Sri Lanka: Hybrid Mechanism in Domestic Judiciary!

by Shamindra Ferdinando

( March 22, 2017, Colombo, Sri Lanka Guardian) Finally, Foreign Minister Mangala Samaraweera has acknowledged that, in terms of the Constitution foreign judges couldn’t participate in proposed domestic accountability mechanism in accordance with Geneva Resolution 30/1.

Samaraweera hadn’t said anything to that effect since Sri Lanka co-sponsored the resolution in Oct 2015.

Twice Foreign Minister Samaraweera made the declaration at the Foreign Ministry on the afternoon of March 16, 2017.

Samaraweera held the foreign ministry portfolio at the onset of the eelam war IV, in Aug, 2006 till he switched his allegiance to the UNP, in early 2007

On the day, before the media briefing, Samaraweera, referring to the Geneva Resolution, co-sponsored by the Sirisena-Wickremesinghe administration said: “Former President Mahinda Rajapaksa, especially as a lawyer, is very well aware that the issue of foreign judges is mere exaggeration on his part, and he does this on purpose to mislead the public. Let us not forget that it was under his leadership that multiple transitional justice processes were initiated, and international prosecutors were engaged. The International Independent Group of Eminent Persons (IIGEP), established by him, engaged foreigners invited by him, and also nominated by Australia, Canada, the European Commission, the UK, Japan, the Netherlands, USA, the Inter-Parliamentary Union, the Office of the High Commissioner for Human Rights (OHCHR), and a Cypriot nominated by the Government of Sri Lanka. International prosecutors were also engaged in connection with the Paranagama Commission.”

Samaraweera also declared that the decision to co-sponsor the resolution was not imposed on the government of Sri Lanka.

Having dismissed former President Rajapaksa’s criticism and concerns, Samaraweera said: “We know that truth, reparation and justice are essential, and further, that international jurisdiction over serious crimes only applies when national jurisdiction fails. We are declaring our vision in a resolution before the world to demonstrate that, as an independent, sovereign, and responsible nation, we are fully able to pursue accountability, with our national capacities, and in cooperation with our friends and partners in the international community, thus restoring credibility to our judicial processes and building capacity.”

Samaraweera flayed Rajapaksa for interpreting resolution 30/1 in what he called a wildly unreasonable and illogical manner in order to drive fear into people’s minds and divide Sri Lankans in an attempt to realize his dream of returning to power.

Jaffna District MP M.A. Sumanthiran responded to Samaraweera last Saturday. Addressing the media, Sumanthiran said that Samaraweera hadn’t previously said that foreign judges participation in judicial mechanism was contrary to the constitution. Sumanthiran urged the government to bring in the required amendment to pave the way for foreign judges, in accordance with resolution 3/1.

TNA in Washington

A statement issued by the four-party Tamil National Alliance (TNA), in June, 2016, should be examined against the backdrop of Samaraweera’s assertion in respect of foreign judges in domestic judicial mechanism.

The TNA has claimed to have reached a tripartite consensus in respect of foreign judges, defence attorneys, investigators, etc, in a local judicial mechanism before Geneva unanimously adopted resolution 30/1.

On behalf of the TNA, its spokesperson, and Jaffna District parliamentarian, M.A. Sumanthiran, told ‘Congressional Caucus for Ethnic and Religious Freedom in Sri Lanka’, in Washington, that the government of Sri Lanka, the TNA and the US had been involved in the negotiations leading to the agreement.

The declaration was made in the presence of Sri Lanka’s Ambassador in Washington, Prasad Kariyawasam. The TNA released the text of Sumanthiran’s statement. The electronic media completely ignored the MP’s statement. Except The Island, Sinhala and English print media, too, didn’t give the coverage Sumanthiran’s statement deserved. The Joint Opposition loyal to former President Rajapaksa, hadn’t been aware of it until the writer brought it to the grouping’s notice.

The event in Washington had been moderated by Sadhanand Dhume of the American Enterprise Institute, a Washington-based think tank. The Caucus is an initiative launched by the United States House Representatives, Bill Johnson of Ohio, and Danny Davis of Illinois, in November, 2013.

Attorney-at-law Sumanthiran stressed that the resolution was moved in Geneva, following an understanding that the participation of foreigners wouldn’t be contrary to Sri Lanka’s Constitution. Declaring that he had been personally involved in the negotiations, with the United States of America also participating in that particular process, Sumanthiran said: “There were some doubts created as to whether the Constitution of Sri Lanka would allow for foreign nationals to function as judges and we went into that question, clarified it, and said, yes, they can”.

Sumanthiran told the Congressional Caucus that the resolution accepted at Geneva had been negotiated and they settled for a hybrid model, though they originally asked for an international inquiry.

The Global Tamil Forum (GTF) spokesperson, Suren Surendiran, told the writer that the agreement, on the text of the resolution, had been reached, following negotiations among what he called Core Group of members at the UNHRC, the government of Sri Lanka and representatives of Tamils. The agreement on a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators, was certainly not negotiable, Surendiran stressed.

