Challenges to Pohottuwa in Geneva – II

By Austin Fernando

(Continued from Wednesday)

Prosecution

Normally the Attorney General’s (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 ‘Special Prosecutor’s Office (30/1). As regards this, there have been situations in other countries, where joint prosecutors’ or deputy prosecutors’ appointments were made. (SLTT: ‘Data on Criminal Accountability in Post-Civil War Societies: Implications for Sri Lanka’: Geoff Dancy/ Eric Wiebelhaus-Brahm)

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 ‘Attorney-at-Law’ is a person admitted to the Sri Lankan Bar. These stipulations restrict foreign lawyers’ right of audience before our courts. Additionally, the Code of Criminal Procedure limits prosecution to the AG or an Attorney of the AG’s 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’s 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.

Parliament blockades

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’s face the political reality of legislating, when the law, however reasonable, projects ‘anti-Sinhala’ nuances.

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’s Office. This status remains unchanged.

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’s approach. The government could explore the ways and means of convincing the majority in Parliament, if/when legislation is revised.

Changing scenarios

Recently, President Gotabaya Rajapaksa tweeted:

“We 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.” (Sunday Times)

I guess there has been a change in the President’s 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 organisation that continues to make baseless allegations and harass security forces. What he meant by ‘international organisation’ was the UNHRC, which is demanding that the so-called “baseless allegations” be proved in a court.

The President’s tweet and the aforesaid statement at the War Heros Commemoration are contradictory. Of course, pledges assuring “accountability”, “human development”, “lasting peace”, and “reconciliation”, “ensuring justice within a legal framework”, “institutional reforms,” etc., are hackneyed. The appointment of Prof. G. L. 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.

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: “Sri Lanka rejects the High Commissioner’s Report because the allegations contained in the report were based on ill-founded premises, and the Minister said, “the 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.” (UNHRC’ Interactive Dialogue’ 24-2-2021—emphasis added)

Then, “… we consider that the High Commissioner’s insistence in the current Report on the “full implementation” of the demands made on Sri Lanka in Resolution 30/1 indicates that the OHCHR fails to recognize the rational and legitimate concerns voiced by States that are seeking, in good faith, to address issues.” (UNHRC 27th February 2021—emphasis added)

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’s tweet will certainly please her. It may please the UNHRC Core Group. The importance of the US Ambassador’s 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’s stance.

Recently, Virakesari, Thinukural, and Thinakaran quoted Prof. Peiris as having refuted accusations against GOSL. Commentators have expressed different views on such denials. “In fact, the Presidential warrants appointing the said commissions of inquiry (e.g., Udalagama, Paranagama, Mahanama Thilakatratna) themselves ex-facie reflect the existence of allegations that merit investigation, despite which there is continuous and disingenuous, yet futile, denial.” She quoted the experiences of post-conflict states, e. g., former Yugoslavia, Rwanda, Sierra Leone, etc.. and added, “… stubborn denial does not make the allegations disappear but continue to enlarge with each passing day of inaction.” (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.

Potential AM processes

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 27-8-2021) is another.

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 “in a Sri Lankan judicial mechanism” viable. I remember a quote from the Japanese Judge Motoo Noguchi, who discussed issues with me, sharing international experience in prosecutions. Quote: “Justice 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.” Surmounting that ‘extreme difficulty’ is still open. This will need an evaluation of our judicial capacity and find ways to balance. Over to Minister Ali Sabry.

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’s guns and demanding the pound of flesh! This applies to all stakeholders.

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.

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.

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!

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.

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’s commitment is essential.

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, “This 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.” (SLTT: page 129).

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.

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.

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.

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.

However, the grief of victims does not vaporize quickly, and victims’ 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.

Conclusion

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.

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.

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.

I end this by quoting Kashmiri leader Farooq Abdullah, who said: “Diplomacy 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.” 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.

We may well remember what Mark Twain said: “The principle of give and take is the principle of diplomacy — give one and take ten.” I hope Prof. Peiris will do likewise. Best wishes, Sir!

(The writer could be contacted at appuchchi@yahoo.com)