By Neville Ladduwahetty Courtesy The Island

August 18, 2016, 12:00 pm

The Value Added Tax (Amendment) Bill in the form presented has come and gone. It is likely to reappear in another avatar. The reason for the Supreme Court to determine that the Bill was null and void was the vigilance of civil society whose interests were represented by one or two committed and dedicated lawyers. For this the nation is in their debt.

However, what is most interesting is the Prime Minister Ranil Wickremesinghe’s reported statement: “The legislature should not let the judiciary usurp its powers” (The Island, August 9, 2016). The report also quotes the Prime Minister: “We would not sack the Chief Justice or bring an impeachment against him because the court did not give us a favourable ruling”.

Such remarks are not only totally unbecoming for any Member of Parliament, least of all a Prime Minster but also reflects a lack of knowledge of fundamental principles of how separation of powers is supposed to work. In this regard it is interesting to note what happened in the U.K. following a judgment in the Sweeney case in June 2006, when both the Home Secretary and a Junior Minister in the Department of Constitutional Affairs, criticized the judgment in which the Lord Chancellor spoke out against both governmental colleagues, and publicly defended the sentencing judge thereby defending the independence of the judiciary and underscoring the principles of separation of powers.

Such conduct should be a lesson for those in power in Sri Lanka. Sri Lanka does not have Lord Chancellors to defend the judiciary. However, the knowledge and the hope that the Supreme Court would continue to function undeterred, no matter the barbs, is reassuring and therefore comfortingfor the People of Sri Lanka to know that they could rely on the Judiciary to protect their judicial interests.

CONSTITUTIONAL PROVISIONS

Sri Lanka’s Constitution is based on the separation of powers. Article 3 states:

“In the Republic of Sri Lanka sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”. The powers of government referred to in Article 3 are set out in Article 4. These are legislative powers, executive powers and judicial powers. The focus of this article is the relationship between the Legislature and the Judiciary. Thus, what is relevant are articles 4 (a) and 4 (c).

Article 4 (a) states: “the legislative powers of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum”.

Article 4 (c) states: the judicial powers of the People shall be exercised by Parliament through courts, Tribunals and institutions created and established, or recognized by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the people may be exercised directly by Parliament according to law”.

In similar vein, Article III Section 1 of the United States Constitution states: “The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”.

The specificity in the US Constitution that the judicial powers of the United States are vested in the Courts is also present in Chapter XV of Sri Lanka’s Constitution. Thus, Article 105 (1)in the latter states:

“Subject to the provisions of the Constitution, the institutions for the administration of justice which protect, vindicate and enforce the rights of the People shall be – (a) the Supreme Court; (b) the Court of Appeal; (c) the High Court and such other Courts of First instance, tribunals or such institutions as Parliament may from time to time ordain and establish”.

Similarity in provisions in the US Constitution which state: “Congress may from time to time ordain and establish” institutions for the administration of justice, and provisions in the Sri Lankan Constitution, namely, “Parliament may from time to time ordain and establish”, clearly demonstrate that it is the legislature that establishes the laws and the institutions needed to administer justice, and that it is the judiciary that independently exercises judicial powers of the People. The judiciary thus acts as the guardian that protects the interests of the people and their sovereignty as far as judicial matters are concerned. It is “separation of powers” and responsibilities between the Legislature and Judiciary that is at the heart of both Constitutions. The Rule of Law functions best under such a framework.

JUDICIAL MECHANISM to ADDRESS ACCOUNTABILITY

In keeping with the separation of functions outlined above it would be necessary to “ordain and establish” new laws and institutions to address issues of accountability, since existing laws and institutions are not geared to address violations relating to human rights and humanitarian law. Therefore, it would be necessary for Parliament to “ordain and establish” the structural framework of the institutions needed to address issues of accountability, and the laws and the legal framework within which the judicial officers need to administer justice.

Fundamental to the establishment of the institutions and the laws that they are to administer is the determination of the context in which violations were committed. Therefore, to establish context, the first step is the determination as to which law would apply to the violations committed during the separatist armed conflict in Sri Lanka; is it human rights law or humanitarian law?.Such a fundamental determination depends on whether the separatist armed conflictwas between a sovereign State and a non-state actor or between parties to a non-international armed conflict as recognized by the common Article 3 of the Geneva Convention. This fundamental determination would establish whether violations are to be judged as human rights violations or as a humanitarian law violations.

The determination by the Panel of Experts appointed by the UN Secretary General and the Office of the High Commissioner for Human Rights both determined that the conflict was an armed conflict. However, the Lessons Learnt and Reconciliation Commission (LLRC) appointed by the Sri Lankan Government did not make a categorical determination that it was an armed conflict. In such a background there is uncertainty as to the nature of the jurisprudence that would be developed to guide the accountability process.

