Foreign Judges Can Hear Cases

by Sulochana Ramiah Mohan, ‘Ceylon Times, March 26, 2017

Attorney-at-Law and Co-Founder of South Asian Centre for Legal Studies Niran Anketell who has litigated human rights, constitutional law, and civil cases in Sri Lankan Courts for over seven years speaks to Ceylon Today on the government co sponsoring the United Nations Human Right Council’s resolution 30/1.

Anketell who also pursued a LL.M in International Legal Studies at New York University and worked at the International Co-Prosecutor’s Office at the Extraordinary Chambers in the Courts of Cambodia (ECCC) as a Fellow of the Centre for Human Rights and Global Justice says Dr. Dayan Jayatilleke and C.V. Wigneswaran projected that the constitution does not allow foreign Judges, which is false.

“The Constitution does not say we cannot appoint foreign Judges,” the human rights lawyer points out.

?: Will the government be able to implement the resolution fully within the next two years as it promised the international community last week at the 34th Session of UNHRC in Geneva?

A: I don’t think they will do it because they don’t want to. It has become quite clear that the government does not wish to move with the respect of the question of accountability and probably in order to placate the military, has decided that it will to go slow without completely stalling the pursuit of accountability in respect of crimes committed in the past. That was not always the position of the government. I think when they co sponsored the resolution in 2015, there was a different view and that view was not held just by the Foreign Minister and the Prime Minister but also included the members of the SLFP. The President defended the resolution in many forums and at a two-day parliamentary debate in October 2015. But today, there appears to be no interest in moving in respect of this issue.

Nevertheless, the Sri Lankan government co sponsored another resolution calling for the ‘full implementation’ of the resolution 30/1.

Despite that, I think there is an ‘actual reluctance’ to move with the aspect of accountability.

I think if they fail implement the resolution fully that within the next two years, there will be a reputational and diplomatic cost. Sri Lanka made promises not once but twice and on the second time they acknowledged there will be full implementation of the resolution and there is no going back on that.

?: Deputy Foreign Minister Dr. Harsha de Silva in Geneva last week said implementing the resolution would be a government led process with international engagement. He also said international Judges per se cannot hear cases. Is that a call for some sort of a hybrid Court or some technical assistance from the international experts to address to alleged war crimes?

A: Whether or not hybrid Court that is, it is a distraction. There is no clear definition for a hybrid Court. There are all sorts of hybrid Court models throughout the world. Earlier we had said whether you call it a hybrid Court or not is really a semantic question. For instance, the Court in Cambodia, it was most certainly a hybrid Court, a classical hybrid Court but the document setting it up says this the table with the regular ordinary Court of Cambodia part of the Cambodian judicial system. But despite that, it was described in the statute that it was a classic hybrid Court. So the description and labels don’t matter. But what clearly said through 30/1 was the participation of the international Judges from Commonwealth or other countries including investigators, prosecutors and lawyers but, not to bring them as advisers. It does not make any sense to say an international Judge will come as an advisor. There is no such a thing called an international Judge unless he is sitting as a Judge. Some of the international Judges sitting at the bench were previously professionals. They are professors who were appointed as international Judges. Their description is international Judges and they come as international Judges.

That is very clear but keeping that aside, when you read the operative Paragraph 1 of the resolution it says ‘it encourages the Sri Lankan Government implement number of recommendations of number of reports including the Office of the UN High Commissioner for Human Rights Investigation on Sri Lanka (OISL) Report which is the ‘investigation report of the High Commissioner pursuant to the resolution in 2014 in the Council Session of 25. So it is clearly encourages Sri Lankan government to implement the OISL report which demands the hybrid Court. If you read operative paragraph 1 an operative paragraph 6 there is absolutely no doubt it calls for international Judges, lawyers, investigators and prosecutors.

But when the human rights activists and various other persons argued in 2015 what is required is a hybrid Court and the government also agreed to it, unfortunately at that time, number of others who were completely misguided, assisted the Sri Lankan government’s current position by saying the resolution contains not a hybrid Court or the resolution does not quote the international participation as Judges.

They also said the resolution was very weak. Even Chief Minister of Northern Province C.V. Wigneswaran said international Judges are not permitted under the Constitution. He even passed a resolution in the Northern Province saying ‘we don’t want a hybrid Court because in the constitution it is not permissible to have foreign Judges’.

?: Is it true that the Sri Lankan Constitution does not permit foreign Judges to hear cases as in a hybrid Court or otherwise?

A: That position is wrong. There is nothing in the Sri Lankan constitution that talks about the nationality of Judges. It only requires an Oath to be taken. In my view that Oath can be taken by any person by only to protect and defend the constitution and that Oath does not require loyalty to Sri Lanka like in the American Oath where it talks about loyalty to the United States. Sri Lankan Oath does not talk about it. There is the Sixth Amendment Oath about separatism and the main Oath is about defending the Constitution. So, I don’t see why a foreigner working as a Judge should be prevented in taking an Oath saying this is my constitutional role and I will defend the Constitution. But people like Wigneswaran and Channel 4 film producer Callum Macrae who said it’s not a hybrid Court that is needed for Sri Lanka. These people’s arguments are what the Sri Lankan Government is using as a defensive tool. They played down the resolution.

