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How smart is it to litigate to be proven right?

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By Dhara Wijayatilake1

A disputant goes into court against another because he thinks he is right and the other is wrong and wants a court pronouncement to cement his position. After many years, huge expense, many consultations with Lawyers, many trips to the court house, postponed hearings, and even perhaps much emotional turmoil, a Judge delivers a judgment. One party is proven right and the other wrong, or the case may even be decided on a procedural matter with no determination as to who is right and who is wrong. Even the winner, if there is one is a loser. Today, there are options to litigation such as Mediation where the focus is not on being right, but on what each disputant needs and on reaching a settlement to satisfy those needs. It’s a process that is fast and cost effective. So, it’s a call to be smart – spend time and money to be right (litigation – where you may even end up being wrong) or spend much less time and much less money to satisfy needs (Mediation).

Delays in courts have reached ridiculous levels. Many Ministers of Justice over many years have attempted to reduce delays by “reforming” laws. The outcomes have not made a significant difference and the challenge to find solutions continue. One of the most comprehensive studies on Laws Delays in Sri Lanka was perhaps the one done by the “Laws Delays and Legal Culture Committee” headed by Justice R. S. Wanasundera, Judge of the Supreme Court. In its Report of October 1985 the Committee identified several causes for delays and submitted proposals to remedy them. The Report included a poignant observation that remains valid even today, ie. that in an adversarial system of justice such as ours, delays destroy justice, deterrence is lost, costs are increased, court resources are wasted and severe emotional hardship is inflicted upon litigants. In combination, these factors undermine the efficacy of the whole legal system, sapping its strength, vitality and even its integrity, and making the majority of litigants lose confidence. This observation remains valid even today. While substantive and procedural laws can be reformed in an attempt to eliminate delaying features, the legal culture which is a significant contributor can only be reformed through good practices that then constitute our legal culture. Here’s where we fail.

Laws delays is not a phenomenon that’s peculiar to Sri Lanka. It’s a problem confronting many jurisdictions across the globe. It’s this disillusionment with litigation which is rooted in the adversarial system, that has motivated a diversion to alternative methods of resolving disputes. The most popular Alternative Dispute Resolution (ADR) methods are Arbitration, Mediation and Negotiation. This article discusses Mediation which is accepted globally as an alternative that offers benefits that have proved to be meaningful.

Features of Mediation

There are many models of Mediation including Facilitative and Evaluative which are the most popular. In the 1960s, Facilitative Mediation flourished because of its marked difference in approach to conflict resolution and the resulting successes. Evaluative mediation is used by Mediators who are subject experts and offers an opinion on the strengths and weaknesses of the legal positions of the disputants leading to informed decision making by the disputants. This method is often used by judges in jurisdictions that provide for a settlement conference. This article discusses Facilitative Mediation which offers a process that’s unique in its features and is in complete contrast to litigation or Arbitration. Mediation evokes excitement because it’s speedy and cost effective, These virtues alone make a good case for opting for Mediation. There are others.

=It provides for party autonomy. Parties decide on the Mediators, the venue, the language of the mediation, the rules, and importantly, controls the outcome. No outside party sits in judgment over the dispute or how it should be settled.

=It’s informal but inspires trust. Parties sit with the Mediator and the other parties in an informal setting and engage in the process directly. They are provided ample space to speak of their concerns and participate fully while maintaining their dignity. Although there are no formalities as in a court of law, parties are required to conduct themselves in a disciplined manner. Parties are guided to move away from positions and focus on interests and needs instead.

=The procedural rules are simple and user friendly and are designed only to ensure responsible conduct. The process is not bogged down with procedural imperatives. There’s never a risk as prevails in litigation, that some flaw in complying with a procedural rule will get primacy over the core issues in the dispute, in determining the fate of the parties.

=It’s voluntary. The disputants use the option of mediation by choice and are free to walk out of a mediation at any time and are not obligated at any stage to stay in the process. This is so, even if reference to mediation is mandatory by law, based on the category of dispute and its monetary value. What is mandatory is to attempt a mediated settlement prior to proceeding to file action in a court of law.

= There’s no judgment of right vs wrong. It’s a process that seeks to find common ground to agree on a settlement that addresses the interests of both parties, and is not a process that evaluates legal entitlements although those can also be taken into account by parties when agreeing to a settlement.

=It adopts a completely non adversarial approach and therefore affords the opportunity for parties to repair fractured feelings, thus enabling an ongoing relationship.

=It’s confidential. This is an important feature of Mediation. Parties are required to sign agreement to maintain confidentiality with regard to all matters discussed. Parties agree not to divulge the substance of discussions at any other dispute resolution forum.

= The process is skillfully facilitated by a third party neutral, the Mediator. The Mediator controls the process using special skills and techniques and facilitates the disputants to reach an outcome that’s acceptable to them. The Mediator ensures that ground rules are followed to control emotions and avoid aggression during the sessions.

