The Case for Foreign Judges in a Judicial Mechanism in Sri Lanka: Countering Falsehoods

Photo taken at the protest by families of the disappeared in Kilinochchi 

BHAVANI FONSEKA AND LUWIE GANESHATHASAN-03/28/2019

In a few weeks, Sri Lanka marks a decade since the end of its brutal war, but its long legacy of abuses remains unaddressed. Decades of inaction, denial and silencing have contributed to and exacerbated a culture of impunity that protected perpetrators and at times, even promoted them. In 2015 the Government of Sri Lanka signalled a change from the past when it officially recognised the need for a comprehensive strategy of addressing past wrongs, finding answers, providing reparations and, most importantly, fighting impunity. With the adoption of Resolution 30/1 at the 30th Session of the United Nations Human Rights Council (UNHRC), the Government of Sri Lanka formally acknowledged key areas for reform including in the accountability realm. The Resolution notes the need to uphold the rule of law and build confidence in the justice system with the establishment of 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 authorised prosecutors and investigators”

This commitment was further reinforced in Resolution 34/1 in March 2017 when the UNHRC provided further time for the full implementation of commitments made in 2015. Despite the passage of time, delays and setbacks were evident and a further two years was granted to Sri Lanka with Resolution 40/1 at the UNHRC Session that concluded last week.

This may have not generated much interest nationally and internationally if not for the statements and actions by key actors in Sri Lanka in the lead up to 20th March when Sri Lanka was discussed at the UNHRC. The curiously assembled delegation of Sri Lanka spared no punches when the head of delegation, Foreign Affairs Minister Thilak Marapana, in a written statement critiqued the report presented by the High Commissioner for Human Rights which incidentally contained data shared by the Government of Sri Lanka. Notable in this statement was the revisiting of an argument used without success by some in 2015 to prevent the inclusion of the participation of foreign judges, lawyers and others called for in Resolution 30/1.

This article specifically addresses the falsehood that there is an apparent constitutional bar preventing foreign judges from sitting in a judicial mechanism in Sri Lanka. It also presents past examples involving international involvement in investigations and justifies why internationals must be fully integrated in a future judicial mechanism if it is to move beyond past exercises of mere ‘advice’ and ‘monitoring’. Finally, the article also reiterates the call made by many across Sri Lanka on the need for truth and justice and why it is critical to heed this call if the Government and other stakeholders are genuinely interested in tackling the culture of impunity in Sri Lanka.

Constitutional Framework

Prior to and subsequent to the adoption of Resolution 30/1, there was much hype as to the inclusion of foreign judges and lawyers in a domestic judicial process. The authors dealt with this issue in greater detail here in 2016 but feel the issue requires revisiting considering the falsehoods promoted by some in power.

At the outset, it must be noted that the Sri Lankan Constitution does not contain an explicit bar to have foreign judges in a judicial mechanism in Sri Lanka. What seems to attract attention is more the simplistic rhetoric of not allowing internationals to be part of a judicial mechanism located within the Sri Lankan legal system. It is indeed unfortunate that those who oppose the participation of foreign judges conflate legal arguments with political arguments based on their narrow understanding of national sovereignty. These arguments are all the more incredible considering that judges from Sri Lanka’s superior courts and senior lawyers, including those from the Attorney General’s Department, have served and continue to serve as judges in foreign jurisdictions.

Article 105 of the Constitution recognises the Supreme Court, the Court of Appeal, the High Court and other Courts of First Instance as institutions for the administration of justice for the purpose of protecting, vindicating and enforcing the rights of ‘the People’. This Article also confers on Parliament the power to “ordain and establish” any additional Courts of First Instance and/or institutions as it deems fit.

The Constitution further outlines the jurisdiction, powers and composition of the Supreme Court and the Court of Appeal and allows Parliament to provide  the same for the High Court (The Constitution specifies the powers allocated to High Courts under Article 154P, through the Thirteenth Amendment). In relation to judges of the High Court, the Constitution only provides that the President should make such appointments on the recommendation of the JSC which needs to consult the Attorney-General.

The Constitution also provides for the appointment procedure of Supreme Court and Court of Appeal judges, including the number of judges, the ages of retirement and security of office of such judges. However, there is no provision in the Constitution that requires Sri Lankan citizenship as a criterion of eligibility in appointing judges.

The appointment of other judges and judicial officers of Courts of First Instance is not directly provided for in the Constitution. It should, however, be noted that the Constitution vests in the JSC the power to appoint, promote, transfer and exercise disciplinary control over a judge, presiding officer, or member of any Court of First Instance, tribunal or institution created and established for the administration of justice. The JSC may make rules regarding the schemes of recruitment and training, appointment promotion and transfer of judicial officers.

However as the Constitution authorises Parliament to ‘ordain and establish’ Courts of First Instance as it deems fit, there appears to be no bar for Parliament to provide for criteria regarding the appointment of judges and judicial officers of Courts of First Instance. In fact Parliament has on several occasions in the past provided for criteria through statute.

It must also be noted that the Constitution makes it mandatory for any Judge of the Superior Courts, or any judge, presiding officer or member of any other Court of First Instance, tribunal or adjudication institution, to take an oath swearing that they will faithfully perform the duties and function of their office in accordance with the Sri Lanka’s Constitution and laws; be faithful to the Republic of Sri Lanka; and uphold and defend the Constitution.

