UNHCR Vote in Geneva – India opens a can of worms
Posted on March 11th, 2016

By Senaka Weeraratna

In calling for accountability for alleged war crimes on the part of Sri Lankan military personnel in the closing phase of operations against LTTE terrorism which were combined with humanitarian rescue of thousands of civilians trapped in LTTE controlled areas, India has opened a Pandora’ s Box.

It is unlikely that any investigation of alleged war crimes can be confined only to a particular period of time lying at the end of a continuum of hostilities covering a period of a nearly thirty years.

Exposes operations of IPKF in Sri Lanka to criminal investigations and possible indictment for war crimes

Sri Lanka’s Constitution does not permit it.

In Chapter III of the Constitution which guarantees Fundamental Rights, Article 12 places a heavy emphasis on the right to equality before the law. Sub – Article 12(1) stipulates that ‘All persons are equal before the law and are entitled to the equal protection of the law’.

If the law were to provide a mechanism say only for victims (or relatives of victims ) of alleged war crimes committed in May 2009 to gain relief either through punishment of the alleged perpetrators or payment of reparations or both, and deny a mechanism say to victims (or relatives of victims ) of alleged war crimes committed by members of a foreign peace keeping force during the period from 1987 – 1990, to gain relief through the law, in a context where both local and foreign armies fought against a common foe i.e. LTTE, then such a course of action of arbitrary selection of personnel for investigation and indictment and thereby denying the victims equal access to law, would clearly be in breach of Article 12 of the Constitution.

It would tantamount to a mockery of Justice if the investigation of War crimes is selectively compartmentalized focusing only on one group to the exclusion of another group when both armies ( local and foreign ) were locked in combat against a mutual enemy though at different periods of time but nevertheless within a contemporary time frame.

The implications of Liyanage v Queen (1965) case

Privy Council Appeal No. 23 OP 1965 Trial-at-Bar No. 2 of 1962

This case involved the among other things the discussion of the Validity of criminal legislation passed ad hominem and ex post facto, and the Competence of Parliament to pass laws which offend against fundamental principles of justice

The eleven appellants, who were tried with thirteen other persons, were each convicted of three offences in respect of an abortive coup d’ etat which occurred on 27th January 1962. They were convicted and sentenced under section 115 of the Penal Code (as amended by section 6 of the Criminal Law (Special Pro-visions) Act No. 1 of 1962) for conspiring (1) to wage war against the Queen, (2) to overthrow by means of criminal force or the show of criminal force the Government of Ceylon, and (3) to overthrow otherwise than by lawful means the Government of Ceylon by law established. They were not tried by a judge and jury in accordance with the normal criminal procedure, but by three judges of the Supreme Court sitting without a jury.

It was submitted on behalf of all the appellants that, whatever were the details of fact or evidence, their convictions must be quashed owing to the invalidity of certain legislation in 1962 passed especially in order to deal with those who partook in the coup and affecting their arrest, detention and interrogation before trial, the mode of their trial, the offences alleged against them, the admissibility of evidence and the sentences. It was common ground that, if this legislation was invalid, the convictions could not be sustained.

The legislation consisted of two statutes, viz., the Criminal Law (Special Provisions) Act No. 1 of 1962 and the Criminal Law Act No. 31 of 1982 which amended the former Act in certain respects. The Acts referred mainly to the trial and punishment of the defendants only. Section 21 of the former Act provided that, save and except Part I and Section 17, the provisions of the Act “shall cease to be operative after the conclusion of all legal proceedings connected with or incidental to any offence against the State committed on or about 27th January 1962 . .’

The first contention for the appellants was that the two Acts were contrary to fundamental principles of justice in that they not only were directed against individuals but also ex post facto created crimes and punishments and destroyed their safeguards by which those individuals would otherwise have been protected. It was argued that inasmuch as the Constitution of Ceylon was laid down by an Order in Council of the Crown and not by an Act of Parliament of the United Kingdom, the Parliament of Ceylon had no power, by virtue of the judgment in. Campbell v. Hall (98 E. B. 1045), to pass laws which were contrary to fundamental principles.

A second contention wag that the Acts offended against the Constitution in that they amounted to a direction to convict the appellants or to a legislative plan to secure the conviction and severe punishment of the appellants and thus constituted an unjustifiable assumption of judicial power by the legislature, or an interference with judicial power, which was outside the legislature’s competence and was inconsistent with the severance of power between legislature, executive, and judiciary which the Privy Council held that the impugned Acts were ultra vires and invalid in so far as they constituted a grave and deliberate interference with the judicial power of the judicature.

Although criminal legislation which can be described as ad hominem and ex post facto may not always amount to an interference with the functions of the judiciary, in the present case there was no doubt that there was such interference that it was not only the likely but the intended effect of the impugned enactments. Such usurpation or infringement of the judicial power was contrary to the Constitution and, to that extent, fatal to the validity of the Acts.