Neutrality of the Mediator is an important feature. The Mediator must at all times maintain independence and neutrality. If at any time, a disputant feels that this principle is breached, a mediation can be terminated.

Sri Lanka’s Mediation statutes

Mediation was first institutionalized with the enactment of the Mediation Boards Act, No. 72 of 1988 which incorporated all of the key features of Mediation. Mediation Boards now function in every Divisional Secretary’s area across the country. These have come to be known as “community Mediation Boards.” Subsequently, the Mediation (Special Categories of Disputes) Act, No. 21 of 2003 was enacted2 to provide for more specialized mediation services for certain identified categories of disputes.

The 1988 Act stipulates that certain categories of disputes must be mandatorily referred to Mediation, and also that certain disputes cannot be entertained by Community Mediation Boards.

Where reference to Mediation is mandatory, no action in respect of such a dispute can be instituted in or be entertained by a court of law unless Mediation has been unsuccessful and a certificate of non settlement from the Mediation Board is produced.

Disputes that must mandatorily be referred to Mediation are-

a) where the value of the dispute is below the monetary threshold set out in the Act, unless it’s one which gives rise to a cause of action set out in the Third Schedule to the Act.

In 1988 the monetary threshold was stipulated as Rs. 25,000/=. This has been amended from time to time and the current threshold introduced in 2016 is Rs, 500,000/=1.

The Third Schedule to the Act sets out fifteen categories of actions. These are actions in relation to disputes that were not considered suitable for settlement through community Mediation Boards.

b) where the dispute is in relation to an offence which is set out in the Second Schedule.

The Second Schedule sets out eighteen offences punishable under twenty six (26) sections of the Penal Code.

While mandatory reference to Mediation is not required in the case of disputes above Rs. 500,000/=, it is possible for the parties to submit the dispute for Mediation voluntarily, unless the dispute is one in respect of which an application for settlement cannot be entertained by a Mediation Board.

The categories of disputes that cannot be entertained by a Mediation Board, even if the value of the dispute is below Rs. 500,000/=, are the following –

where one party is the State; or

where one party is a public officer and the dispute relates to the recovery of property, money or other dues ; or

where the Attorney General has initiated proceedings in respect of an offence.

The Mediation (Special Categories of Disputes) Act, No. 21 of 2003-

The rationale for this Act was motivated by the reality that Mediation is the more appropriate method to resolve certain categories of disputes where positions based on strict legal rights and technicalities must give way to accord primacy to the needs of parties to address the underlying concerns. The challenge to reduce the litigation load in courts was also becoming a very serious one. The Act provides for the Minister to establish Mediation Boards to provide mediation services in respect of defined categories of disputes, in identified areas of the country. The category of dispute, the areas to which it will apply and the monetary threshold below which these disputes must mandatorily be referred to Mediation, are required to be set out in Orders made by the Minister1. An important statutory guideline that the Minister is required to consider to determine the categories of disputes is, “the need to provide for the meaningful resolution of disputes relating to social and economic issues.1 It’s an important policy decision to be taken based on real needs of the people.

While the community Mediation Boards are manned by volunteers who are not required to have any specific educational qualifications, the distinguishing feature of the 2003 Act is that the Minister is required to prescribe by Regulation, the qualifications that a Mediator must possess having regard to the expertise required of Members, considering the nature of the categories of disputes that must be mediated. Different qualifications may be prescribed for different categories of disputes. The appointments are made by the same Mediation Boards Commission referred to in the 1988 Act.

Mediation Boards were established under this Act in 2005 after the Tsunami of 2004 for the resolution of tsunami related disputes and in 2015 to resolve land disputes in the Administrative Districts in the North and East. It was accepted that Mediation was the more meaningful method to address land disputes that arose after the North East ethnic conflict. The Orders currently in force as at February 2022, provide for the following1 :

It is absolutely important that the persons who will function as Mediators are trained in the techniques and skills of mediation. Without proper, adequate and focussed training, the results will be disastrous and will negate the intentions of the Act since the success of mediation in conflict resolution is totally dependent on the intrinsic value of the techniques adopted. Mediation is not a process that can succeed if you simply have the ear of a patient listener.

