleven youth, allegedly abducted and made to disappear allegedly by the Navy Intelligence. The parents have filed a complaint against the Attorney General (AG) for action taken to temporarily not proceed with the case against a former Navy Commander. (Morning Leader<\/em> \u2013 August 13, 2021). However, the latter has reportedly obtained an interim order. This is the parents\u2019 initial step, certainly not expecting success.<\/span><\/p>\n

The second step was taken concurrently, seen from the statement of the Regional Director of Amnesty International, Yamini Mishra (ibid.). The issue has left our shores, on way to Geneva! Mishra claimed: \u201cSince Sri Lanka has the world\u2019s second-highest number of enforced disappearances this case was an opportunity for the Sri Lankan authorities to deliver justice for crimes under international law, by ensuring that those reasonably suspected of criminal responsibility, including those implicated for aiding and abetting and acting under the principle of command responsibility, are brought to trial.\u201d Mishra endorses Attorneys Mahindaratna and Seneviratne.<\/span><\/p>\n

Without a trial, Amnesty has prejudged \u2018reasonable suspicion on the crimes\u2019 \u2018aiding and abetting\u2019 and \u2018command responsibility.\u2019 Not being a lawyer, I refrain from commenting on factual legal nuances but agree with Amnesty\u2019s principle that Sri Lanka\u2019s commitment to \u2018deliver justice\u2019 could be established by court inquiry. It will show judicial integrity and genuineness.<\/span><\/p>\n

Incidentally, Resolution 46\/1 of March 23, 2021, under item 6 stated: \u201caccountability for crimes and human rights violations in \u2018emblematic cases. This is an \u2018emblematic\u2019 case, like Trinco Five and ACF Killings. Certainly, Amnesty International is helping the UNHRC Geneva to argue that total immunity is granted by quoted action, and, therefore, the onus is on the UNHRC to rachet up the pressure. Over to PGLP!<\/span><\/p>\n

Foreign judges<\/b><\/span><\/p>\n

The most sensitive issue is adjudication by non-citizens. Some have interpreted Resolution 30\/1 wording, arguing that foreign judges don\u2019t need to mandatorily adjudicate; others fear compulsory adjudication. Some have contended that there are no legal constraints for it. They are of the view that no reference is made to citizenship under the Constitution \u2013 Article 107 in the appointment of the Supreme or Appeal Court Judges. However, Constitution \u2013 Article 107(4) and Judicature Act \u2013 Section 6(2) require Supreme Court or Appeal Court judges and Primary Court judges respectively to take and subscribe to the prescribed oath or affirmation, at appointment. It is assumed foreigners would not do so.<\/span><\/p>\n

Jurisprudential pronouncements of the Supreme Court infer that a \u2018Sri Lankan judicial mechanism\u2019 cannot be manned by a non-citizen. The quoted judgment is Edward Francis Silva vs. Shirani Bandaranayake, where the Court remarked the appointment of a non-citizen judge lacks qualification.<\/span><\/p>\n

Constitution \u2013 Articles 31 and 91 state that citizenship is required for the appointment of the Executive and Parliamentarians. Citizenship is not an issue for enjoying certain rights under Article 10, torture (Article 11), equality (Article 12), and freedom from arbitrary arrest or detention (Article 13). Freedom of speech, assembly, and association under Article 14 is guaranteed only to citizens. The Constitution stipulating citizenship for Executive and Legislature appointments, being silent on the judiciary, permits space to argue that foreigners could be appointed to the judiciary. Contrarily, one may argue if citizenship is a requirement for the Legislature, a judge adjudicating Legislature\u2019s actions should be a citizen.<\/span><\/p>\n

Article 151 (3) of the Draft Constitution \u2013 2000 specifically stated that citizens and Attorneys at Law must be appointed to the Judiciary. However, the absence of this constraining qualification in the 1978 Constitution and twenty amendments thereto weakens the argument for disqualifying foreigner appointments to the judiciary.<\/span><\/p>\n