?: To permit a foreign Judge, is there a process through Parliament?

A: There are different modes of appointments for different types of Judges. For instance, it is the President who appoints the High Court Judges but the Judicial Services Commission (JSC) has a role to play. With the respect to the Judges of the Lower Court, that is the Judges below the High Court, the appointments are made by the JSC. So the JSC can appoint whoever they wanted and in my view, they also can appoint a foreign Judge as well. In my view, the President can appoint, together with the Judicial Services JSC, foreign Judges to the High Court as well. They can also be appointed as commissioners of the high Court. So there are different modes. That is of course a very technical and legal matter depending on how the special Court is established here.

?: Do all these clauses need to be amended in the Constitution?

A: No. In my view none of this requirement needs Amendment in the Constitution. You can establish the Court, the special counsel office that is the special prosecutors, and have the necessary international participation without any requirement of need to amend the Constitution.

?: You mean former Supreme Court Judge C. V. Wigneswaran and Prime Minster Ranil Wickremesinghe being in the legal profession did not know this?

A: I think when the GoSL passed the 2015 resolution; they were of the view that they can do this without a Constitution amendment. That is what we were made to understand. People like Dr. Dayan Jayatilleke said this is against the Constitution and on the other extreme, it was Wigneswaran. The extreme wings of both sides have become the government’s position and that is unfortunate. I have no problem with the resolution that has been passed because it calls for full implantation of the resolution.

There is no alternative to this resolution. The idea of having Sri Lanka be referred to the ICC is outlandish. Utterly irresponsible that this process has to put to a halt and looking for searching for something else which will never come and never will happen.

This will completely deny justice to the victims. At least we have the chance to apply pressure to make this resolution implemented and no one should work towards ‘removing’ the pressure on Sri Lanka and run after other fantasy that will never come to be true.

?: What would the consequences be if the resolution is not fully implemented within the next two years? Is there a possibility Sri Lanka can be referred to the General Assembly as called by the Tamil Diaspora? What is the next step if the process fails?

A: Ideally, every possible Court that can exercise criminal jurisdiction should have exercised it long time ago. But, the point is, if you take the next step, you have to drop the UNHRC. As a human right activist this is my point of view. It means you don’t want this UN resolution if you are deciding the next step. The High Commissioner’s reporting comes only through this resolution. If you drop this resolution, there is no room for the high commissioner’ report it. To reach Security Council (SC), Sri Lanka must be a global threat to peace and security. Which country is going to back this? You must come with the finding that this country is a threat to global peace and security. There is no support for such a thing in the Security Council. The idea to drop the UNHRC and go to SC is bizarre.

?: Eventually will it come to that?

A: Eventually if Sri Lanka fails and continues to show bad faith, the International mood with respect to Sri Lanka will ‘shift’.

?: Are there countries that failed to implement a resolution being referred to the Security Council so far?

A: There are some ongoing conflicts and of course Libya and Sudan were referred to SC. North Korea was not referred to SC.

International politics is preventing that despite the country, on the whole, is a ‘prison’. If that country is not sent to SC, how then could Sri Lanka be referred to the SC at this stage?

?: So what is the alternative for Sri Lanka and can Sri Lanka come out of this resolution at the end?

A: We have to maximize our opportunity to justice. At this stage to maximize the opportunity to justice means demonstrating in a clearest possible way that the Sri Lankan Government has no intention to move with the respective issue of accountability.

Get them to commit fully on the implementation of the resolution. Also the High Commissioner of Human Rights should allow monitoring the situation. Through the resolution and through the government’s own commitment must increase the pressure and there must be something that the government would do to avoid international scrutiny that will be useful to the people.

There is always opportunity to pursue a universal jurisdiction cases not an ICC or international tribunal but Court in other country to try for crimes committed in Sri Lanka on the basis these are international crimes therefore every Court in every country has the jurisdiction to hold legal cases. Countries such as Belgium, Argentina and the UK exercise it. These are the other ways to pursue justice.

?: There is a notion that if the hybrid Court and other clauses in the resolutions are to be implemented, this government will lose its popularity and may even be toppled at the next election. What do you have to say?

A: This government has done little and a very poor job in communicating the resolution, the transitional justice process to its people. Therefore, there is a huge amount of misconception between communities, particularity the Sinhala community. They are wondering what the transitional justice projection will lead to. The going after the military is only targeting those who are responsible and it does not target the entire security forces. This has to be explained. What is happening is that, soldiers are being blamed for the crimes committed by those who gave the orders. Those who gave the orders to commit crimes are not being held responsible but are scot free. The Raviraj, Kumarapuram and Mirusuwil massacres, only the junior soldiers were nabbed and tried. They are responsible but they are handpicked to commit crimes by the seniors. The LTTE also did the same.

Combatants committed the crimes after taking orders from their seniors. It’s a misnomer that accountability is with the individual and not the military in its entirety.

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