There has been a lot of debate and discussion in local and foreign media about the possibility of appointing a “hybrid court” to probe human rights and accountability issues that have arisen following Sri Lanka’s war against terror that ended in 2009. In essence, a hybrid court will have both local and foreign judges who will examine such issues and give appropriate verdicts.
Sri Lanka’s Constitution provides no room for such a mechanism, given that the judiciary is an entirely local apparatus. As far as we know, even the new Constitution that is in the works makes no provision for such a mechanism.
The idea of a mixed or hybrid court took hold internationally during the regime of former President Mahinda Rajapaksa, when the independence and the integrity of the judiciary were severely compromised by the action of the Executive. One prime example was the overnight impeachment of the then Chief Justice Shirani Bandaranayake.
A notion developed among members of the International Community that Sri Lanka's justice system will not have the independence to probe alleged International Humanitarian Law (IHL) violations that may have occurred during the conflict period. Hence the call for independent and impartial foreign judges and other personnel. The UN Human Rights Commissioner Prince Zeid Ra'ad Al Hussein recently reiterated his call for foreign judges to sit on any such mechanism.
However, things have changed in Sri Lanka during the last two years. Today, the judiciary is truly independent and there is zero interference by the Government in the judicial processes. Several recent court decisions have gone against the Government and its leading figures. Such an act would have been unthinkable during the Mahinda Rajapaksa era. Moreover, fears that the authorities would not act against any bad eggs in the Forces are unfounded – a number of Security Forces members have been arrested over charges of assault and murder.
The final decision with regard to its own internal affairs is taken by Sri Lanka itself. In this context, both President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe have categorically stated their opposition to any move to establish hybrid courts. Just last week, Prime Minister Wickremesinghe ruled out the possibility of a ‘hybrid court’, saying it was not politically feasible.
Instead he proposed a ‘Truth and Reconciliation Commission’ (TRC) as the best option to deal with post war issues. A 100 percent home-grown effort, such a Commission could have a bigger mandate than the Rajapaksa-era Lessons Learnt and Reconciliation Commission (LLRC) and the newly proposed Office of Missing Persons (OMP), both of them worthy mechanisms in their own right. South Africa established such a TRC mechanism as apartheid ended and its findings went a long way towards bringing South Africans together.
Any attempt to establish a hybrid court will be a political and practical nightmare, as shown by the Prime Minister’s posers: “Can you actually establish a hybrid supreme court? If you bring in an Amendment for that purpose, is the two thirds majority of Parliament sufficient? What if the court decides that it requires a referendum?”
It is true that we have to come to terms with our past, including the conflict period, to lay a course for the future. This self-retrospection is essential for reconciliation and national unity which the Yahapalana Government is promoting with vigour. But this must essentially be a completely local endeavour, though the authorities can study overseas models such as the South African experience.
This is why the Government is now considering a TRC which may be able to resolve many issues. The South African experience and the strengths and weaknesses of that process, will be studied. Generally all political parties are in agreement with a TRC in principle.
Obviously, there are extremist elements on both sides who seek to derail any attempts to resolve the problems and achieve reconciliation. These elements thrive on ethnic discord and rancor, without which they apparently cannot sustain themselves. If the authorities try to pander to their whims and fancies, the country will get nowhere.
The people in the North are tired of the long-drawn out war. The South is not any different. The people yearn to live together in peace. They do not have a war mentality anymore, although the extremists are trying to relight the ambers of ethnic disharmony. Reconciliation cannot be achieved overnight and there are many challenges to overcome as well.
This is why Foreign Minister Mangala Samaraweera has called for more time to be given to Sri Lanka to fulfill its accountability obligations. This is the correct path to choose, because these measures cannot be half-baked. This may seem to be slow progress, but the conduct of a 30-year conflict cannot be examined in a matter of months. Several countries including the UK have supported this stance. There are countries whose conflicts ended more than 40 years ago which are still searching for peace - and answers. Thus an unnecessarily hurried process will not result in lasting peace and reconciliation.
Add new comment