The UN Convention on Mediation

Mediation has increased in acceptance over the years because of its benefits. It is this popularity and its increasing use in international commercial dispute resolution that inspired UNCITRAL’s Working Group on Dispute Settlement to address the need for a harmonious regime that will set standards for the cross-border enforcement of international settlement agreements resulting from mediation. As a result of its work, the Convention on International Settlement Agreements Resulting from Mediation was adopted by the UN General Assembly (UNGA) on December 20, 2018,

The Preamble to the Convention recites that the Parties –

“recognize the value for international trade, of mediation as a method for settling commercial disputes in which the parties in dispute request a third person or persons to assist them in their attempt to settle the dispute amicably;

note that mediation is increasingly used in international and domestic commercial practice as an alternative to litigation;

considers that the use of mediation results in significant benefits, such as reducing the instances where a dispute leads to the termination of a commercial relationship, facilitating the administration of international transactions by commercial parties and producing savings in the administration of justice by States; and

are convinced that the establishment of a framework for international settlement agreements resulting from mediation that is acceptable to States with different legal, social and economic systems would contribute to the development of harmonious international economic relations “

The Convention opened for signature on August 7, 2019 in Singapore and Forty Six (46) countries including Sri Lanka became signatories on that same day. Popularly knows as the “Singapore Convention on Mediation”, it came into force on September 12, 2020. As at February, 2022 it has been signed by 55 countries and ratified by 9. Sri Lanka is now obligated to enact domestic legislation to give effect to the provisions of the Convention. UNCITRAL’s work on the Convention and its adoption by the UNGA, is evidence of the the global acceptance of Mediation to resolve commercial disputes.

The CCC- ICLP International ADR Center of Sri Lanka (IADRC)

In 2018, the Ceylon Chamber of Commerce (CCC) and the Institute for the Development of Commercial Law and Practice (ICLP) in a joint venture, incorporated a not for profit company and established a new Center, the CCC-ICLP International ADR Center (IADRC) to provide ADR services. It was a response to the need of the business community for more efficient dispute resolution. The novelty of the new Center is that it offers mediation services in addition to arbitration.

Both Institutions were aware of the global trends that favored ADR and the successes of Regional Centers. The Hong Kong International Arbitration Center (HKIAC) established in 1985, the Singapore Mediation Center (SMC) launched in 1997, the Indian Institute of Arbitration and Mediation (IIAM) established in 2001, the International ADR Center of the Indian Merchants Chamber (IIMC) established in 2015 and the Malaysian Mediation Center (MMC) established in 1999 under the auspices of the Bar Council of Malaysia, offered inspiration. These centers offered services that included Arbitration and Mediation. The Singapore Mediation Center states that, as at Feb 2022, it has mediated 5,200 matters worth over $10 billion since its launch. The rate of successful mediations is stated to be 70% with 90% of those having been settled in one day! The high rate of success can be attributed to the skill and competence and the professionalism of the Mediators. Compliance with the mediation process and using the special skills and techniques are key to achieving good outcomes and hence the absolute need for training.

The IADRC launched its Arbitration and Mediation Rules in April 2021 and has trained Mediators and Arbitrators who are available to provide services. The Arbitration Rules of the Center seek to eliminate some of the common causes for delay. It’s the only Center that offers institutionalized Mediation for commercial dispute resolution. Arbitration and Mediation services can be administered in compliance with these Rules of the Center, or the UNCITRAL Rules, or any others that may be adopted on an ad hoc basis.

The Mediation Rules of the IADRC

The CCC-ICLP Mediation Rules incorporate all the internationally recognized standards that are known to define the Mediation process. The Rules provide for the following-

 To commence the Mediation, an application (a “Request for Mediation”) must be made to the Center either by one party or jointly by all disputing parties, requesting Mediation services for the settlement of the dispute.

 After completing preliminary administrative steps such as obtaining, where appropriate, the consent of all parties to pursue Mediation, the parties are required to sign the “Agreement to Mediate”. This Agreement includes an obligation to “abide by and comply with the Mediation Rules of the Center or other Rules that have been agreed to.”

The language of the Mediation will be as agreed to, by the parties.

The next step is to appoint a Mediator or a panel of Mediators. The disputing parties have the discretion to nominate a Mediator from among those accredited by the Center or from outside of that list. Usually, a Mediation will be handled by a single Mediator. However, a panel could be appointed if so desired, where there are complex issues in a dispute.

Importantly, the Mediator has to be independent, impartial and neutral throughout the process. Several safeguards are included to ensure compliance with this principle.

The Mediation sessions then commence. The Mediator manages the process and will, for this purpose convene sessions on dates and times agreed to by the parties, at a neutral venue.

The process will commence with a joint session where all parties are present. The Mediator will explain the principles that apply and explain the process. Thereafter the Mediator will decide when to have joint sessions with all parties, and individual sessions (called a “caucus”) with each party.

 At these sessions, the parties have the opportunity to discuss the matters in dispute from their own perspective. The statements, disclosures and proposals made at a Mediation are maintained in absolute confidence and are made without prejudice. This principle provides the confidence to disputing parties that nothing said can be used in any other dispute resolution process or other forum. The Mediator and the parties cannot be compelled to give evidence as to any matters disclosed at the Mediation in a court of law.