The 20th Amendment empowers a Dual Citizen President with the power to appoint judges. A Dual Citizen can become a Premier or legislator. In that spirit, one could argue that Dual Citizens could be appointed as judges. Opening for PGLP.<\/span><\/p>\n

De Alwis and Anketell have discussed international experiences in the appointment of judges in Special Courts. Certain foreign Special Courts have appointed a higher number of non-citizen judges (Sierra Leone, Lebanon) and some lesser number (Cambodia). It would have happened due to the non-availability of judges qualified in international law and practice, and the same argument is raised here too. Some disagree. In Bosnia and Herzegovina, the composition of judges was changed from original over time. At the commencement (2005), each panel comprised two international judges and one national judge and in 2008 it was reversed. This gives a lead if foreign judges are engaged. Since foreign experts have served in Udalagama and Paranagama Commissions, similar service to AMs is justifiable.\u00a0<\/span><\/p>\n

Prosecution<\/b><\/span><\/p>\n

Normally the Attorney General\u2019s (AG) Department prosecutes criminal cases. Since AG and its officials have appeared in legal proceedings, representing the military in local Courts and Geneva, it is not surprising that victims are questioning its impartiality. Therefore, they may vehemently demand the \u2018Special Prosecutor\u2019s Office (30\/1). As regards this, there have been situations in other countries, where joint prosecutors\u2019 or deputy prosecutors\u2019 appointments were made. (SLTT: \u2018Data on Criminal Accountability in Post-Civil War Societies: Implications for Sri Lanka\u2019: Geoff Dancy\/ Eric Wiebelhaus-Brahm)<\/span><\/p>\n

However, regarding prosecutions, the Judicature Act (Section 41), read with the Supreme Court Rule (SCR) (Rule 70), restricts appearance in Courts to attorneys. Further legal issues in this regard are submitted by commentators. In terms of Supreme Court Rules 67 to 69, an \u2018Attorney-at-Law\u2019 is a person admitted to the Sri Lankan Bar. These stipulations restrict foreign lawyers\u2019 right of audience before our courts. Additionally, the Code of Criminal Procedure limits prosecution to the AG or an Attorney of the AG\u2019s Department. In the High Court and a Magistrate Court, only a State Counsel or a specially authorized pleader could prosecute. This effectively blocks international participation in prosecution. These restrictions constraint the establishment of the Special Prosecutor\u2019s Office unless laws and procedures are revised. Perhaps, the task before the legalists is to find ways and means of overcoming these restrictions by way of the revision of laws and procedures if the Accountability Mechanism (AM) is to be a reality.<\/span><\/p>\n

Parliament blockades<\/b><\/span><\/p>\n

I do not think it is easy for the government to establish an AM envisaged by the UNHRC. First, these legal constraints must be overcome by Parliament by amending laws. About 75% of parliamentarians are seen to have Sinhalese. Let\u2019s face the political reality of legislating, when the law, however reasonable, projects \u2018anti-Sinhala\u2019 nuances.<\/span><\/p>\n

Parliamentarians are not elected on considerations like knowledge, empathy, education, etc. Sadly, they win by sparking race, religion, caste, thuggery, pseudo-nationalism, media clout, and money. As Eastern Governor, I explained these to Prince Hussein, and believe he understood them. UN Special Procedure expert Pablo de Grief also advised GOSL should not be in a hurry to establish the AM or the Special Prosecutor\u2019s Office. This status remains unchanged.<\/span><\/p>\n

The answer may not be international investigations, but to find a compromise formula to abide by the constitutional obligations. A change seems to have occurred in the President\u2019s approach. The government could explore the ways and means of convincing the majority in Parliament, if\/when legislation is revised.<\/span><\/p>\n

