The Sri Lanka Bar Association, Sri Lanka’s largest and the most prominent body of lawyers, elected its new President this week: Udaya Rohan de Silva.
Known in the legal fraternity as U.R. de Silva, the new Bar Association President is a senior criminal practitioner who has appeared in high-profile cases.
An Old Boy of Ananda College, de Silva was called to the Bar in 1983. He has since engaged in criminal practice island-wide and appeared in numerous sensational trials and Trial-at-Bar proceedings.
De Silva has also served as the Secretary and the Treasurer to the Sri Lanka Bar Association. His main contender at the BASL election was Anura Maddegoda, also a senior lawyer, who was supported by the lawyers who supported the ruling alliance at the last Presidential election.
It was evident; battle lines were drawn at the BASL election, according to political preferences.
In was in this context that Maddegoda was dubbed a ‘supporter’ of the UNP and de Silva a ‘friend’ of the Rajapaksa camp.
Lawyers Mahesh Katulanda and Ali Sabry were at the forefront of those supporting de Silva’s campaign: Sabry has appeared on behalf of former Defence Secretary Gotabhaya Rajapaksa in some of the more known cases.
In fact, de Silva represented former Minister Basil Rajapaksa in the much-talked-about Divi Neguma case. Although the professional functioning of a legal practitioner should not be confused with his personal affiliations, it seems like the ‘Rajapaksa label’ has stuck to the senior criminal lawyer.
At the conclusion of the election, de Silva won the BASL top post with a margin of over 400 votes.
But, many have expressed fear that de Silva’s ascension to the top of the Sri Lanka Bar Association would make the largest professional body of lawyers gravitate towards the Rajapaksa camp.
This fear was clearly expressed in some of the text messages exchanged among the BASL members after the announcement of results, which said the BASL would now follow the footsteps of the Government Medical Officers’ Association (GMOA), the biggest professional body of doctors in Sri Lanka.
It is no secret that the GMOA’s top brass covertly supports the political campaign of the Rajapaksa camp and their affiliations have politicized the entire body to an unprecedented degree.
A senior lawyer, a prominent member of the BASL, told the Sunday Observer that as a result of de Silva’s victory, the organization may turn out to be the newest enemy of the national unity government.
It is also important to examine what collective message the lawyers have sent the government with the election of de Silva to the top post of the BASL.
“It is still too early to come to that conclusion,” the senior BASL member explained. “The victory of a candidate depends on many factors. His political affiliation could be only one.”
“Apart from that, their personal connections, popularity, track record, inter-personal skills can also play a major role.”
“Therefore, it is not wise to jump into the hasty assumption that the lawyers have shown a red light to the government by electing a friend of the Rajapaksa camp as the BASL President. But, the outcome of the election can create unforeseen problems for the government on the BASL front,” he said.
He added however, “It is the responsibility of the new President-elect of the Bar Association to carry out his duties as objectively as possible. Some, who supported him during the election, especially, the ones with strong links to the Rajapaksa camp, may try to drive the BASL in a different direction. If the President-elect does not act wisely, there will be a serious division in the organization. The next two years will be critical for the Bar Association.”
Be that as it may, de Silva says his victory was the victory of the Sri Lanka Bar Association: “It is the result of our unity,” he told supporters after his election. “This is not a personal victory of mine. This is a victory of the Bar Association,”
Navigating in troubled waters
Despite the unfavourable outcome of the BASL election, the government navigated in the troubled waters of the UNHRC smoothly over the last two weeks.
As a result, the government is likely to receive a two-year extension to implement the proposals in the resolution it co-sponsored in October 2015.
The follow-up draft resolution on Sri Lanka, titled “Promoting reconciliation, accountability and human rights in Sri Lanka”, was submitted to the UN Human Rights Council (UNHRC) on March 13.
Montenegro, the former Yugoslav Republic of Macedonia, United Kingdom of Great Britain and Northern Ireland and the United States of America were the main sponsors of the resolution.
It was heard through the grapevine of the diplomatic circles that the UK had taken the lead in drafting the follow-up resolution.