The Rules set out the obligations of the parties – attendance at the sessions in person and in the case of corporate entities attendance through a representative who is given full authority to sign off on a Settlement Agreement; compliance with the rule on confidentiality; full and honest disclosure of matters material to the dispute.

Parties are not entitled to legal representation at the sessions but may call in a Lawyer for the sole purpose of obtaining advice. However, a Lawyer who is a full time employee of a corporate is not excluded from participating at the sessions on behalf of a corporate entity.

During these sessions, a Mediator will not give directions or instructions on how to settle the dispute. The Mediator will however question the parties in a non coercive manner to help them reach a new understanding of the issues in dispute and of the concerns of the other party.

A Mediation is terminated either with an agreement to settle or with an agreement that no settlement is possible.

Where there is an agreement to settle, the Mediator is required to explain to the parties the terms and conditions of the settlement and the obligations that each party is assuming under the agreement. A settlement Agreement will be set in writing and signed by the parties and the Mediator. This is an agreement that binds the parties as any other agreement, and each party has a legal obligation to honour its terms and conditions.

Where the Mediator determines that continuing the Mediation is futile since it’s unlikely to result in a settlement considering the progress of the Mediation, or where a party informs that it wishes to withdraw from a Mediation, the Mediation will be terminated.

In either event, all the documents submitted to the Center by each party will be returned.

In normal circumstances a mediated agreement should stand the test of time since many steps have been taken to ensure it’s sustainability. However, the Rules provide for an application to be made to revise or revoke an Agreement on very limited grounds, ie. On the grounds that a) the terms were agreed to, without a proper appreciation of the obligations; or b) circumstances have arisen that prevent a party honoring the obligations; or c) that there was bias on the part of the Mediator. The last ground is most unlikely given the several steps that are required to be taken to ensure impartiality. However, this ground is included as a principle of good governance since it’s a vital feature of Mediation. An application to revise or revoke will be inquired into by the Center and a settlement will be attempted in compliance with the same principles that apply to a Mediation.

 Mediation is not an expensive process. However there are fees to be paid. The Fees for a Mediation include Administration fees as well as fees for the Mediator/s. The fees are prescribed by the Center in a Fee Schedule and will be a predetermined sum which will be made known to the parties prior to the commencement of the Mediation. There will be no surprises.

Conclusion

Mediation is not the most appropriate method of dispute resolution for all categories of disputes. That’s accepted. Even with the twin evils of delay and expense certain causes of action need to be determined by a court of law. Mediation however, has gained global recognition as the better method for many kinds of disputes ranging from family and workplace disputes to construction and commercial disputes.

Given the potential to be speedy and cost effective, and the high level of user satisfaction, the services provided by the CCC-ICLP IADR Center will no doubt improve the commercial dispute resolution landscape in Sri Lanka. It will also contribute to improve Sri Lanka’s performance in the contract enforcement indicator in the Doing Business rankings. The enactment of domestic legislation to enable the enforcement of international mediated settlement agreements in line with the Singapore Convention will also certainly enhance Sri Lanka’s efforts to attract foreign investors. The slogan “Mediate, don’t litigate” is gaining in popularity given the reality that it’s not always smart to litigate to be right.



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Features

Why should faith promote justice?

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St Sebastian's Church in Negombo in the aftermath of the Easter Sunday attacks

A catholic response to national pursuit of accountability

By Rev. Dr. Rashmi M.Fernando, S.J.

Sri Lanka appears to be entering a decisive chapter in its ongoing investigations regarding the Easter Sunday bombings, in 2019, and other accountability issues. For decades, our nation has carried the heavy burden of unresolved wounds: corruption, enforced disappearances, political assassinations, abductions, financial crimes, abuse of power, and the many forms of violence that have left individuals, families, and communities searching for truth and closure. Many citizens have cast their votes with the hope that a new political administration would have the courage to pursue accountability where previous governments have failed.

Why Justice if Forgiveness is a Christian Virtue?

As investigations continue and legal processes unfold, however, another familiar phenomenon has emerged. Those who fear accountability, or those who perceive themselves or their political allies to be threatened by investigations, increasingly appeal to religion—particularly the Catholic Church—to argue that Christians should simply “forgive and forget.”

Some have even criticized local Church leaders for continuing to seek the truth, suggesting that Christians should move on because forgiveness lies at the heart of the Gospel. If Christians are called to forgive, why continue investigating crimes? Why pursue accountability? Why insist on knowing who was responsible?

The argument sounds pious. But it is profoundly incomplete. It raises a fundamental question for Christians, and particularly for Catholics: Does forgiveness require us to abandon the pursuit of justice? If not, why?

The Cry of the Oppressed is the Cry of the Church Demanding Justice

The answer of the Christian tradition is unequivocal: No. Indeed, authentic Christian faith does not ask us to choose between forgiveness and justice. It calls us to hold them together. The Catholic tradition begins with a simple but profound conviction: every human being possesses an inviolable dignity because every human being is created in the image and likeness of God.

