A new judicial mechanism cannot be established without amending the constitution

TNA MP M.A. Sumanthiran’s statement to the Parliament made on the 22nd March is unconstitutional. He insisted the “Government” to implement clause 6 of the Geneva (UNHRC) resolution (30/1) or otherwise “we (they) will take steps to move Sri Lanka to the ICC or some other entirely international mechanism”... as “Tamil people will be left with no alternative”.   

Firstly, it to be emphasized that Sumanthiran MP represents a party that obtained little over five hundred thousand votes out of over Three Million Tamils living in Sri Lanka. The total number of votes and seats secured by his party from Northern and Eastern Provinces is less than 50% (Nationally only 4.62%). Emerging Tamil Youth groups publicly criticize MP Sumanthiran and his party. There is no reliable evidence to say (other than fabricated and bias compilations of separatists) that the majority of the Tamils demand for foreign judges to come. Therefore, Sumanthiran did not have the mandate of the Tamils to make that speech on behalf of the Tamils. It was only an ad-hoc statement without authority.   

Clause 6 of the Resolution reads as follows;   

Welcomes the recognition by the Government of Sri Lanka that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system, notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators;

Accordingly, a new judicial mechanism with judicial and prosecutorial institutions should be established. It requires the establishment of a “special counsel to investigate”. It affirms the importance of participation in judicial mechanism and special counsel’s office (a) Commonwealth and other foreign judges (b) defence lawyers (c) authorised prosecutors and (c) investigators.   

MP Sumanthiran attempts to equate the intended juridical mechanism with the present High Courts. It is incorrect. The apparent purpose of the mechanism is to “investigate allegations of violations and abuses of human rights and violations of international humanitarian law”. According to him the “contesting parties or the warring parties include on one side the state of Sri Lanka and on the other side a militant group that had the objective of dividing the country”. Under the present system the Attorney General is the prosecuting officer on behalf of the State in High Courts. Therefore it is practically and legally impossible for the Attorney General to prosecute “the State”. Therefore, it is intended by the resolution to create an alternative prosecutor (apparently the special counsel’s office) with powers to prosecute the State. Such a dramatic structural change in the legal system necessarily needs a constitutional amendment.   

Therefore a new “judicial mechanism with a special counsel to investigate” cannot be established without amending the constitution and passing a new law as presently, there is no similar mechanism in Sri Lanka. Power to legislate is vested in the Parliament where MP Sumanthiran is also a member. Hence it is the Legislature that should initiate the implementation of the clause 6 of the resolution. However no attempt has so far been made by him or his party to introduce at least a private member bill to that effect. Then how deceptive and illogical for MP Sumanthiran to point the finger at the Government, for not doing an act which he and his party also could have conveniently initiated?   

Next important question is regarding the appointment of foreign judges, lawyers and investigators. MP Sumanthiran cites the case of Victor Ivan and others vs Hon. Sarath N. Silva and others (2001) 1 Sri LR), where the SC held that “Article 107 confers on the President the power of making appointments to the Supreme Court, and does not expressly specify any qualifications or restrictions”.   

Though there are no restrictions to appoint, there is a restriction to get appointed. All judges, lawyers and officers, if to function in a judicial system created by the Parliament, are required to take and subscribe an oath or affirmation in the forms in the Fourth and Seventh Schedules of the Constitution (Articles 107, 157 A(7), 165 and 169(12)). Accordingly those foreigners will have to declare their allegiance (faithfulness) to the Republic of Sri Lanka. Will the domestic laws of those foreigners permit them to take the oath of allegiance to Sri Lanka?   
In terms of the oath they are also bound to uphold and defend the Constitution and more importantly not to “directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka”. 

Any conduct done with the objective to establish a separate State (or divide the Country) is a criminal offence leading to conviction by the Court of Appeal (Article 157A (3)). Therefore those judges, lawyers and investigators cannot justify or defend the constitutional crime committed by the militant group (LTTE) fought to separate the Country. Both their acts and motive are crimes.   

The threat to complain to the International Criminal Court (ICC) is serious but, in the given context, impossible. ICC has jurisdiction with respect to crimes committed with respect to state parties to the Rome Statute. Sri Lanka is not a State Party to the Statute. Additionally either the place of commission of the conduct in question or the nationality of the person who committed the crime should be in a State party to the Statute in order to give jurisdiction to ICC. Only exception is when a reference to the Prosecutor (of ICC) is made by the Security Council under Chapter VII of the UN Charter. Still there are other restrictions such as that the particular state should be unwilling or unable to carry out the investigation or prosecution etc. The mystery is whether MP Sumanthiran had in mind any of the members of the Security Council, as a country that may support to divide Sri Lanka.   

Paths could also be created to International Criminal Tribunals (ICTs) with the combination of recently passed laws including the Office of Missing Persons Act, Office for Reparation Act and the International convention for the protection of all persons from Enforced Disappearance Act. But no route to ICC or ICTs could possibly be created for the reason of none implementation of clause 6 of the resolution as it deals with a matter that comes well within the sovereignty and independence of this country.   

The Government cannot implement a non-existing mechanism that could only be created by the legislature exercising the sovereignty of the people. It is settled law that Legislature, Judiciary and Executive are the organs of the government. Therefore it is ethically, politically and legally incorrect and misleading for MP Sumanthiran, being a part of the Government (legislature) to criticize the government for not doing an act for which he is also responsible.   It is to be emphasized that a treaty or a covenant (also the resolution co-sponsored by Sri Lanka) has to be implemented by the exercise of legislative power by Parliament and where found to be necessary by the People at a Referendum to have internal effect and attribute rights and duties to individuals. This is in keeping with the dualist theory which underpins our Constitution (Sinharasa Vs Attorney General – Supreme Court)