By
Rasika Jayakody
Lack of judicial independence and political appointments crippling the judiciary were no alien topic to Sri Lankan media over the past 20 years. When former Attorney General Sarath N. Silva was elevated to the position of the Chief Justice under former President Chandrika Bandaranaike Kumaratunga, Victor Ivan, Editor of a radical vernacular newspaper at the time, said it was final nail in the judiciary’s coffin. But, the last five years of the Rajapaksa administration took this issue to a whole new level with the Executive President becoming the sole authority when it came to appointments of apex court judges. There was criticism that those who had political and personal affiliations with the former first family were handpicked to hold top offices in the judiciary while sidelining those who safeguarded professional integrity and ethics. The culmination of this process was the appointment of former Attorney General Mohan Pieris as the Chief Justice of the country, after the “flawed” impeachment of Shirani Bandaranayake in January, 2013.
Political interference in the Sri Lankan judiciary became a hot topic among key members of the international community who said the country was heading towards “constitutional autocracy”. Certain judicial appointments also came under question as some of the appointees had direct affiliations with the top echelons of the government. Although the 10-year long Rajapaksa rule ended on January 8, this year, the ‘system’ he constructed remained in the absence of necessary remedial measures by the new government. So did the high-ranking judicial figures appointed by the previous rule.
It was against this backdrop that the UNHRC Chief and the OHCHR report called for a “hybrid” judicial mechanism to investigate into alleged war crimes during the final phase of war. While announcing this, they openly raised doubts over the Sri Lankan judiciary’s ability to inquire into mass scale crimes of which members of the Sri Lankan military forces were accused. Some sections of the international community raised concerned that the “protectionist attitude” adopted by the Sri Lankan government on security forces would come into play when the country conducting a completely domestic war crimes inquiry.
Hard bargain over “hybrid court” may lead to key changes in judiciary
When bargaining over the “hybrid mechanism” on the sidelines of the 30th session of the UNHRC in Geneva, the Sri Lankan delegation had to convince the international community that the Sri Lankan judiciary was undergoing transformation especially in the light of constitutional provisions such as the 19th Amendment. They had to stress that Sri Lankan judges were capable of conducting impartial and transparent inquiries into the conduct of the members of its own security forces. However, as a result of this ‘hard bargaining’, the Sri Lankan delegation and the UNHRC member nations arrived at an agreement on a “compromise” over the recommendation pertaining to a “hybrid” system.
They finally settled for an inquiry process owned by Sri Lankan with the active support and involvement of international stakeholders, including commonwealth and other foreign judges, and prosecutors.
While such negotiations were taking place in Geneva, the government was exploring the possibility of ‘cleaning up’ the Augean Stables of the country’s judiciary. The government is expected to adopt a two-pronged approach in this regard. One aspect is likely to be fulfilled with the introduction of a new constitution. The President and the Prime Minister have already expressed confidence that a new constitution will be introduced in 2016. As the national unity government wields 2/3rd majority in Parliament, they will have enough ‘Parliamentary strength’ to ensure the passage of a new constitution within the next two years.
Prominent legal bodies, such as the Sri Lanka Bar Association, have requested the government to introduce a mechanism based on ‘Latimer House Principles’ to regulate appointments and removals of judges. The introduction of a new constitution will be an ideal platform for a reform of that nature. At the same time, there are serious concerns over some of the apex court judges who are presently holding office in spite of criminal charges leveled against them.
It was against this backdrop that there was speculation about a possible impeachment of a Supreme Court judge. It was in the grapevine that a Supreme Court judge who faced criminal charges in the recent past would face the risk of an impeachment in the near future. However, it is questionable as to how an impeachment process will come into play as there is an ongoing court case in the connection with the charges against the judge. Some sections of the legal fraternity believe such a measure will not stand in line with the basic tenets of ‘good governance although there are serious concerns about the judge under question.
At the same time, some parties are already pushing for action against the controversial judge in spite of the ongoing court case against him.
“The question is whether that person to suitable to hold the office. That is the main question that will come into play during an impeachment. The Parliament, however, can proceed with such a process irrespective of the court case,” a senior lawyer, speaking to the Daily News, explained, adding that there was a need for a major ‘clean-up’ in judicial appointments as the process was completely politicized by the previous regime, especially over the past five years.
“It is important to make sure that the remedial measures are taken in a constitutional manner and without leaving spaces for political appointments. It solely depends on the political will of the government,” the senior Lawyer added.
However, there is no constitutional barrier for the government to proceed with an investigation against the judge. The Constitution says that an appellate court judge “shall not be removed except by an order of the President made after an address of Parliament…” An impeachment motion would have to be supported by a “majority of the total number of Members of Parliament (including those not present) and has to be presented to the President for such removal on the grounds of proved misbehaviour or incapacity.”
