Tuesday, 22 August 2017

Can foreign judges be avoided?

Oct. 2015 Geneva Resolution on war crimes:



By Shamindra Ferdinando

One time Attorney General and newly appointed Foreign Affairs Minister Tilak Marapana, PC, on Friday (Aug 18) declared that the 1978 Constitution wouldn’t permit inclusion of foreign judges in the proposed domestic Judicial Mechanism (JM) under any circumstances.

The declaration was made in response to a query posed to him by the writer at the Foreign Ministry soon after the National List MP took office. With new Foreign Secretary (retired veteran career diplomat Prasad Kariyawasam standing by his side), a confident Marapana strongly disputed the writer’s assertion in respect of the inclusion of foreign judges in the proposed JM in accordance with the Geneva Resolution 30/1.

Marapana succeeded Ravi Karunanayake, who gave up the foreign affairs portfolio, on Aug.10, 2017, in the wake of revelations made implicating him and his family in the Monarch Residencies penthouse controversy, while Kariyawasam replaced career diplomat Esala Weerakoon, former top civil servant Bradman Weerakoon’s son, on Aug. 15, 2017.

Karunanayake who received the foreign affairs portfolio, on May 22, 2017, in President Maithripala Sirisena’s first cabinet reshuffle, took office on May 25, 2017, and quit on Aug. 10, 2017.

Earlier Marapana, who held the defence portfolio in UNP leader Ranil Wickremesinghe’s government, that was elected to office in Dec 2001, addressed the media, Ven. Thiniyawala Palitha thera, adviser to the former foreign minister (RK) and current member of the board of directors Lanka Hospitals flayed the foreign service though he conveniently didn’t refer to the failure on the part of the Foreign Ministry to address accountability issues since the successful conclusion of the war, in May 2009.

The change at the Foreign Ministry took place amidst simmering dispute over Justice Minister Wijeyadasa Rajapakse’s strategy that had placed the UNP, as well as the government, in an extremely difficult situation.

Had the war-winning previous government addressed accountability issues in a systematic manner, the country wouldn’t have been humiliated. Ven. Palitha thera, Chief Secretary of the Eksath Jathika Bhikshu Peramuna, affiliated to the ruling UNP, received the well paid position on Feb 23, 2015. Ven. Palitha had been present and delivered anusasana on the occasion Karunanayake took office on May 25, 2017.

Now that Marapana has categorically ruled out foreign judges’ participation in the proposed JM, it would be pertinent to reproduce the relevant section from the Resolution on Sri Lanka meant to promote reconciliation, accountability and human rights. Sri Lanka co-sponsored the controversial Resolution 30/1. There hadn’t been previous instance of a country co-sponsoring a Resolution, based on unsubstantiated allegations severely inimical to its national interest.

Did the political leadership consult the Attorney General’s Department or was the issue taken up at the cabinet?

With former senior Additional Solicitor General Kapila Waidyaratne, PC, with 35 years experience with the Attorney General’s Department being Secretary, Ministry of Defence, the two key ministries, foreign affairs and defence, can review the entire gamut of issues and circumstances leading to the Oct 1, 2015 Geneva Resolution. Waidyaratne received his appointment early last month in the wake of Karunasena Hettiarachchi securing a plum diplomatic post. Marapana and Waidyaratne can be the best possible combination to meet the daunting task.

Over eight years after the eradication of terrorism, and six years after the UN falsely blamed the Sri Lankan military of massacring over 40,000 civilians on the Vanni east front during the final phase of the war, those in authority are yet to prepare a thorough defence. Had the war-winning Rajapaksa administration properly responded to the Western threat, the country wouldn’t have been in this predicament today. Their failure and arrogant behavior finally led to their downfall in January, 2015 and the passage of Geneva Resolution 30/1 that undermined the country’s sovereignty.

The amended draft text of a resolution, dated Sept. 24, 2015, on Sri Lanka tabled by the co-sponsors of the resolution with the former Yugoslav Republic of Macedonia, Montenegro, the United Kingdom, Northern Ireland and the United States of America, included the following: "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 authorized prosecutors and investigators."

As far as Geneva Resolution 30/1 is concerned, there cannot be any ambiguity in respect of foreign judges participation in the proposed JM. Perhaps, Marapana has overlooked the recommendation in respect of foreign judges made by the Sri Lankan Consultation Task Force on Reconciliation Mechanisms (CTFRM). The outfit, in the first week of January, 2017, recommended that the proposed JM, to try cases of war crimes, have at least one foreign judge in every bench. Headed by Manouri Muttetuwegama, CTFRM made it a point to add that the majority of the judges will be Sri Lankan.

