{"id":48400,"date":"2015-10-04T00:06:20","date_gmt":"2015-10-04T06:06:20","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=48400"},"modified":"2015-10-03T15:47:36","modified_gmt":"2015-10-03T22:47:36","slug":"zeid-commits-possible-contempt-of-court-against-the-sri-lanka-judiciary","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2015\/10\/04\/zeid-commits-possible-contempt-of-court-against-the-sri-lanka-judiciary\/","title":{"rendered":"ZEID COMMITS (POSSIBLE) CONTEMPT OF COURT AGAINST THE SRI LANKA JUDICIARY"},"content":{"rendered":"

DHARSHAN WEERASEKERA<\/strong><\/em><\/span><\/h2>\n

On the 30th<\/sup> of September, U.N. Human Rights High Commissioner Zeid Al Hussein issued a video statement to the Human Rights Council then in session, regarding the war crimes investigation on Sri Lanka conducted by his office. \u00a0He reiterated his call for a \u2018hybrid court\u2019 to pursue the charges enumerated in the report, because in his view Sri Lanka\u2019s domestic courts lacked the independence and impartiality to take on such a task.<\/p>\n

In my view, the High Commissioner\u2019s statement amounts to contempt of court.\u00a0 In this article, I shall briefly explain why the High Commissioner\u2019s statement amounts to contempt of court, and explain the ramifications of this to local politicians and pundits who might try to implement the High Commissioner\u2019s recommendations and actually set up a \u2018hybrid court.\u2019<\/p>\n

I argue that the only option left to the Government, if it wants to prevent wanton attacks on the honour of our courts, and also to remove the stain caused to the honour of the courts by the High Commissioner\u2019s statement, is to immediately commission an independent and credible review<\/em> of the High Commissioner\u2019s report, to find out if in fact he has provided sufficient evidence to sustain his allegations.<\/p>\n

Why the High Commissioner\u2019s statement amounts to contempt of court<\/strong><\/p>\n

Contempt of court, generally speaking, is any attempt by a person to bring dishonour to the court, to bring it into disrepute, and thus to lower the esteem of the court in the eyes of the public.\u00a0 It is rightly considered a most grievous offence.\u00a0 In any country, the courts are the primary means through which justice is administered:\u00a0 if the courts have to tolerate constant insults and attacks on their honour, the people lose faith in them, and this naturally affects their (i.e. the courts\u2019) capacity to mete out justice.<\/p>\n

I take as self-evident that, if a person of the stature of the U.N Human Rights High Commissioner announces on a world-stage such as the sessions of the Human Rights that the judiciary of Sri Lanka lacks independence and impartiality, it will have among other things the affect of lowering the esteem of said judiciary in the eyes of foreigners as well as Sri Lankan citizens who hear him.\u00a0 So, the threshold for contempt is met.<\/p>\n

We need to answer only two questions:\u00a0 Did the High Commissioner in fact say what I allege?\u00a0 If so, can he justify his statement?\u00a0 Here is the relevant part of the High Commissioner\u2019s statement:<\/p>\n

\u2018I welcome the Government\u2019s commitment, made before this Council, to investigate these violations and ensure accountability\u2026.The unfortunate reality, however, is that Sri Lanka\u2019s criminal justice system is not currently equipped to conduct an independent and credible investigation into allegations of this breath and magnitude\u2026.This is why I have recommended the establishment of an ad hoc hybrid special court, integrating judges, prosecutors, lawyers and investigators, mandated to try notably war crimes and crimes against humanity, with its own independent investigative and prosecuting organ, defence office and witness and victims protection program.\u00a0 In a highly polarized environment, such a mechanism is essential to give all Sri Lankans, especially victims, confidence in the independence and impartiality of the process.\u2019 (Statement by UN High Commissioner for Human Rights Zeid Ra\u2019ad Al Hussien\u00a0 via videolink to the Human Rights Council, 30 September 2015, www.ohchr.org<\/a>)<\/p>\n

To paraphrase the High Commissioner\u2019s sentiments above, according to him, a hybrid court comprising international judges, prosecutors, etc, is needed, because, if the Sri Lankan justice system (which obviously includes the judiciary) were to pursue the matters set out in his report, Sri Lankans will not be able to have confidence in the independence and impartiality of the process.<\/p>\n

A part of the High Commissioner\u2019s argument seems to be that the Sri Lankan justice system (which obviously includes the judiciary) is not \u2018equipped\u2019 to pursue the types of allegations set out in his report, therefore a hybrid court is needed.\u00a0 In my view, however, this part of the High Commissioner\u2019s argument doesn\u2019t make sense.<\/p>\n

