DHARSHAN WEERASEKERA

This article is a follow-up to my previous article of the same title published in Lankaweb on 17^th October 2015. The Government’s present plan seems to be, soon after the ‘Debate’ on the OHCHR report, to push through enabling legislation for a Domestic Mechanism,’ and to do so by a simple majority in Parliament.

If the Government gets to push through the aforesaid legislation by a simple majority, Sri Lanka as a country is finished. At the very least, the opposition—i.e. those who for one reason or another oppose a ‘Domestic Mechanism—have to force a 2/3 majority vote, or a referendum, before any such legislation is passed.

Members of the public and other concerned parties should begin now itself to prepare the arguments to accomplish the above two tasks. In this article, I present two arguments (by no means exhaustive) that could help force a 2/3 majority vote, or a referendum, in case enabling legislation for a ‘Domestic Mechanism’ is tabled in Parliament.

2/3 Majority

The basic argument here is that, the ‘Domestic Mechanism,’ whatever final form it takes, will in essence create a separate procedure for trying members of the armed forces for offences which, if committed by an ordinary citizen, would be tried in the normal courts, and this violates among other things Article 12 of the Constitution.

Former Chief Justice Sarath N. Silva has discussed the above matter in an interview given to the Sunday Island. I shall quote him at length here, because his remarks are highly pertinent. This is what he says:

‘Under Article 12 of the Constitution the law should apply equally to everybody. For any criminal offence, there has to be a uniform procedure. You can’t single out our soldiers and those who directed the war and say that they are subject to a different procedure. According to Article 12 of our Constitution you can’t have two parallel legal systems.

 Article 12 of our Constitution accords with the Universal Declaration of Human Rights which places emphasis on equality before the law. If there is a case involving torture it has to go before a high court. You can’t say that in order to fulfill our international obligations these have to be referred to a separate court. Torture is an offence under the law. You can’t say that torture related offences committed by the Sri Lanka army should be taken before a special court while a torture related offence committed by a policeman or a non-military person is taken before the high court.

 If a person has been shot and killed, that is murder. A person who has committed murder has to go before the normal courts. A soldier accused of murder cannot be referred to another court while others who commit the same offence are referred to the ordinary courts system. That will be a totally irrational classification.’ (Sri Lanka in legal quagmire after UNHRC resolution, Sunday Island, 11 October 2015)

So, my argument is this. Since the ‘Domestic Mechanism’ involves setting up a special court in some form or another, any legislation authorizing such a court will invariably be inconsistent with the Constitution (i.e. Article 12 in this case). Therefore, members of the public can challenge such legislation before the Supreme Court, and ask the court to rule that a 2/3 majority should be required before passing the said legislation.

Referendum

My argument here is that, a Domestic Mechanism,’ if it involves a special court that includes foreign judges, invariably compromises the sovereignty of Sri Lanka, which in turn means that enabling legislation intended to authorize such a court will clash with Article 3 of the Constitution. Bills that clash with Article 3 of the Constitution automatically require a referendum in order to be passed.

It may be pointed out that, Article 4(c) of the Constitution gives Parliament the power to establish courts and tribunals. I concede that Article 4 does give Parliament the aforesaid power, but, in my view, that power cannot be interpreted as extending to cover the creation of courts and tribunals that compromise the sovereignty of the country.

Parliament draws all its power ultimately from the Constitution, and the basis for the Constitution is ultimately the sovereignty of the country, since, without that sovereignty being intact, there would be no country, or at any rate no country that a free people have a hand in governing.

For someone to say that Parliament, exercising its power under Article 4, can establish courts and tribunals that can compromise the sovereignty of the country is to say that Parliament has the power, at its will, to surrender the sovereignty of the country, which is an absurdity.

It is a fundamental legal maxim that: ‘He who has not, cannot give’ (Nemo dat qui non habet). Parliament is not the owner of the sovereignty of the country: that owner is the People. Article 3 clearly states that the sovereignty of the country is in the People, and inalienable. Therefore, if sovereignty is to be surrendered it can only be done by the People, which is to say the People have to be asked first. And that means a referendum.

Only one question remains: ‘How can it be said with certainty that the special court under the ‘Domestic Mechanism’ will invariably compromise the sovereignty of the country?’

The best way to answer the above question is to ask: ‘What is the appeals process in the proposed court?’ Under the law as it stands at present, the Supreme Court is the highest court in the land, and a person found guilty or whose interests have been adversely affected by the ruling of any lower court can appeal as far as the Supreme Court.

In addition, the Supreme Court, using its inherent jurisdiction, can call for the record of any case in the lower courts, in order to redress any grave injustice, if the court considers that such as happened with respect to the case in question.

The hallmark of the sovereignty of any country is that its apex court, as aforesaid, has the power and jurisdiction to hear and dispose of all matters that pertain to the rights and interests of its citizens, and is subservient to no other judicial institution, nor prevented from looking into the records of any other institution adjudicating on the rights and interests of the same citizens.

To turn to the proposed ‘Domestic Mechanism,’ the High Commissioner has made it clear that the reason for a ‘hybrid court’ (for some reason the Government appears reluctant to use the word ‘hybrid’) is the lack of expertise of the local judiciary to handle the types of crimes mentioned in his report, and also the lack of ‘independence and impartiality’ of the said judiciary. (See the High Commissioner’s statement via video-link to the Human Rights Council on 30^th September 2015, www.ohchr.org)

If the above is the case, then the Government, whether it wants to or not, will have to satisfy the High Commissioner, and also the party that is no doubt pulling strings behind the High Commissioner, namely the United States. This means that, even though the Government may allow a limited role for the local courts in the ‘Domestic Mechanism,’ they will be completely cut-off when it comes to any appeals from said mechanism.

In short, if an accused who is found guilty by the ‘Domestic Mechanism’ wants to appeal, he will either have to face a tribunal at the Hague or some such place, or put before a tribunal in Sri Lanka, but a tribunal fully under the control of foreigners. I don’t see any way the Government can get around this. If there is a judicial process that cannot, in the final analysis, be brought under the purview of the apex court in the land, that is unquestionably and invariably a compromising of the sovereignty of the country.

Recommendations

Members of the public along with other concerned parties must be on full alert for any signs that the Government is getting ready to gazette enabling legislation for a ‘Domestic Mechanism.’ The moment such a Bill is gazetted, they should start preparing their petitions, file as soon as the Bill is placed on the Order Paper of Parliament, and fight this thing to the end.

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)