Consequently, any act of violence committed both personally and collectively is not merely a violation of a rule. It is ultimately a violation of God’s image and likeness and, consequently, the very dignity and nature of the whole of humanity. For this reason, Catholic Social Teaching (CST) reminds us that the common good is not simply whatever benefits the majority or those who possess power. The common good includes the social conditions that allow every person and community to flourish.

Moreover, CST has a particular concern for those whose voices are the weakest, those whose voices are made weak, and those whose dignity is most easily ignored. This is the foundation of the Church’s preferential option for the poor and vulnerable. When people are abducted, when families are denied the truth about disappeared loved ones, when public resources are stolen, when political power is abused, when the poor are exploited, when violence is permitted to go unpunished, or when institutions are manipulated to protect the powerful, something more than law is being violated. The dignity of persons and the moral foundations of society itself are being wounded.

That is why the Church cannot be indifferent when victims are silenced. Because they lack political power, the Church cannot remain neutral when families continue to live with unanswered questions. She cannot call for peace while ignoring the cry for justice of those who have suffered. A peace built upon silence is not necessarily peace. Often it is a sign that the poor and the wounded have cried without anyone to hear them. That is why the Christian faith requires a voice, a voice that cries out for truth, dignity, responsibility, the common good, solidarity, and restoration.

Promotion of Justice is an Absolute Requirement of the Service of Faith

The Church does not seek political power by standing with victims. She stands with them because the God she worships is the God who hears the cry of the needy. The God of the Scriptures repeatedly hears the cry of the poor, the widow, the orphan, the stranger, and the oppressed. The Jesus of the Gospels consistently moves toward those whom society pushes to the margins.

The Second Vatican Council gave Catholics a renewed understanding of the Church’s relationship with the world. Gaudium et Spes famously reminds us that the “joys and hopes, the griefs and anxieties” of the people of our time are also the joys and hopes, griefs and anxieties of Christ’s followers. The Church, therefore, cannot isolate herself inside sanctuaries while society suffers outside her doors. When injustice wounds society, silence is not always neutrality. Silence itself becomes a moral decision.

The conviction of the Council has particular significance for the Society of Jesus. The 32nd General Congregation of the Society of Jesus, in 1975, articulated one of the defining principles of contemporary Jesuit mission: “The service of faith, of which the promotion of justice is an absolute requirement.”

The wording matters. The promotion of justice is not presented as an optional consequence of faith—as though some Christians might be interested in justice while others might simply concentrate on prayer and personal holiness. It is an absolute requirement of authentic faith. The Jesuit understanding of mission subsequently developed around the inseparable relationship between faith, justice, reconciliation, and dialogue. Later General Congregations of the Society emphasised reconciliation with God, with one another, and with creation.

Reconciliation here does not mean dismissing, forgetting, or unnoticing. Neither does it mean protecting perpetrators from accountability. Nor does it mean asking victims to sacrifice truth for the convenience of society. Forgiveness without truth becomes sentimentality. Justice without forgiveness can become vindictiveness.

The Reality of Social Sin Beyond Individuals

The distinction between faith and justice becomes even more important when we recognise that sin is not always merely individual. Catholic Social Teaching (CST) speaks of structures that can perpetuate injustice. Pope John Paul II, particularly in Sollicitudo Rei Socialis, developed the language of “structures of sin” to describe social, economic, political, and cultural arrangements in which sinful choices become embedded and reproduced. This means that Christian responsibility does not end with asking, “Who committed the individual wrong?” We must also ask: What structures allowed it to happen? Who benefited from it? Who was silenced? Which institutions failed? What must change so that it does not happen again?

For this reason, the liberation theologians in the Church, such as Gustavo Gutiérrez, Jon Sobrino, and Ignacio Ellacuría, insisted that the Gospel requires Christians to confront structures that perpetuate human suffering. Ellacuría, the Jesuit theologian murdered in El Salvador, in 1989, spoke of the need to “take the crucified people down from the cross.” The phrase is powerful because it reminds us that Christian compassion cannot remain merely emotional. It must become transformative. To stand beside the crucified is also to ask why they were crucified in the first place—and what must change so that others are not crucified tomorrow.

Archbishop Óscar Romero of El Salvador, who was assassinated while celebrating Mass after courageously speaking against violence and social injustice, once observed that there are things that can be seen only through eyes that have cried.

This is a profound theological truth. Those who have never experienced disappearance may speak casually about “moving on.” Those who have never lost a loved one to political violence may find accountability inconvenient. Those who have never lived with poverty may speak easily about patience. Those who have never been abused by power may find it easy to preach forgiveness to those who have.

