The Bar Association of Sri Lanka (BASL) whilst acknowledging that there was a constitutional impediment to having foreign judges and prosecutors in a new local court to try war crimes, also highlighted that a judgment of a war crimes tribunal would be subject to review by a higher court, especially the Supreme Court.
Minister of Foreign Affairs Mangala Samaraweera recently announced that that the government would finalize the basic architecture of a judicial mechanism to try alleged cases of war crimes as part of a final mechanism for accountability including special accountability Courts by January and February next year.
The Executive, President Maithripala Sirisena has rejected the possibility of the involvement of foreign judges and prosecutors. The Government is also scheduled to put together a plan for a truth seeking commission by September this year.
President of the BASL, President’s Counsel Geoffrey Alagaratnam said that the Constitution allowed for a tribunal to be created and established and while foreign persons have previously sat on local tribunals, creating and establishing and instituting one to try alleged war crimes would have to be a policy decision to be taken by the Government.
It is better if the appointments to the said tribunal are done by the President and the Constitutional Council, in consultation, he remarked. “There however is a constitutional impediment with regard to the court system, for the creation and establishment of a hybrid court (which involves foreign judges and prosecutors). In the event war crimes and crimes against humanity are not recognized in the law of the land, specific legislation could be enacted so as to have retrospective application, for which there is a judicial precedent in the Sepala Ekanayake v. Attorney General case. For a judgment to be reviewed by a higher Court is a protection that is granted and must be there,” he explained.