DHARSHAN WEERASEKERA

On the 30^th of September, U.N. Human Rights High Commissioner Zeid Al Hussein issued a video statement to the Human Rights Council then in session, regarding the war crimes investigation on Sri Lanka conducted by his office.  He reiterated his call for a ‘hybrid court’ to pursue the charges enumerated in the report, because in his view Sri Lanka’s domestic courts lacked the independence and impartiality to take on such a task.

In my view, the High Commissioner’s statement amounts to contempt of court.  In this article, I shall briefly explain why the High Commissioner’s statement amounts to contempt of court, and explain the ramifications of this to local politicians and pundits who might try to implement the High Commissioner’s recommendations and actually set up a ‘hybrid court.’

I argue that the only option left to the Government, if it wants to prevent wanton attacks on the honour of our courts, and also to remove the stain caused to the honour of the courts by the High Commissioner’s statement, is to immediately commission an independent and credible review of the High Commissioner’s report, to find out if in fact he has provided sufficient evidence to sustain his allegations.

Why the High Commissioner’s statement amounts to contempt of court

Contempt of court, generally speaking, is any attempt by a person to bring dishonour to the court, to bring it into disrepute, and thus to lower the esteem of the court in the eyes of the public.  It is rightly considered a most grievous offence.  In any country, the courts are the primary means through which justice is administered:  if the courts have to tolerate constant insults and attacks on their honour, the people lose faith in them, and this naturally affects their (i.e. the courts’) capacity to mete out justice.

I take as self-evident that, if a person of the stature of the U.N Human Rights High Commissioner announces on a world-stage such as the sessions of the Human Rights that the judiciary of Sri Lanka lacks independence and impartiality, it will have among other things the affect of lowering the esteem of said judiciary in the eyes of foreigners as well as Sri Lankan citizens who hear him.  So, the threshold for contempt is met.

We need to answer only two questions:  Did the High Commissioner in fact say what I allege?  If so, can he justify his statement?  Here is the relevant part of the High Commissioner’s statement:

‘I welcome the Government’s commitment, made before this Council, to investigate these violations and ensure accountability….The unfortunate reality, however, is that Sri Lanka’s criminal justice system is not currently equipped to conduct an independent and credible investigation into allegations of this breath and magnitude….This is why I have recommended the establishment of an ad hoc hybrid special court, integrating judges, prosecutors, lawyers and investigators, mandated to try notably war crimes and crimes against humanity, with its own independent investigative and prosecuting organ, defence office and witness and victims protection program.  In a highly polarized environment, such a mechanism is essential to give all Sri Lankans, especially victims, confidence in the independence and impartiality of the process.’ (Statement by UN High Commissioner for Human Rights Zeid Ra’ad Al Hussien  via videolink to the Human Rights Council, 30 September 2015, www.ohchr.org)

To paraphrase the High Commissioner’s sentiments above, according to him, a hybrid court comprising international judges, prosecutors, etc, is needed, because, if the Sri Lankan justice system (which obviously includes the judiciary) were to pursue the matters set out in his report, Sri Lankans will not be able to have confidence in the independence and impartiality of the process.

A part of the High Commissioner’s argument seems to be that the Sri Lankan justice system (which obviously includes the judiciary) is not ‘equipped’ to pursue the types of allegations set out in his report, therefore a hybrid court is needed.  In my view, however, this part of the High Commissioner’s argument doesn’t make sense.

For instance, if the Sri Lankan justice system (which obviously includes the judiciary) is ill-equipped to handle the types of allegations the High Commissioner is leveling, why can’t they be equipped—provided with further education, training, access to the relevant research materials, and so on—which would allow them to handle the allegations in question?

Is it the High Commissioner’s contention that the Sri Lankan judiciary—with a tradition going back over 200 years, which has had in its rolls, even in recent years, judges of the caliber of C.G Weeramantry, A.R.B. Amarasinghe, H.N.G. Fernando, Mark Fernando, L.H.G. Weerasekera, G.P.S. Silva, and others, all local products if I’m not mistaken—is incapable of educating some of its members to handle the types of allegations the High Commissioner is mentioning?  The idea is ridiculous.

And, in any event, being ill-equipped to handle certain allegations goes, if at all, to the competence of the judiciary, not its independence or impartiality.  But note, in the last of the series of sentences I have quoted above, the High Commissioner is saying that a local investigation and trial will raise questions about the independence and impartiality of the process.

What does the fact that the justice system may be ill-equipped at present to handle certain allegations have to do with its independence and impartiality?  If the problem is competence, that can be remedied by supplying the requisite education, resources, and so on.  But lack of independence and impartiality goes to the very character of the judiciary.

So, what the High Commissioner is really saying is that the Sri Lanka judiciary (because of its lack of independence and impartiality) is incapable of handling the allegations mentioned in his report, even if the technical shortcomings related to competence are corrected, a grave charge indeed.  Therefore, the threshold for contempt is met.

I shall now turn to the second question:  ‘Can the High Commissioner justify his statement?’  Two issues are relevant in order to answer the question:  first, does the High Commissioner provide cogent reasons to support his contention that the Sri Lanka justice system (of which the judiciary is an integral part) lacks independence and impartiality to try the particular allegations he is leveling?

