A Question of Political Will: Unpacking

de Silvas Comments on Foreign

Judges

Featured image courtesy Reuters

RAISA WICKREMATUNGE on 04/01/2017

Recently, Groundviews compiled a timeline of all the statements

made by the Government in terms of the participation of foreign
judges in a judicial mechanism.
The timeline shows that over the past two years, there have been
contradictory statements from within the same Government on
this score. The inclusion of foreign judges has become an
increasingly contentious topic, particularly following the recent
UNHRC session in Geneva, which saw Sri Lanka co-sponsoring a
resolution amounting to a technical rollover, allowing two more
years to fulfill the provisions laid out in the UNHRC resolution.
Most recently, President of the Bar Association of Sri Lanka U R de
Silva, speaking to the media, opposed the inclusion of foreign
judges in a judicial mechanism.
Our position is that it is not necessary for us to invite foreign
judges. We have all the material with us in terms of judges, who
know what the Sri Lankan position is, and know the laws
pertaining to the exercise [of a judicial mechanism], De Silva
told Groundviews. If we are going to invite foreign judges, its not
just a problem, but an insult to the judiciary.
It is notable that at the press event, de Silva had said that the Bar
Associations official stance would be announced after a meeting
of its executive committee.
Speaking further, de Silva said that there should be a specific
provision in the Constitution, inviting foreign judges to participate
in any judicial mechanism. That is why the President and Prime
Minister have categorically said that they cant do so, he added.
However, other members of the legal fraternity have differing
opinions.
The conversation on legality is really a proxy for the real
conversations which we should be having, Attorney-at-law and
co-founder for the South Asian Centre for Legal Studies, Niran
Anketell said.
Anketell recently pointed out that the Constitution is silent on the
issue of judges nationality, although it is explicit on the
nationality of other offices such as that of the President and
Parliamentarians. The only requirement is for an Oath, which
unlike the one taken by new citizens in the United States, does
not require disavowal of loyalty to other countries. Here, you
have to pledge to be loyal to Sri Lanka and uphold and defend the
Sri Lankan constitution. In my view, there is no bar to a foreigner
taking such an Oath, if they want to do so, Anketell pointed out.
Further, looking at UN Resolution 30/1, the Government had made
certain obligations. While many had claimed that OP6 of the
resolution had only allowed for foreign personnel in an advisory
capacity, OP1 had clearly incorporated the recommendations by
the OISL report, which called for a hybrid court.
Even with the assumption that the inclusion of foreign judges was
illegal as de Silva and others, including the President and Prime
Minister had claimed, the Government had made it clear that
setting up the special court would follow a process of
constitutional reform. As such, if they wanted to include foreign
judges, they only had to amend the constitution to do so. This
argument on judges is masking a deeper question, which is
whether the legislation for a special court inclusive of foreign
participation is desired or not.
Foreign judges are not a panacea, and it is even conceivable that
some local judges may be more credible than handpicked foreign
ones. However these conversations need to be had. What is most
concerning is that the lack of clarity from the Government in
terms of their doublespeak saying one thing in Geneva and
another in Colombo has dampened their credibility, he added.
The government has made very concrete guarantees, and the
onus is on the Government to ensure a credible process. I think
thats how its going to be judged. Is there going to be a
meaningful judicial process: Who are the local judges, prosecutors
and investigators going to be? They have set themselves a high
bar Anketell said.
Speaking to Sri Lankas capacity to create a judicial process on
accountability, Anketell said that processes such as these were
extremely resource intensive. In Cambodia, for instance, the
prosecuting team was made up of more than 20 lawyers, who had
been trained in either international law or international criminal
law. There are credible Sri Lankans with the necessary expertise
to be found domestically, but the question is, can the regular
system afford to let go of them, and are there sufficient numbers
to be found at home? Anketell said.
Research Director, Verit Research Gehan Gunatilleke said that
the question on foreign judges needed to be considered in two
parts; firstly, whether the Government should include foreign
judges, and secondly, whether or not doing so was within the
bounds of the constitution.
Gunatilleke co-authored The Judicial Mind a book that examined
how the Sri Lankan judiciary had dealt with minority issues
focusing specifically on cases dealing with arrests and detention
(see page 217 for the chapter on minorities). There is a
consistent pattern dating back to the 1970s, where judges have
been deferential to national security interests, Gunatilleke said.
This resulted in prejudice towards Tamil litigants and the accused
in Fundamental Rights cases under the Prevention of Terrorism
Act, and dealing with arrests and detention.
Infographic from The Judicial Mind examining a number of cases
involving minorities.
There is a historical case to be made that the local judiciary is
systemically prejudiced when it comes to any case concerning
national security. In that context, it is difficult to see a purely local
judicial mechanism deliver accountability for war crimes.
The supposed restoration of the independence of the judiciary
doesnt displace this insistence, because it is related to a much
longer historical precedent than the post-war period under the
Rajapaksas, he added.
Gunatilleka concurred with Anketells position that there was no
constitutional bar to the participation of foreign judges. Mr de
Silva is making an assertion without referring to any provision in
the constitution The question is not one of constitutionality but
of political will.
For his part, President Sirisena has remained firm in his
determination not to include foreign judges.
The question remains whether Sri Lanka will be able to set up a
mechanism that will provide redress to those affected by the
conflict. Even today, families of the disappeared are holding
protests in an attempt to get answers for the whereabouts of their
loved ones.
28 Mar

Garikaalan @garikaalan
Relatives of #DisappearedSL said they won't give up their protest-
(happening across N& E) until adequate relief given to them by
Govt pic.twitter.com/QJmZvwIpVj

Follow

Garikaalan @garikaalan
Day 34:Relatives of #DisappearedSL in #Vavuniya continue their
protest saying they will never give up till they are given
substantial relief pic.twitter.com/BUb7UxXXQo
9:11 AM - 29 Mar 2017
55 Retweets
22 likes
Others are filing RTI requests in a desperate attempt to get some
response from the state, or are struggling to rebuild their lives
with little to no state support. They deserve closure, support and
answers. It is as yet unclear when they will receive relief.
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down the CTF report enlightening.
Posted by Thavam