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What Would Be the Next Step?

By Upul Kumarapperuma

With the tabling of the Resolution at the sessions of the United Nations Human Rights Council (UNHRC) in respect to the government of Sri Lanka, a new concept of ‘Hybrid Court Mechanism’ has come to light, which has become the latest addition to the legal jargon of the country.

After the Resolution was made available in the public domain, the nationalist hardliners have started their usual campaign of alleged international interference and the Western intimidation to the sovereignty and the independence of the country. Further, some of the hardliners have defined the Resolution and the reaction of the government to the Resolution as the greatest betrayal of the country and the war heroes who have saved the country from the clutches of the LTTE. Some political parties and Human Rights activists have welcomed the move placing much confidence in the hybrid mechanism and foreign experts rather than the domestic system and its personnel.

The preamble of the Resolution inter alia reaffirms the sovereignty, independence, unity and territorial integrity of the country and further reaffirms the responsibility of each State to ensure the full enjoyment of all human rights and fundamental freedom of the entire population. Further, the Resolution welcomes the manner in which the last two elections were held and the implementation of the 19th Amendment to the Constitution.

The Resolution deals in a positive way of reviewing High Security Zones, which move has been helpful to restore normalcy to civil life and it took note of the findings and recommendations made by the Lessons Learnt and Reconciliation Commission of Sri Lanka (LLRC) for meaningful national reconciliation in the country. The preambular paragraphs of the Resolution mainly emphasizes the importance of having a mechanism to address the issues relating to alleged Human Rights abuses, gender based violence, torture, abductions, intimidations and threats against human rights defenders and members of the civil society, corruption, accountability, etc. The operative paragraphs of the Resolution proposes that the GOSL review and reform the domestic law to ensure that it allows for prosecution of the full range of crimes under domestic and international law involving violations and abuses of human rights and violations of international humanitarian law.

Whilst appreciating the approach of the government to uphold the rule of law and build confidence among all communities in Sri Lanka and whilst taking into account the proposal of the government 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 Resolution suggests a credible transitional judicial process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality and call upon the government of Sri Lanka to involve international investigators, prosecutors, and judges in Sri Lanka’s justice processes. Further, the Resolution undertakes to provide financial, material and technical assistance from international partners, if necessary.

The US co-sponsored Resolution was presented on September 24 after being amended with similar clauses to the previous one and more developments, where it has suggested a Sri Lankan Judicial Mechanism comprising of Sri Lankan as well as foreign judges including Commonwealth judges, which has indirectly given some discretion to the government.

The very issue has now become a hot topic with the suggestion of involving foreign experts in the judicial process. A number of opinions have circulated across the country with regard to the suggestion of the UNHRC. As mentioned above, nationalist hardliners criticized the suggestion as an international interference to the country. The JVP is of the view that there could be Constitutional impediments to the proposed hybrid mechanism. Some say it undermines the integrity of the Sri Lankan judicial, prosecutorial and investigation system. As everybody knows, the foundation law of the country is the Constitution. In terms of the Article 4C of the Constitution, the judicial power of the people shall be exercised by Parliament through courts, tribunals, and institutions created and established by or recognized, by the Constitution or created and established by law. It is set out in Article 105 of the Constitution that the Supreme Court, Court of Appeal, High Courts and other courts of first instance, tribunals are established subject to the provisions of the Constitution.

The High Court is the highest court in the country empowered with original criminal jurisdiction and the process of the High Court is mainly governed by the Code of Criminal Procedure Act No. 15 of 1979. The Evidence Ordinance of Sri Lanka is the legislation which provides the procedure of accepting evidence in judicial proceedings. Simply put, the judicial criminal proceeding should be conducted in terms of the provisions of Code of Criminal Procedure Act and the Evidence Ordinance.

In terms of the Constitution, it is necessary for judges of all forms of courts in Sri Lanka to take an oath prescribed in the fourth schedule and the seventh schedule to the Constitution, where judges should swear to uphold and defend the Constitution and not to support, espouse, promote, finance, encourage or advocate the establishment of a separate state within the territory of Sri Lanka.

The government is now given two options, namely Hybrid Mechanism and a Sri Lankan mechanism with Sri Lankan, foreign and Commonwealth experts. Both proposals have excluded the proposals of the GOSL as well as the Tamil Diaspora of having a domestic mechanism and a fully fledged international mechanism respectively. There are challenges before the government in implementing whatever mechanism within the Sri Lankan territory; hence the implementation of the proposal should be in line with the Constitutional and other legal parameters of the country. Especially the mechanism which would come to effect should not be contrary to the Article 4C of the Constitution. In view of the provisions of Article 4C of the Constitution, it is necessary to have a new legislation ratified by Parliament to give effect to the proposal.

On the other hand, since the domestic legal structure lacks of procedures and provisions in relation to the possible charges, those can be framed in terms of offences against humanity, violations of International Humanitarian Law, etc., it is necessary either to go for a law reform for the existing system as suggested by the Resolution of HRC or enact a more comprehensive legislation consolidating International Humanitarian Law, and other international statutes and covenants which covers the existing issues.

Further, another issue that can arise is whether the foreign experts are also bound by the Constitution or can they be exempted from the Constitutional provisions which are applicable to serving judges in the country. If they are exempted, will the said legislation be cut across the provisions of Article 4 of the Constitution?

Even though both Resolutions are silent on the procedure of the functions of the tribunal and the procedure of adopting evidence, both resolutions have recommended dealing with the situations according to international standards. Therefore it is understood that most probably the present domestic mechanism in criminal judicial proceedings would not be applied in the proposed mechanism. There are many silent areas in both resolutions leaving space to the local legislation to fill the blanks such as the composition of the tribunal, the ratio of judges, burden of proof, applicable procedure, punishments, role of the Attorney General of Sri Lanka and the judiciary, etc.

It is not clear whether the US sponsored Resolution has given full discretion to the government of Sri Lanka to deal with the aforesaid areas. If that is answered in the affirmative, everything is set up by the government on their discretion. The body language of some of the key figures in the government shows that they are ready to accept a mechanism with international intervention. When Mahinda Rajapaksa yelled to reject the Resolution, Minister Champika Ranawaka reminded him, that he was the person who suggested a Hybrid Mechanism at the time he ruled country.

The reason of admitting each and every one to the National Government offering various portfolios and benefits, despite the heavy criticism can now be understood. It was to secure the majority vote, possibly a two-thirds majority in Parliament pass the possible legislation in respect of a war crimes investigation.

This time the international community has given a tough assignment to Sri Lankan lawmakers to create a legislation that should not be inconsistent with the Constitution, and that should be in line with the parameters of their resolution as well as ultimately be served the purpose of the resolution.

 (The writer is a senior lawyer and a member of the Governing Council of the Peradeniya University)

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