(For instance, he can’t point to general shortcomings.  No country in the world has a perfect criminal justice system.  ‘The law’s delays, the insolence of office, etc., etc,’ if I may borrow Hamlet’s words for a moment, are universal problems!  If the High Commissioner wants to say the Sri Lanka judiciary lacks independence and impartiality to try war crimes cases, he has to give cogent reasons why he questions the court’s integrity in relation to war crimes cases.  So, does he do this?)

Second, and related to the first point above, does the High Commissioner, in his report, provide sufficient and credible evidence to establish a prima facie case that the acts which he says were committed by the Government were in fact committed, evidence sufficient to persuade a court—not just a Sri Lankan court, but a court in any country—that those allegations are worth pursuing?

The first issue does not and cannot apply in the instant case because the High Commissioner admits that the Sri Lanka judiciary has never before handled the types of allegations he mentions.  Obviously, an institution cannot be subjected to wholesale condemnation for lack of independence and impartiality in handling, say, task ‘X,’ if that institution has never been given a chance to acquit itself with respect to task ‘X.’

Therefore, as matters stand, he has absolutely no grounds to impugn the independence and impartiality of the Sri Lanka justice judiciary with respect to its ability or inability to try his particular allegations.

Let’s turn to the second issue, to wit:  ‘Does the High Commissioner establish a prima facie case with respect to his allegations, sufficient to persuade a court in any country—not just Sri Lanka, but any country—that those allegations warrant being pursued any further?’  This is the problem.

When one reads the report, one discovers that the High Commissioner does not establish any case, that in fact on many of the charges, the report itself says that the investigating panel did not find enough evidence even to identify responsibilities.  The report also contains blatant lies and obfuscations that further erode its credibility.

The constraints of time don’t allow me to go into detail on the matters mentioned above, but I have published a paper titled, ‘The OHCHR investigation on Sri Lanka:  A brief Analysis,’ (www.lankaweb.com, 29 September 2015) where I have discussed some of the related matters at length, and I refer the reader to that paper.  I shall cite just one example from that paper.

One of the main charges the report levels against the Government is that it engaged in indiscriminate shelling of civilians and of hospitals.  At the very start of the chapter where this charge is discussed, however, one finds the following paragraph:

‘These incidents [i.e. purported incidents of indiscriminate shelling of civilians and of hospitals] will be examined with reference to obligations incurring on parties to the conflict to comply with the principles of distinction and proportionality and to take necessary and feasible precautionary measures to prevent, or at least minimize harm to civilians and civilian objects.  It will, however, be for an independent court to further establish the facts and circumstances of possible violations and to identify responsibilities.’ (High Commissioner’s report A/HRC/30/CRP.2, Paragraph 729)

In other words, even before presenting the evidence that purportedly shows that the Government engaged in indiscriminate shelling of civilians and hospitals, the report admits that, despite all of that evidence, its going to require an independent court to ‘further establish the facts and circumstances and to identify responsibilities.’

The persons who prepared the report must surely be aware that it is not the function of a court to establish facts or to identify responsibilities.  The function of a court is to evaluate facts placed before it, and to assign responsibilities.

So, what the report is actually saying in the passage quoted above is that, despite all of the purported evidence it proposes to present in the course of the related chapter, in the final analysis, there has to be another investigation into the same set of matters in order to come to any definitive conclusions about the matters in question, including to identify responsibilities.

If the report of the present investigation admits openly that there had to be another investigation in order to come to definitive conclusions about, say, whether or not the Government engaged in indiscriminate shelling, how can one expect a court to take up the present set of allegations for consideration, let alone allow trials to begin based on those allegations!

The above is just one example of the sort of problem one finds in the report.  My point is this:  generally speaking, the High Commissioner’s fails to establish a rudimentary case with respect to any of his allegations.  So, either the High Commissioner hasn’t read his own report, or he does not know the elementary techniques of evaluating evidence (both of which are unthinkable), or he is quite aware that his report establishes nothing.

But, in that case, he cannot reasonably justify impugning the honour of the Sri Lanka’s judiciary by suggesting that they lack the independence and impartiality to evaluate the allegations contained in such a vacuous report.  In short, he is guilty of contempt.

Consequences to the Government

Even though, as explained above, the High Commissioner may be guilty of contempt, he enjoys blanket immunity as a result of being an officer of the United Nations, so he can get away with practically anything he does.  The same, however, will not apply to local politicians and pundits if they also use the High Commissioner’s arguments.

Unfortunately, it is neither practical nor feasible to sue every local politician and pundit who, in the coming weeks and months, will advocate for a hybrid court using the High Commissioner’s arguments.

So, in all likelihood, what we can expect in the coming weeks and months is a steady barrage of attacks, insinuations and innuendoes about the ‘lack of independence and impartiality’ of the Sri Lankan justice system, which in turn purportedly justifies resort to a hybrid court.  Such a steady barrage is unhealthy for the country, and certainly for the courts.  Therefore, it is incumbent on the Government to prevent it.

There is, meanwhile, a very easy way to prevent it, namely, to submit the High Commissioner’s report to an independent and credible review, to establish, before the whole world, whether or not the High Commissioner’s allegations are worth pursuing any further.  If it is found out they are not, that should be the end of the matter.  If it is found out they are, then only must people be allowed to raise the prospect of hybrid courts.

 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)