Colombo Telegraph

Dilemma Of The Involvement Of International Judges: CTF Recommendations & Political Stance

By Anushka Kahandagama

Anushka Kahandagama

The Consultation Task Force on Reconciliation Mechanisms (CTF) has handed over the final report, which is a product of months of consultations with victims, citizens and civil society stakeholders among them. The ceremonial handing over of the important report, which is produced by a Task Force commissioned by the Prime Minister was neither to the Head of State nor to the Prime Minister, but to the former president Chandrika Bandaranaike Kumaratunga, on 3rd January 2017. The President Maithripala Sirisena and Prime Minister Ranil Wickramasinghe were not present at the ceremony, which could be perceived as undermining their commitment to the process of reconciliation. However, being not second to the State, drawing from the report which close to 600 pages, most of the media coverage shed light on the involvement of international judges in the Judicial Mechanism, being one of the main recommendations of the CTF. In the 24th point of the Executive Summary and the Recommendation part of the Final Report of the Consultation Task Force on Reconciliation Mechanisms, CTF recommends

‘…….a hybrid Court with a majority of national judges as well as a sufficient number of international judges. This will ensure at least one international judge per bench and pre-empt delays due to the absence of one or more judges. It also recommends international participation in the Office of the Special Counsel of prosecutors and investigators, in addition to the provision of technical assistance. There should be clear guidelines and criteria spelt out and made public in respect of all aspects of international participation. International participation should be phased out once trust and confidence in domestic mechanisms are established and when the required expertise and capacity has been built up, nationally.

However, the recommendation to include international involvement does not appear e without any reason, but was based on a rational argument which emerged from the consultations. One of the reasons for demanding international involvement was, the perceived ‘failure of the existing justice system’. According to the report of the CTF,

‘The failure of the existing justice system also grounds the call for international involvement and/or supervision and the need to reform the existing system alongside any special justice mechanism’.[1]

Although I have only quoted one sentence, in the report, there are many places in the CTF report where people have expressed their mistrust in the existing justice system.

Whilst the recommendation on involvement of international judges in the special judicial mechanism proposed in relation to the reconciliation, process in Sri Lanka gained much of the attention of the media, there were also media coverage which opposed the involvement of foreign judges where reference is made to both the current President Maithripala Sirisena and to the leader of the joint opposition and former President, Mahinda Rajapaksa. According to one article ‘The opposition led by Mahinda Rajapaksa, who was president when the government finally defeated the LTTE, has held out against foreign judicial involvement and said his successor is betraying the military for a “Western agenda”.[2]

From the the side of the Government, ‘President Maithripala Sirisena opposes the involvement of foreign judges, and cabinet spokesman Rajitha Senarathne said on Wednesday the government had clearly told the U.N. that it would not allow them’.[3]

Thus both the State and the Joint Opposition have clearly manifested their stance regarding the ‘hybrid court’ with international judges. The important question to ask is, are they themselves satisfied with the existing judicial mechanisms. After winning the Presidential Election in the year 2010, President Maithripala Sirisena said in a public rally that, ‘”If I had not won the presidency, I would be six feet under by now,” he  made this remark at a public rally after his win, alluding that if he had lost, his opponents may have assassinated him’.[4] President, Miathripala Sirisena, who was the former Secretary of the SLFPA, feared for his life before he won the election. In other words, he did not have any faith in the governing bodies of the country.

In an interview with Gotabaya Rajapaksa, who was a powerful member of the Rajapaksa family, he stated that, ‘The rulers can put their opponents behind bars but they can’t destroy them and their popularity. When the time comes the people will decide whether they want the Rajapaksas to serve them in the future or not’.[5] The statements suggests that, people who rule the country have a certain level of control over the ‘law’ of the country.

‘Minister of Health and Indigenous Medicine Dr. Rajitha Senaratne highlighted the harm Chief Justice Bandaranayake did to the legal system in Sri Lanka. “Victor Ivan in one of his books thanked me and Vasudeva for working for the removal of the corrupt Chief Justice Sarath N. Silva. But it is amazing to see now the same Vasu taking side against the removal of a similar corrupt Chief Justice – Mohan Pieris. After Sarath N. Silva then came Dr. Shirani. She did something that I don’t agree with’.[6]

The statements above suggest that, politicians who are against the hybrid court themselves do not have faith in the functioning of rule of law in this country. If these politicians who are from the elite and have social capital and considerable wealth do not have a faith in the functioning of the rule of law in the country how can people from the grassroots be expected to d have fair and eqaul access to justice. According to the CTF report, people who seek justice are not only Tamil from war prone areas,

‘The calls for justice, were referred to in the context of the failure of the existing system to deliver justice, accountability and redress for a wide range of crimes/affected persons including the experiences of Tamil persons during and after the war, the violations suffered in the South during the southern insurgency in 1987-89 and more recent incidents of religious violence in the South and police and military excesses throughout the island’.[7]

People across the Island regardless of ethnic or religious identities have been victims of varied human rights violations and are in need of ‘justice’. Politicians from the side of the State and from the side of the joint opposition, are both making an effort to protect their ‘Sinhala-Buddhist’ vote base. The contradictory and confusing stance of the Sri Lankan politicians regarding the existing judiciary of the Island and involvement of international judges as a reconciliation tool is ironic.

[1] Final Report of the Consultation Task Force on Reconciliation Mechanisms, P 235.

[2] Sri Lanka divided as panel backs foreign judges to probe war crimes in Lanka Business Online. 6th Jan 2017.

[3]Sri Lanka divided as panel backs foreign judges to probe war crimes in REUTERS.

[4]MaithripalaSirisena and MahindaRajapaksa: The key players in Sri Lanka’s election in The Telegraph. 15/8/2015.

[5]Jailed or killed, no one can destroy the Rajapaksas”: Gota .in Daily FT. 9th February 2016. See more at:–no-one-can-destroy-the-Rajapaksas—Gota#sthash.aGn50peo.dpuf

[6]Hemmathagama, Ashwin. Battle in Parliament over Chief Justice fiasco in Article 14.

[7] Final Report of the Consultation Task Force on Reconciliation Mechanisms. 235

*The writer is a Research Officer (Sociology), Law and Society Trust. The views contained herein are the views of the author and not necessarily the views of the Law and Society Trust

Back to Home page