President Maithripala Sirisena has recently said at a gathering of judicial officers that he won’t accept foreign judges in any investigation into human rights violations here. Stating that he has his faith in local judges and judicial administrators he has stressed the need to ensure judicial independence.
President Sirisena may have his faith in the judiciary. But, the question is whether the discerning public is on the same page as he on this score. Didn’t the champions of good governance who threw in their lot with Sirisena at the last presidential election apportion the blame for the 18th Amendment to the judiciary, which they said, had not stood firm? Didn’t they rake the then Chief Justice over the coals for having prepared the ground for that amendment to be steamrollered through Parliament?
Some judicial officers have become putty in the hands of politicians and wealthy crooks. They keep court houses open till midnight to remand Opposition politicians. But, when ruling party politicians are brought there they are granted bail in next to no time! Double standards of this nature take a corrosive effect on the independence and legitimacy of the judiciary. The recent appointment of the state prosecutor has also left a bad taste in many a mouth.
Water is capable of purifying itself if pollution levels are reasonably low. The same goes for the judiciary. A prerequisite for enabling the judiciary to cleanse itself and restore its independence is for politicians to keep their dirty hands off that institution. Most of all, judges who have become pliable tools in the hands of politicians and unconscionably do political work for governments must be weeded out.
The judiciary cannot function properly unless other key state institutions such as the police and the Attorney General’s Department cooperate with it fully. The less said about the police the better! They are responsible for the extremely low conviction rate (4%). They swing into action when they are ordered by their political masters to arrest someone for keeping an elephant without a permit, but they baulk at investigating even serious allegations against ministers.
The Attorney General’s Department has been reduced to a mere appendage of the ruling party. The previous administration used it as a bludgeon against its opponents and manipulated it to let its backers off the hook. Those who expected the situation to improve following the Jan. 08, 2015 regime change are as disillusioned and disappointed as Ven. Maduluwawe Sobitha Thera, the chief architect of the present government, was at the time of his untimely demise.
As for the war crimes court to be set up the government should pat itself on the back for having outwitted its political opponents. Initially, its critics cranked up pressure on it not to agree to a war crimes probe in Geneva at all. Then, they hung their campaign on a section of the UNHRC resolution, which provides for the involvement of foreign judges in the war crimes court. Now, the government says foreign judges will not be involved in the process. It may be telling the truth, but the fact remains that the war crimes court will be there!
Foreign judges do not necessarily have to sit on the bench for war crimes trials to be manipulated. There’s more than one way to shoe a horse, as they say. The Saddam Hussein trial in Iraq is a case in point.
Anchored as the Iraqi Higher Criminal Court, which tried Saddam Hussein et al was in the Iraqi justice system, foreign powers exerted influence on its judges and proceedings. Hussein minced no words when he condemned what he was being subjected to as a political show trial. He told a judge in open court in July 2004: ‘I do not want to make you feel uneasy, but you know this is all theatre by Bush to help him with his election campaign.’
Hybrid courts with foreign participation to varying degrees have gained wider acceptance among western powers and human rights groups as the International Criminal Tribunal lost its credibility following the Milosevic trial and due to its inherent flaws and, above all, the cost factor. Quasi domestic courts help the governments tasked with conducting war crimes probes counter allegations that they are compromising national sovereignty. It may be recalled that an Iraqi justice minister, in spite of being pro-American, was constrained to remark that the presence of foreign judges would undermine Iraqi sovereignty and undercut the value of the Iraqi judiciary.
In Iraq, the court which tried Hussein was less internationalised than those in Cambodia and East Timor, but Hussein and his loyalists were hanged following trials which reeked of political interference. So much for the independence of ‘domestic’ war crimes courts!