Addressing accountability ‘properly’
by Neville Ladduwahetty
A report in The Island of October 18, 2019 titled “SL would be subjected to ‘Universal jurisdiction’ unless allegations were probed”, cites Finance Minister Mangala Samaraweera as having “warned of dire consequences unless accountability allegations leveled against Lankan military were properly investigated”.
The issue is what is meant by the statement: properly investigating accountability allegations. If Minister Samaraweera means that a proper investigation of the accountability allegations could only be achieved by a judicial mechanism as provided for in Paragraph 6 of the UNHRC Resolution 30/1cited below, it must follow that when the Minister co-sponsored the Resolution, he was either not aware of the Constitutional impediments associated with stipulations in Paragraph 6, or that despite being aware, he knowingly committed Sri Lanka to undertakings beyond its capacity to fulfill. In either case, the fact that no attempt was made to seek approval of Parliament not only for Paragraph 6 but also for the entire Resolution, amounts to a violation of the principles of separation of power on which are founded the Constitution of Sri Lanka. The consequence of this unilateral action on the part of the Executive is to violate the sovereignty of the People.
PARAGRAPH 6 of the UNHRC RESOLUTION
Paragraph 6 states:
“Welcomes the recognition by the Government of Sri Lanka that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system, notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators”.
The statement made by Foreign Minister Tilak Marapana at the 37th Session of the Human Rights Council states:
“We would like to stress with sincerity and conviction that we will not be deterred by anyone in fulfilling the undertakings given by us to our people, which will lead to building a peaceful, stable, reconciled and prosperous Sri Lanka for all our “citizens.”
“Sri Lanka’s judiciary and law enforcement mechanisms are fully capable and committed to the processes of advancing justice to all concerned. It has a long history of integrity and professionalism and since January 2015, steps have been taken to further strengthen its independence. And may I add, Mr. President, that all reconciliation mechanisms will be implemented in accordance with our Constitution.”
The statement made by Foreign Minister Tilak Marapana at the 40th Session of the Human Rights Council states:
“In referring to para 68 (C) of the OHCHR Report (A/HRC/40/23), which pertains to the Recommendations to GOSL, to ‘to adopt legislation establishing a hybrid court to investigate allegation of violating and abuses of international law and violations of international humanitarian law’, I wish to make it clear that our position on this matter is as follows”,
“The Government of Sri Lanka at the highest political levels, has both publicly and in discussions with the present and former High Commissioner for Human Rights and other interlocutors, explained the constitutional and legal challenges that preclude it from including non-citizens in its judicial processes. It has been explained that if non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favour and also the approval of the people at a referendum”.
In summary, the Sri Lankan Government informed the UNHRC that it had the capacity and the capability to address issues of accountability and furthermore, that if it was to be undertaken by a foreign judicial mechanism it would involve serious Constitutional amendments.
Although it was only in 2018 and 2019 that the Government brought to the attention of the UNHRC the constraints associated with the accountability process, the stark fact is that they were addressed prominently by the public from day One. Notwithstanding such warnings, the fact remains that the government did not take the initiative to demonstrate in good faith its inability to secure the needed 2/3 majority in Parliament together with a referendum to address accountability within the framework stipulated in the Resolution. Furthermore, having failed to act responsibly the Government did nothing to renegotiate more pragmatic mechanisms to address accountability. By doing nothing the Government has left it to a future Government to pull the proverbial chestnuts out of the fire.
By co-sponsoring the Resolution the Government became co-owners responsible for implementing the provisions in the Resolution. Therefore, the former Foreign Minister Samaraweera has to take full responsibility for committing the Sri Lankan State to undertakings without the requisite formations in Parliament to amend the Constitution without which the issue of accountability could not be addressed; a fact admitted by Minister Tilak Marapana in Geneva. The same fate is likely to befall a future government because there is no guarantee that a future Government would have the needed majorities and success at a referendum to fulfill the UNHRC Resolution in its current form. Therefore, the only option open to a new administration is to reject the Resolution in its current form and work with the UNHRC to develop an arrangement that allows alleged violations to be addressed by Sri Lanka in the context of an armed conflict wherein International Humanitarian Law applies as it should be. In such a context, the threat of Sri Lanka being “subjected to ‘universal jurisdiction’ unless allegations are probed” has to be treated as a threat to divert attention from the present Government’s dismal failure to address Accountability to which it committed itself in 2015.
UNIVERSAL JURISDICTION
Quoting Minister Samaraweera, The Island report states: “Should we let allegations remain without investigations and make our security forces personnel vulnerable to be subjected to universal jurisdiction”? The question as to whether “we let allegations remain” is not by intent but a matter of circumstance, since it is entirely a product of Resolution 30/1 co-sponsored by the Minister containing provisions relating to accountability that require Constitutional amendments of a nature that is not achievable due to existing dispensations in Parliament.
It is too late in the day for Minister Samaraweera to feel guilty about making the security forces vulnerable because it was none other than the Minister himself who took the initiative to co-sponsor the Resolution. By doing so, the Minister trapped the Sri Lankan State into Constitutional constraints that his Government is not in a position to overcome. Furthermore, these same Constitutional constraints would prevent a future Government from addressing allegations either, unless that future formation in Parliament is such that at least a 2/3 majority to amend the Constitution is a realistic proportion. Thus, the options are either for the security forces to remain vulnerable forever, or for a new Government to amend Resolution 30/1 to make it implementable.
CONCLUSION
The UNHRC Resolution 30/1 on Sri Lanka was co-sponsored by Minister Mangala Samaraweera without reference to Parliament. It was finally tabled in Parliament after it was co-sponsored due to demands from the then Opposition. However, by then it was too late to propose any amendments. This left the Sri Lankan State being compelled to undertake commitments that it was in no position to fulfill due to lack of the needed majorities in Parliament to comply with the provisions in the Resolution. These commitments are inconsistent with the Constitution.
The procedures adopted by the Executive at the behest of Minister Samaraweera as (the then) Foreign Minister, was for one organ of Government, i.e., in this case, the Executive, to make commitments without reference to another organ of Government – the Parliament, and commit Parliament to undertake commitments that the Executive has no control over, despite Articles 33A and 42 (2) calling for the President and the Cabinet of Ministers to be collectively responsible and answerable to Parliament. This is a violation of the sovereignty of the People. Even if the act of co-sponsoring was undertaken in the flawed belief that it would correct the international isolation that Sri Lanka found itself in, due to the “irresponsible responses” of the former government as stated by the Minister, the country has to now face the dilemma of how to extricate itself from the trap it is in, with the minimum of damage to its international image. This is the daunting challenge for any future government.
