17 August, 2019

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The Job Of A Judge Is To Do Justice, Regardless Of Nationality

By Basil Fernando

Basil Fernando

Basil Fernando

Concerns have been raised about the preliminary report of the Consultation Task Force (CTF), particularly about hybrid courts and foreign judges.

It should be remembered that this report and its recommendations have not been finalized. Additionally, at the very beginning of the report, the CTF write that they are not making extensive recommendations themselves, but that this is merely a collection of ideas from various people to whom they have listened.

This whole discussion that has created some controversies about hybrid courts should, I think, require a little bit of thinking.

First and foremost, this issue must be looked at from the point of view of law and justice. After all, the idea of the court is to mete out justice at the end. If it fails, then all this talk is worth nothing. A court can deliver justice only if its judges meet the requirements in terms of their experience, education and, above all, their integrity and their being commitment to justice and not to anything else. The motto should be: let the heavens fall, but justice will prevail.

If we can find such judges in Sri Lanka, let’s find them. There is no special requirement to bring anybody from outside. But if we can’t find them, or we can’t find enough of them here, then we should either bring them from somewhere else or we should not engage in the exercise at all, because there are only two types of courts: courts of justice, or kangaroo courts.

What we don’t want to have are kangaroo courts. That is what we have to avoid. In order to do that, we need to advertise the required qualities and get people from wherever. This is not about genes. This is not about colour or about what country you come from. A judge, acting in their professional capacity, has no nationality. A judge has nothing else but justice. That is why Lady Justice is blindfolded. Once you sit as a judge, you don’t belong to normal categories. It doesn’t matter whether you are Indian, Sri Lankan or from elsewhere. There are many courts all over the world where there are mixture of people. For example, in Hong Kong, as a matter of practice, you always have judges from developed jurisdictions working with Hong Kong judges in the Court of Final Appeal. The goal is to maintain quality.

What we should have is justice of a quality that no one can challenge it. It will not listen to governments, it will not fear any repercussions; it will just be justice. If justice cannot be done, the judges would say that they cannot do justice here, and that they cannot do something false.

We can again reach global standards. This is happening in many other fields. See how many engineers are in this country who are foreigners. Suppose you say that no engineers should come from abroad: what would happen to all their enterprises? See medical teams. This is happening all the time in every field.

Suppose we one day say that all foreigners are banned from participating in anything at all. What would become of us? In the world today, it is not like that anywhere. There is some absurdity in this whole discussion.

The second thing is that nothing is of greater value by being called ‘hybrid’. The mere fact that you add a foreign judge to a team of others does not make it a good court. The best example is where I used to work, in Cambodia, where there was an experiment with a so-called hybrid court. It was a complete failure.

The issue is the ensure quality. If the quality can be ensured by the talent we have, so much the better. Otherwise, open it up like any other employment opportunity and ensure that those people abide by quality.

If there is a fear that some foreigner may try to bring an agenda into this, it should be remembered that judges do no have agendas: judges do not have nationalities.

Many courts in the world have foreign judges. Many developing countries have in the past deliberately brought them in so as to raise their quality. Some of our judges, people from our system, are in other courts, such as in Fiji. There are so many of our judges there, including sitting judges. We have also sent prosecutors and judges to the International Court of Justice.

Sri Lankans have played their parts in other courts, and other people can also do the same thing here. The idea that any foreigner would be someone who is biased is, I think, a very false notion.

Of course, on the one hand there is the substantial issue, and on the other there is the political issue. Politically, the opposition tries to say that foreign judges will try to put our national heroes into jail, and other such allegations.

The government is then put in an embarrassing position, so they say they won’t have the judges. That’s a political debate, but these are not issues that politicians can decide purely on political terms. The judiciary is not something that should be decided on political terms.

The independence of the judiciary does not require that only local judges can sit at a court. Local and international does not apply. The reason for the blindfolded image is that they simply don’t have nationalities, their genes don’t matter, they go by certain qualities. This is the only profession of that type, where we don’t give any priority to anything but justice. Let the heavens fall, but justice must be done. They cannot say that they think in a particular way, that their ancestry guides them, or astrology or anything else.

