COLOMBO: The appointment of foreign nationals as judges in the proposed Sri Lankan judicial mechanism to try war crimes cases has come up against constitutional and political difficulties.
Political observers wonder if a mechanism with foreign judges can be set up in time to enable Colombo to tell the UN Human Rights Council (UNHRC) in June, that a mechanism has been set up as per the October 1, 2015 resolution.
Prime Minister Ranil Wickremesinghe pointed out on Monday, that there is a constitutional bar on the appointment of foreign nationals as judges in Lankan courts. Lanka is not a signatory to the Rome Statute to accept foreign judges and courts. Allowing foreign prosecutors is also difficult because the Bar Council of Sri Lanka is unlikely to give foreigners a foothold in their exclusive preserve.
Politically, the government is hamstrung by the need to meet the challenge posed by ultra-nationalist forces spearheaded by Buddhist monks and the Rajapaksa group in the run up to crucial local bodies elections in June.
A way out for the government is to start a public consultation process and let parliament and the Supreme Court take the final decision, observers say. But given the volatility of the pre-election political situation, this process is unlikely to be completed by June.
However, to keep the UNHRC in good humor, the government might set up a Truth Commission; a Missing Persons’ Office, and an Office of Reparations. Public consultation on redrafting the country’s constitution to provide for greater devolution of power to the Tamil minority is already on.
There is a view that the October 1, 2015 UNHRC resolution does not make the inclusion of foreign judges and prosecutors “mandatory”. It only talks of the importance of their participation in a Sri Lankan mechanism. It does not say that they shall be included. The stress is on setting up a “credible” mechanism. While ruling out foreign judges, President Maithripala Sirisena has said that foreign technical expertise will be welcome.
Observers say that if foreigners have to be used, Lanka could go in for judges from friendly Commonwealth countries, or foreign judges of Lankan origin. Alternatively, it could set up a multi-ethnic Lankan tribunal, which could be deemed independent and credible.