The categorization as to whether the conflict was an armed conflict as per Article 3 of the Geneva Convention and Additional Protocol II of 1977, or whether it was between a sovereign State and non-state actor would determine whether actions would be judged as violations or not. For instance, the lack of food, medical and other needs of the civilians would be a violation if it is determined that the conflict was between a State and a non-state actor but not a violation if the conflict was a non-international armed conflict as defined by common Article 3 of the Geneva Convention and the Additional Protocol II of 1977. Similarly,the protection of the civilians become the responsibility of the State if the conflict is between it and a non-state actor, but not a responsibility if the conflict is a non-international armed conflict because parties to a conflict are responsible for the safety of civilians under their control. Likewise, civilians who offer material supportto assistthe conflict voluntarily or not, lose their right of protection in the case of conflicts judged to be armed conflicts as per Common Article 3 of the Geneva Convention or Additional Protocol II of 1977. Therefore, all charges against either party to the conflict must be judged from one of the two perspectives cited above.

It is evident from the foregoing that the establishment of context is central to the accountability process. Therefore, the legal framework and related laws need to be developed accordingly. This would be a new experience in jurisprudence for Sri Lanka. Thus far the preoccupation has been whether the judicial process is to be conducted only by Sri Lankan judges or with the “participation” of foreign Judges. Although the President and the Prime minister held different opinion at one stage both have now agreed that the process should be confined only to Sri Lankan Judges. But what about others such as prosecutors and investigators without whom the accountability process would not work?

What is evident from the foregoing is that the tasks that need to be accomplished before the accountability process could begin are not only daunting but also could entail measures that impact on existing constitutional provisions. Consequently, the body of laws that need to be developed and the institutional arrangements needed may impact on Article 4 (c) and since Article 4 has to be read with Article 3 which impacts on the sovereignty of the People,institutions and laws relating to the accountability may need a 2/3 approval of Parliament and a referendum by the People.

Since such an approval would depend on the substance and nature of the jurisprudence developed, civil society needs to be vigilant if they are to prevent the type of fiasco that was associated with the Office of Missing Persons (OMP) Bill due to sheer negligence. The Government may have won a battle in getting the OMP Bill passed, but the war would lie in its implementation. For instance, a considerable number of the missing have assumed new identities. Under Article 13 (1) (b) of the OMP Bill information relating to the whereabouts of such persons could be provided to the relatives ONLY with the consent of the person concerned. Since most of those who want to be counted as missing would not want their new identities revealed, the families of the so called “missing” would know that the person is alive but legally they would be in limbo not knowing how to resolve issues relating assets, marital issues, inheritance etc. . of the “missing” person. Would the relatives of such persons be entitled to reparations or receive certificates of absence? Each of these situations would give rise to a plethora of fundamental rights cases. If such situations are to be prevented civil society needs to be extremely vigilant when it comes accountability related issues because of the many faceted imperatives involved.

CONCLUSION

The establishment of an Office of Missing Persons is the first leg in the transitional justice journey. The legislation associated with the OMP was presented as a Bill when in fact it should have been presented as a Constitutional Amendment. The opportunity to challenge the procedure adopted was missed due to lack of vigilance. The procedural violations associated with the Bill make its legitimacy questionable. However the second leg in the transitional journey is the legislation pertaining to the judicial mechanism to address accountability.

The legislation pertaining to the judicial mechanism is of particular significance because any alleged violations that were committed by security forces of Sri Lanka and the LTTE would be judged by this legislation. Therefore, the institutions and the jurisprudence needed for the judicial process has to be either based on whether the conflict was a separatist armed conflict as recognized by common Article 3 of the Geneva Convention and the Additional protocol II of 1977, or as an conflict between a sovereign State and a non-state actor. If the determination categorizes the conflict as a separatist armed conflict humanitarian laws would govern, while a categorization that the conflict was between a State and anon-state actor would call for human rights laws.

Either determination would require Sri Lanka to develop new legislation since existing jurisprudence does not address issues relating to human rights and humanitarian law violations relating to conflict.However, it has to be understood that outcomes of the judicial process would depend on how this body of jurisprudence developed by the legislature is applied or interpreted by those in the judiciary associated with the judicial mechanism. Therefore, both branches, the legislature and the judiciary should share responsibility for the outcomes of the judicial process. Since the notion that the truth would set us free depends on whether we have the strength to handle the truth, there is a strong possibility that final outcomes could further polarize the communities.

These initiatives are needed because of a Resolution adopted by the UN Human Rights Commission (UNHRC) in Geneva at the instigation of the USA. While the mandate of the UNHRCrequires it to protect and prevent human rights violations President Obama has stated that preventing mass atrocities “is a core national security interest and a core moral responsibility of the United States of America” (The Washington Post, Editorial,August17, 2016). Therefore, the UNHRC and the US should jointly share responsibility for not prevailing on the LTTE to release the civilians trapped for the purpose of using them as a human shield, thereby forcing the civilians to endure the final stages of the conflict.