In terms of the CTF objectives, it is essential to start with the issue of investigations. We cannot find the truth without investigations. Before we talk about judges, we should emphasise the need for proper and impartial investigations because, whenever a crime is reported, it is an absolute obligation to begin investigations immediately. The crimes reported include one of the most heinous crimes: enforced disappearances. People have already complained. The obligation of the government is to begin investigations. If the investigations bring out the truth, whether in favour or against the complaint, that determines what happens next. We should therefore concentrate all our efforts into that first step, which we simply cannot avoid: the issue of investigations.

This issue must be addressed step-by-step. Our experts, even those involved in transitional justice, look at books, but they don’t look at the contextual issue. What is missing here in this country? What is wrong? Not only regarding crimes related to the civil war, but in normal crimes? Our investigative system is in a serious crisis. In a normal murder or rape case, making a complaint doesn’t mean that there will be an investigation. Sometimes there are. In many cases, it doesn’t happen. There is something wrong in our basic criminal justice system. Making use of this larger issue, we should deal with our basic system. Correcting this is in everybody’s interest. If something happens to me today, it is in my interest that there is a system where a complaint can be made and where complaints will be investigated.

This is not a matter for speculation. We don’t speculate about crimes. We investigate crimes. It is a serious art and science.

Rather than borrowing some terms from elsewhere and putting it into a report, we should look at the local situation and see what is wrong with it. A critique should be made of the local situation. If someone is not happy with the local judiciary being able to do this job, make a proper critique of that and explain why.

Politicians may raise obstacles to foreign judges, but no question is being asked about what the people want. Would the people want justice or a farce? Some kind of bluff, followed by conviction or acquittal? We don’t want courts that are committed to convicting or acquitting people without due process. It should be according to justice. So do you want a court of justice, or some kind of bluff? This is a matter for the people, primarily, and if the people begin to demand this, all these parties will have to listen. Political parties should listen to the people. Here we have it the other way: we borrow our ideas from political parties. The whole nature of democracy is to get the people to say what they want to the political parties. That should not be turned the other way.

In the Sri Lankan mentality there is almost an inability to go beyond surface politics and into the realities of how things happen. Everything is just for the newspaper or the media, for talk, and not about how to get things done. Justice is done by people involved in justice. That is, investigators, prosecutors, judges; these people do justice. Politicians don’t do justice. In fact, fighting against injustices done by politicians was how the justice project came about. In England, you had to fight against the King, to the point that one of first heads of states to be killed was in England, in search of justice. Justice will never come from the hands of politicians alone.

If the whole country can only be run by politicians, then we don’t need any other kind of professions. We wouldn’t need accountants or doctors, only politicians.

People must be able to rely on justice institutions. That brings out the real question: Do we want anarchy to prevail in this country? Lawlessness? Or do we want the rule of law back? That is kind of issue that should be central issue in these reports. The core question should be: what is happening to the rule of law? Will this court, whichever court it is, be respected within the framework of the rule of law? Will they help to stabilize this country? Will they make it a country that is safe for everybody, where it is safe for people speak out and participate? Will that happen or will it just be people living in fear?

The greatest assault on the dignity of a victim or their family is to deny the truth of what happened to the victim. We can’t resolve that by any other means, including giving facilities, though that is indeed necessary. Nobody disagrees on the fact that infrastructure and other necessities should be provided. But that does not restore dignity to a person. If my brother was killed and I don’t know what happened, if he was arrested and then disappeared, I would suffer all my life with that idea, asking what happened. That would go to the very depth of my dignity.

Justice is more important to a nation than anything else, and that is what we are rapidly forgetting. We had that idea up until the 1978 Constitution. We believed that justice was fundamental. Without justice, we will not have a sense of dignity at all. Today, the whole nation suffers from the fact that we are unable to have a system of justice that we can look at and say: even if everything fails, if politicians fail, at least in the sacred vicinity of a court of justice, we get justice.

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Latest comments

  • 9
    0

    Basil:

    Well said Sir.

    • 4
      0

      ditto

    • 8
      2

      When it comes to matters of justice, I have complete faith in the opinions of Mr.Basil Fernando. I trust the authorities will listen. I remember him from his Asian Human Rights Watch days. From his name I deduce he is a non-Muslim but no one fought harder for the life of Muslim Rizana Nafeek in Saudi Arabia than Basil, including the Muslims in Sri Lanka and the mega rich in Saudi Arabia to save an innocent Sri Lankan Muslim young girl from being beheaded despite international medical experts’ opinion she was innocent and she being of prohibitive under-age even in Shariah Laws. It was painful to see the rich Saudi Arabians falling over themselves to kill this poor fellow-Muslim peasant under painfully obvious flawed justice. Except for Asian Tribune and Colombo Telegraph most of the media here mentioned the plight of this girl only in passing. I admit I sobbed my heart out on that sad day in January 2013 when she was beheaded.

