...set up hybrid war crimes court or face int’l inquiry
SPECIAL REPORT : Part 263
By Shamindra Ferdinando
Jaffna District lawmaker Mathiaparanan Abraham Sumanthiran, PC, last Friday (March 22) delivered in parliament his hardest speech in his decade-long parliamentary career.
Inuvil-born Sumanthiran warned the President Maithripala Sirisena-Prime Minister Ranil Wickremesinghe led administration that Sri Lanka faced an exclusive international war crimes probe unless they fully implemented the Oct 01, 2015, Geneva Resolution which called for the setting up of a hybrid court.
Sumanthiran revealed that an agreement on foreign judges, defense lawyers, prosecutors and lawyers in a local judicial mechanism was cleared by the then Yahapalana Justice Minister Dr. Wijeyadasa Rajapakse, PC, before Sri Lanka co-sponsored the resolution. According to Sumanthiran, Wijeyadasa Rajapakse had been with him, at a meeting in Geneva, when the agreement was reached.
Sumanthiran warned that the International Criminal Court (ICC) would be moved against Sri Lanka unless the government implemented what it promised in writing not once but thrice since 2015. The toughening of the TNA’s stand should be studied against the backdrop of former Northern Province Chief Minister C V Wigneswaran’s political challenge as well as weakening of its northern base at the Feb 2018 Local Government polls.
Top constitutional lawyer Manohara de Silva strongly challenged Sumanthiran’s assertion at a meeting chaired by SLPP presidential candidate Gotabaya Rajapaksa last Saturday (March 23) at Kotikawatte. Manohara declared there was no basis for Sumanthiran’s position on foreign judges.
No one should find fault with the TNA MP for speaking the truth. Sumanthiran is quite right in demanding what the UNP-SLFP yahapalana administration owed the Illankai Thamil Arasu Kadchi (ITAK) led grouping. The TNA comprised, in addition to the ITAK, three former Indian backed terrorist groups, namely the PLOTE (People’s Liberation Organization of Tamil Eelam), TELO (Tamil Eelam Liberation Organization) and EPRLF (Eelam People’s Revolutionary Liberation Organization).
The TNA revealed the existence of a tripartite agreement involving the government, the US and the grouping in June 2016. Sumanthiran comprehensively dealt with the issue at hand in a statement he delivered on behalf of the party at a ‘Congressional Caucus for Ethnic and Religious Freedom in Sri Lanka’ in Washington. In fact, the then Office of the Opposition Leader R. Sampanthan requested the writer to give coverage to Sumanthiran’s statement.
Sumanthiran made the statement in the presence of Sri Lanka’s Ambassador in Washington Prasad Kariyawasam.
Wijeyadasa’s role revealed
The event was moderated by Sadhanand Dhume of the American Enterprise Institute, a Washington-based think tank. The Caucus is an initiative launched by the United States Congressmen Bill Johnson of Ohio and Danny Davis of Illinois, in November, 2013.
Attorney-at-law Sumanthiran stressed that the Oct 01, 2015, 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 in Geneva, had been negotiated and they settled for a hybrid model, though they originally asked for an international inquiry.
Now, Sumanthiran has revealed the role played by Wijeyadasa Rajapakse in the whole Geneva affair. Rajapakse owes an explanation to the public without delay.
He lost his ministerial portfolio, in August 2017 when the UNP compelled President Sirisena to remove Rajapakse following his strong criticism of the government’s controversial 99-year-old deal with China on the Hambantota port. Since then, Rajapakse backed President Sirisena on a number of issues, including simmering controversy over the Constitutional Council. An original member of the CC, Rajapakse represented the apex body at the time he gave nod to foreign judges in a domestic mechanism. Subsequently, Rajapakse quit the CC. Having previously been an SLFPer, Rajapakse switched his allegiance to the UNP, in 2007, following a dispute with the Rajapaksas.
