Geneva phobia – II

Foreign Minister Mangala Samaraweera at the UNHRC 30th session in Geneva

2 October – first day after the new “Resolution”

The 2nd of October is already marked as a significant day in history, having given birth to some of the world’s greatest leaders in many spheres, not the least amongst them being the legendary and unparalleled humanitarian and civil rights activist Mohandas Karmachand Gandhi; barrister at law of the Inner Temple turned non-violent freedom fighter turned “the great Mahatma”, father of free and modern India! 

So how will this day in history pan out for human rights in Sri Lanka as the United Nations Human Rights Council (UNHRC) brings to a close its 30th sessions, particularly with what is so important to us; a decision to unanimously adopt the Joint Resolution co-sponsored by USA, Australia and several others including Sri Lanka itself, under our present MS/RW regime; a marked departure from Resolution HRC/25/1 adopted under the previous MR regime in March of 2014.

Though nothing much appears to have changed as regards Sri Lankan delegations attending the UN, still standing resolute on tradition notwithstanding the regime change (family members occupying delegate seating not just at the Summit but even at bilateral discussions on the sidelines) this may be an occasion to re-visit our birth and growth in the UN system and analyse how this “new move” in Geneva will inter-play domestically and what changes (if any) we may have to expect or even bite our tongue and accept from here onwards. 

 

UN – our obligations vis-à-vis the Charter

Leaving aside the “Geneva marketing” aspect by all politicians, I doubt whether Sri Lankans have faced such a decisive situation there since overcoming the continuous veto of our admission to the UN itself around 1956; this will certainly be the dawn of a new period of our history where our domestic response to this decision will play a pivotal role in our international presence. 

Article 27(15) of our Constitution obliges us to “endeavour ... to foster respect for International Obligations ...”, foremost amongst that being the UN charter which we have acceded to. Having adopted the premise that the protection of Human Rights was a universal issue and seen its interrelationship with democracy and fundamental freedoms as being of paramount importance, at its conference on Human Rights held in Vienna in 1993; this world body called for the establishment of a UN High Commissioner for Human Rights. 

News reaching us as at the morning of 1 October was that the incumbent, Prince Zeid Ra’ad Al Hussein, had justified the previous recommendation for “a hybrid special court” to address accountability issues in Sri Lanka, stating that our domestic judicial system was not equipped to conduct an investigation into the crimes listed in their findings; claiming that their ‘breadth and magnitude’ documented in the OISL report cannot be probed by local judicial systems without international participation. We have now (victoriously as is claimed by the politicians) moved away from that to a “lesser evil” with this new “Resolution”, the road to which was: 

• March 2014 – UNHRC Resolution A/HRC/25/1 called for “... a comprehensive investigation into alleged serious violations and abuses ... by both parties ... the LLRC period (21/11/2002 to 15/11/2011)...to establish (their) facts and circumstances ... avoid impunity ... ensure accountability with assistance from relevant experts etc ...” 
• June 2014 – three Experts appointed, Martti Ahtisaari (former President of Finland), Silvia Cartwright (former High Court judge of New Zealand) and Asma Jahangir (former President of the HRC Pakistan), to play a supportive and advisory role as well as independent verification throughout the investigation 
• Since the regime change in January 2015:
• Pablo de Greiff was permitted a technical visit – 30 March to 3 April 2015 
• July 2015 – GOSL announced that the Presidential Commission to Investigate complaints of Missing Persons (appointed by previous regime) had received a further extension, two additional Commissioners appointed to expedite hearings 
• Working Group on Enforced & Involuntary Disappearances (WGEID) were due to visit us in August but postponed due to parliamentary elections 
• 18 August 2015 – the regime change was further fermented by the UNF coalition forming this unique MS/RW Government 
• 16 September 2015 – Report on SL presented at the UNHR Council’s 30th session, postponing what was to be presented at its 28th session on the premise that it was “acknowledging signals of engagement” by the new regime, the salient points of which were:
• This was a HR investigation/not criminal 
• For accountability to be achieved in Sri Lanka:
• it will need more than a domestic mechanism 
• should draw from experiences of others and look at hybrid special courts, integrating international judges, prosecutors, lawyers and investigators 
• Such a mechanism will be essential to give confidence regarding the independence and impartiality of the process 
• 15 September 2015 – GOSL responded (to a prior draft) with a very “general” attitude, obviously with the knowledge of the US co-sponsored new draft Resolution, noting the recommendations and ensuring compliance 
• 25 September 2015 – this new proposal was presented to the Council An immediate question that sprung to my mind with the previous report was that, no sooner we acknowledged and acquiesced to its findings, were we not then accepting that our judicial system lacked “public confidence, impartiality and independence”? Thankfully what we now have to grapple with is this new Resolution. 

