Outrage As President Insists No Foreign Judges
by Easwaran Rutnam
A public statement made last weekend by President Maithripala Sirisena that he will not agree to inviting foreign judges to get involved in the accountability process related to the war, has drawn sharp criticism.
The criticism stems from the fact that the need to have foreign judges is part of the Resolution adopted by the UN Human Rights Council (UNHRC) last year, which was co-sponsored by Sri Lanka.
Speaking at the Law Conference in Wadduwa last weekend, the President said that he has faith in the local judiciary and he feels all that needs to be done is to strengthen the judiciary and ensure it is independent.
International human rights groups have been calling on Sri Lanka to invite foreign judges to ensure the domestic process to investigate human rights abuses related to the war are credible.
“If there is a need to conduct a judicial process after investigating human rights abuses, I will not agree to invite foreign judges to come to Sri Lanka and be involved in that process,” he said.
The President had made a similar comment a few weeks ago to the international media and that created a storm with human rights groups insisting that he reconsider his stand.
Human Rights Watch (HRW), which pushed for the Resolution on Sri Lanka at the UNHRC and backed international participation in the local judicial process, reiterated the need to have foreign judges.
“The HRC resolution called for the participation of foreign judges and prosecutors because of a history of failure by local judges and prosecutors, particularly in dealing with sensitive war crimes allegations.
The President’s repeated statements refusing to allow foreign participation in an accountability mechanism contradicts the government’s official position at the HRC, calling into question their sincerity and trustworthiness,” Brad Adams, Director Asia at HRW told The Sunday Leader.
The Tamil National Alliance (TNA), which backed the government at the Presidential elections last year, also expressed disappointment at the stand taken by the President.
Former Tamil National Alliance Parliamentarian Suresh Premachandran said that the Tamils will not accept a purely domestic accountability process.
He said that the government clearly agreed with the clause in the UN Resolution which proposes the participation of foreign judges.
The clause in the Resolution on the participation of foreign judges states the UNHRC takes note with appreciation of the government of Sri Lanka’s proposal to establish 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; and affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality and further 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.
Importance of foreign judges
Premachandran said that the importance of having foreign judges was raised in Parliament by TNA member M. A. Sumanthiran.
“The President may have faith in local judges but Tamils don’t. He must invite foreign judges for the process to have credibility,” Premachandran said.
Premachandran also said that there can be no justice for the Tamils who were victims of the war if the accountability process does not have the participation of foreign judges. Last week the United Nations (UN) also reiterated calls for a credible investigation on incidents related to the war in Sri Lanka.
Farhan Haq, Deputy Spokesman for the UN Secretary-General said that the UN has made clear what the guidelines for what a credible investigation will entail.
He said this in response to a question posed on the comment made by President Maithripala Sirisena that he will not invite foreign judges to be involved in the judicial process after investigating incidents related to the war.
“The Human Rights Council can evaluate for themselves how it’s going, but we want to make sure there is a credible investigation into this. And we have made clear what our guidelines are for what a credible investigation will entail and so we will continue to be in dialog to make sure it happens,” he said.
Last month Foreign Minister Mangala Samaraweera had said that he is willing to consider international participation when investigating incidents related to the war.
“I think it is only fair that the victims of the war would want some form of guarantee that the new courts will deliver justice and accountability in a fair manner, and for that we are willing to consider the participation of international actors,” Reuters had quoted Samaraweera as saying at a Washington think tank last month.
Two key players involved in the drafting of the UN Resolution on Sri Lanka, the US and UK had also emphasized on the need to have foreign judges.
The US Ambassador to the UN Human Rights Council in Geneva, Keith Harper, said recently that the accountability process can be credible only if foreign judges are involved.
Process to ensure credibility
The British government also affirmed the need for foreign judges in Sri Lanka’s domestic accountability process to ensure its credibility. UK Minister of State at the Foreign and Commonwealth office Hugo Swire, in a letter to a group of British Parliamentarians last October, had said that the resolution adopted at the UN Human Rights Council (UNHRC) notes the importance of the participation of Commonwealth and other foreign judges and defence lawyers in Sri Lanka’s judicial accountability process.
Writing to the UK MPs in the All Party Parliamentary Group for Tamils and on Sri Lanka, Swire said that the resolution has a clear call for Sri Lanka to reform its domestic law to ensure that it can effectively implement its own commitments, including by allowing for the trial and punishment of those most responsible for violations and abuses of human rights and violations of international humanitarian law and requests continued international assessment of Sri Lanka’s progress through the Office of the High Commissioner for Human Rights (OHCHR) and the UNHRC.