In his lengthy presentation to the Congressional Caucus, on June 14, 2016, Sumanthiran discussed a range of issues, including the role of the US and India in resolution of the national issue.

Both MP Sumanthiran and Surendiran emphasized that they expected the full implementation of the UNHRC resolution.

In his brief remarks, Ambassador Kariyawasam provided an overview of the measures taken by Sri Lanka to promote its two-pronged policy of reconciliation and development since the January 2015 election of the current government, and reiterated in detail, measures taken by the government to vindicate its commitment to these processes and explained the several challenges that militate against government efforts. Kariyawasam conveniently refrained from making any reference to Sumanthiran’s revelation.

The TNA, nor the Foreign Ministry, had never challenged The Island coverage on the Washington meet.

Obviously, the yahapalana government is in severe difficulty over Geneva Resolution 30/1. Having failed to muster the required support, in parliament, to bring in constitutional amendments to implement resolution 30/1, the government is now playing a different tune. The government wants two years to address war—related issues, hence the decision to move a fresh co-sponsored resolution.

A few days before Samaraweera’s briefing, the TNA stressed that space for Sri Lanka should be subjected to a fresh commitment to fulfill Geneva obligations, including foreign judges, in the proposed judicial mechanism.


* Between March-Sept. 2015: GoSL, US, TNA reached an agreement on foreign judges, defence lawyers and authorized prosecutors and investigators.

* Sept 21, 2015: Ambassador Ravinatha Aryasinha strongly opposed sections of the draft resolution based on GoSL, the US, TNA agreement. Aryasinha made GoSL’s position clear at the first informal session on the resolution.

* Sept 24, 2015: GoSL accepted US resolution regardless of concerns expressed three days before.

* Oct 1, 2015: GoSL co-sponsored Geneva Resolution 30/1

* June 14, 2016: TNA revealed existence of tripartite agreement on foreign judges, defence lawyers and authorized prosecutors and investigators.

* Jan 3, 2017: The government appointed Consultation Task Force for Reconciliation Mechanism (CTFRM) endorsed foreign judges, defence lawyers and authorized prosecutors and investigators.

The CTFRM comprised Muttetuwegama, Dr Paikiasothy Saravanamuttu, Gamini Viyangoda, Prof. Sitralega Maunaguru, Dr Farzana Haniffa, Mirak Raheem, Prof. Gameela Samarasinghe, Visaka Dharmadasa, Shantha Abhimanasingham, PC, K.W. Janaranjana and Prof. Daya Somasundaram.

= Jan 5, 2017: CTFRM reiterated its stand on foreign judges, defence lawyers and authorized prosecutors and investigators, at a media briefing, at the Government Information Department.

= Jan 6, 2017: State Finance Minister Lakshman Yapa Abeywardena declared, at President’s House, foreign judges wouldn’t be accepted under any circumstances.

= March 11, 2017: TNA reiterated its demand for the full implementation of resolution 30/1.

= March 13, 2017: US supported GoSL bid to secure time and space to implement resolution 30/1.

= March 16: Foreign Minister Samaraweera ruled out foreign judges, defence lawyers and authorized prosecutors and investigators.

The GoSL, TNA and the US owed an explanation to the public as regards resolution 30/1. Sumanhiran should speak out now. Having revealed the existence of a tripartite agreement in respect of foreign judges et al in June last year, in Washington, Sumanthiran cannot continue to remain silent as the government contradicted the very basis of resolution 30/1. The developing situation must have quite embarrassed the US as well as Sumanthiran, chief negotiator for the TNA. Obviously, both the US and the TNA are not in a position to contradict the government publicly.

The Joint Opposition, loyal to Rajapaksa, still seems to be unable to take advantage of the situation. Those who had been tasked to address the Geneva issue never bothered, at least to refer to Aryasinha’s statement at the first informal session on the draft resolution, on Sept 21, 2015. The JO is obviously clueless as to the developments in Geneva. In fact, the JO should seek a clarification as regards the contradictory nature of the yahapalana rulers decision to co-sponsor resolution 30/1 after having rejected critically important sections of it.

Aryasinha told the informal meeting: “At a time when we have a new Government that is adopting a calmly different path to that which was followed in the era, before 8 January, 2015, the expectation is, naturally, that there would be a similar change in tone, tenor, and even strategy on the part of the Council as well.”

“In this context, my delegation is of the view that a lengthy resolution of the nature of the current draft before us which contains 24 preambular paras and 26 operative paras, which is repetitive, judgmental and prescriptive, is not in keeping with the spirit of the process of reconciliation and reform that is underway in my country under the National Unity Government. Neither is it helpful in adopting a collaborative approach to reaching consensus. Many paragraphs in the current draft are in fact counter-productive to the reconciliation efforts of the government, and have the tendency to polarize communities, vitiate the atmosphere on the ground that is being carefully nurtured towards reconciliation and peace building and restrict the space required for consultations. There is a real danger that the current approach will leave room for negative interpretation, thus, only helping ‘spoilers’ in this process.”