Thus, there is no express bar for non-citizens of Sri Lanka to subscribe to this oath. Nor does the oath require the person taking it to renounce fidelity or allegiance to any other country or sovereign. In light of these constitutional provisions, it is incumbent on those asserting that there is a legal barrier to explain the legal basis of this assertion.

Continuous Failure By Successive Governments to Deliver on Accountability

The larger question though arises around whether the present structural framework can provide for accountability for serious violations of international human rights law and international humanitarian law. Despite numerous promises, limited progress has been made since 2015 to hold alleged perpetrators to account. This inability to prosecute and convict can be attributed to a range of reasons including the politicisation of processes and institutions, interference with investigations, impairing the integrity of evidence and protection issues among others.

A recent study done by the Centre for Policy Alternatives (CPA) highlighted several reasons for the delays with investigations and prosecutions that contributed to the entrenched culture of impunity. The levels of impunity ascribed to former military officials was most recently evidentin the Supreme Court when a leading President’s Counsel even alluded to how ‘war heroes’ could have ‘killed anyone and suppressed it’ in 2009.

The lack of genuine progress with prosecutions and convictions compound why justice will remain elusive to victims in the present domestic structure. Recent successful attempts to prevent arrests in key cases is also an indicator of how some are able to manipulate the justice system in Sri Lanka, raising with it the question whether the judiciary is truly independent.

The authors have previously noted the need to consider the contours of a judicial mechanism and the composition of both national and international actors in such a structure. Sri Lanka has had several prior instances where internationals have advised and monitored processes. This include the appointment of commonwealth justices to the Commission of Inquiry investigating the killing of Lieutenant General Denzil Kobbekaduwa; the appointment of the International Independent Group of Eminent Persons (IIGEP) in 2005; and the Advisory Council in 2014. Incidentally, the IIGEP and the Advisory Council were both appointed by former President Mahinda Rajapaksa, who is at present one of the most vocal opponents of foreign participation in a judicial mechanism.

Furthermore, in a national consultation conducted in 2016 to gather views of the public on the proposed transitional justice mechanisms, the Consultation Task Force (CTF) was able to speak to thousands across Sri Lanka with findings demonstrating a lack of trust and confidence with existing mechanisms. A key finding in their deliberations and one that has been most contentious is the need for the participation of foreign judges in a future judicial mechanism.

While the CTF and others who promoted the need for foreign participation were attacked, mostly on nationalist lines rather than any coherent legal argument, there is no denying that justice in the domestic courts remains elusive to many. Despite the legacy of commissions established by numerous governments, many victims have no answers as to the whereabouts of their loved one. In other instances where information is known, there is no or limited progress with justice. This has contributed to a lack of trust with the present system and is what fuels calls for justice in international settings.

The Need for Truth and Justice in Sri Lanka

Recent statements contradicting what was committed to in 2015, viewed in context with previous statements by some senior members in Government, indicate the diverse and vociferous opposition towards a genuine and credible justice process within Sri Lanka. These oppositions are often cloaked in arguments of public sentiment. However, despite perceptions to the contrary, there is considerable public support for accountability. In a recent surveyconducted by the Social Indicator 49.3% of the participants said it was extremely necessary that redress for victims affected by civil unrest in the past is addressed while 22.5% believe that it is somewhat necessary to investigate into and hold the perpetrators accountable before the law. Respondents from all communities were of this opinion, with the highest support being among the Muslim community (89.4%) followed by the Up Country Tamil community (87.4%), the Tamil community (86.2%) and the Sinhala Community (67%).

The same survey indicated that 72.4% of Sri Lankans believe that it is important to know the truth about alleged crimes against humanity committed by all parties during the three-decade long conflict in Sri Lanka. The support for accountability and truth-seeking comes at a time when both were promised but progress limited. These findings, taken with the findings by the CTF and others, demonstrate that there is a significant number who support truth and justice in Sri Lanka.

In spite of this support, leaders within the present Government continue with slogans of “looking forward, not back” and of “not opening old wounds” or of the importance of “restorative justice as opposed to retributive justice”. However, here again their rhetoric lacks substance and does not deal directly with the demands of citizens for truth and justice. The rhetoric is also disingenuous as it fails to provide any articulation of how the Sri Lankan State can prevent future cycles of violence or as to how there can be genuine reconciliation in a context where there are widely differing narratives of the causes of the war and circumstances in which it ended.

In this context, the lack of real progress with accountability have entrenched the mistrust held by victims and many others in state institutions and actors. But the need for justice cannot be discounted. It is in this context the need to inject energy into the transitional justice process in Sri Lanka is critical. The Sri Lankan State is responsible for the prevention of future cycles of violence and ensuring long term peace and stability. In the context of the UNHRC resolutions, this means initiating time bound steps to fully implement what was promised in 2015. Having obtained two more years the Government must not squander this moment by making false excuses to address accountability. We must demand for what was promised. Sri Lankan citizens deserve nothing less.

Editor’s Note: Also read ‘UPDATE: Flip-flopping on Accountability – A Timeline’ and ‘A Question of Political Will: Unpacking de Silva’s Comments on Foreign Judges’