Changing scenarios<\/b><\/span><\/p>\n

Recently, President Gotabaya Rajapaksa tweeted:<\/span><\/p>\n

\u201cWe are committed to work with the @UN to ensure accountability & human dev. to achieve lasting peace & reconciliation. We are dedicated to resolving the issues within the democratic & legal frame to ensure justice & reconciliation by implementing necessary institutional reforms.\u201d (Sunday Times<\/em>)<\/span><\/p>\n

I guess there has been a change in the President\u2019s hard stance, which became evident at the War Hero Commemoration (2020), where he said he would not hesitate to withdraw Sri Lanka from any international organization that continues to make baseless allegations and harass security forces. What he meant by \u2018international organization\u2019 was the UNHRC, which is demanding that the so-called \u201cbaseless allegations\u201d be proved in a court.<\/span><\/p>\n

The President\u2019s tweet and the aforesaid statement at the War Heros Commemoration are contradictory. Of course, pledges assuring \u201caccountability\u201d, \u201chuman development\u201d, \u201clasting peace\u201d, and \u201creconciliation\u201d, \u201censuring justice within a legal framework\u201d, \u201cinstitutional reforms,\u201d etc., are hackneyed. The appointment of Prof. GL Peiris as the Foreign Minister was the second step, probably signaling flexible, sober strategizing. The third step was interventions by Minister Sabry and others. The fourth step was appointing the Advisory Board. As a next quick response PGLP may introduce the non-controversial TRC law because a draft is already available, and the Opposition cannot object. Its origin is theirs.<\/span><\/p>\n

However, after presidential tweeting, the new doctrine may be to review and withdraw or amend earlier stances on UNHRC interventions, made by Minister Dinesh Gunawardena. Minister Gunawardena declared: \u201cSri Lanka rejects the High Commissioner\u2019s Report because\u00a0<\/span>the allegations contained in the report were based on ill-founded premises, and the Minister said, \u201cthe trajectory that has emerged about the recommendations and conclusions reflects the preconceived, politicized and prejudicial agenda which certain elements have relentlessly pursued against Sri Lanka<\/span>.\u201d (UNHRC\u2019 Interactive Dialogue\u2019 24-2-2021\u2014emphasis added)<\/span><\/p>\n

Then, \u201c\u2026 we consider that the High Commissioner\u2019s insistence in the current Report on the \u201cfull implementation\u201d of the demands made on Sri Lanka in Resolution 30\/1 indicates that\u00a0<\/span>the OHCHR fails to recognize the rational and legitimate concerns voiced by States that are seeking, in good faith, to address issues<\/span>.\u201d (UNHRC 27th February 2021\u2014emphasis added)<\/span><\/p>\n

The underlined sections in the above-mentioned excerpts are tantamount to a bitter complaint against the planned UNHRC partisanship and a bias against Sri Lanka; they will not please High Commissioner Michelle Bachelet. But President Gotabaya Rajapaksa\u2019s tweet will certainly please her. It may please the UNHRC Core Group. The importance of the US Ambassador\u2019s gestures is thus obvious. When the President softens his stand why cannot his Foreign Minister? If Prof. Peiris, whom I consider an experienced, knowledgeable, sober, capable negotiator, wishes to move on the new trajectory, he must overcome prejudices and be guided by the President\u2019s stance.<\/span><\/p>\n

Recently,\u00a0Virakesari, Thinukural<\/i>, and\u00a0Thinakaran\u00a0<\/i>quoted Prof. Peiris as having refuted accusations against GOSL. Commentators have expressed different views on such denials. \u201cIn fact, the Presidential warrants appointing the said commissions of inquiry (e.g., Udalagama, Paranagama, Mahanama Thilakatratna<\/i>) themselves\u00a0ex-facie\u00a0<\/i>reflect the existence of allegations that merit investigation, despite which there is continuous and disingenuous, yet futile, denial.\u201d She quoted the experiences of post-conflict states, e. g., former Yugoslavia, Rwanda, Sierra Leone, etc.. and added, \u201c\u2026 stubborn denial does not make the allegations disappear but continue to enlarge with each passing day of inaction.\u201d (SLTT: Page 127: Mahindaratna). Considering what the UNHRC Session 37, (A\/HRC\/37\/23: paragraph 52) called on the Member States to explore actions for sake of accountability, (i.e., including universal jurisdiction), GOSL should be cautious.<\/span><\/p>\n