The Global Tamil Forum (GTF) spokesperson, Suren Surendiran, told the writer, at the time 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 emphasized.
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 the resolution of the national issue.
Both MP Sumanthiran and Surendiran emphasized that they expected the full implementation of the UNHRC resolution. The TNA and the GTF work closely in respect of political and related matters. The writer had opportunities to meet Surendiran, in Geneva, during the previous administration and in March 2015 in London, soon after a top GTF delegation met President Sirisena and the then Foreign Minister Mangala Samaraweera. Surendiran was accompanied by GTF President Rev Father Emmanuel and they were quite clear about the contentious issue of accountability.
Now, back to Sumanthiran’s presentation before the ‘Congressional Caucus for Ethnic and Religious Freedom in Sri Lanka.’
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.
Parliament neglects its
Therefore political parties represented in parliament should not pretend that they hadn’t been aware of the controversial agreement. The TNA can never be accused of working out a secret agreement. The TNA, not only declared its position in Washington in the presence of Colombo’s top envoy there in June 2016, it fully briefed the electorate by issuing the entire statement. The public should appreciate the TNA handling of the issue as the grouping hadn’t tried to deceive anyone. Unfortunately, can the same be said about the then UNP-SLFP government and the Joint Opposition (JO) group in parliament?
Neither the government, nor the JO, ever raised Sumanthiran’s Washington statement in or out of parliament. Both the government and the JO were determined not to take it up.
The Sectoral Oversight Committee in parliament, never bothered to examine the post-war accountability process. Recently, the writer raised the failure on the part of the JO to take up the matter at least after Lord Naseby’s disclosure in the House of Lords on Oct 12, 2017. The highly respected British politician, on the basis of wartime British High Commission dispatches from Colombo, successfully countered the primary UN war crimes allegation as regards the massacre of 40,000 civilians on the Vanni east front in the last phase of the war.
Sri Lanka brought the war to a successful conclusion on the morning of May 19, 2009.
Since the releasing of the UNSG appointed Panel of Experts’ report in March 2011, Sri Lanka had been under tremendous pressure to be hauled up before an international war crimes probe regardless of strong opposition by the previous Rajapaksa administration. Western powers moved resolutions at the Geneva-based UNHRC thrice in 2012, 2013 and 2014. In the run-up to the 2015 presidential election, Western powers and India threw their weight behind a high profile project to bring the Rajapaksa rule to an end. The TNA played a pivotal role in the campaign to oust the Rajapaksas and was rewarded with an agreement on controversial accountability mechanism and other mechanisms. Maithripala Sirisena’s candidature received the crucial backing of the TNA in return for a comprehensive agreement on war crimes probe.
The Oct 2015 agreement, finalized in Geneva, in spite of strong opposition by the then Sri Lanka’s Permanent Representative in Geneva Ambassador Ravinatha Aryasinha, must be examined, keeping in mind consensus among the UNP-JVP and the TNA at the last presidential election. The government simply overruled Ambassador Aryasinha’s concerns and he was instructed to go ahead with the Oct. 2015 agreement.
The writer, on several occasions, raised this issue though those calling for war crimes probe never dared to discuss the TNA role at the 2005 Nov, 2010 January and 2015 January presidential polls. At the time of the 2005 presidential poll, the TNA functioned as the political arm of the LTTE. In fact since Oct 2001, the TNA had been part of the LTTE. Having declared the LTTE as the sole representative of the Tamils, in late 2001, the grouping stood by the LTTE throughout the war until Prabhakaran was killed on the banks of the Nanthikadal lagoon.
Lawmaker Sumanthiran has reminded the parliament in no uncertain terms that the TNA expected Sri Lanka to meet its obligations in terms of the Oct 2015 Geneva Resolution. Sumanthiran pointed out that in resolution 40/1 that was adopted last Thursday (March 21), a time bound implementation has been brought in for the first time because the Sri Lankan government delayed the implementation of the promises made in the original resolution.