For instance, if the Sri Lankan justice system (which obviously includes the judiciary) is ill-equipped to handle the types of allegations the High Commissioner is leveling, why can\u2019t they be equipped\u2014provided with further education, training, access to the relevant research materials, and so on\u2014which would allow them to handle the allegations in question?<\/p>\n

Is it the High Commissioner\u2019s contention that the Sri Lankan judiciary\u2014with a tradition going back over 200 years, which has had in its rolls, even in recent years, judges of the caliber of C.G Weeramantry, A.R.B. Amarasinghe, H.N.G. Fernando, Mark Fernando, L.H.G. Weerasekera, G.P.S. Silva, and others, all local products if I\u2019m not mistaken\u2014is incapable of educating some of its members to handle the types of allegations the High Commissioner is mentioning?\u00a0 The idea is ridiculous.<\/p>\n

And, in any event, being ill-equipped to handle certain allegations goes, if at all, to the competence<\/em> of the judiciary, not its independence<\/em> or impartiality<\/em>.\u00a0 But note, in the last of the series of sentences I have quoted above, the High Commissioner is saying that a local investigation and trial will raise questions about the independence<\/em> and impartiality<\/em> of the process.<\/p>\n

What does the fact that the justice system may be ill-equipped at present to handle certain allegations have to do with its independence and impartiality?\u00a0 If the problem is competence, that can be remedied by supplying the requisite education, resources, and so on.\u00a0 But lack of independence and impartiality goes to the very character<\/em> of the judiciary.<\/p>\n

So, what the High Commissioner is really saying is that the Sri Lanka judiciary (because of its lack of independence and impartiality) is incapable of handling the allegations mentioned in his report, even if the technical shortcomings related to competence are corrected, a grave charge indeed.\u00a0 Therefore, the threshold for contempt is met.<\/p>\n

I shall now turn to the second question:\u00a0 \u2018Can the High Commissioner justify his statement?\u2019\u00a0 Two issues are relevant in order to answer the question:\u00a0 first, does the High Commissioner provide cogent reasons to support his contention that the Sri Lanka justice system (of which the judiciary is an integral part) lacks independence and impartiality to try the particular allegations he is leveling?<\/p>\n

(For instance, he can\u2019t point to general shortcomings.\u00a0 No country in the world has a perfect criminal justice system.\u00a0 \u2018The law\u2019s delays, the insolence of office, etc., etc,<\/em>\u2019 if I may borrow Hamlet\u2019s words for a moment, are universal problems!\u00a0 If the High Commissioner wants to say the Sri Lanka judiciary lacks independence and impartiality to try war crimes cases, he has to give cogent reasons why he questions the court\u2019s integrity in relation to war crimes<\/em> cases.\u00a0 So, does he do this?)<\/p>\n

Second, and related to the first point above, does the High Commissioner, in his report, provide sufficient and credible evidence to establish a prima facie case that the acts which he says were committed by the Government were in fact committed, evidence sufficient to persuade a court\u2014not just a Sri Lankan court, but a court in any country\u2014that those allegations are worth pursuing?<\/p>\n

The first issue does not and cannot apply in the instant case because the High Commissioner admits that the Sri Lanka judiciary has never before handled the types of allegations he mentions.\u00a0 Obviously, an institution cannot be subjected to wholesale condemnation for lack of independence and impartiality in handling, say, task \u2018X,\u2019 if that institution has never been given a chance to acquit itself with respect to task \u2018X.\u2019<\/p>\n

Therefore, as matters stand, he has absolutely no grounds to impugn the independence and impartiality of the Sri Lanka justice judiciary with respect to its ability or inability to try his particular allegations.<\/p>\n

Let\u2019s turn to the second issue, to wit:\u00a0 \u2018Does the High Commissioner establish a prima facie case with respect to his allegations, sufficient to persuade a court in any country\u2014not just Sri Lanka, but any<\/em> country\u2014that those allegations warrant being pursued any further?\u2019\u00a0 This<\/em> is the problem.<\/p>\n

When one reads the report, one discovers that the High Commissioner does not establish any case, that in fact on many of the charges, the report itself says that the investigating panel did not find enough evidence even to identify responsibilities<\/em>. \u00a0The report also contains blatant lies and obfuscations that further erode its credibility.<\/p>\n

The constraints of time don\u2019t allow me to go into detail on the matters mentioned above, but I have published a paper titled, \u2018The OHCHR investigation on Sri Lanka:\u00a0 A brief Analysis,\u2019 (www.lankaweb.com<\/a>, 29 September 2015) where I have discussed some of the related matters at length, and I refer the reader to that paper.\u00a0 I shall cite just one example from that paper.<\/p>\n