But the Christian tradition insists that we listen first to the wounded. This is not because victims are always right about every question. It is because justice begins with hearing. Before reconciliation, there must be truth. Before truth can become healing, the wounded must be permitted to speak. And before society asks victims to forgive, society should have the humility to ask what it has done—or failed to do—to protect them.

Forgiveness Never Cancels Justice—and Justice Never Cancels Forgiveness

One misunderstanding about Christian faith is the assumption that forgiveness demands silence, and silence demands complicity. It does not. Forgiveness is, first and foremost, an interior act of the human heart. It is a personal process through which a victim gradually refuses to allow hatred, resentment, and the desire for revenge to imprison the soul. To forgive is to surrender the desire for vengeance and to place oneself, and ultimately the offender, into the merciful hands of God. But forgiveness does not mean that the injustice committed is dismissible, acceptable, or justified. A victim may freely choose to forgive, but that person cannot and should not, by personal forgiveness, absolve wrongdoers from their responsibility to protect others from being harmed in the same way. Society has a responsibility to establish the truth, protect the innocent, hold wrongdoers accountable, and prevent the repetition of injustice.

While forgiveness is personal, justice is communal and, as such, it has meaning because human beings do not live as islands or isolated individuals. We live together—as families, communities, institutions, and nations. What one person does to another can affect an entire community. A crime committed against one human being is a wound caused in the entire social fabric. Justice, therefore, seeks to protect the common good, uphold the dignity and rights of every person, establish equity, repair what has been broken, and ensure accountability.

If a person steals from the public, forgiveness does not eliminate the obligation to restore what can be restored.

If a person abuses public office, repentance does not automatically remove the need for accountability. If a person participates in violence, forgiveness does not require society to abandon the pursuit of truth. If someone has disappeared, forgiveness does not mean that the family should stop asking what happened. A Christian victim, as in the case of the Easter Bombing, may forgive. But mere seeking truth, on behalf of that victim, both individually and communally, is an act of solidarity with the wounded and the suffering.

Speaking on the side of the wrongdoers, if a person sins privately, the Christian faith requires that that person reconcile with God and with his or her own conscience. But if he or she commits a crime against another person, while forgiveness of God and reconciliation with the self is always a personal job, and available upon genuine remorse, request, and change of heart, there is a social dimension that the offender should fulfill, as given in the constitution or the law. Religious language must never become a shield behind which perpetrators escape accountability.

Forgiveness, Justice, and Mercy

The life of Jesus makes the distinction among forgiveness, justice, and mercy quite unmistakable. When Jesus encountered sinners, He repeatedly offered forgiveness. To the woman caught in adultery, He said: “Neither do I condemn you. Go, and from now on do not sin anymore” (Jn 8:11). Notice the two dimensions of this encounter. Jesus forgives, but He does not deny sin. He does it with great mercy and calls for conversion. The past is not rewritten. Instead, the sinner is offered a new future. Mercy does not erase truth; it makes transformation possible.

The same Jesus, who forgave individuals, also confronted social and structural wrongdoing. He overturned the tables of those who had transformed the Temple into a marketplace (Mt 21:12–13). He publicly challenged religious leaders who exercised authority while neglecting the weightier matters of the law: justice, mercy, and faith (Mt 23:23). Jesus did not remain silent simply because He was preaching forgiveness. He confronted hypocrisy. He challenged the abuse of authority. He defended the dignity of the vulnerable. He challenged structures that placed religious burdens upon ordinary people while those in authority protected themselves.

And at the very moment of His own execution, Jesus prayed: “Father, forgive them, for they know not what they do” (Lk 23:34). Yet His forgiveness did not make the crucifixion just. The Cross remains one of history’s most profound revelations of human violence, injustice, and the abuse of power. Jesus forgave His executioners without declaring their actions righteous. That is the foundation and the meaning of the Christian Cross and suffering, and that’s where the Church’s concern for justice becomes particularly important.

A Call

Christian theology cannot simply comfort victims while leaving intact the structures that produce suffering. The Church’s preferential option for the poor requires Catholics to stand with those whose voices are least likely to be heard. While solidarity with them requires us to recognise that the suffering of another is not simply “their problem,” forgiveness demanding victims to remain silent is a distortion of the Gospel. Prayer and worship that do not concern justice could become mere sentimentality. The Eucharist we celebrate at the altar must eventually lead us to the human being who suffers beyond the walls of the church.

Hailing from St. Sebastian’s Parish, Katuwapitiya, Negombo—where alone 117 people were killed in the Easter Sunday bombing in 2019—and as someone who continues to accompany the victimised children and families in their ongoing journey of grief, healing, and the search for truth, ever since that unfortunate day and to this day. I reckon that our greatest danger should not be that justice may fail. Rather, our greater danger should be that, in the pursuit of justice, we may lose our souls. Jesus asked, “What profit would there be for one to gain the whole world and forfeit his life?” (Mk 8:36). When adapted these words to our own context here, one might ask: What does it profit us if we, one day, obtain every political victory, every judicial judgment, and every public apology, but in the process lose our peace, fill our hearts with anger, hatred, and resentment, and surrender our capacity to forgive and to pray for those who persecute us?