      • 1
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        Sylvia H
        I hate the Saudis for beheading that poor girl. It is suppose to be a holy land for Muslims but their day to day like is anything but. Hope their oil runs out and their assets abroad seized.

  • 7
    1

    We have a Military Regime coated with a thin veneer of democracy.

    In the past, an army commander was tried by a military court of junior officers, and sentenced to imprisonment.
    The supreme court then said that ‘a military court is like any other court’.
    There was a ‘chief justice’ who said that a prisoner beaten to death in prison, was a terrorist ‘of his own knowledge’ and dismissed a request for compensation.
    There was another CJ who was ‘tried’ by MPs who had no idea of the law and justice, and was impeached by the ‘kangaroo court’ they were members of.

    Judiciary should have the backing law enforcers with unblemished reputation and character, who were selected/appointed for quality rather than political subservience. This does not happen in Sri Lanka.

    Hence any notion of justice for who were murdered or were caused to ‘disappear’ before, during & after the war,is only a ‘pipe dream’.
    This is confirmed by the many refusals of regimes, for foreign judges and attorneys.

    What is aimed at by the Consultation Task Force is the establishment of another ‘kangaroo court’ which will safeguard the ‘reputation’ of the armed forces, and, of politicians & their flunkeys, who ‘turned a blind eye’ to what happened.

  • 2
    0

    Basil Fernando

    RE: The Job Of A Judge Is To Do Justice, Regardless Of Nationality

    Yes, this the Job of the Justice.

    However, what actually happens in the Land of Native Veddah Aethho, occupied by the Paras, especially the Para-Sinhala “Buddhists” who are an insult to Pristine Buddhism as well to Buddha?

    The elected President, Sirisena, turns on the investigators of FCID, applies undue duress on the Judges to release criminals, and even transfers the DIG in charge of FCID to Moneragala, too catch Grass Hoppers and watch Peacocks.

    That is how Sirisena has earned the titles of Turncoat, Traitor, Gona, Mala-Perethaya and Sevalaya from those 6.2 mullion who voted for him for Good Governance..

  • 10
    0

    “The Job Of A Judge Is To Do Justice, Regardless Of Nationality”

    Yes we did see this in Rajvir’s case. The judge rejecting all protests and installing a Sinhala only jury to initiate a verdict that he wants but does not have the backbone to deliver.

    Sri Lanka justice system does not have a problem with knowledge but a major problem with racism and corruption.

  • 1
    8

    From where do we find such hybrid Judges????????????
    And in which part of the world a Justice system exists with such Judges?

    If Basil F’do’s AHRC can fund SL can get down some hybrid Judges as alleged by this Fernando from his Hong Kong.
    Fernando gloats about Hong Kong. Hong Kong masses agitating for something called Democracy where nobody is aware of the real definition.

    nandana manatunga has a boundary problem in Wattegama, and this also is internationalised by AHRC.
    basil F’do must be straight first. His ex-employee a Westerner & former HK Intel Policeman states that his former boss needs to be investigated first….. Boss speaks of Intergrity & a blindfolded Judges.
    All this is like Volkswagen coming to sri Lanka.

    • 7
      0

      thondamannay

      “And in which part of the world a Justice system exists with such Judges?”

      International Criminal Court
      Oude Waalsdorperweg 10,
      2597 AK Den Haag,
      Netherlands

      For further details contact

      Phone: +31 70 515 8515

      Now you have an institution that has a hybrid system will you drag all the war criminals to ICC.

  • 5
    0

    Dear Basil Fernando and all participants,
    What Mr. Basil Fernando expects for Sri Lankan Justice is to be refined and dignified and be respected by all humanity alike. Whatever race, religion, or Country one belongs to justice must be delivered for the liberation of the victim and not the other way around. But it is not possible to happen in Sri Lanka even after help from the UN to bring some dignity to Sri Lanka. In Sri Lanka as far as justice is concerned, victims are incarcerated, imprisoned, and tortured where as the criminals and anarchists are making decisions for the Country and its Justice system. You will see in another 5 years there will be more additions to the recent bad history and lost chances for Sri Lanka to deliver its Countrymen.

