Geneva resolution and a few points to contemplate

We as citizens need justice from the Judiciary, not anything else, and also it should appear to be that the Judiciary is capable of delivering justice

The resolution about Sri Lanka at the United Nations Human Rights Council was co-sponsored by Sri Lanka as well. 

It was stated as follows in the resolution in respect of the so-called hybrid system:

“Welcomes the Government’s recognition 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, takes note with appreciation of the Government of Sri Lanka’s proposal to establish a Judicial Mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; and affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and further affirms in this regard the importance of 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.”

The mechanism will be local and the judges, defence lawyers, prosecutors and investigators can be foreigners. The main reason of this suggestion is that we have lost the credibility of our Judiciary and the prosecuting system. 

 

Strong rulings of the Supreme Court

There were very strong rulings of the Supreme Court of Sri Lanka manifesting of its independence. One of the most prominent cases was the Bracegirdle case in 1937. Mark Anthony Bracegirdle was an Anglo Australian planter in Ceylon who joined the Lanka Sama Samaja Party. His anti-capitalist and anti-colonial approach angered the Governor Reginald Stubbs who in turn ordered that Bracegirdle should be arrested and deported. 

The LSSP filed a writ of Habeas Corpus application against the arrest and the Supreme Court comprised of three British judges headed by the Chief Justice Sidney Abrahams ruled that the Governor’s order was illegal and ordered the release of Bracegirdle.

Provincial council elections were postponed by President Kumaratunga using emergency regulations in 1998. In the fundamental rights case filed by Varuna Karunathilaka and Sunanda Deshapriya against the Commissioner of Elections justice Mark Fernando who delivered the judgment in concurrence with Chief Justice G.P.S. Silva, and Justice Gunasekara redefined the immunity of the President described in Article 35. 

Said he: “I hold that Article 35 only prohibits the institution (or continuation) of legal proceedings against the President while in office; it imposes no bar whatsoever on proceedings (a) against him when he is no longer in office, and (b) other persons at any time. That is a consequence of the very nature of immunity: immunity is a shield for the doer, not for the act. Very different language is used when it is intended to exclude legal proceedings which seek to impugn the act. Article 35, therefore, neither transforms an unlawful act into a lawful one, nor renders it one which shall not be questioned in any Court. 

It does not exclude judicial review of the lawfulness or propriety of an impugned act or omission, in appropriate proceedings against some other person who does not enjoy immunity from suit; as, for instance, a defendant or a respondent who relies on an act done by the President, in order to justify his own conduct. 

It is for that reason that this Court has entertained and decided questions in relation to emergency regulations made by the President.”

 

Independence of the Judiciary

However, recent acts of and related to the Supreme Court negated this independence of the Judiciary. At a public meeting, Sarath Silva, a former Chief Justice, apologised about his decision of infamous helping Hambantota case favouring Mahinda Rajapaksa, then Prime Minister. CJ Shirani Bandaranayake was removed by the Government without following the proper legal procedure. President Sirisena declared that Mohan Peiris was not appointed to the post of Chief Justice properly and hence needed no removal. 

It was also reported that Peiris was at Temple Trees at the night of the presidential election day on 8 January and he informed President Sirisena that he would deliver the judgments in favour of the Government if the President kept him in office. A sitting Supreme Court Judge was appointed while he was charged for assaulting one of his security officers. Once becoming a Supreme Court Judge, he assaulted a domestic aid. Another sitting Supreme Court Judge was once punished by the Judicial Services Commission for delivering biased judgments.

 

Citizens need justice from the Judiciary

We as citizens need justice from the Judiciary, not anything else, and also it should appear to be that the Judiciary is capable of delivering justice. 

If the Government is unable to appoint independent local judges who are capable of doing their job, it is very much appropriate to appoint foreign judges for that. Therefore the Government should look into the appointment of foreign judges not only to the special courts to investigate allegations of violations and abuses of human rights and violations of international humanitarian law but also to the Supreme Court.

The Attorney General’s post as the main prosecutor was abused for a long time. When Tilak Marapone was the Attorney General he tried to file a criminal deformation case against Victor Ivan, Editor of Ravaya newspaper who revealed the malpractices of the then Head of the Department of Railways rather than investigating the allegations. 

When Sarath Silva was appointed Chief Justice, there were very serious allegations against him as the Attorney General. 

When the Udalagama Commission was appointed and foreign experts were invited by the Government to support the process, then Attorney General C. R. De Silva took an unusual stance and criticised the role of the foreign experts who in turn left the services. 

The Attorney General has no independence whatsoever as the legal advisor of the Government. Therefore his role should be redefined.

 

Mandatory to establish a credible system 

By observing the serious charges levelled against the armed forces and the LTTE, it is mandatory that we should establish credible system so that we can find out the truth. Having faced several armed conflicts and ignored to find out the real reasons for those conflicts, we as a nation comprise a bunch of indifferent people to say the least. Therefore this investigation should also be extended to the JVP insurrection in the late 1980s. 

The wounds of the nation should be observed and investigated and that very observation could lead to the healing. These wounds may be one factor that contributes to the wave of crimes prevalent in the country.

Presently the due credit is not given to the armed forces who defeated the LTTE mainly because of the allegations of war crimes. If there were war crimes it would be against the international law and it would undermine the war victory. 

Moreover, it would be against the age-old tradition of the Sinhala warriors that they would not fight against an unarmed enemy or the enemy who wants to surrender. It would go against the pride of the Sinhalese and it would completely the opposite of the way taken by Dutugemunu, the iconic Sinhala worrier and the king. Therefore it should be investigated in order to find out the truth.

The fact is that the armed forces and LTTE are Sri Lankans and this fact is being ignored by many. Sinhalese think that the LTTE are outsiders and Tamils think that the armed forces are outsiders. 

Those who pioneered in training suicide bombers in modern times; those who had an army, navy and air force as only non-governmental terrorist organisation in the world and those who defeated the hitherto believed undefeatable are all Sri Lankans. If united all of them would have immense power.