By Senaka Weeraratna

In calling for accountability for alleged war crimes on the part of Sri Lankan military personnel in the closing phase of operations against LTTE terrorism which were combined with humanitarian rescue of thousands of civilians trapped in LTTE controlled areas, India has opened a PandoraƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ s Box. ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ 

It is unlikely that any investigation of alleged war crimes can be confined only to a particular period of time lying at the end of a continuum of hostilities covering a period of a nearly thirty years. ƒÆ’-¡ƒ”š‚ 

Sri LankaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Constitution does not permit it.

In Chapter III of the Constitution which guarantees Fundamental Rights, Article 12 places a heavy emphasis on the right to equality before the law. Sub ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” Article 12(1) stipulates that ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”All persons are equal before the law and are entitled to the equal protection of the lawƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢.

If the law were to provide a mechanism say only for victims (or relatives of victims ) of alleged war crimes committed in May 2009 to gain relief either through punishment of the alleged perpetrators or payment of reparations or both, and deny a mechanism say to victims (or relatives of victims ) of alleged war crimes committed by members of a foreign peace keeping force during the period from 1987 ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” 1990, to gain relief through the law, in a context where both local and foreign armies fought against a common foe i.e. LTTE, then such a course of action of arbitrary selection of personnel for investigation and indictment and thereby denying the victims equal access to law, would clearly be in breach of Article 12 of the Constitution.

It would tantamount to a mockery of Justice if the investigation of War crimes is selectively compartmentalized focusing only on one group to the exclusion of another group when both armies ( local and foreign ) were locked in combat against a mutual enemy though at different periods of time but nevertheless within a contemporary time frame. ƒÆ’-¡ƒ”š‚ 

The implications of Liyanage v Queen (1965) case

PRIVY COUNCIL APPEAL No. 23 OP 1965 Trial-at-Bar No. 2 of 1962

This case involved the among other things the discussion of the Validity of criminal legislation passed ad hominem and ex post facto, and the Competence of Parliament to pass laws which offend against fundamental principles of justice

The eleven appellants, who were tried with thirteen other persons, were each convicted of three offences in respect of an abortive coup dƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ etat which occurred on 27th January 1962. They were convicted and sentenced under section 115 of the Penal Code (as amended by section 6 of the Criminal Law (Special Pro-visions) Act No. 1 of 1962) for conspiring (1) to wage war against the Queen, (2) to overthrow by means of criminal force or the show of criminal force the Government of Ceylon, and (3) to overthrow otherwise than by lawful means the Government of Ceylon by law established. They were not tried by a judge and jury in accordance with the normal criminal procedure, but by three judges of the Supreme Court sitting without a jury.

It was submitted on behalf of all the appellants that, whatever were the details of fact or evidence, their convictions must be quashed owing to the invalidity of certain legislation in 1962 passed especially in order to deal with those who partook in the coup and affecting their arrest, detention and interrogation before trial, the mode of their trial, the offences alleged against them, the admissibility of evidence and the sentences. It was common ground that, if this legislation was invalid, the convictions could not be sustained.

The legislation consisted of two statutes, viz., the Criminal Law (Special Provisions) Act No. 1 of 1962 and the Criminal Law Act No. 31 of 1982 which amended the former Act in certain respects. The Acts referred mainly to the trial and punishment of the defendants only. Section 21 of the former Act provided that, save and except Part I and Section 17, the provisions of the Act “shall cease to be operative after the conclusion of all legal proceedings connected with or incidental to any offence against the State committed on or about 27th January 1962 . .ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢

The first contention for the appellants was that the two Acts were contrary to fundamental principles of justice in that they not only were directed against individuals but also ex post facto created crimes and punishments and destroyed their safeguards by which those individuals would otherwise have been protected. It was argued that inasmuch as the Constitution of Ceylon was laid down by an Order in Council of the Crown and not by an Act of Parliament of the United Kingdom, the Parliament of Ceylon had no power, by virtue of the judgment in. Campbell v. Hall (98 E. B. 1045), to pass laws which were contrary to fundamental principles.

A second contention wag that the Acts offended against the Constitution in that they amounted to a direction to convict the appellants or to a legislative plan to secure the conviction and severe punishment of the appellants and thus constituted an unjustifiable assumption of judicial power by the legislature, or an interference with judicial power, which was outside the legislature’s competence and was inconsistent with the severance of power between legislature, executive, and judiciary which the Constitution ordains.

The Privy Council held that the impugned Acts were ultra vires and invalid in so far as they constituted a grave and deliberate interference with the judicial power of the judicature. Although criminal legislation which can be described as ad hominem and ex post facto may not always amount to an interference with the functions of the judiciary, in the present case there was no doubt that there was such interference that it was not only the likely but the intended effect of the impugned enactments. Such usurpation or infringement of the judicial power was contrary to the Constitution and, to that extent, fatal to the validity of the Acts.

Conclusion

The Privy Council is no longer a part of the Court System of Sri Lanka. Nevertheless its ruling that criminal legislation directed against a particular group of people and enactment of retrospective legislation with a view to secure punishment against a defined group of people may have some resonance if the witch hunt directed from overseas by powerful countries against Sri Lanka were to result under coercion in new legislation leading to creation of new offences i.e. war crimes, and special trials and new punishments. ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