US resolution - a travesty of the legal process

Vernon Botejue

It is awful to have noted, according to news reports, that US was pushing and mustering strength to its resolution before the UNHRC Geneva against Sri Lanka: Can any citizen of Sri Lanka forget or overlook the fact, that this is the second time that the same allegations are being trussed up before the same forum, perhaps the only difference or change to note being that the US has taken over the leadership of the persecution.

No citizen of Sri Lanka can forget or ignore the earlier attempts made by the UNSG and the author of the Darusman report to aggressively encroach on the sovereign and independent status and dignity of the Democratic Socialist Republic of Sri Lanka and her President and the government of Sri Lanka, by endeavouring to trump up allegations of war crimes and violations of human rights soon after the ruthless LTTE terrorist scourge that plagued the country for over 30 years was eradicated from the soil of Sri Lanka and peace was restored in the entire country, a blessing for the entire SARC region.

LTTE terrorists

President Mahinda Rajapaksa who crushed the rebellion of the LTTE led by Prabhakaran - a group of citizens of Sri Lanka who waged a relentless war against the democratically elected government of Sri Lanka, was equally successful in nipping it in the bud and warding off the aggression aforementioned. Thus President Mahinda Rajapaksa of Sri Lanka is eminently qualified and was the most eligible nominee for the Nobel Peace Award in 2009 for crushing the most ruthless terrorist organization in the world.

This writer in his earlier articles published in the 'Daily News' papers of March 17, 2010; June 14, 2010; July 7, 2010 and September 9, 2011 has exposed the fact that such attempts to harm Sri Lanka, are only inspired by the apologists and the rump of the ruthless LTTE terrorists masquerading as the Tamil Diaspora in foreign states, unfriendly to Sri Lanka that should be strongly condemned as treacherous. Constraints of space and time prevents detailed reference to the aforementioned articles that are available on the internet web of the 'Daily News'.

In this connection the well-known legal maxim “In Pari Delicto Potior Est Conditio Defendentis” is both relevant and applicable. Our courts of law have consistently upheld the substance and truth of this principle of law, that must and should be upheld in an adjudication of a dispute, before any legally appointed and constituted court, tribunal or forum, that should and must act judicially to prevent a travesty of justice.

Justice and fair play

It is deemed necessary and expedient in the interests of the lay person to explain the meaning of this Latin phrase contained in the Sri Lankan legal glossary and textbooks of law and the reports of court cases published in the New Law Reports and journals. In simple language the principle of law enshrined in this renowned maxim is, that the party who complains against another must come before such court or adjudicating body with Clean Hands. In other words if the hands of the party complaining are stained with guilt and blood then he or she has no right to complain. But if he does insist then such complaint must be rejected in limine, ie on the threshold in the interests of justice and fair play.

The Roman poet Horace has immortalized such a person: “Integer vitae scelerisque purus”. “The man of upright life unstained by guilt.” Can this be said of the main sponsor of the malicious resolution under reference or even the other supporters behind this conspiracy against Sri Lanka.

Since this move is by countries whose majority of people are followers or believers of the teachings of Jesus Christ it may not be irrelevant to quote the Bible that lays down the principles of godly and upright life: “Before you ask your brother to remove the speck in his eye remove the beam in your eye.” “Physician heal thyself”. When the mob gathered to stone Mary of Magdala to death accused of adultery, Jesus Christ intervened and said: “Let the man who has not committed this sin throw the first stone.” The mob silently dispersed and Mary was saved. In like manner, this writer recalls the motion to impeach the US President Bill Clinton, the proceedings of which were telecast. Before the voting took place a supporter of the President took the floor and quoted the words of Jesus Christ, “Let the man who is not guilty of this sin cast the first vote.” The result is well-known and needs no repetition.

Another principle of law consistently observed and upheld by our courts of law is that no person should be tried or convicted twice on the same allegations or charges. Thus, it is manifestly evident that the current resolution against Sri Lanka is Ultra Vires and should and must be rejected in limine.

The writer is a senior Attorney-at-Law