One of the main charges the report levels against the Government is that it engaged in indiscriminate shelling of civilians and of hospitals.\u00a0 At the very start of the chapter where this charge is discussed, however, one finds the following paragraph:<\/p>\n

\u2018These incidents [i.e. purported incidents of indiscriminate shelling of civilians and of hospitals] will be examined with reference to obligations incurring on parties to the conflict to comply with the principles of distinction and proportionality and to take necessary and feasible precautionary measures to prevent, or at least minimize harm to civilians and civilian objects.\u00a0 It will, however, be for an independent court to further establish the facts and circumstances of possible violations and to identify responsibilities.\u2019 (High Commissioner\u2019s report A\/HRC\/30\/CRP.2, Paragraph 729<\/em>)<\/p>\n

In other words, even before presenting the evidence that purportedly shows that the Government engaged in indiscriminate shelling of civilians and hospitals, the report admits that, despite all of that evidence, its going to require an independent court to \u2018further establish the facts and circumstances and to identify responsibilities.\u2019<\/p>\n

The persons who prepared the report must surely be aware that it is not the function of a court to establish<\/em> facts or to identify<\/em> responsibilities.\u00a0 The function of a court is to evaluate<\/em> facts placed before it, and to assign<\/em> responsibilities.<\/p>\n

So, what the report is actually saying in the passage quoted above is that, despite all of the purported evidence it proposes to present in the course of the related chapter, in the final analysis, there has to be another<\/em> investigation into the same set of matters in order to come to any definitive conclusions about the matters in question, including to identify responsibilities<\/em>.<\/p>\n

If the report of the present investigation admits openly that there had to be another<\/em> investigation in order to come to definitive conclusions about, say, whether or not the Government engaged in indiscriminate shelling, how can one expect a court to take up the present set of allegations for consideration, let alone allow trials to begin based on those allegations!<\/p>\n

The above is just one example of the sort of problem one finds in the report.\u00a0 My point is this:\u00a0 generally speaking, the High Commissioner\u2019s fails to establish a rudimentary case with respect to any of his allegations.\u00a0 So, either the High Commissioner hasn\u2019t read his own report, or he does not know the elementary techniques of evaluating evidence (both of which are unthinkable), or he is quite aware that his report establishes nothing.<\/p>\n

But, in that case, he cannot reasonably justify impugning the honour of the Sri Lanka\u2019s judiciary by suggesting that they lack the independence and impartiality to evaluate the allegations contained in such a vacuous report.\u00a0 In short, he is guilty of contempt.<\/p>\n

Consequences to the Government<\/strong><\/p>\n

Even though, as explained above, the High Commissioner may be guilty of contempt, he enjoys blanket immunity as a result of being an officer of the United Nations, so he can get away with practically anything he does.\u00a0 The same, however, will not apply to local politicians and pundits if they also use the High Commissioner\u2019s arguments.<\/p>\n

Unfortunately, it is neither practical nor feasible to sue every local politician and pundit who, in the coming weeks and months, will advocate for a hybrid court using the High Commissioner\u2019s arguments.<\/p>\n

So, in all likelihood, what we can expect in the coming weeks and months is a steady barrage of attacks, insinuations and innuendoes about the \u2018lack of independence and impartiality\u2019 of the Sri Lankan justice system, which in turn purportedly justifies resort to a hybrid court.\u00a0 Such a steady barrage is unhealthy for the country, and certainly for the courts.\u00a0 Therefore, it is incumbent on the Government to prevent it.<\/p>\n

There is, meanwhile, a very easy way to prevent it, namely, to submit the High Commissioner\u2019s report to an independent and credible review<\/em>, to establish, before the whole world, whether or not the High Commissioner\u2019s allegations are worth pursuing any further.\u00a0 If it is found out they are not, that should be the end of the matter.\u00a0 If it is found out they are, then only must people be allowed to raise the prospect of hybrid courts.<\/p>\n

\u00a0Dharshan Weerasekera is an Attorney-at-Law.\u00a0 He is the author of two books:\u00a0 The UN\u2019s Relentless Pursuit of Sri Lanka (2013), and The UN\u2019s Subversion of International Law:\u00a0 The Sri Lanka Story (2015)<\/em><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

DHARSHAN WEERASEKERA On the 30th of September, U.N. Human Rights High Commissioner Zeid Al Hussein issued a video statement to the Human Rights Council then in session, regarding the war crimes investigation on Sri Lanka conducted by his office. \u00a0He reiterated his call for a \u2018hybrid court\u2019 to pursue the charges enumerated in the report, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-48400","post","type-post","status-publish","format-standard","hentry","category-forum"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/48400","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=48400"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/48400\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=48400"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=48400"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=48400"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}