Western powers moved three resolutions, targeting Sri Lanka, in 2012, 2013 and 2014. The third resolution demanded an external inquiry into accountability issues. The draft resolution, finally adopted on Sept 24, 2015 and passed unanimously on Oct 1, 2015, is largely based on the findings and recommendations made in a report prepared in accordance with the 2014 resolution. The report was prepared by UN staffer, Ms Sandra Beidas, formerly of the Amnesty International.

The CTFRM declared that the recommendation is in line with Geneva Resolution 30/1 which Sri Lanka co-sponsored. The announcement was made at the Government Information Department. The writer covered the CTFRM briefing (‘War Crimes’ probe mechanism: Task Force calls for full foreign participation with strap line ‘All perpetrators of atrocities, including the Indian Army accountable for their actions’-The Island, January 5, 2917).

CTFRM Secretary Dr. Paikiasothy Saravanamuttu who is also the Executive Director of the Centre for Policy Alternatives (CPA), underscored the pivotal importance of full participation of foreign personnel while emphasizing the pivotal importance of a proper selection process for both local and foreign judges and other personnel. When the media pointed out that the recommendation in respect of foreign judges participation is contrary to the stand taken by President Maithripala Sirisena, Prime Minister Ranil Wickremesinghe and several other top government spokespersons, the CTFRM declared that the recommendations hadn’t been made in consultation with the government.

Marapana cannot afford to ignore a fresh review of the contentious matters, including the circumstances under which Resolution 30/1 came to be after Sri Lanka’s Permanent Representative, in Geneva, Ambassador Ravinatha Pandukabhaya Aryasinha, on Sept. 21, 2015, strongly opposed the same at an informal session called by the Core Group pursuing the matter. The group comprised the US, the UK, Montenegro and Macedonia.

Ambassador Aryasinha responded to the draft Resolution in accordance with the Foreign Ministry stand adopted during the previous administration. The government overruled the Foreign Ministry’s objections immediately after the US, and other interested parties, brought the situation to the notice of the government. Sri Lanka accepted the so called amended draft resolution though it was essentially the same.

Obviously, the then Foreign Minister Mangala Samaraweera hadn’t been consulted and the Foreign Ministry felt confident in pursuing the same strategy. Assuming it had the backing of the new Minister, the Foreign Ministry, as well as the Geneva mission, released a comprehensive media release on the Sept 21 unsuccessful talks. The US delegation included the then US Ambassador in Geneva, Keith M. Harper, who had been a partner at the law firm of Kilpatrick Townsend & Stockton LLP, and newly appointed US Ambassador in Colombo, Atul Keshap. Keshap, who had presented his credentials to President Maithripala Sirisena exactly a month before the Geneva meet.

Let me also reproduce the relevant section pertaining to foreign judges included in the draft resolution, presented on Sept 21, 2015: "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 credible transitional justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and calls upon the government of Sri Lanka, to involve international investigators, prosecutors and judges in Sri Lanka’s justice processes."

Our giant neighbour India whose murderous policy vis a vis Sri Lanka, resulted in a bloodbath, backed the resolution. In the wake of Sri Lanka co-sponsoring Geneva Resolution 30/1 after having succumbed to Western and Indian pressure, the then India’s envoy in Geneva, Ajit Kumar, declared: "We reiterate our firm belief that the meaningful devolution of political authority, through the implementation of the 13th Amendment of the Constitution of Sri Lanka [adopted in 1987 as a sequel to an agreement between India and Sri Lanka] and building upon it would greatly help the process of national reconciliation."

One-time Foreign Secretary, Bernard Goonetilleke, has been strongly critical of the Geneva resolution. Pointing out that the draft resolution contained 24 preamble paragraphs and 26 operative paragraphs. Goonetilleke declared, "It looks like a novel to me."

The veteran career diplomat basically echoed Ambassador Ravinatha Aryasinha that sections of the current draft were counter-productive to reconciliation efforts. Although The Island has carried Aryasinha’s response to the Sept. 21, 2015 draft, the writer felt the need to reproduce the relevant comment against the backdrop of Marapana’s interpretation of the recommendation regarding foreign participation in the ongoing process.

Ambassador Aryasinha said: "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, judgemental 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.

"Further, given that both the HCHR’s report (A/HRC/30/61) and the Report on the OHCHR investigation on Sri Lanka (OISL) (A/HRC/30/SRP.2) recognizes that the report represents a ‘human rights investigation’ and not a ‘criminal investigation’, emphasizing excessively on the criminal justice aspects, makes the resolution imbalanced. It would be more helpful to have a holistic approach when making recommendations in this resolution on promoting reconciliation in Sri Lanka.

