Diplomacy and Foreign Judges

Could there be a keener pleasure than to sit around a fire and discuss diplomacy with a diplomat? Of course, there is no fire; just coffee, and that only in plastic cups, which nevertheless provides the fire, inside, instead of outside, but with the same cheering and relaxing power.  

It’s after the coffee break at the ‘Education Institute’ and Ambassador Palihakkara has invited questions. “You said we cannot operate in isolation. But we have opposed the intervention of foreign judges in HR issues. As a diplomat how do you view this?” a student asks. Palihakkara makes it clear that he views it with disfavour, and concern and has no doubts that the same degree of disfavour would be forthcoming from every country, were such a thing suggested to them.   

“I have probably spent around 20, 25 years at the HR Commission and the UN and Council and I have not seen a single country who wants foreign judges to come. I think the foreign judges are being suggested on the basis that the judiciary of that country is not independent. So if you show that your judiciary is independent, no one can ask foreign judges to come. Personally, I think having foreign judges will create more problems than solutions.”  

If we are up to showing that our judiciary is independent, we can take a firm stand that our judiciary meets international standards. So we don’t need foreign Judges

Not everyone feels this way. I have met Sri Lankan patriots who feel differently. “I have always argued; how do we set up a credible mechanism to inquire into this, credible to the Tamils, credible to the rest of the world, and credible to ourselves? I don’t think you can do that exclusively with a local system. You need to bring credibility to the system you are setting up by bringing in an international panel of experts to preside over, but don’t lose control over the process. I think it can be done. Foreign judges are basically judges who will apply the law,” Godfrey Gunatilleke, Chairman Emeritus, Marga Institute said to me in 2015, when I interviewed him for Sunday Island.  

Under the influence of that memory, I question Mr. Palihakkara. “I think this whole issue of being against foreign judges goes against the grain because there’s a huge credibility issue in countries like SL, third world countries. Credibility is only achieved when foreign assistance is obtained,” I begin coherently enough but muddy the waters somewhat by mentioning, Scotland Yard assistance, foreign coaches, foreign technical assistance as fait accompli arguments in favour of foreign judges.  

“There is a distinction between technical assistance and judges,” Mr. Palihakkara asserts gently. He is all for getting foreign technical assistance for forensic and investigative activity and think it will enhance credibility and efficiency. “Getting foreign judges for judicial verdict is different.” Obviously, the former commissioner of the Lessons Learnt and Reconciliation Commission feels strongly about this. Perhaps it’s a matter of national pride and honour, though the ambassador never puts it in such emotional terms. “There have been a lot of complaints about the judiciary, I agree with you. But we must rectify it here. We must allow the judges to work independently, not intimidate them. Politicians should stop telephoning them. Those are the things we must do. You can’t ask white gentlemen or ladies to come here and tell the judges that. You know our judges are literate people, educated, if they are allowed to work without telephone calls, intimidation and various other methods, they will work.”  
Yes definitely national pride is an issue here. But not the only issue which plagues Mr. Palihakkara’s mind “If you have foreign judges, there will be conflict,” says this foreign service mandarin who became Foreign Secretary, Permanent Representative of Sri Lanka to the United Nations and retired as Governor of Northern Province. The idea of foreign judges according to Mr. Palihakkara generates too many open questions “Personally, I think having foreign judges will create more problems than solutions. How are the foreign judges going to operate? In conjunction with local judges or sitting in judgement of judgements delivered by local judges. Does our legal framework permit such things? Do we have to enact new legislation or is it possible to get the legislation through parliament? I remember in Cambodia they had foreign tribunals that was a failure. Some people criticized this for being a waste of UN money.”  

You know our judges are literate people, educated, if they are allowed to work without telephone calls, intimidation and various other methods, they will work

Again, I have sat around a different fire and heard a different reaction to foreign judges, treating all anticipated problems as so much gristle to be cut away to reach the metaphorical meat- a solution to the credibility issues which would plague a purely domestic judicial process.   

“Hybrid as given in the OHCHR report suggests something in which foreign judges will be nominated by them like in Cambodia and Lebanon. We won’t have that. We won’t have UNHRC nominating our judges. The choice is ours. It won’t be hybrid in that sense. It will be hybrid in the sense that we will be bringing in international expertise to give credibility to this mechanism. I am with it,” Godfrey Gunatilleke had said sitting around our interview fire.   

We won’t have UNHRC nominating our Judges. The choice is ours. It won’t be hybrid in that sense. It will be hybrid in the sense that we will be bringing in international expertise to give credibility to this mechanism

As I sit around this current fire and listen to Mr. Palihakkara, I am conflicted. How to break the deadlock between these two stances? What’s the clinching argument? What’s so wrong with foreign judges? If they will help bridge the trust deficit why not have them? What harm can they do, what danger do they inherently carry that no country will have them voluntarily? Can the trust deficit be addressed without incurring this sort of danger? 