Potential AM processes<\/b><\/span><\/p>\n

To create a positive mindset on accountability, the government must prepare the public to accept an AM. This failed in the past and has no assurance for the future. One good example is how the victims were not made aware of the legal constraints of appointing foreign judges. Even the annoyance of victims at the inception and even now against the OMP (Thinakaran<\/i>\u00a027-8-2021) is another.<\/span><\/p>\n

If GOSL agrees in principle to establishing an AM (currently unimaginable) one earlier restriction is eased by the ability to appoint judges, prosecutors, investigators from selected dual citizens making participation \u201cin a Sri Lankan judicial mechanism\u201d viable. I remember a quote from the Japanese Judge Motoo Noguchi, who discussed issues with me, sharing international experience in prosecutions. Quote: \u201cJustice is inherent of domestic nature and ownership is important in the process. However, if this is impossible or extremely difficult with Sri Lankan nationals only, you would need the participation of foreign professionals.\u201d Surmounting that \u2018extreme difficulty\u2019 is still open. This will need an evaluation of our judicial capacity and find ways to balance. Over to Minister Ali Sabry.<\/span><\/p>\n

Therefore, regardless of the outcome of investigations or trials, if the domestic process is perceived as credible, then GOSL would meet the international and domestic obligations of accountability. The balanced approaches are feasible, but flexibility is a necessity, rather than sticking to one\u2019s guns and demanding the pound of flesh! This applies to all stakeholders.<\/span><\/p>\n

If the government is willing, this could be tried through several interventions. Anyhow, these steps may not be that easy, but it is up to Prof. Peiris to find a way out.<\/span><\/p>\n

First, appointing a TRC, and executing the OMP, showcasing good performance could persuade the majority community to understand that TJ institutions are positive tools. Since there are no judicial mechanisms, they will be unrestricted with evidence and legal procedures.<\/span><\/p>\n

Secondly, the media could create a public discourse on crimes, their horrendous nature, etc., and educate the public on accountability. This exercise will face stiff opposition from the groups who have strongly canvassed against the AM. Therefore, the personalities and institutions spearheading the AM will certainly matter. There is also the need to engage with the victims; this is a task especially for civic groups and clergy. Whatever happens in the operations should receive publicity through the media. Public support is an essential ingredient for success. The GOSL should harness the media support in the way they did during the conflict. Over to Minster Dallas Alahapperuma, an excellent, balanced media communicator!<\/span><\/p>\n

Thirdly, this exercise does not produce immediate results and takes time to operate successfully. This will not be problematic since there is no commitment on the part of GOSL to act according to a timeframe. These sentiments resonate with UN Rapporteur Pablo de Grief.<\/span><\/p>\n

Fourthly, the task of winning over the military security forces requires their participation in this exercise. It is only a handful of military personnel who are suspected of alleged violations. So, if untainted officers could be selected, it may be possible to educate them on the accountability process. Over time, certain assurances could be given in respect of a prosecutorial policy of focusing on the most serious and emblematic cases, offering mitigatory sentences for those cooperating with the prosecutors. They will reduce opposition from within the military and from society at large since the question of military personnel being sent to the gallows will not arise. Easier said than done! President\u2019s commitment is essential.<\/span><\/p>\n

