Legal heavyweights claim that there are no provisions in the system or the hierarchy of courts or the Constitution or the updated Judicature Act to allow foreign judges to sit in judgement of Sri Lankan affairs.
Senior Lecturer at the Department of Commercial Law of the Faculty of Law of the University of Colombo, former Human Rights Commissioner Dr. Prathiba Mahanamahewa said that there is no legal background in the existing law and therefore no validity.
“It is the legislature that has to endorse such a premise by ratifying it in Parliament by way of enacting an Act of Parliament,” Dr Mahanamahewa explained.
Elsewhere, the 11 Member Consultation Task Force on Reconciliation Mechanisms, pertaining to accountability and transitional justice processes involving missing persons, truth, justice, reconciliation, non-recurrence, the judicial mechanism and reparations, chaired by Attorney-at-Law Manouri Muttetuwegama in its report handed over to former President Chandrika Bandaranaike Kumaratunga recommended that at least one international judge should be included on any tribunal set up.
Meanwhile, the Government via Co-Cabinet Spokesman, Minister Dr. Rajitha Senaratne said that there would be absolutely no sitting foreign judges, except may be as overseas representatives (judges, prosecutors and investigators) in the capacity of assisting in technical matters with the provision of expert knowledge in the form of advice.
Attorney –at- Law Geoffrey Alagaratnam PC pointed out that the appointment of a foreign judge to a local tribunal was not in violation of the Constitution.
A tribunal instituted as per a country’s international commitments and applicable conventions which have been signed and ratified by the said country is not categorized as a court of law. Sri Lankan judges have sat on tribunals overseas.
Legislation could be brought to clarify whether the mechanism to look into alleged war crimes, crimes against humanity and human rights abuses is a tribunal or a court of law as per the law of the land, as in the case of the latter a constitutional impediment exists as per the existing law with regard to the appointment of foreign judges to sit on local courts of law.
Elsewhere, he explained that he did not see the appointment of a foreign judge as amounting to foreign interference, adding also that the presence of a foreigner was a good thing as it could lend to greater independence, greater acceptability and greater objectivity.
“One foreign judge sitting on a bench of a tribunal is outnumbered by competent local judges. Yet, this would give an assurance to the people who come before it that the tribunal is not an entirely homegrown affair and could probably also provide a different perspective (for an example, women may respond more to a foreign female judge),” he added.