Conclusion

The Privy Council is no longer a part of the Court System of Sri Lanka. 

Nevertheless its ruling that criminal legislation directed against a particular group of people and enactment of retrospective legislation with a view to secure punishment against a defined group of people may have some resonance if the witch hunt directed from overseas by powerful countries against Sri Lanka were to result under coercion in new legislation leading to creation of new offences i.e. war crimes, and special trials and new punishments.

Courtesy : Asian Tribune

http://www.asiantribune.com/news/2012/03/27/unhcr-vote-geneva-india-opens-can-worms

9 Responses to “UNHCR Vote in Geneva – India opens a can of worms”

  1. Christie Says:

    Senaka, thanks.

    We are subjects of the Indian Empire.

    In the Indian Empire there a different law for the scheduled castes and we are one the Sinhalese of Ceylon.

  2. Fran Diaz Says:

    Did Sri Lanka ever get Independence in 1972 ?

    We think not. Probably mostly due to Cold War politics (1946-1991), and aftermath of Trade Routes, etc.

    But because of extreme terrorism by the LTTE for nearly 30 yrs and because of Cold War politics (1946-1991), with all facts of the case known to almost ALL in Lanka, perhaps the Powers that Be will be lenient with Lanka and hopefully will bring fair judgement and closure to the whole matter of false war crimes charges. May it be so, for the sake of us all ….

  3. Dham Says:

    The best way to tackle this issue is to do it honestly by stock taking from 1970. You will then find Indian leaders guilty, Premadaasa guilty, Ranil guilty. By pushing for all encompassing JVP , IPKF , LTTE investigation this excuse of “war crimes” could have been killed on the spot, in 2009.
    But it cannot be done if INDIA IS OUR FRIEND.
    Will this government do it ? NEVER- because Ranil is part of it.

  4. Fran Diaz Says:

    Christie is right in that Lanka is caught up with INDIA – whether INDIA wants to go East or West at any given time.

    The last fiasco lasting nearly 30 yrs with Tamil Tigers being trained in Tamil Nadu by INDIA during Cold War times happened when INDIA was more with the East and Lanka ultra-West (JRJ govt). Lanka ought to keep out of INDIAN & international cold war politics. It is a deadly exercise for this small island – it is the Sinhala/Buddhists who suffer mostly over long periods of time.

    Signing an MoU with the UN that Lanka will not participate in any cold war political issues, is a start. Such an MoU will reassure INDIA & the International Community (West & East), that Lanka will not interfere adversely in their Security Issues, and therefore will never pose a danger to any of them. Games adverse to Lanka and her People will then hopefully stop on a permanent basis. Recovery from a long war and Reconciliation will follow naturally for Lankans.

    Einstein said that to repeat the same experiment over and over again and expect a different result is called “insanity”.

    It is time for real ‘CHANGE’ to come to Lanka, to bring a lasting Peace here. Peace first, and Prosperity follows.

  5. Dham Says:

    Peace is there since 2009 May. Prosperity also followed for a very few. Amazingly agony of the many is not heard and the prosperity of the few is loud and seen. Peck in the eye, remove it and you will feel the suffering.

  6. Fran Diaz Says:

    Some points re Pain :

    *. Prosperity after a war of nearly 30 yrs :

    There is usually great pain for both sides after a war finishes. The war vets will vouch for this – the number of cases with PTSD and other mental illnesses are many. Doubtless, it is the same for Tamil folk too.

    The Peace dividends were there for all.
    If the war did not happen, the LTTE would have still gone on their killing sprees – what of that ?

    Who started this war, anyway ?

    *. What about the pain prior to the war, now added as war damages – the Tsunami of 2004, the LTTE killing, damage to property etc sprees of 30 yrs. All that is added as post 2009 !

    In life, Pain is there anyway, through various events which are inevitable.
    Some folk hang it all on the May 2009 war that finished the LTTE.
    For some, even if the cat ran away, it would be blamed on May 2009 …. !!

    Face the Facts : Life improved for many millions in Lanka, after the war.

  7. Fran Diaz Says:

    Kumar,

    One more :

    Would you, if you were a Sinhala person, negotiate an MoU with the Tamil leader, Mr Wigneswaran, after all that has happend in Lanka. Mr W has made some remarks of late which are politically immature, to say the least, and does not even touch on Reconciliation.

    ———

    I am exempting good, solid, reasonable and honest Tamil folk from my earlier remarks. There are such people, the saving grace for Tamil people.

  8. Dham Says:

    Life improved for many millions of Tamils in Lanka, after the war. We need not envy that but life has become worse for many millions of Sinhalese , including those soldiers who fought, that is the concern.

  9. Christie Says:

    The so called Tamils are Indians who arrived in the island since 1792.

    These Indians are not different to Indians in the other Indian colonies.

    Dear Sinhala folks look at other Indian colonies.

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