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Wednesday, April 17, 2024

Accountability: The Importance of Not Setting Ourselves Up to Fail

by Kishali Pinto Jayawardene.

This Thursday’s consensus resolution tabled before the United Nations Human Rights Council in relation to Sri Lanka’s war time atrocities has provoked starkly divergent responses in its aftermath.

Calling for a more nuanced discussion
On the one hand, we have the government patting itself on the back for having successfully negotiated the diluting of the earlier call ‘to involve international investigators, prosecutors and judges in Sri Lanka’s justice processes.’ Softer language is now resorted to. Thus the relevant paragraph ‘affirms’ the importance of participation in a ‘Sri Lankan judicial mechanism’, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators.

On the other hand, skeptics have scoffed that this is all a matter of words. Certainly the Bard’s injunction as to ‘whats’ in a name? that which we call a rose, by any other name would smell as sweet,’ ill suits this particular controversy. Those inclined to look askance at the consensus resolution will indisputably not consider as sweet, the bringing in of a ‘hybrid court’ couched in more pleasing language as it were.

But at a more substantial level, the polarized nature of debates around this question is worrying. The two extremes hitherto apparent of hysterical bellowing on state sovereignty juxtaposed with the uncritical accepting of a ‘domesticated hybrid court’ as the ideal answer to Sri Lanka’s accountability question must yield to a far more nuanced discussion.

Bringing in expertise from overseas
Wriggling on the horns of an unenviable dilemma created by the preposterous arrogance of the Rajapaksa Presidency in treating its own citizens as disposable commodities, this Government has shifted uneasily from one foot to another, at one time pointing to experts assisting past Commissions of Inquiry. The SWRD Bandaranaike Commission (1963) is an oft quoted example where a judge of the Court of Appeal of Ghana and a judge of the Court of Cassation, United Arab Republic sat on the Commission itself along with T.S. Fernando, judge of the Supreme Court of Sri Lanka.

In those far quieter times, barring the occasional assassination as it were, the incorporation of foreign judges was not so heavily weighted with nationalistic sentiment and fear of international agendas. Rather, it was simply felt that on matters of intense national passion, objective minds may be of help. As an aside, it may also be noted that post-independent Ceylon ranked several foreign citizens on its apex Court including a distinguished Chief Justice, Sir Alan Rose (1961-1956) who was a British citizen. It may be as a hangover to these times that neither of the two Republican Constitutions (1972 and 1978) expressly stipulates that a judge must be a Sri Lankan citizen, quite unlike the Indian Constitution. Judges however have to swear the common oath of allegiance to the Sri Lankan Constitution.

More recently, foreign experts have assisted the Udalagama Commission of Inquiry (2006) and participated in the extended inquiry of the Paranagama Commission of Inquiry (2014). That said, these are fact-finding Commissions of Inquiry (COIs) which are recommendatory in nature. No immediate penal consequences follow. Indeed one much critiqued aspect has been the absolute lack of nexus which exists between findings of these Commissions and actual criminal prosecutions. In response thereto, the Commissions of Inquiry Act (1948) was amended some years ago so as to enable the Attorney General to act on COI recommendations. Regardless to say, this was not a solution to the problem, given the highly subverted nature of the Office of the Attorney General itself.

Making sure that reforms deliver justice
But in contrast to fact-finding COIs, ‘a Sri Lankan judicial mechanism’ as envisaged in the draft UNHRC resolution is a far different creature vested with judicial power to issue penal sanctions. The question is as to what ‘participation’ as specified in the draft consensus resolution actually means? The devil will be in the details. As observed in last week’s column spaces, the differences in expectations may come back at some point to bite Sri Lanka in the derriere as it were.

Assistance rendered by Commonwealth or foreign judges (incidentally one is at a loss to distinguish between the two) may indeed be imperative given the institutional breakdown that we see now. But if this is interpreted as a hands-on involvement of foreign judges, this may involve an exemption from taking the oath of allegiance to the Constitution which Sri Lankan judicial officers are bound by. The likelihood of an international judge sitting on a domestic ‘judicial mechanism’ after swearing to uphold the Constitution, (despite the objection often raised By the United Nations that the Constitution privileges emergency law over constitutional protections) is surely somewhat far-fetched. Further, the ordinary procedures applicable to appeal may need to be dispensed with. These are potentially highly emotive disputes.

Clearly however, whatever is put in place will need to be approved under and by Sri Lankan law. Nonetheless, there are pitfalls ahead if the boundaries are pushed more recklessly than what is strategically safe at this political juncture. Quite apart from the delight that ultra-nationalists will display at this boon of a ‘domesticated’ hybrid court’ to their flagging campaign, local judges who have struggled against overwhelming odds to perform honorably in office may find themselves pushed to the wall. Above all, the danger is that colossal sums of money may be spent but to no purpose. This is evidenced in Cambodia for instance where state-of-the-art ‘hybrid courts’ with ‘foreign’ judges of little repute have had minimum impact on improvement of the local justice process.

Facing difficult challenges ahead
We face difficult challenges ahead which need to be examined and understood. Whatever it may be, the rabble rousing rhetoric of the Rajapaksa pack must be eschewed. Such stupidities led us to this impossible quagmire in the first place. But reforms agreed to desperation which will set Sri Lanka up to fail, despite all good intentions, need to be steered clear of. Ultimately we must not be distracted from the task of establishing credible domestic systems motivated to redress long standing judicial and legal failures cross ethnic lines.

That must be the primary aim of the post-January 2015 nation-building exercise.



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