Sumanthiran entered parliament in April 2010 on the TNA National List. The attorney-at-law played quite an important role in his first term. Sumanthiran always represented the TNA in talks with its international partners and received the due respect as a skilled negotiator. He successfully contested the Jaffna electoral district at the August 2015 general election. The lawyer was among 14 members elected to parliament from the TNA. In addition to them, the TNA received two National List slots. Sumanthiran stunned Sri Lanka last Friday by declaring their intention to drag the country before the ICC.
Sumanthiran simply dismissed Foreign Minister Marapana’s statement in Geneva last Wednesday as being irrelevant and deceiving as far as the Geneva agreement was concerned. The TNA spokesman reminded parliament that the Geneva resolution should be fully implemented, in its original form, and there was absolutely no room for amendments. Recent declarations made by Leader of the House Lakshman Kiriella in parliament as regards the Geneva resolution should be examined against the backdrop of Sumanthiran’s bombshell. Kiriella went to the extent of claiming that the latest Geneva resolution was favourable to Sri Lanka. Sumanthiran has proved him wrong.
It would be pertinent to ask the Foreign Ministry whether it has at least briefed the cabinet of ministers and the parliament with regard to the Geneva resolution and related matters. Since the January 2015 change of government, the foreign ministry portfolio was held by Mangala Samaraweera (January 2015 to May 2017), Ravi Karunanayake (May 2017 to August 2018), Tilak Marapana (August 2017 to Oct 2018), Dr. Sarath Amunugama (Oct 2018-Dec 2018) and again Marapana took over in Dec 2018.
Obviously, the TNA plays its cards well. However, the ITAK-led grouping cannot take things for granted. The UNP and the TNA depend on each other. Can the TNA afford to abstain or vote against the final vote on Mangala Samaraweera’s budget 2019 on April 05, 2019? The TNA voted with the UNP on March 12, 2019, when the vote on the second reading of budget was taken. The TNA steadfastly stood by the UNP, both in and outside parliament during turbulent past four years. The TNA conveniently neglected its responsibilities throughout this period by not giving the leadership to the campaign against the treasury bond scams perpetrated in Feb 2015 and March 2016. Sumanthiran, who heads the Committee on Public Finance, the highest parliamentary body overseeing the subject, had no qualms representing an interdicted Central Bank employee, Sangarapillai Pathumanapan, investigated by the CID in connection with the concluded Presidential Commission of Inquiry into alleged bond scams. The writer was present at the Bond Commission when Senior Additional Solicitor General (SASG) Dappula de Livera strongly objected to Sumanthiran appearing for Pathumanapan. MP Sumanthiran bluntly told the commission that it didn’t have a mandate to look into matters of ethical conduct of attorneys. The commission overruled SASG De Livera’s objections on the basis of Sumanthiran’s defence. This transpired in Nov 2017, over a month before the commission handed over its report to President Sirisena.
According to a CID report, obtained by ‘The Island’, there had been 703 viber calls, 61 telephone calls, two SMS and two WhatsApp messages between Pathhumanapan and Arjun Aloysius alone. Aloysius had used one device whereas Pathumanapan used four devices and among his contacts was Aloysius’ wife, Anjali, daughter of the then Governor Mahendran.
The TNA never pressed parliament for much delayed debate on treasury bond scam report. It voted against the No Confidence Motion (NCM) moved by the JO in April 2018 against Premier Wickremesinghe over his alleged complicity in the treasury bond scams and also the failure on his part to quell the Digana ethnic violence.
During the Oct-Dec 2018 constitutional coup, the TNA stood by the JVP. The TNA joined the UNP and the JVP in moving the Supreme Court against Nov 09, 2018 dissolution of parliament. Their joint operation succeeded in restoring the Wickremesinghe administration. Although, the TNA refused to join the government, it ensured continuity of the UNP administration. The TNA saved the government at the vote on the second reading of the budget on March 12, 2019. Can the TNA abandon the UNP at the final vote next week?