  • 2
    0

    THE POINT WE MUST REMEMBER IS THAT OUR GOVERNMENT ITSELF IS ONE OF THE TWO PARTIES INVOLVED WAR CRIMES. OUR PRESENT PRESIDENT WAS THE DEFENCE MINISTER PRESIDING OVER THE WAR. ALSO OUR PRESENT PRESIDENT IS MAKING OBVIOUS ATTEMPTS TO FREE THE ACCUSED ARMY OFFICERS FROM THE CLUTCH OF JUSTICE. IT IS IN THIS CONTEXT WE ARE DISCUSSING FOREIGN JUDGES.

  • 3
    0

    Sri Lankan had been rearranged since the independance to be run by politicians. Work places are full of employees who do not want to work.

    Sri lanka is ungovernable until the system is changed. But, they won’t change it because politician family dynastuies and children of politicians who are the present leaders will go out of power.

    They might send Sri lanka to bankruptcy too once this development wave after the LTTE war and foreign remittances stop.

    • 1
      0

      Jim
      Unless we stop politicians getting in to the parliament just to rob the hard working taxpayer’s money using various development worthless schemes SL will be a poor third world country.
      Why are we still having exchange control rules because our foreign earnings a squandered and our citizens are virtually prisoners in their own island country.

  • 6
    0

    Wele Suda is in the JAil. but he is photographed attneding to Kovils with the bureaucrats in Sri lanka. His mother and sister was caught with drugs in their pocession.

    SO, president and prime minister pretend they do not know anything.

  • 5
    0

    Why it is important for Sri Lanka to have a fair and unbiased trial and justice served and seen to be served.

    “Prosecutors at The Hague war crimes tribunal have called for a life sentence to be imposed on the Bosnian Serb military commander, Ratko Mladić, for genocide and crimes against humanity committed by his forces in the 1992-95 Bosnian war.

    Any lesser penalty would be “an insult to the victims, living and dead, and an affront to justice” said Alan Tieger, closing the prosecution’s case on Wednesday at the end of a trial that has taken more than four and a half years at the international criminal tribunal for the former Yugoslavia”

    Justice should be blind whether in Sri Lanka or any other part of the world.

  • 0
    1

    Thank you Mr. Fernando.

  • 0
    0

    [Edited out]

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

    • 0
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      thondamannay

      Excellent

  • 2
    1

    “”The Job Of A Judge Is To Do Justice, Regardless Of Nationality””

    It’s the way of life of the pirate that is practiced.

    Even in the UK the “rule of law” is yet elusive and deteriorating.
    Australian/American (made his name and fame UK) Rupert Murdoch went scotch free by buying a couple of victims like the Saudis and promoting PM Cameron. Now his son is back as CEO News international.Very soon there may be news of the world. Barings Bank thief is a celebrity. Sepala was released with fan fare and vigour.
    on December 13, 2016, the Millennium Challenge Corporation (MCC) Board of Under Obama (special before departure)Directors selected Sri Lanka, Burkina Faso and Tunisia for new MCC compacts – five-year grants – to encourage economic growth and reduce poverty.
    “MCC’s considerable support is a major boost to our six decades of development partnership with the people of Sri Lanka,” said U.S. Ambassador to Sri Lanka Atul Keshap.
    The 17 indicators have been wriggled- to suit the fancy of politics of a thick head. (what Bush created to be non political Obama the stupid debtor squandered)

    Enjoy the piracy of the crow and crown.- protest and contention.

  • 0
    0

    The Job Of A Judge Is To Do Justice, Regardless Of Nationality.

    The Job of the Minsters is to do Injustice, regardless of community.