The pursuit of justice must never cost us our humanity or our place in heaven. We must seek the truth, demand accountability, and work for justice with courage—but without allowing the wounds inflicted upon us to transform us into what we oppose. We can pursue justice without hatred, demand accountability without vengeance, and seek truth while leaving room for mercy. For the Christian, the ultimate victory is not merely that justice is done, but that, in seeking justice, we do not lose the capacity to love. The Gospel never asks us to choose between faith and justice. Rather, it calls us to practice a faith that does justice—for the greater glory of God and for the greater dignity of every human person. Forgiveness heals the heart. Justice heals the social wound. Mercy makes both possible. The Christian vocation is to pursue a deeper synthesis: truth with mercy, justice with forgiveness, accountability with the possibility of redemption.

Author

Rev. Dr. Rashmi M. Fernando, S.J., is a professor at the College for Business Administration (CBA), Special Assistant to the Provost, and Cabinet Fellow for Global Affairs at Loyola Marymount University (LMU), Los Angeles, California; and Pastoral Coordinator for the Sri Lankan Catholic Community (SLCC) in California, USA.

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Features

Accountability must not be limited to bribery and corruption

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Namal Rajapaksa

by Jehan Perera

The arrest of SLPP National Organiser and Member of Parliament Namal Rajapaksa on corruption charges related to the massive Airbus purchase scandal of 2013 has captured the centre stage of public attention. He was arrested by the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) on September 4 and remanded until September 18. The allegations concern an alleged payment of US$800,000 connected to the procurement of Airbus aircraft by SriLankan Airlines. Opposition political parties working together with the SLPP have condemned the arrest as being politically motivated. They point to the mass opposition public rally to be organised by the SLPP on September 12 as being the reason for the arrest.

The SLPP together with other opposition political parties have been trying to get back to the public eye as being viable opposition political parties after the drubbing they received at the last presidential and general elections held in 2024. However, they face a daunting task. They face a government with a 2/3 majority in Parliament and a President who currently enjoys a 75 percent approval rating with the people as indicated in the recent CPA survey. The main issue that led to the electoral watershed in 2024 was corruption and abuse of power that was widely believed to have fed into the collapse of the national economy in 2022. The arrest of the SLPP National Organiser and the charges against him bring back the issue of past corruption to the fore.

There is a strong public case for pursuing accountability for corruption, irrespective of the political status of those being investigated. President Anura Kumara Dissanayake has claimed that if all alleged corruption and wrongdoing uncovered by the government were fully investigated, hardly anyone among those responsible would be left untouched. The fact that an alleged wrongdoer in the Airbus scandal is the scion of one of the most formidable political dynasties in the country and is the leader of a major political party is not deterring the government.

Enormous Scale

The present government is demonstrating a greater determination coupled with political will to push the accountability process forward compared to previous governments. This is not the first occasion on which Namal Rajapaksa has been arrested as part of government investigations into corruption. In 2015, the government headed by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe launched a major investigation into the Airbus deal as the amounts at stake were enormous. In 2013, SriLankan Airlines had contracted for six A330-300s and four A350-900s, with further A350 leases arranged for a fleet renewal programme valued at over US$2.5 billion. That figure is comparable in size to the US$3 billion IMF bailout and shows the scale of exposure the loss-making state-owned carrier was taking on. SriLankan Airlines decided to exit the leases starting in 2015–2016 following the change of government. The penalties paid exceeded US$100 million.

After the catastrophe, the Sirisena-Wickremesinghe government appointed a high powered investigation body. Despite the Board of Inquiry’s recommendation that former executives face criminal prosecution, no one named in the report was ever successfully prosecuted. The Airbus case is particularly important because what is at stake is not simply the size of the alleged bribe. What is more troubling is the deliberate commitment of scarce public resources to a loss-making enterprise, for a personal gain far smaller than the cost imposed on the national budget. Corruption is not only about what an individual allegedly gets as a commission or bribe. It is also about the public resources committed, institutions weakened, and opportunities lost when decisions serve private rather than public benefit.

Having completed two years in power, like past governments, the NPP government is still trying to define who was responsible for the current state of affairs in the country. Instead, they need to shift their thinking on what institutions and systems must be changed so that past problems cannot easily recur. This means moving from anti-corruption politics to systems reform. This distinction is crucial. One can prosecute a set of corrupt individuals and still leave behind a system that produces another set. Conversely, if procurement, appointments, public finance, political financing, policing and judicial processes and reconciliation are redesigned properly, opportunities for corruption and political abuse will be reduced. For the NPP, therefore, the real measure of success should not simply be how many former politicians are investigated or prosecuted. It should be whether, by the end of its term, Sri Lanka has become a country in which it is substantially harder for any future government to abuse public power.