Fifthly, any emblematic cases could be taken up in Courts with military participation. This may be difficult but the case of the rape and murder of Krishanthi Kumaraswamy and three others shows that such crimes were committed, and the Sri Lankan law enforcement and judicial processes can conduct investigations and prosecuting the perpetrators expeditiously, even during the war, with the help of the Military Police. So, why allow such issues to be internationalized? Mahindaratna has added, \u201cThis further demonstrates that, while politicians thrust the military to the forefront as an excuse to abstain from implementing the rule of law for wartime crimes, the military itself is not an obstacle for such processes.\u201d (SLTT: page 129).<\/span><\/p>\n

Sixthly, it will be useful to publicize the slow performance of similar international institutional arrangements to prove to the victims the need to find alternatives that provide much quicker reconciliatory approaches than the judicial process.<\/span><\/p>\n

Engaging the clergy, civil society groups, and the District Administration personnel is recommended. Do not forget that these three groups stood by the affected during the war.<\/span><\/p>\n

GOSL and these groups may make use of the examples of the International Criminal Tribunal in the former Yugoslavia, International Criminal Tribunal for Rwanda, Extraordinary Chambers in the Court of Cambodia, and the International Criminal Court, where the numbers punished were smaller than complaints and the prosecutorial process was extremely slow. The difficulties in finding evidence, (though some hardliners claim to have trophy evidence), loss of documentation, the demise of witnesses, memory losses on events, etc. will lead to a similar situation in Sri Lanka as well.<\/span><\/p>\n

Seventhly, while valuing the gains of accountability exercises like the revelation of criminal activity, endorsement of accountability for crimes, and respect for Rule of Law, etc., if the realization dawns that punishment cannot be meted out immediately, those demanding such action may opt for trade-offs such as human\/economic development, reconciliation, normalization, etc.<\/span><\/p>\n

However, the grief of victims does not vaporize quickly, and victims\u2019 survivors will not promptly accept these arguments, and healing exercises should parallelly happen nationally, probably with the participation of all religious dignitaries. Additionally, reparation systems should be boosted generously. Over to you, Minister Basil Rajapaksa. Let it be stressed that no argument is peddled that the value of human lives could be assessed in terms of rupees and cents.<\/span><\/p>\n

Conclusion<\/b><\/span><\/p>\n

When the country faces grave problems internationally, the national political leadership should unite to fight its cause. Unfortunately, the Opposition and governments do not cooperate with genuine intentions. The Opposition need not wait for asking but must help voluntarily since what the government is sowing now will be reaped by the current Opposition politicians in the future. Even within the government also, coordination with the Opposition should happen committedly and genuinely.<\/span><\/p>\n

If it is justice that Tamil politicians seek for the victims, they may be standing with the intentions of Prince Zaid Hussein. However, the process of achieving that goal must be based on reason, justice, and effective implementation, and not ethnic\/religious\/regional biases.<\/span><\/p>\n

The success of finding a solution hinges on many factors, the most essential being the political commitment. It is expected of the government, victims, and all other stakeholders to overcome their biases. It is extremely difficult but needed because TJ is essential; the economy should not be crippled, and the country should remain stable. It will not be able to achieve this goal if the government and Opposition do not respect multi or bipartisanship relationships, collaborate and cooperate in the national interest.<\/span><\/p>\n

I end this by quoting Kashmiri leader Farooq Abdullah, who said: \u201cDiplomacy of give-and-take is a necessity in the current situation. If we show fists to them, they will double their fists and the result would be confrontation and conflagration that a nation reeling under the pandemic and severely crippled economy cannot afford.\u201d This advice that was offered to India as regards its engagement with China applies to us since we have been showing fists at each other, though the crisis is domestic.<\/span><\/p>\n

We may well remember what Mark Twain said: \u201cThe principle of give and take is the principle of diplomacy \u2014 give one and take ten.\u201d I hope Prof. Peiris will do likewise. Best wishes, Sir, to prove that Come September, we Sri Lankans possess the <\/span>power to persevere in the face of adversity like Scarlett O\u2019Hara in the film \u2018Gone with the Wind!\u2019 <\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