"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."

The writer raised the issue of foreign judges with Marapana in the presence of Sri Lanka’s former Ambassador in Washington Prasad Kariyawasam who had been present when the Tamil National Alliance (TNA) MP M.A. Sumanthiran declared agreement on foreign judges.

The Island received a statement from TNA Leader R. Sampanthan’s Office in mid June 2016 requesting coverage. The lengthy statement dealt with representations made by attorney-at-law Sumanthiran in respect of international involvement in the accountability process.

Declaring that the Geneva Resolution had been adopted on Oct 1, 2015, following tripartite negotiations involving the Sri Lankan government, the US and the TNA, MP Sumanthiran declared that they had agreed for a hybrid court with foreign judges, prosecutors, defence attorneys and investigators.

The TNA, in a statement, issued on June 16, 2016, quoted MP Sumanthiran as having told the congressional hearing: "I was personally involved in the negotiations, with the United States of America also participating in that particular process. 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 and that is how that phraseology was agreed upon. And so, to us having negotiated and compromised and agreed that there would be a hybrid tribunal to try these mass atrocities, it is not open for the government now to shift its stance and say "well, international involvement yes, but it’s in a different form, now...’. That is not acceptable to us all."

Strangely, the Rajapaksa administration never made an attempt to inquire into the conduct of the TNA during the war and the period Norway-managed Ceasefire Agreement (CFA) was in operation. Having recognized the LTTE in late 2001 as the sole representative of Tamils and worked closely with the LTTE throughout the war, the TNA emerged unscathed in the wake of Sri Lanka’s triumph over terrorism.

The TNA-LTTE relationship, partnership or whatever one may use to describe the destructive alliance, is a fact even pointed out by the European Union, way back in June 2004. Unfortunately, the government, the Election Commissioner and foreign-funded election monitoring bodies never took up the issue.

The EU blamed the TNA for securing the lion’s share of the electoral seats in the northern and eastern districts with the backing of the LTTE. The EU directly blamed the LTTE for unleashing violence on candidates challenging those who had been fielded by the LTTE. Successive governments never bothered at least to comment on the EU report. Shame on spineless and useless politicians and the Election Commissioner who failed to act on the EU report.

They did nothing when the TNA on behalf of the LTTE ordered Tamils not to exercise their franchise at the Nov. 17, 2005 presidential polls. The LTTE-TNA move was meant to deprive UNP candidate Ranil Wickremesinghe of certain victory at the presidential poll, help UPFA candidate Malinda Rajapaksa to win to set the stage for an all out war. It was to be their final war. Those who claim that Rajapaksa bribed the LTTE to ban Tamil voting for presidential candidates should ask TNA chief and the Opposition Leader Sampanthan, MP, whether he was aware of the clandestine transaction.

Rajapaksa managed to beat Wickremesinghe by less than 200,000 votes.

Whatever Sampanthan may say, wouldn’t those wanting Sri Lanka to address accountability issues wanted to know whether the LTTE had accepted money to deprive Wickremesinghe of certain victory, how it created the environment for its own battle-field destruction a couple of years later, the TNA was party to the alleged Rajapaksa-LTTE deal and most importantly Western powers knew of the grand strategy.

These issues should be examined thoroughly with the TNA decision to back war-winning Army Chief Gen. Sarath Fonseka’s candidature at the January 26, 2010 presidential polls. A decision made following US intervention about which Sri Lanka never had knowledge until whistle-blowing Wikileaks revealed the US Embassy role in forming the UNP-TNA-JVP alliance.

In spite of alleging Fonseka’s Army of mass murder and rape, the TNA voted for General Fonseka. Its political rivals never bothered to ask the TNA whether its decision meant it no longer pursued war crimes allegations against the military. Although, that operation failed, almost a similar coalition project ensured wartime SLFP General Secretary Maithripala Sirisena’s resounding victory over Rajapaksa at the January 2015 poll. Since then, US funding for 2014-2015 project had been revealed. The 2015 project thwarted Rajapaksa’s attempt to secure a third presidential term at the expense of democracy here. Whatever the crises today due to waste, corruption, mismanagement and directionless yahapalana administration, prevention of another six-year term for the war-winning president should be applauded. That certainly brought relief to the people. Unfortunately, the UNP couldn’t refrain from perpetrating Central Bank-Perpetual Treasuries bond scam in Feb 2015 and President Sirisena acted too late and allowed far a bigger March 2016 scam to take place. Had that not happened, the Joint Opposition wouldn’t be in existence today. Don’t forget, bonds scams of Feb 2015 and March 2016 were CERTAINLY not the only fraudulent transactions perpetrated since the change of government.