President has three strategically important meetings in New York
On the sidelines of the United Nations General Assembly, President Maithripala Sirisena had discussions with some key stakeholders of the international community who will work closely with the Sri Lankan government within the next one and a half years, within the framework of the domestic investigation process. President Sirisena’s first important strategic meeting was with South African President Jacob Zuma with whom the Sri Lankan government had talks on forming a Truth and Reconciliation Commission. South Africa is expected to play an important role in the domestic inquiry process as Sri Lanka has already proposed to form a Truth and Reconciliation Commission, following the South African model. It was against this backdrop that discussions took place between President Sirisena and South African President Jacob Zuma on the sidelines of the United Nations General Assembly.
President Sirisena’s next important strategic meeting was with UN Secretary General Ban Ki-moon who, at the meeting, strongly encouraged the President to advance the dialogue on a political settlement.
He told President Sirisena to “seize this opportunity to lay the foundation for long-lasting peace and stability”. This was stated in the communiqué issued by the UN Chief’s office following the meeting between Ban Ki-moon and the Sri Lankan President.
The Secretary-General discussed recent political developments, congratulated the President on the elections, and commended his message of national unity, reconciliation and good governance.
He encouraged the President to advance the dialogue on a political settlement and seize this opportunity to lay the foundation for long-lasting peace and stability.
The Secretary-General, during the meeting with the President, welcomed the High Commissioner for Human Rights’ recently released report on Sri Lanka. He was pleased with the government’s positive and constructive engagement with the UN on the report, and he hoped that the President would implement its recommendations. This remark was a key indication that the UN was keen to see a proactive approach from Sri Lanka when it came to the implementation of the recommendations of the OHCHR report.
The Secretary-General reiterated his strong commitment to Sri Lanka and pledged the UN’s continued support. He looked forward to working closely with the President, the government and domestic stakeholders during this critical time. The Secretary-General also encouraged the President to incorporate the Sustainable Development Goals into the national development agenda”.
Meanwhile, a statement issued by the President’s Media Unit on the same matter quoted the UN Chief as saying the Sri Lankan President has won the trust of entire world and as a result a lot of countries have come forward to help Sri Lanka.
The President had said the 19th Amendment and the independent commissions were introduced with the aim of propagating and strengthening the concepts of “Good Governance”within the country. Responding to the UN Secretary General’s remarks on the OHCHR report’s recommendations, the President had said his government would act in an appropriate manner with regards to the Geneva proposals. The President had added that his government always remained committed to create lasting reconciliation among all communities.
Kerry explains US position to President Sirisena
President Sirisena’s meeting with US State Secretary John Kerry also positioned Sri Lanka in the positive light. The US Secretary, during the meeting held in New York on the sidelines of the General Assembly, commended the bold steps taken by the new Sri Lankan government to restore democratic freedoms at home and to renew its engagements with the United Nations and other key partners abroad.
He noted the United States’ support for a credible domestic process for justice and reconciliation in Sri Lanka — one that is led and owned by the Sri Lankan people and is conducted in cooperation with the UN and with international support.
The Secretary and President Sirisena also discussed ways in which the United States can support Sri Lanka in pursuing clean energy initiatives, improving cooperation on climate change efforts in the run-up to the COP 21 meeting in Paris, and working toward open government goals.
The highlight of the meeting was the US State Secretary’s pledge to support a “credible domestic” process. This came after Sri Lanka decided to a co-sponsor the US initiated resolution presented to the 30th session of the UNHRC. It ruled out the proposal over a “hybrid” court made by the OHCHR report and the UN Human Rights Chief. Technically, the proposal for a “hybrid court” has now been replaced with one for a “credible and domestic investigation” with the cooperation and support of international stakeholders. This can be construed as a significant victory from Sri Lanka’s perspective.
Prime Minister Ranil Wickremesinghe, during a meeting with newspaper editors and media heads on Sunday, further explained the mechanism and specific features of the domestic investigation. The meeting was, more or less, an extension of the previous meeting held at the official residence of the President with the participation of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe. In addition to Prime Minister Wickremesinghe, Minister Rajitha Senaratne and Deputy Minister Harsha de Silva who also exchanged their views with media heads and newspaper editors.
“The Truth Commission will have another segment called ‘Compassionate Council’. Though it will be headed by a layman, a panel of clergymen – that will include Mahanayakes, Bishops of the Christian and Catholic churches, high priests from the Muslim and the Hindu clergy – would be drawn to form the Compassionate Council. “
He said the Missing Persons Office would be a permanent one dealing with relevant complaints. The Special Counsel’s office, according to the Prime Minister, will be Sri Lankan and it will decide on the investigations and the cases that should go directly to the judiciary or to the Truth Commission.
He was optimistic that many cases will end up in the Truth Commission and the Compassionate Council.
“Foreign prosecutors may join according to the situation that would arise from time to time. We have spoken to the US about the formation of the judicial mechanism and it is up to Sri Lanka to formulate new laws,” he added, stating that the Special Counsel might, from time to time, obtain the assistance of international lawyers for the smooth functioning of the office.