Broader Accountability

This broader understanding of accountability is particularly important because financial crimes and corruption, grievous though they be, are not the only set of gross misdeeds that plunged the country to the bottom rungs of development in the world. There is another issue of accountability that needs to be pursued. This is to find out what happened to the tens of thousands of missing persons due to political violence in the past four to five decades which has put Sri Lanka in the second spot internationally for the number of missing persons. Amnesty International has estimated that at least 60,000 and possibly as many as 100,000 people have been subjected to enforced disappearance in Sri Lanka since the 1980s.The numbers are so large that they should shock the conscience of the country. It is telling that the disappearance of a person does not attract the same public attention as the disappearance of money.

A missing million dollars matters because it belongs to the people. A missing person matters because that person belongs to a family, a community, a country. Both are failures of the same underlying obligation that the state apply accountability equally, to money and to people, regardless of who is harmed or who is implicated. While lost public money weakens the economy, disappeared people weaken the body politic itself. In the case of Sri Lanka, the disappeared are disproportionately Tamil, though people of all communities have vanished during the country’s cycles of violence. The question this raises is whether ethnic minority citizens believe the state cares for them as it does the ethnic majority. A citizen should not have to ask whether the state cares about the disappearance of a person because that person was Tamil, Muslim or Sinhalese. Nor should a family have to wait for decades for an answer simply because the disappearance occurred during a period of political violence. This needs to be pursued with the same political will that is now being demonstrated in relation to corruption. The pursuit of accountability for corruption can therefore become an opportunity to demonstrate that accountability is not selective. It needs to apply to financial wrongdoing, abuse of power, violations of rights and the failure of institutions to protect citizens.

The government has an opportunity to show that accountability is not about settling political scores with the previous rulers. It is about establishing a standard of public responsibility that applies to everyone and every institution.This is also important for national unity, both in name and in spirit. If ethnic minority citizens are to feel a sense of belonging to the Sri Lankan state, they need to know that their suffering matters as much as the loss of public money. Otherwise, unresolved grievances will remain a wound in the body politic and continue to weaken it. The missing people matter as much as the missing millions. In fact, people matter more than money in our society. The real test of accountability is whether Sri Lanka can build institutions and systems in which neither public money nor people can disappear without consequence.

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Big scene for JAYASRI at One Love Festival

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JAYASRI at the One Love Festival

Last month, Sri Lankan’s reggae stars, Rohitha and Rohan, along with the band JAYASRI, took Austria by storm at the One Love Festival — Austria’s biggest reggae event and one of Europe’s most iconic.

Set against the stunning natural backdrop of Wiesen in Burgenland province, the two-day festival drew thousands of fans and featured a lineup that read like a reggae hall of fame.

And right there, on stage, before the headliners, were Rohitha and Rohan with JAYASRI.

Then came the legends Alpha Blondy and the Solar System, The Wailers, Dawn Penn, Alborosie, Queen Omega, The Congos, Culture, and more. It was, by all accounts, a beautiful night under the stars — and JAYASRI made sure Sri Lanka’s flag flew high.

TV interview with the members of JAYASRI … at the
Festival

On stage were: Rohitha on vocals, rhythm guitar and percussion, Rohan on vocals and bass, Bidu on keyboards, Moses on percussion, Milosz on lead guitar, Chiran on drums, and Ruwan on keyboards.

They delivered a powerful set of originals in both English and Sinhala — but with a JAYASRI twist no one else has.

“From Roots Reggae moving to Asian Dub, Ska, Rocksteady, Dancehall and Afro Beat, Funky — it was a unique mixture of our own, and people loved it,” Rohitha said.

Friends and fans flew in from Italy, Switzerland, Hungary and Germany just to join JAYASRI’s ever-growing “Vienna Family” of reggae lovers and cheer them on.

But the real magic happened backstage, according to Rohitha.

“It was great to meet and share the stage with some of the biggest world legends from our genre,” said Rohitha, adding that it was doubly exciting chatting with Alpha Blondy and The Wailers, backstage.

Sri Lankan reggae twins – Rohan and Rohitha

“It was heartening to have their blessings and respect towards our unique style, and to hear them say ‘You people have done some great things to our music’ — that meant everything.”

As the European summer fades, the twins Rohitha and Rohan will be back, in familiar surroundings … yes, Colombo, for the season; and they also have concerts lined up in Japan, Australia, New Zealand, the Middle East, and beyond.

“It’s always great to be back in Colombo for the season,” Rohitha emphasised.

From Wiesen to Colombo, from local roots to global stages — JAYASRI are proving that Sri Lankan reggae has a sound, a soul, and a place in the world. And the world is listening.

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