[…]<\/p>\n","protected":false},"author":331,"featured_media":222213,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,2186,46,8],"tags":[],"class_list":["post-222208","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-colombotelegraph","category-featured-news","category-constitutional-reforms","category-editorial"],"yoast_head":"\nSeptember Came: Now It\u2019s Time For \u2018Gone With The Wind\u2019 - Colombo Telegraph<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"September Came: Now It\u2019s Time For \u2018Gone With The Wind\u2019 - Colombo Telegraph\" \/>\n<meta property=\"og:description\" content=\"[…]\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/\" \/>\n<meta property=\"og:site_name\" content=\"Colombo Telegraph\" \/>\n<meta property=\"article:published_time\" content=\"2021-09-02T08:34:21+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2021-09-05T20:14:50+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2021\/09\/gotabaya-rajapaksa.jpeg\" \/>\n\t<meta property=\"og:image:width\" content=\"747\" \/>\n\t<meta property=\"og:image:height\" content=\"532\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Austin Fernando\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Austin Fernando\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"22 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/\",\"url\":\"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/\",\"name\":\"September Came: Now It\u2019s Time For \u2018Gone With The Wind\u2019 - Colombo Telegraph\",\"isPartOf\":{\"@id\":\"https:\/\/www.colombotelegraph.com\/#website\"},\"primaryImageOfPage\":{\"@id\":\"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/#primaryimage\"},\"image\":{\"@id\":\"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/#primaryimage\"},\"thumbnailUrl\":\"https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2021\/09\/gotabaya-rajapaksa.jpeg\",\"datePublished\":\"2021-09-02T08:34:21+00:00\",\"dateModified\":\"2021-09-05T20:14:50+00:00\",\"author\":{\"@id\":\"https:\/\/www.colombotelegraph.com\/#\/schema\/person\/a7fce10d12c0a4aa089639a5bb8719b4\"},\"breadcrumb\":{\"@id\":\"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/\"]}]},{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/#primaryimage\",\"url\":\"https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2021\/09\/gotabaya-rajapaksa.jpeg\",\"contentUrl\":\"https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2021\/09\/gotabaya-rajapaksa.jpeg\",\"width\":747,\"height\":532},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/www.colombotelegraph.com\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"September Came: Now It\u2019s Time For \u2018Gone With The Wind\u2019\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.colombotelegraph.com\/#website\",\"url\":\"https:\/\/www.colombotelegraph.com\/\",\"name\":\"Colombo Telegraph\",\"description\":\"In journalism truth is a process\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/www.colombotelegraph.com\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Person\",\"@id\":\"https:\/\/www.colombotelegraph.com\/#\/schema\/person\/a7fce10d12c0a4aa089639a5bb8719b4\",\"name\":\"Austin Fernando\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/www.colombotelegraph.com\/#\/schema\/person\/image\/\",\"url\":\"https:\/\/secure.gravatar.com\/avatar\/ad4e264f71aef1992a233787775c0f9b2f5569a133b8251054b4bc053128d14f?s=96&d=identicon&r=g\",\"contentUrl\":\"https:\/\/secure.gravatar.com\/avatar\/ad4e264f71aef1992a233787775c0f9b2f5569a133b8251054b4bc053128d14f?s=96&d=identicon&r=g\",\"caption\":\"Austin Fernando\"},\"url\":\"https:\/\/www.colombotelegraph.com\/index.php\/author\/austinfernando\/\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"September Came: Now It\u2019s Time For \u2018Gone With The Wind\u2019 - Colombo Telegraph","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/","og_locale":"en_US","og_type":"article","og_title":"September Came: Now It\u2019s Time For \u2018Gone With The Wind\u2019 - Colombo Telegraph","og_description":"[…]","og_url":"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/","og_site_name":"Colombo