BY DR. S.W. PREMARATNE Courtesy Ceylon Today
Attorney-at-Law

The United Nations High Commissioner on Human Rights, in presenting his update in June 2016, regarding the progress so far made by the government in implementing the resolution 30/1 adopted by the Human Rights Council in Geneva made a brief reference to some actions already taken. The steps taken by the government such as the adoption of the 19th Amendment to the Constitution, identification and release of about 6,000 acres of civilian lands in the North and East which were held by the military, in 2015 and 2016, securing the release of some individuals detained under the PTA and preparation of draft legislation to establish the Office of Missing Persons were appreciated and commended by the High Commissioner.

There is no doubt that the initiatives already taken by the new government makes a positive contribution for the restoration of good governance and addressing some of the most burning issues of the Tamil community in the North and East. The national unity government has shown the political will by taking these steps to promote reconciliation and finally achieve the desired durable peace for the country.

The need for holding an inquiry regarding the allegations of war crimes against the security forces, according to resolution 30/1, has become a very controversial issue. I am attempting in this article to explain why it is necessary to hold an impartial and credible investigation regarding the alleged war crimes during the last stage of the war and its relevance to the post-war reconciliation process.

Crimes against humanity

In the resolutions of the United Nations Human Rights Council in Geneva, relating to Sri Lanka after the war, there is a reference to a series of crimes against humanity and violations of humanitarian law which amount to war crimes. The resolution 30/1 of the United Nations Human Rights Council in Geneva requires Sri Lanka to establish “hybrid special courts” to probe the serious allegations of war crimes both by the government troops and the LTTE, integrating international judges, prosecutors, lawyers and investigators as an essential step towards justice.

There are, of course, serious objections to the participation of foreign judges in the proposed tribunal by a substantial section of the Parliamentarians who constitute the Joint Opposition (JO) led by the former President Mahinda Rajapaksa. It has been the most undesirable aspect of the political culture of the country that whenever a political leader or a political party in power makes an attempt to address the grievances of the Tamil community, such attempts are projected not as necessary steps for promoting reconciliation among the communities, but as preliminary steps before granting Tamil Eelam or a separate state.

Certain steps taken by the government for promoting reconciliation, especially for the implementation of the commitments undertaken by the government contained in the UNHRC resolution 30/1, such as steps already taken for constitutional reforms and cooperating with the UNO for holding a credible investigation regarding the allegations of war crimes are projected as steps that will contribute to the division of the country. This attitude of the JO towards the implementation of the UNHRC resolution 30/1 is a serious obstacle, the government has to face.

Inclusion of foreign judges

However, according to the views expressed by Foreign Minister Mangala Samaraweera, Prime Minister Ranil and President Maithripala Sirisena, the government is against the inclusion of foreign judges in a tribunal to be established for holding such an investigation. The reason given for the inclusion of foreign judges in such a tribunal is that although Sri Lanka has many excellent judges, lawyers and law enforcement officials, over the years, the system became highly politicized, unbalanced and unreliable.
The update of the United Nations High Commissioner on Human Rights presented at the 31 session of the Human Rights Council in Geneva also emphasizes the need for the participation of foreign judges in such an inquiry. However, a remark has been made that the Sri Lankan system has become highly politicized, unbalanced and unreliable. The update of the United Nations High Commissioner on Human Rights presented at the 31 session of the Human Rights Council in Geneva also emphasizes the need for the participation of foreign judges in such an inquiry.

However, the remark that the Sri Lankan system has become highly politicized, unbalanced and unreliable is not relevant to the present state of the judiciary in Sri Lanka. It can be pointed out that the Rule of Law is the only guiding principle by which courts in Sri Lanka are functioning today. A conducive atmosphere now prevails in Sri Lanka for the judges to act freely guided ony by the democratic principle of the Rule of Law without being politically influenced. Two recent judgments delivered by the Supreme Court make the transformation that has taken place in the Sri Lankan judiciary, after the regime change, very clear.

Supreme Court judgment

The Supreme Court in its judgment delivered on 24 June 2016 regarding an application by a foreign company, Nobel Resources International Pvt., Limited registered in Singapore, declared that the decision of the Standing Cabinet Appointed Procurement Committee (SCAPC) to award the tender not to the petitioner but to another company, also registered in Singapore, a respondent in the application, cannot stand in the eye of the law. The Court held that the SCAPC has failed to comply with the compulsory steps in the Evaluation procedure in evaluating the bids.

In another recent judgment, the Supreme Court decided to suspend VAT and NBT increases done by way of notices by the Finance Minister and the Commissioner General of Inland Revenue, from 2 May, for the reason that these increases were put into force by the Commissioner General of Inland Revenue arbitrarily without proper Parliamentary approval, violating the Article 148 of the Constitution. Not only the Supreme Court even the lower courts in the judicial system now function with a sense of independence from political interference.

My contention, therefore, is that it is not difficult to find Sri Lankan judges known for integrity and impartiality. What is important is that all parties concerned, the government, the Tamil National Alliance (TNA) representing the Tamil community in the North and East and civil society organizations committed to the task of upholding good governance and the Rule of Law should be able to reach consensus in the matter of selecting Sri Lankan judges to serve in the tribunal to be established for investigating the allegations of serious human rights violations amounting to war crimes.

Reasonable citizens

According to the vast majority of reasonable citizens what is material is not whether the tribunal that will finally be constituted for investigating alleged human rights violations, is a domestic tribunal or a hybrid court consisting of Sri Lankan judges and judges from foreign countries, but whether the selected judges are generally acceptable to the government and the Tamil people in the North and East, especially the victims of human rights violations and their relatives. The government is trying to convince the High Commissioner for Human Rights and the Human Rights Council in Geneva that Sri Lanka is capable of conducting a credible and impartial domestic inquiry regarding the allegations of war crimes.

The allegations of serious violations of human rights and humanitarian law against the Sri Lankan armed forces have tarnished the reputation which the military forces had earned as a well disciplined and a law-abiding military force. The position of the armed forces and the government is that these allegations of serious violations are unfounded and are not based on credible evidence. Large-scale loss of life and suffering experienced by the civilians during the course of the war was mainly due to the offensive acts of the LTTE, such as sending children to the war front and using civilians as human shields for their own protection. Therefore it is necessary to hold an impartial and credible investigation for clearing the good name of the armed forces and restoring their reputation as a well disciplined military force whose members are eligible for recruitment to the peace keeping forces of the UNO.

Isolated instances

However, it is not possible to rule out the possibility of isolated instances of serious violations of humanitarian law by some individuals in the armed forces. It is necessary to find out whether there were such instances and who were responsible for committing such acts. There is a genuine desire on the part of all right thinking people to know the truth regarding serious allegations against the armed forces. What will contribute to the promotion of reconciliation is finding the truth regarding these allegations and not suppressing the truth.

After the change of government, consequent to the 8 January 2015 Presidential Election, a drastic change has occurred in the attitude of the government towards the UNO involvement in the war crimes. The government has adopted the pragmatic policy of deviating from the confrontationist approach to the UNO and cooperating with the High Commissioner for Human Rights and the Human Rights Council in Geneva with the genuine intention of promoting reconciliation and bringing about durable peace for the country.