“We also remain concerned regarding the formulations provided in several of the Operative paragraphs. Certain terminology used such as ‘verification’, is new and intrusive language to be presented in a human rights resolution, especially when the country concerned is engaging with the international community including with the OHCHR.”

“I, therefore, urge, that in order to enable consensus, this resolution be sensitive to the constitutional and institutional difficulties that will have to be overcome in implementing its recommendations as well as political realities. It must also observe clear, cogent language that the people of Sri Lanka find respectful.”

Had yahapalana rulers threw their weight behind Aryasinha the government wouldn’t have been in a dilemma today. But, the administration had no option but to overrule Aryasinha due to tripartite agreement involving the GoSL, the US and the TNA. If not for Sumanthiran going public on the secret agreement, the world wouldn’t have known about the circumstances leading to Sri Lanka co-sponsoring resolution 30/1.

Both Sumanthiran and Surendian are on record as having stressed that they accepted foreign judges, defence lawyers and authorized prosecutors and investigators in a domestic set up after giving up their original demand for exclusive foreign mechanism. They told the writer on more than one occasion that the there had been prior agreement on robust foreign participation in the run up to resolution 30/1.

It would be a mistake on the part of the public to find fault with Manouri Muttetuwegama-led CTFRM for recommending foreign judges and other personnel. During a recent discussion on the Geneva process on TV I involving the executive director of the Center for Policy Alternatives (CPA) Dr. Paikiasothy Saravanamuttu, who is also the Secretary to the CTFRM, Dr. Jehan Perera of the National Peace Council and the writer, Dr. Saravanamuttu explained that the Geneva decision on foreign judges preceded CTFRM recommendation on the same. Saravanamuttu pointed out that resolution 30/1 had been adopted in Oct 2015 whereas the CTFRM submitted its recommendations on January 3, 2017.

Former President Chandrika Bandaranaike Kumaratunga received the CTFRM report from Muttetuwegama at the Presidential Secretariat on Jan 3, 2017. Minister Samaraweera was also present on the occasion.

The eleven-member CTFRM stressed that foreign participation was required as those who had suffered during the conflict had no faith in local judiciary, which lacked expertise to undertake such a task. They endorsed Human Rights Commissioner Zeid Ra’ad Al Hussein’s declaration in Colombo, in February, 2016, that the judiciary here was incapable of undertaking the process. The Jordanian questioned the integrity of the local judiciary.

War crimes accusers’ responsibility

Samaraweera’s assertion on behalf of the government that inclusion of foreign judges is contrary to the constitution has undermined the very basis of Muttetuwegama’s report.

During the TV I discussion, the writer strongly articulated the pivotal importance of foreign judges participation to ensure an inquiry acceptable to all. Having been accused of massacring over 40,000 Tamil civilians by the UN in March 2011, Sri Lanka should seek a credible investigation to clear her name. The UN should be asked to prove its unsubstantiated allegations before a hybrid court. Yahapalana leaders seemed to be blind to the fact that the external inquiry undertaken by Sandra Beidas on the basis of unproved accusations led to resolution 30/1. Let war crimes accusers prove their allegations before hybrid court. It would be their responsibility to prove these allegations having manipulated the entire process to Sri Lanka’s disadvantage. They had been so unfair that the Sri Lankan military was blamed for killing over 40,000 civilians on the basis of over 4,000 still unverified submissions received by UNSG Panel of Experts (PoE). In fact, the POE recommended those submissions couldn’t be subjected to scrutiny until 2031. Let the well funded NGO fraternity prove their often repeated allegations before hybrid court. Sri Lanka should push for a comprehensive inquiry to ensure those who had been propagating war crimes accusations are forced to prove them. Previous administration’s failure to properly address accountability issues facilitated the despicable Geneva project. The previous government played politics with the issue since the end of the conflict in May 2009 until it was too late.

A credible investigation undertaken before a hybrid court, the writer has no doubt would help establish the truth. Let those who had been demanding hybrid court prove their accusations

(A) The GoSL ordered UN/INGOs to vacate Kilinochchi in September, 2008 to conduct ‘a war without witnesses’.

(B)Vanni population denied medicine, food and other basic needs.

(C) Coordinated mortar/artillery/MBRL (multi barrel rocket launchers) attacks on civilian population. Channel 4 News alleged the then Secretary Defence and the then Army Commander executed the operation.

(D) Massacre over 40,000 civilians.

(E) Rape of combatants/civilians. Subsequently, the military was accused of abusing men.

(F) The use of cluster bombs

Now the onus is on the accusers, particularly TNA, whose leaders played ball with the LTTE until the very end in May 2009 after having worked closely with the murderous outfit since Oct 2001. If the government is genuine in its effort to defend the armed forces, it’ll place European Union Election Observation Mission report on April 2004 general election to prove LTTE-TNA unholy alliance in the run-up to the war. The EU report is evidence that cannot be dismissed by the hybrid court. The TNA will find it extremely difficult to justify its relationship during the war and its current efforts to seek justice against the backdrop of its failure at least to issue a statement calling for the release of over 300,000 Tamil civilian hostages used by the LTTE.

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