DHARSHAN WEERASEKERA

A Parliamentary ‘debate’ on the OHCHR report and the related resolution is scheduled for the 22^nd and 23^rd of October, if I’m not mistaken.  All indications are that the Government will trounce the opposition by branding them ‘extremists.’  (By ‘opposition’ what I mean are those who see the OHCHR report as inimical to Sri Lanka’s interests, and want to resist the related recommendation for a ‘Domestic Mechanism.’)

The opposition, meanwhile, seems to lack a coherent and focused plan of action.  Their strategy appears to consist mainly of various efforts at informing the public that the predicament Sri Lanka faces at present is really bad (i.e. similar to 1815 or worse) which is all true, but hardly useful if what one wants is a practical way to address the said predicament.

In my view, the Government is actually in a very vulnerable position with respect to the OHCHR report and the related issues.  In this article, I shall briefly describe the conundrum that I think the Government is facing at present, and a possible strategy that the opposition can deploy to resist the establishment of a ‘Domestic Mechanism,’ or at any rate to buy some time until a better plan can be devised.

The Government’s Conundrum

The Government’s conundrum with respect to the OHCHR report is that, though the latter was released to the public on the 16^th of September, to this day there has been no analysis or assessment of the report undertaken by the Government, an NGO, ‘think tank,’ academic institution, or even a newspaper.  Under the circumstances, the Government has two options during the ‘debate’ in Parliament, where it will have to go on record with its stance on the report.

First, the Government can say it accepts conclusions of the report without reservation.  But, in that case, if it is found later (after the required analysis) that the report is a highly compromised document—i.e. full of contradictions, obfuscations and even outright lies—the politicos who endorsed the report along with their legal advisors would be liable among other things for dereliction of duty and  incompetence.

It should be noted that, the ‘Public Trust Doctrine’ is well-established in Sri Lankan Constitutional jurisprudence.  The ‘Public Trust Doctrine’ says that public officials hold power—and this obviously includes control over the resources and long-term interests of the State—in trust for the people, and if they violate that trust they can be held accountable.

Second, the Government can avoid giving a clear answer to the question as to whether it accepts the conclusions of the OHCHR report without reservation, and instead use its majority in Parliament to push through the required enabling legislation for the ‘Domestic Mechanism.’

I am aware that there is a faction even within the nationalist/patriotic forces generally opposed to the OHCHR report as well as the related resolution, that is in favour of a ‘Domestic Mechanism,’ under the reasoning that, if we had such a mechanism, we can ‘tell our side of the story.’

Perhaps what gives the aforesaid faction hope is that some of the charges leveled against the Government, such as indiscriminate shelling of civilians and denial of humanitarian assistance to civilians, can be rebutted easily by citing publicly available facts, including from the records of various UN agencies, ICRC, and so on.

In my view, the flaw in the reasoning of the aforesaid faction is that they presume that the domestic mechanism, once operational, will pursue all of the OHCHR’s charges.  But, what if it focuses on just a few of the charges, such as, say, ‘Unlawful killings’—i.e. incidents such as the purported killing of LTTE political wing leaders Nadesan and Puleedevan, the purported killings of Isaipriya, the LTTE ‘media-personality’ and so on?

According to the OHCHR, the allegations regarding ‘Unlawful killings’ are based on the testimony of certain witnesses, plus video and photographic evidence, much of it uncorroborated.  With the necessary changes to the Criminal Procedure Code and the Evidence Ordinance, it would be possible to allow for the use of this type of evidence.

If the Government makes the aforesaid changes to the Criminal Procedure Code and the Evidence Ordinance, and if the proposed ‘Domestic Mechanism’ is a self-sustained unit, that is, it has a judicial element, a prosecutorial element, and even a defence element, and there is no provision for appeal to the normal domestic courts of the country, our soldiers and commanders who have to face such a mechanism will be trapped.

It has been reported that the Government is fully committed to defending the soldiers and commanders who will be brought before the ‘Domestic Mechanism,’ and has even pledged to hire defense attorneys for them.  (See, for instance, ‘Govnt will hire lawyers and pay legal costs to defend military personnel charged with war crimes,’ Sunday Times, www.dbsjeyaraj.com, 10 October 2015)

The above is obviously a nice gesture, but, once the rules of procedure and of evidence are rigged, the outcome of each case is predetermined.  They’ll all end with the inevitable verdict of ‘Guilty!’  No defense attorney will be able to change that.

To turn to the matter of immediate concern, as I mentioned earlier, it is quite possible that the Government, using its majority in Parliament, will push through the necessary enabling legislation and establish the ‘Domestic Mechanism.’ My point, however, is that though the Government may do this, it can backfire on the Government in a very serious way, as follows.

Let us suppose, for a moment, that the Government passes the required enabling legislation and establishes the ‘Domestic Mechanism,’ and, as I anticipate, certain members of our armed forces along with the political and civilian leaders who were at the forefront of the war against the LTTE are tried, convicted and punished.

The present government, like all governments, will fall some day:  that is a law of history.  (If I may borrow a phrase from the great historian Edward Gibbon, from a slightly different context:  ‘The grave is ever beside the throne.’)

Once the politicos who make up the present government are out of power, they may be able to wriggle out of a lot of things, but if they voted ‘yes’ on a vote in parliament, which in turn led to measures that caused irreparable harm to members of the armed forces and popular civilian leaders, and perhaps also the country as a whole, it is something they will not be able to wriggle out of so easily.

It would be possible for a future government to make the necessary changes in the law to apprehend, try and punish the persons whose undeniable act led to the aforesaid consequences to members of the armed forces, to popular civilian leaders, and perhaps the country as well.

No politico will risk something like the above, especially if they knew they could provide themselves with an insurance policy, namely, an argument to show that they took rudimentary precautions to evaluate the claims of the OHCHR report, and also to give the people a chance to read the report, before taking any steps that could lead to long-term harm to the country.

Strategy for the opposition

On account of the matters discussed herein-before, I believe the strategy for the opposition should include the following three elements:

1. A demand that no decision be taken with regard to the ‘Domestic Mechanism’ until the people of Sri Lanka have had a chance to read and reflect on the OHCHR report, and to that end, demand that an official translation of that report into Sinhalese be provided to members of the public, since the majority of the population of the country speak Sinhalese. (For purposes of political correctness, let us say a Tamil translation ought to also be provided.)  The point is that, a separate vote should be taken on the issue of providing the translations, so that the names of the politicos who voted ‘yes’ or ‘no’ on the measure are clearly on record.

2. A demand that no decision be taken with regard to the ‘Domestic Mechanism’ until the Government commissions an independent and credible assessment of the OHCHR report, with respect to whether the various conclusions in the report follow from its evidence. Again, a separate vote should be taken on the issue of commissioning such an assessment, so that the names of the persons who voted ‘yes’ or ‘no’ are on record.

3. Simultaneously to the above two steps, civil society organizations working with the opposition or independently should file petitions at the Human Rights Commission and also the Supreme Court, complaining of the Government’s failure thus far to provide a Sinhalese translation of the OHCHR report, which is a violation among other things of their fundamental right to equality and also to freedom of thought and conscience. (In order to think about relevant issues, one needs the relevant information, and it goes without saying that the lack of a Sinhalese translation of the OHCHR report must obviously hamper a Sinhalese-speaker’s ability to think about the contents of that report.)

Dharshan Weerasekera is an Attorney-at-Law.  He is the author of two books:  The UN’s Relentless Pursuit of Sri Lanka (2013), and The UN’s Subversion of International Law:  The Sri Lanka Story (2015)