 
Yes, according to Mr. Palihakkara, if we are up to showing that our judiciary is independent, “we can take a firm stand that our judiciary meets international standards. So we don’t need foreign judges” If we don’t take this sort of firm stand, the ambassador cautions, “our local human rights problems get internationalised. Foreign judges mean you are internationalizing it.”   

Yet resolution A/HRC/RES/30/1 co-sponsored and presumably containing text pre-negotiated and agreed upon by Sri Lanka, “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;”   

According to Mr. Palihakkara however, this resolution does not render us optionless by “mandating” foreign judges. “It’s not obligatory. It says having foreign assistance and judges would be important. So the option is left here”  

The resolution being co-sponsored, doesn’t it mean that Sri Lanka too has affirmed the importance of the participation in a Sri Lankan judicial mechanism of foreign judges? It would appear not, to judge by the curt repudiation of the idea by the President of Sri Lanka in his  January 21, 2016 interview with BBC Sinhala service, just months after Resolution 30/1. Displaying decisive body language and barely concealed impatience with even the suggestion of international participation or foreign judges in investigating HR violation allegations, the President stated that of the proposed measures by the UN HR Commission, they have to consider which would be in the government’s power to adopt and which they wouldn’t be able to implement. Admitting the government’s clear acceptance of investigations into allegations of HR violations, the SL Head of State was categorical that ensuring fairness in such investigations should be done within a domestic judicial process, in accordance with SL constitution and without the participation of foreign judges, because they had no intention of importing foreign judges to ensure fairness. He will never agree to such a thing. He has faith in the Sri Lankan judiciary and the investigating bodies and officers within the terms of the constitution and a domestic mechanism. Even seeming to reject foreign investigative and forensic assistance, the President denied the need to import anyone from anywhere else.   

There are three things to remember about Resolution 30/1. It resulted from a collaborative approach; its text was worked out between USA, new government of Sri Lanka and other stakeholders, from a first draft by USA; and it was co-sponsored by SL. 

SL seems to say, we are within our rights to reject those few recommendations that we were unhappy about at the time of the collaboration. As a resolution is not a treaty, we didn’t feel it was necessary to make a ‘delete-or else’ fuss about every point in the collaborated text

The SL interpretation of ‘collaboration and co-sponsoring’ seems to be that there is no need for a collaborator to endorse and take responsibility for every point in the final collaborative/co-authored text. As long as the majority of the points are endorsed and complied with by the co-sponsoring, collaborating party, a collaborator’s/co-sponsor’s obligations can be considered fulfilled. As all collaborated texts are essentially compromises, SL seems to say, we are within our rights to reject those few recommendations that we were unhappy about at the time of the collaboration. As a resolution is not a treaty, we didn’t feel it was necessary to make a ‘delete-or else’ fuss about every point in the collaborated text. What we meant by affirming our collaboration as a co-sponsor is simply that overall, on the whole, for the most part, we are with Resolution 30/1, while retaining the right to disassociate ourselves from the unacceptable bits.  

Evidently, countries have their ways of working within the UN system. Palihakkara tells us about Cuba, “USA was trying to harass Cuba on the human rights count but they fought successfully against the UN resolutions because they put in place in their own country, very efficient judicial and law enforcement measures. And eventually the USA had to withdraw those resolutions from the Human Rights Council.”  

Sri Lanka’s difference I think to myself, seems to be that we don’t fight against the USA led UN resolutions. We collaborate with them and co-sponsor them so that when and if, we, like Cuba, put in place in our own country, very efficient judicial and law enforcement measures, USA can feel a warm glow that it was a partner, a stakeholder in that positive transformation. But then, didn’t USA feel a warm glow when Cuba was doing that, that it was USA resolutions that were driving positive change in Cuba? Apparently not. They would just have felt defeated with every resolution they had to withdraw.   

Ambassador Palihakkara tells us that when he left New York in 2009, there was a USA sponsored resolution in the UN General Assembly, proposing an embargo against Cuba that only four out of the 193 UN member states supported. Cuba achieved this according to Mr. Palihakkara through the stance: “In our country, we may be poor but we don’t have torture, people don’t disappear. You can come and see.”   

If we are ever able to take up such a stance, we won’t have defeated Resolution 30/1, we wouldn’t have defeated USA. But what will such ‘no defeating’ entail? The simplest way to make USA feel a warm glow could be to just do as it wishes. Is asserting our sovereignty within a collaborative approach harder than in a confrontational approach, where SL like Cuba would seek to defeat a UN resolution by proving positive things? These are things I don’t ask Mr. Palihakkara because it’s time to go home.