External hopes & internal struggles

Kishali Pinto-Jayawardena offers an insight into current tests confronting Sri Lanka, arising from the country’s internal developments and publication of the long-awaited UN report on wartime human rights abuses.

A curious mix of jubilation and sober introspection is currently prevalent in Sri Lanka.
Indeed, the dissonances that emerge are striking. A passing remark made by a scholar friend to me during a visit to New Delhi recently that ‘Sri Lanka offers hope to South Asia besieged by gloom’ sums up heady expectations following this year’s peaceful polls ouster of the Rajapaksa ruling family cabal.

Struggling with institutional decline

Riding high on a dangerously potent cocktail of Sinhala Buddhist triumphalism following the May 2009 military defeat of the Liberation Tigers of Tamil Eelam (LTTE) by state forces, former President Mahinda Rajapaksa had antagonised the Sri Lankan electorate to such an extent that he was denied the Presidency as well as a further audacious grab at the Prime Minister-ship.

But even as the world expects much from a country just re-emerged from beyond the democratic pale, Sri Lankans are themselves struggling with complex questions of rebuilding constitutional institutions which had lapsed into decay even prior to the reviled Rajapaksa decade.

And the question as to how the country’s civil society, which had once included some of the region’s foremost intellectuals, permitted the ruthless undermining of democratic checks and balances is pivotal. The independence of Sri Lanka’s judiciary is a focal point. The Supreme Court had been reputed for its contribution to the liberal jurisprudence of the Commonwealth, despite constitutional limitations until just a few decades ago. But its integrity was undermined by Executive Presidents preoccupied with building up their power bases and enraged over judicial slaps on executive wrists.

Systemic undermining of the judiciary

As the appellate courts became increasingly fearful of invoking political wrath, constitutional protections declined. A book that I co-wrote in 2011 (Pinto Jayawardena & J de A Guneratne, Habeas Corpus in Sri Lanka; the Great Writ in Extraordinary Times, Colombo), documented judicial insensitivity to both majority (Sinhala) petitioners following Southern enforced disappearances in the late 1980s and minority (Tamil/Muslim) petitioners caught in the crossfire of the Northern ethnic conflict. A few exceptional judgments affirming the importance of constitutional protection of liberties made little difference to that general trend.

POOR PRECEDENT: The Extraordinary Chamber in the Courts of Cambodia has seen just five indictments and only one conviction in eight years
POOR PRECEDENT: The Extraordinary Chamber in the Courts of Cambodia has seen just five indictments and only one conviction in eight years

In truth, the process of subverting the Supreme Court commenced well before Mahinda Rajapaksa was first elected to the Presidency in 2005. His predecessor Chandrika Kumaranatunga’s controversial appointment in 1999 of a then Attorney General to the Office of Chief Justice while the Supreme Court itself was inquiring into allegations of abuse of power by the Attorney General was the trigger that intensified the politicisation of the apex court. Legal intellectuals were remarkably silent when judicial independence speedily declined during the decade that followed.

In later years, as the appointment of each successive Chief Justice became politicised to a greater or lesser extent, the Rule of Law was irreparably damaged. The institutional decline did not cease when the post-war Rajapaksa Presidency ‘took over’ the judiciary, casting out of a Chief Justice with less ceremony than that afforded to a common criminal. The legal system proved to be hugely unresponsive as ‘disappearances’ and extra-judicial executions of Tamil civilians and dissenting Sinhalese journalists, activists and trade unionists continued. Habeas corpus became totally irrelevant.

Core findings in the UN report

This entrenched failure on the part of Sri Lanka’s judiciary to protect the Rule of Law is now the centre of national public debate.

It is the core finding in a long awaited report of the United Nations Office of the High Commissioner for Human Rights (OHCHR) examining alleged war-time atrocities on the part of the state and the LTTE. Released in mid-September, the report was the outcome of Human Rights Council Resolution 25/1 (March 2014). There were significant limitations. The OHCHR team was not allowed to enter the country. Instead, it engaged in a sweep of testimony and submissions conducted from outside. Its mandate was to carry out a human rights investigation (not a criminal investigation). This meant that the standard adopted was of ‘reasonable grounds to believe’, where sufficiently ‘credible and corroborated’ information existed.

The OHCHR concluded that horrific crimes of a systemic nature had occurred both during the conflict and afterwards. These crimes (including gender-based violence) were detailed to consist of multiple incidents ‘requiring considerable resources, coordination, planning and organisation, and usually executed by a number of perpetrators within a hierarchical command structure’. The OHCHR panel observed that ‘such systemic acts, if established in a court of law, may constitute war crimes and crimes against humanity, and give rise to individual criminal responsibility’.

A singular recommendation of a ‘hybrid court’

A package of reforms was detailed with measures for reparations and fundamental changes to the penal laws, including incorporation of the concept of command responsibility and review of the draconian Prevention of Terrorism Act and emergency laws. The OHCHR report called for independent oversight constitutional commissions including the national Human Rights Commission. It also recommended review of a recently enacted Witness Protection law.

In many respects, these proposals only echoed what local advocates had been urging for many years. However, the primary OHCHR recommendation was singularly new. Its conclusion was that Sri Lanka’s criminal justice system is unable to deal with ‘systemic crimes.’ Consequently it recommended that a ‘hybrid court’ be established, staffed not only by national but also international judges and including international prosecutors and investigators. State-of-the-art ‘hybrid courts’ have generally been touted by the international community as a compromise between domestic mechanisms and wholly internationalised procedures.

Initial reactions following the release of the OHCHR report were muted, with no display of nationalistic passion, unlike in earlier years. However, this may yet prove to be the proverbial calm before the storm. The ultra-nationalist bloc led by former President Mahinda Rajapaksa may use this to maximum advantage in pursuit of its communalistic agenda.

But there are larger concerns at stake. Considerable parts of the citizenry remain to be persuaded of the wisdom of such a move. The reasons for scepticism are many. They range from doubts that ‘hybrid courts’ will actually deliver accountability for grave abuses to fears that such an importation may not address the primary need of restoring the robust health of the national judicial system.

Tearing open the North-South divide

Precedents in place in Cambodia and elsewhere are not reassuring. The Extraordinary Chamber in the Courts of Cambodia (ECCC), for instance, has seen just five indictments and only one conviction in eight years at a cost of some $200 million. In Sri Lanka, the fear is also that divisive debates over this question may distract internal institutional reforms and threaten the fragile task of nation-building.

Just a month into its new term of office, therefore, the recently elected Sri Lankan government has been handed a plateful of near-impossible tasks. Wrestling with a crippled economy and long pending legal reform, including a Right to Information Act, it has offered a Truth and Reconciliation Commission, an independent ‘Special Counsel’ to probe gross human rights violations and an Office on Reparations.

But for Sri Lankans weary of commissions of inquiry and unimpressed by state bodies that have resulted in no relief for victims, these promises are of little hope. In addition, the new government’s inclusion of some gross corruptors of the previous regime has not inspired confidence.

Soul-searching has begun

The coming months will be of crucial import. As at September 25, the consensus resolution tabled before the United Nations studiedly omits specific reference to a ‘hybrid court.’ Instead, it delicately affirms ‘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’.

Intricacies of language and consequent expectations aside, one fact is clear. Sri Lanka will remain on the formal agenda of the United Nations until concrete results are evidenced. Deficits of justice across the ethnic divide must consequently be addressed forthwith, with victims being central to the focus.

The process of genuine heart-searching for a better Sri Lanka has (hopefully) begun.

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