The resolution had four significant recommendations with regard to Sri Lanka’s reconciliation and accountability mechanisms. These are reproduced below:
1. Takes note with appreciation the comprehensive report presented by the United Nations High Commissioner to the Human Rights Council at its thirty-fourth session, as requested by the Human Rights Council in its resolution 30/1, and requests the Government of Sri Lanka to fully implement the measures identified in Human Rights Council resolution 30/1 that are outstanding; (updated OP1 from HRC/30/1)
2. Welcomes the positive engagement between the Government of Sri Lanka and the High Commissioner and the Office of the High Commissioner since October 2015, as well as the relevant special procedure mandate holders, and encourages the continuation of that engagement in the promotion and protection of human rights and truth, justice, reconciliation and accountability in Sri Lanka; (updated OP2 from HRC/30/1)
3. Requests the Office of the High Commissioner and relevant special procedure mandate holders, in consultation with and with the concurrence of the Government of Sri Lanka, to strengthen their advice and technical assistance on the promotion and protection of human rights and truth, justice, reconciliation and accountability in Sri Lanka; (updated OP19 from HRC/30/1)
4. Requests the Office of the High Commissioner to continue to assess progress on the implementation of its recommendations and other relevant processes related to reconciliation, accountability and human rights in Sri Lanka, and to present a written update to the Human Rights Council at its thirty-seventh session, and a comprehensive report followed by discussion on the implementation of resolution 30/1 at its fortieth session.
However, the proposed ‘hybrid court’ to prosecute war crimes during the final phase of war is still a bone of contention: Setting up a hybrid court with the involvement of foreign judges and prosecutors was a key demand by UN Human Rights Chief Zeid Ra’ad Al Hussein, echoed by the Consultation Task Force on Reconciliation Mechanisms (CTFRM), appointed by the Sri Lankan government, to consult with the public.
Sri Lanka’s firm position
The Sri Lankan government has, however, repeatedly ruled out the possibility of a hybrid court saying the demand was not practical. President Maithripala Sirisena had said in no uncertain terms that the government would not set up a hybrid court with foreign judges, as it was not in line with the Constitution.
“There is no provision in the Constitution to allow foreign judges to hear cases in Sri Lanka. That’s why the proposal for a hybrid court is impractical. I have communicated the same to the UN Human Rights Commissioner,” the President said.
The Prime Minister too said the establishment of a hybrid court was not ‘politically feasible’.
Foreign Minister Mangala Samaraweera echoed the same views this week when he said Sri Lanka would not include foreign judges in its transitional justice mechanism, despite pressure from the United Nations Human Rights Council and other bodies.
The Foreign Affairs Minister had noted that Sri Lanka’s sovereignty would have to be compromised if foreign judges are included in the transitional justice mechanism: “We would have to change the Constitution,” he said.
Samaraweera avowed that although the international community felt that including foreign judges in the transitional justice mechanism would ensure impartiality, a credible domestic mechanism would ensure the same.
Despite this difference of opinion, Sri Lanka has once again agreed to co-sponsor the resolution, which is to be presented at the 34th session of the UNHRC, giving the Sirisena-Wickremesinghe alliance a two-year extension.
There are signs to believe that the international community is ready to compromise on its demand for a hybrid court on the condition that Sri Lanka embarks on a credible domestic probe.
The statement issued by the US State Department was a strong indication in this regard.
The US statement said, “On Monday, March 13 at the UN Human Rights Council the United States and other members of the Friends of Sri Lanka Core Group tabled a draft resolution on promoting reconciliation, accountability, and human rights in Sri Lanka that reflects our enduring commitment to lasting peace and justice for all the people of Sri Lanka.
“The United States worked in close consultation with the United Kingdom, Montenegro, and Macedonia, and in partnership with the Government of Sri Lanka, to draft the resolution.”
“We look forward to the adoption of the text, which will support reconciliation and justice in Sri Lanka, help ensure a non-recurrence of conflict, and strengthen democratic governance and freedoms for all Sri Lankans.”
“The United States is pleased that Sri Lanka has agreed once again to co-sponsor the resolution, and invites like-minded UN members to demonstrate support for reconciliation and peace in Sri Lanka by adding their names to the list of cosponsors. The United States applauds the administration of President Sirisena for its continuing efforts to promote reconciliation.” It is against this backdrop that Foreign Minister Mangala Samaraweera launched a scathing attack on former President Mahinda Rajapaksa over the latter’s recent statement titled “Constitutional and legal reforms to destroy the nation”, issued on March 13.
The former President’s statement was based on the CTFRM’s recommendations. Rajapaksa, in his statement, had attempted to attribute the CTFRM recommendations to the government’s account. This came against the backdrop in which the government had completely ruled out the possibility of a hybrid court – one of the key recommendations of the CTFRM.