  • 1
    0

    “In terms of the report of the Consultation Task Force (CTF) objectives, it is essential to start with the issue of investigations. We cannot find the truth without investigations. Before we talk about judges, we should emphasise the need for proper and impartial investigations because, whenever a crime is reported, it is an absolute obligation to begin investigations immediately and it is the judges’ “
    (Additional ) Responsibility to identify whether the investigators and the prosecutors conducted have themselves towards justice to the victim(s). At this juncture two murder cases of Sri Lanka come to my mind very spontaneously, one is – four decade old – 1974 Tamil Research Conference massacre – the Magistrate blatantly failed to consider the fact – that the ASP deliberately shot at the Electric Pole connection that connects the live wire to podium and caused the mayhem at the final day wind up ceremony podium – A well cooked up plan by boozing partners The ASP and the Mayor who was totally ignored by organizing committee – the death of nine people was declared accidental. A Swedish Professor contributor to the Tamil Research, declared back that local ASP’s involvement itself proved that it was political game; the other one is the very new, end of the Parliamentarian N. Raviraj’s Murder case, the Government deliberately appointed Jurors so that to dismantle the Justice towards the victim through cutting short the bench duties of a Judge (meticulous study of witnesses)!
    These two cases more than enough proves that Sri Lanka has been with 1. Ethnically biased justice system and 2. that is always politically manipulated as well.
    Basil Fernando has well and truly pronounced what is need of the hour to go forward heads straight!!

  • 2
    0

    The judges, particularly those very shred ones, would follow how Chief Justice practices the law. Unfortunately, we have a series of CJs who opted to practice politic than law in their tenure, and for a few such adventure has backed fired too. Some names ring a bell are…N Silva, Sriyani, Pieries and Sripavan( what is he doing), all made a fair share of contribution to make the system to be like what it is today. And, a CJ commented shamelessly/proudly what favor he did whilst he was on the bench, taking the guy off the hook.

    Acquittal of suspects from Raviraja murder case made SL judiciary a laughingstock, but the ones that should take these things seriously in order to restore faith on the system seem to have no qualm about. What kind of shock second time the young family must have been felt when they hear the strange verdict. The system is hopeless but still ours.

  • 2
    0

    Well-said, Mr. Fernando.

    I am re-posting here a portion of my comment from another thread:

    Had the new regime shown any progress in bringing to book the perpetrators of at least the culprits of the Trinco-5 and ACF-17 massacres, the GoSL might have made a weak case that the victims could trust an internal process. But in the absence of any justice for those easily provable crimes, there should be no compromise on the demand for international involvement in the war crimes investigations.

  • 0
    0

    Basil is talking about ideal judges; judges who are impartial and fearless. It is true that judges need not belong to a particular nationality to sit in judgement in a given case. But, the problem in Sri Lanka is that over the past several years this tradition of having unbiased impartial judges has disappeared. Selection and promotion of judges to the highest court had become politicised. A politicised Chief Justice contributed greatly to the erosion of confidence on the judges of the higher Sri Lankan courts. Some of his hand picked protégés who were promoted to higher courts now hold positions in the Court of Appeal and Supreme Court. One practising lawyer told me that some of these judges cannot write proper judgements in the first place, leave alone holding the scales of justice evenly.

    A couple of recent judgements had questioned the integrity of the Sri Lankan judicial system. Sinhala speaking juries in two recent cases involving Tamil victims have exonerated the accused persons who belonged to security establishments. This is not the fault of the judges but the judicial system which requires jury trials.

    The most important point Basil touched on is about investigations. Without proper investigations there cannot be any successful trials. Sri Lankan judicial system is to be again blamed for this. In Sri Lanka, investigation of criminal offences are conducted by the Police. Then only, in serious crimes such as murder, the Attorney-General’s Department get involved. Sri Lankan policemen are not selected for police duties based on educational qualifications or for their intelligence. In many instances they are political appointees. I wonder whether they go through proper training on techniques of investigations. Sri Lankan policemen are better known for getting confessions from suspects by beating them or by coercion.

    This is where I would like to see Sri Lanka adopt the French system of criminal justice where investigating judges conduct investigations into major crimes with the help of legally trained prosecutors. Under the French system, the investigating judge based on his investigations recommends charges against the suspect or release the suspect for want of evidence . A proper trial is thereafter conducted by a separate trial judge who decides on the guilt or other wise of the accused.

    Basil is again right about the hybrid court in Cambodia which tries those accused of human rights violations and crime against humanity during the Pol Pot time. Having one foreign judge sitting with two or three local judges is not the way to investigate war crimes or crimes against humanity. What is required, as Basil rightly insists, is the appointment of impartial and fearless judges who will be able to hold the scales of justice evenly.

    But before thinking of judges, the government of the day should be prepared to charge those accused of war crimes, crimes against humanity and other human rights violations. Unfortunately, the present Sri Lankan government has no will to do that.

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