But we are “Dualists” – and then there’s “Singharasa”

On the complete opposite side of this spectrum, we don’t need to be overly concerned with “Geneva phobia”, as there is our domestic legal system which must first be overcome. Let us first look at the UN Charter itself, which at Article 2(7) expressly prohibits intervening “... in matters which are essentially within the domestic jurisdiction of any state ... “; there are some in Sri Lanka who sustain this premise that whatever transgressions (as alleged) are matters for us to deal with domestically. 

Then there is also our constitutional supremacy, which does not recognise any other source of authority other than the all-powerful Sri Lankan citizen (Article 3), which by extension at Article 4(c) empowers only a Sri Lankan judicial institution exercising the People’s judicial power as “... established by the Constitution ... or by Law” to make any form of judicial or quasi-judicial inquiry or finding against Sri Lankans. This principle was most recently accepted by a divisional bench of the Supreme Court in the famous “impeachment cases” of Her Ladyship, the then Chief Justice. 

From an International Law perspective this can be explained, that Sri Lanka follows a “dualist model” in our treaty obligations (as opposed to “Monoists”), where for any international obligation to be encumbered upon us, it must flow through our own domestic legislative machinery by way of “enabling legislation”; as for instance the UN Convention Against Torture which was “made law” here by way of the Convention Against Torture Act of 1994. This in essence is a further expression of our absolute sovereign power held, inalienably and above all other authority, by our People; thus even if a Head of State were to ratify some treaty or convention, we the People will not recognise it unless it has been approved by our Legislative arm. This was expressly held in the landmark case of Nallaratnam Singarasa Vs AG (2006), where a divisional bench of the Supreme Court held (in deciphering our obligations under the UN’s International Convention of Civic & Political Rights - ICCPR) that the (then) President’s accession to the first ICCPR Protocol was violative of Article 3 read with 4(c), 75 & 105 (1); that any law seeking to give domestic effect to the UN Human Rights Committee would have to be approved by a two thirds majority in Parliament, as well as by the People at a referendum as mandated by Article 83 (a) of the Constitution. This, I’m afraid is the Law of the Republic, as it stands now and all powers, big or small will have to abide by it; if not, even they will be violating the Rule of Law! 

Que Sera Sera – our reaction to “whatever will be”: 

So where do we go from here? We are also signatory to the (1969) Vienna Convention on the Law of Treaties under which we must “ ... comply in good faith with the treaties (we) have ratified ...” and may not invoke our internal law to justify failure to uphold them; this leaves us nowhere better as even to follow this we must first get over Singharasa; “chicken or egg”? 

The present US co-sponsored resolution that has just been accepted provides inter alia that - 

• accountability is essential to uphold the rule of law and build confidence in the people of all communities of Sri Lanka in the justice system – we have no problem with that 
• a Judicial Mechanism with Special Counsel to investigate allegations of violations& abuses of HR / violations of international humanitarian law – as long as it is acceptable to our Constitution, we should be alright 
• a credible justice process with independent judicial & prosecutorial institutions led by individuals known for integrity and impartiality - I have some reservations on this: 
• is our present judiciary not “independent” (even if so, will an “import” be?) 
• will some other institution (not the Hon. Attorney General) to “prosecute” be acceptable to our Constitution? 
• Do all our lawyers, judges, prosecutors alike lack “integrity & impartiality”? If my elected government is saying this to the world, are you really representing me? 
• participation in a Sri Lankan judicial mechanism (including the Special Counsel’s office) of Commonwealth and other foreign judges, defence lawyers, and authorised prosecutors and investigators – will this be acceptable within our Constitution or will we have to amend our laws with a two thirds majority and a referendum? 
• GOSL to reform its domestic law to effectively implement LLRC recommendations as well as the UNHCHR Resolution 25/1 – must pass through (above) legislative process 
• allowing for, in a manner consistent with its international obligations, the trial and punishment of those most responsible for the full range of crimes under the general principles of law recognised by the community of nations relevant to violations and abuses of human rights - once again we will need to get over Singharasa law, if not, these “international obligations” will not stand the trial of “domestic law” So what if we don’t do any of this – nothing can happen “in law”. Just prior to this unanimous resolution some states including Estonia and Switzerland invited Sri Lanka to ratify the Rome Statute of the International Criminal Court (ICC) and accept the jurisdiction of the Court. As the Hon. Prime Minister keeps on reminding us, since we have not ratified to this convention, there’s no danger of us being led to the “electric chair” as was marketed by the previous regime. However that is not the entire story. There’s nothing stopping the UN from dealing with us for our breaches of other UN treaty obligations, recommending sanctions through its Security Council, etc.; all of which we will have to then overcome, having been tagged an international pariah state. More than all that do we not need some “domestic healing” from all that we have endured over 30 years of hostilities? Some closure to it all, so that we may all leave the past behind and get on to building a new Sri Lankan identity? Whatever it is, the wish borrowed from our Chinese friends is certainly before us – we will certainly “live in interesting times”!