“In Sri Lanka we have only a few capable officers to handle this kind of work. I have already spoken to the Bar Association of Sri Lanka on this matter,” he said.
The Prime Minister emphasized the fact that the process of truth seeking should be short. “We will have day to day sittings and only one appeal against orders. The Supreme Court will decide whether foreign defence counsel would be allowed. I told the Bar Association to formulate a mechanism for this too.”
“President Mahinda Rajapaksa brought in foreign counsels to assist the Paranagama Commission. They sat along with the judges of the commission,” the Prime Minister said adding that new laws will be formulated under article 13 (6) paragraph 01 of the present constitution, which refers to the Freedom from arbitrary arrest, detention and punishment, and prohibition of retroactive penal legislation
It says, “No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed.Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.It shall not be a contravention of this Article to require the imposition of a minimum penalty for an offence provided that such penalty does not exceed the maximum penalty prescribed for such offence at the time such offence was committed.”
This clearly indicates that the parametres of the Sri Lankan inquiry mechanism are different from “hybrid mechanisms” adopted by several other countries to deal with their conflict related matters.
East Timor mechanism
For instance, in East Timor, the UN acted as transitional authority in East Timor between the end of the Indonesian occupation in 1999 and independence in 2002. This UN Transitional Authority in East Timor (UNTAET) installed the Special Panels for Serious Crimes (SPSC) in Dili, East Timor. The panel commenced its activities in 2000 after the UN Investigative Commission ended its job, reporting killings, destroyed property and evictions. Concerning jurisdiction, the Panels covered serious international crimes (including genocide, war crimes, crimes against humanity and torture). The Panels consisted of one national and two international judges, thus creating a hybrid tribunal. The Tribunal had primacy over national courts with respect to crimes within their exclusive jurisdiction. At the time the Special Panels were established, the UNTAET also founded a Public Prosecution Service, including a Serious Crimes Unit (SCU), separately from the national judicial structure. This Unit was not part of the Special Panels but operated quasi separately from the Court, which was part of the national structure of the Dili District Court. International staff dominated the SCU. After the independence of East Timor in May 2002, the SPSC and SCU continued until May 2005, when the UN support was withdrawn and the operations indefinitely adjourned.
Kosovo model
The UN Interim Administration Mission in Kosovo (UNMIK) initiated a hybrid tribunal to investigate into those responsible for crimes committed in Kosovo in 1999. The UNMIK made it possible for international judges to serve together with domestic judges in existing courts in Kosovo, as well as for international prosecutors and defense lawyers to help out their Kosovar counterparts. The international judges however made up the minority on the panels.
The Special Court for Sierra Leone
(“Special Court”, SCSL) was another hybrid tribunal installed by agreement between the United Nations and the Sierra Leonean government pursuant to Security Council Resolution 1315 in 2000. The Court as appointed to “prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law” committed in Sierra Leone after 30 November 1996 and during the Sierra Leone Civil War. The court had offices in Freetown, The Hague, and New York City, and the Prosecutor issued 13 indictments in 2003. Two of those indictments were withdrawn in December 2003 due to deceases. The tribunal completed the trials of three former leaders of the Armed Forces Revolutionary Council (AFRC), two members of the Civil Defence Forces (CDF) and of three former leaders of the Revolutionary United Front (RUF). On 26 September 2013, former Liberian President Charles Taylor was convicted on appeal, the first African head of state to be convicted for war crimes.
Lebanese hybrid court
The Special Tribunal for Lebanon (STL) or “Hariri Tribunal” was an international criminal tribunal mandated to prosecute those responsible for the killing of late Lebanese President Rafiq Hariri on 14 February 2005. An Agreement between the United Nations and the Lebanese Republic established the STL pursuant to Security Council Resolution 1664 (2006). The STL, which was formed as an independent judicial organization, had its main office in Leidschendam, near The Hague (the Netherlands), with a field office in Beirut, Lebanon. The Court had jurisdiction over persons responsible for the attack on Hariri as well as over persons responsible for related attacks that possibly occurred between 1 October 2004 and 12 December 2005. The Lebanese Criminal Code was applicable at the STL and international law was used for reasons of interpretation. The “hybrid court” had concurrent jurisdiction with national courts.
Cambodia tribunal
The Cambodia Tribunal or Khmer Rouge Tribunal (Extraordinary Chambers in the Courts of Cambodia) was a court set up by agreement between the United Nations and the Cambodian government in 2003. The ECCC is still part of the Cambodian court structure and receives assistance through the UN Assistance to the Khmer Rouge Trials (UNAKRT). Because there are both local and foreign judges on the bench, of whom local judges form a majority, it was considered a hybrid court. The mandate of the ECCC was to try “senior leaders of Khmer Rouge and those most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and customs, and international conventions recognized Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.” This meant the ECCC had the power to bring suspects to trial for homicide, torture, religious persecution, genocide, crimes against humanity, grave breaches of the Geneva Conventions, destruction of cultural property and crimes against internationally protected persons. (Source: International crimes database)
Courtesy:Daily News