The TNA has no option but to ensure the continuity of the present government. The Sampanthan-Sumanthiran duo and their associates are not likely to disrupt the ongoing new constitution making process and further progress on Geneva by defeating the UNP. A defeat on a financial Bill will pave the way for early general election though the 19th Amendment to the Constitution enacted in late April 2015 prohibited the dissolution of parliament by the President until the parliament completed four and half years of its five year term.
It would be a failing on the writer’s part if Marapana response to his query as regards the accountability issue on the day he took over the Foreign Ministry is not discussed. Having quit the law and order portfolio in Nov 2015 over severe criticism of his defence of controversial international business enterprise Avant Garde Maritime Services (AGMS), Marapana returned to the cabinet as the Foreign Minister. Marapana succeeded UNP Assistant Leader Ravi Karunanayake, who had to leave the cabinet in the wake of shocking revelations in the Bond Commission as regards his relationship with Aloysius. The then Foreign Secretary Prasad Kariyawam stood by Marapana as the writer sought an explanation as regards the inclusion of foreign judges in a domestic mechanism. The minister was told of Sumanthiran’s Washington statement made in Kariyawasam’s presence. One time Attorney General declared that the 1978 Constitution wouldn’t permit inclusion of foreign judges in the proposed domestic Judicial Mechanism under any circumstances.
Now, President’s Counsel Sumanthiran, in parliament, has challenged the Foreign Minister’s stand. At the time of Sumanthiran’s bombshell, Marapana and Dr. Amunugama, the two lawmakers who represented Sri Lanka at the just concluded Geneva sessions were not in parliament.
The parliament should fully review the Geneva issue. The writer is of the view that foreign judges and other personnel could help Sri Lanka to finally settle the matter.
It would be pertinent to mention that a Consultation Task Force on Reconciliation Mechanisms (CTFRM), headed by attorney-at-law Manori Muttetuwegama, in the first week of January 2017, recommended that the proposed judicial mechanism to try cases of war crimes have at least one foreign judge in every bench. But, the CTFRM made it a point to stress that the majority of the judges should be Sri Lankan.
The CTFRM made the announcement at the Information Department after handing over a copy of the report to former President Chandrika Bandaranaike Kumaratunga. The CTFRM released the report on the eve of the third anniversary of President Maithripala Sirisena’s victory over his predecessor Mahinda Rajapaksa.
The CTFRM consisted of Manouri 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. Among the CTFRM members are some prominent civil society activists, including literally translator Gamini Viyangoda and attorney-at-law Janaranjana, key speakers at events organized by Purawesi Balaya, a leading civil society grouping.
Another leading civil society activist, attorney-at-law, J.C. Weliamuna declared that foreign participation in the proposed war crimes court, in Oct. 2015, in the wake of Sri Lanka co-sponsoring original Geneva resolution was a must.
Weliamuna said that Parliament would have to make the required amendments to pave the way for international participation in the process. However, MP Sumanthiran did not mention the requirement of amendments to allow foreign judges in his last Friday’s speech in parliament.
The Information Department organized the briefing by Weliamuna in collaboration with the state-run Rupavahini.
Then Deputy Foreign Minister, Dr Harsha de Silva was by the side of Weliamuna at the briefing.
Weliamuna insisted that Sri Lanka needed foreign expertise to meet the challenging task of inquiring into accountability issues. Post-war Sri Lanka required international expertise though some extremists sought to cause chaos. Quoting from a UN report that dealt with Sri Lanka, Weliamuna said that the local judiciary lacked the capacity to investigate system crimes.
Let there be foreign judges and other personnel in a local judicial mechanism subjected to all available information including Naseby’s disclosure in Oct 2017 and Lt. Col. Lawrence Smith is June 2011 assertion in Colombo be scrutinized along with the still confidential UN report on the Vanni which dealt with the situation there between Aug 2008 and May 13, 2009.