Rajapaksa accused the government of not holding talks with the new US administration led by Donald Trump. The former President said the Sri Lankan government was struggling with the commitments it made to the Obama administration, without renegotiating them with Trump.
Unfortunately for the former President, the US State Department’s statement came a few days after his communiqué, great embarrassment to Rajapaksa and his ideologues.
Samaraweera’s statement was aimed at exposing the “duplicity and double standards” with which Rajapaksa’s statement had been characterized.
Samaraweera said, “Former President Mahinda Rajapaksa, especially, as a lawyer, is very well aware that the issue of foreign judges is a mere exaggeration on his part, and he does this on purpose to mislead the public.”
“Let us not forget that it was under his leadership that multiple transitional justice processes were initiated, and international prosecutors were engaged. The International Independent Group of Eminent Persons (IIGEP) established by him engaged foreigners invited by him, and also nominated by Australia, Canada, the European Commission, UK, Japan, the Netherlands, USA, the Inter-Parliamentary Union, the Office of the High Commissioner for Human Rights (OHCHR), and a Cypriot nominated by the Government of Sri Lanka. International prosecutors were also engaged in connection with the Paranagama Commission.”
“Moreover, implementation of the Thirteenth Amendment to the Constitution was for the first time made into an international pledge under his leadership through the much touted victory resolution S-11/1 sponsored by Sri Lanka and adopted on 27th May 2009 by the UN Human Rights Council. The resolution welcomed the “reassurance given by the President of Sri Lanka that he does not regard a military solution as a final solution, as well as his commitment to a political solution with implementation of the thirteenth amendment to bring about lasting peace and reconciliation in Sri Lanka.”
“The former President, driven by his arrogance and neglect of duties and responsibilities towards our citizens, dragged the country into the first ever external investigation of a situation, through the OHCHR investigation on Sri Lanka (OISL). President Sirisena and Prime Minister Wickremesinghe, guided by wisdom, managed to regain trust and regain charge as an independent, sovereign and responsible nation, on the pursuit of reconciliation and accountability by national processes, shifting all action to the domestic front.” “The former President chooses to hide these facts, and instead, interpret resolution 30/1 in a wildly unreasonable and illogical manner in order to drive fear into people’s minds and divide Sri Lankans in an attempt, as he mentioned to the Foreign Correspondents Association in December last year (2016), to realize his dream of returning to power.”
“The National Unity Government will not govern by fear and lies. The National Unity Government makes no apologies for choosing the path of transparency, truth, justice, and reconciliation, upholding the dignity of all citizens. The future of our great nation will not have walls of fear and doubt that separate communities. Rather, it will be a bright, open and inclusive path that invites all to walk together side-by-side as equal citizens.
In conclusion, all I want to say to my old friend, Cabinet colleague and for a brief time “BOSS” is “Shame on you, Mahinda, Shame!!!”
Talks on Cabinet reshuffle
Rumours emanating from the corridors of power indicate that the national unity government is preparing for its first cabinet reshuffle.
Although there were talks on a possible cabinet reshuffle earlier this year, it was postponed due to differences of opinion among the key stakeholders of the government.
It is important to understand that changing the national unity government’s cabinet is a highly complicated exercise: When the government was formed in September 2015, there was an agreement between the UNP and the SLFP - the two main coalition partners of the government - to share the key ministerial portfolios and not to meddle with the ‘composition’ of the Cabinet.
Several senior members of the government, who spoke to the Sunday Observer on Friday, said any Cabinet reshuffle would have to be done without violating this initial agreement. The 19th Amendment to the Constitution also compels the President to make changes to the Cabinet in consultation with the Prime Minister. Therefore, the President and the Prime Minister - the leaders of the two main parties representing the government - will have to be on the same page on the matter.
This means ‘inter and intra party politics’ will have to be left out during the Cabinet reshuffle and only matters of national interest should come into play.
The President, however, gave his first public indication of a possible Cabinet reshuffle addressing a meeting in Ambalanthota, this week. The President said that Minister Mahinda Amaraweera, the General Secretary of the UPFA and Fisheries and Aquatic Resources Minister would be given a ‘better ministry’, to serve the people more effectively.
“I think there should be a change in the Cabinet portfolio as Fisheries Cabinet Minister Mahinda Amaraweera, State Minister Dileep Wedaarachchi and Provincial Health Minister H.W. Gunasena - three ministers overlooking the fisheries sectors - are from the Hambantota district,” he said.