Telegraph","article_published_time":"2021-09-02T08:34:21+00:00","article_modified_time":"2021-09-05T20:14:50+00:00","og_image":[{"width":747,"height":532,"url":"https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2021\/09\/gotabaya-rajapaksa.jpeg","type":"image\/jpeg"}],"author":"Austin Fernando","twitter_card":"summary_large_image","twitter_misc":{"Written by":"Austin Fernando","Est. reading time":"22 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"WebPage","@id":"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/","url":"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/","name":"September Came: Now It\u2019s Time For \u2018Gone With The Wind\u2019 - Colombo Telegraph","isPartOf":{"@id":"https:\/\/www.colombotelegraph.com\/#website"},"primaryImageOfPage":{"@id":"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/#primaryimage"},"image":{"@id":"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/#primaryimage"},"thumbnailUrl":"https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2021\/09\/gotabaya-rajapaksa.jpeg","datePublished":"2021-09-02T08:34:21+00:00","dateModified":"2021-09-05T20:14:50+00:00","author":{"@id":"https:\/\/www.colombotelegraph.com\/#\/schema\/person\/a7fce10d12c0a4aa089639a5bb8719b4"},"breadcrumb":{"@id":"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/"]}]},{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/#primaryimage","url":"https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2021\/09\/gotabaya-rajapaksa.jpeg","contentUrl":"https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2021\/09\/gotabaya-rajapaksa.jpeg","width":747,"height":532},{"@type":"BreadcrumbList","@id":"https:\/\/www.colombotelegraph.com\/index.php\/september-came-now-its-time-for-gone-with-the-wind\/#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.colombotelegraph.com\/"},{"@type":"ListItem","position":2,"name":"September Came: Now It\u2019s Time For \u2018Gone With The Wind\u2019"}]},{"@type":"WebSite","@id":"https:\/\/www.colombotelegraph.com\/#website","url":"https:\/\/www.colombotelegraph.com\/","name":"Colombo Telegraph","description":"In journalism truth is a process","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.colombotelegraph.com\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Person","@id":"https:\/\/www.colombotelegraph.com\/#\/schema\/person\/a7fce10d12c0a4aa089639a5bb8719b4","name":"Austin Fernando","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.colombotelegraph.com\/#\/schema\/person\/image\/","url":"https:\/\/secure.gravatar.com\/avatar\/ad4e264f71aef1992a233787775c0f9b2f5569a133b8251054b4bc053128d14f?s=96&d=identicon&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/ad4e264f71aef1992a233787775c0f9b2f5569a133b8251054b4bc053128d14f?s=96&d=identicon&r=g","caption":"Austin Fernando"},"url":"https:\/\/www.colombotelegraph.com\/index.php\/author\/austinfernando\/"}]}},"jetpack_featured_media_url":"https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2021\/09\/gotabaya-rajapaksa.jpeg","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.colombotelegraph.com\/index.php\/wp-json\/wp\/v2\/posts\/222208","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.colombotelegraph.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.colombotelegraph.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.colombotelegraph.com\/index.php\/wp-json\/wp\/v2\/users\/331"}],"replies":[{"embeddable":true,"href":"https:\/\/www.colombotelegraph.com\/index.php\/wp-json\/wp\/v2\/comments?post=222208"}],"version-history":[{"count":5,"href":"https:\/\/www.colombotelegraph.com\/index.php\/wp-json\/wp\/v2\/posts\/222208\/revisions"}],"predecessor-version":[{"id":222215,"href":"https:\/\/www.colombotelegraph.com\/index.php\/wp-json\/wp\/v2\/posts\/222208\/revisions\/222215"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.colombotelegraph.com\/index.php\/wp-json\/wp\/v2\/media\/222213"}],"wp:attachment":[{"href":"https:\/\/www.colombotelegraph.com\/index.php\/wp-json\/wp\/v2\/media?parent=222208"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.colombotelegraph.com\/index.php\/wp-json\/wp\/v2\/categories?post=222208"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.colombotelegraph.com\/index.php\/wp-json\/wp\/v2\/tags?post=222208"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}