Columns

That was a real clanger. Dropped right there where justice presides at the top of the judicial pile. And before five justices of the Supreme Court! Alas, it fell on the feet of political leaders some of whom are prone to foot-in-the-mouth disease.

They were the ones who have been preaching to us — more to the world really — on Sri Lanka’s constitution, more specifically since 2017 when the screws were being tightened over human rights issues.

They were the constitution makers and breakers who said from political platforms and elsewhere that our constitution does not permit all sorts of riff raff from outside our territorial waters — nay from our larger economic zone — from holding high office in the Resplendent Isle.

Even some of those who readily co-sponsored the 2015 UN Human Rights Council Resolution 30/1 and were not averse to having hybrid courts a la Zeid Ra’ad Al Hussein, the high commissioner for human rights at the time, back tracked two years later when the heat at home got too hot-politically — even for the thick skinned.

Some might recall the Zeid Al Hussein report released at the time recommended the setting up of a hybrid special court integrating international judges, prosecutors, lawyers and investigators as an intrinsic move towards providing justice.

As I recall democrats, autocrats, booroocrats, socialists, nationalists, ultranationalists newly ordained nationalists and assorted others blasted High Commissioner Zeid for his gall in trying to dump all sorts of legal leftovers on Sri Lankan soil to trump up cases against Sri Lankan heroes who only did their national duty standing up to enemies determined to divide the country but even sacrificed their lives.

It was some time in 2017 as I remember (correctly I hope) that then prime minister Ranil Wickremesinghe, one of the architects of co-sponsorship, who, having realised the mounting opposition to a hybrid court to hear accountability trials, claimed that the constitution did not permit the participation of foreign judges and prosecutors.

Wickremesinghe had quickly engaged the reverse as President Sirisena had done before claiming that nobody had told him that the government was following the co-sponsorship route. Poor President Sirisena, nobody seems to tell him anything, not even pass on intelligence about impending terrorist attacks on Easter Sunday. But that’s another story.

Right now one must return to the high drama in the Supreme Court where the Colombo Port City Commission Bill was challenged by numerous petitioners. Counsel for the petitioners raised a variety of reasons why the Bill was unconstitutional, violating the country’s sovereignty, discriminatory as it drew a distinction between Sri Lankan citizens and foreigners investing in the Port City and worst of all that it will be turned into a Chinese colony.

Moreover, they said,  this land raised from the seabed off Colombo would eventually be Chinese territory as the years roll by with foreign nationals, principally Chinese, sitting on the Commission that runs the Port City and dictating to the Sri Lanka government.

Amidst all this legal brouhaha, one of the black-coated fraternity dropped a bombshell. Making his submissions as Counsel for P.B. Jayasundera, Secretary to the President of Sri Lanka Gotabaya Rajapaksa, President’s Counsel Romesh de Silva argued that the country’s constitution does not bar foreign nationals from functioning as judges in Sri Lanka.

He went further. Counsel De Silva who was appearing for Secretary Jayasundera in his official capacity and not for Jayasundera, a private citizen, said that the constitution does not prohibit even the Chief Justice of Sri Lanka being a foreign national.

This issue arose because in the course of submissions made on behalf of petitioners the question of foreigners serving on the Port City Commission that would be appointed by Sri Lanka’s President would violate the constitution and related issues.

Counsel de Silva added that there was no impediment to foreign nationals being appointed to independent state institutions except the Urban Development Authority as the UDA Act expressly bars it.

Romesh de Silva, to my mind, is better known as a leading commercial lawyer than a constitutional expert. But right now he is also heading the constitution drafting committee. Appearing as he did for the Secretary to the President one could say he was making submissions on behalf of the government.

The counsel’s argument is not new. If I remember correctly it was made by Dr Nihal Jayawickrama some six years or so ago when the setting up hybrid courts to hear accountability and war related trials was first recommended by the then UN High Commissioner for Human Rights in a report on Sri Lanka and subsequently in the UNHRC Resolution 30/1 which the Sirisena-Wickremesinghe government co-sponsored.

In the course of his article Dr Nihal Jayawickreme wrote: “There is no constitutional impediment to the appointment of non-citizens to our highest court exercising criminal jurisdiction – the High Court.  Nor is there any constitutional impediment to Parliament establishing any other courts of First Instance, or other tribunals or institutions to exercise judicial power.”

In the latter days of the Sirisena-Wickremesinghe government and from the inception of Sri Lanka Podujana Peramuna (SLPP) now in government, they have vociferously maintained that “our constitution” does not permit foreign judges, lawyers, prosecutors and hybrid courts.

In fact, Dinesh Gunawardena as Chief Opposition Whip has taken up the same position that it violates the “constitution of this country.” The Joint Opposition of the day has maintained the same position.

This has been Sri Lanka’s principal argument in rejecting the UNHRC’s call for a hybrid court with foreign judges to give it balance and impartiality.

That argument has now been negated — or at least challenged — by counsel for the government’s senior official and the earlier cover blown. The fact is that the government will not allow accountability trials where charges alleging human rights abuses and war crimes would be levelled against soldiers in the front or those in command responsibility.

It would be interesting to see how the government would handle the new UNHRC resolution now that the constitutional cover would need to be discarded or relegated to the back burner. It must have evolved a new approach to its interchanges with the UN and multilateral organisations since it suffered a defeat at Geneva and its friends and allies are having second thoughts on Sri Lanka’s lurching foreign policy.

As has been pointed out China has a 99-year lease on its territory in the Port City. Operations in the reclaimed seabed will run for at least 40 years. This “Chinese colony” as detractors call it will not be fully operational until 2040.

What will happen in the world around us in the intervening years even our great soothsayers are unlikely to be able to predict? None of them predicted the corona pandemic. We only know it originated in Wuhan China from where it was gifted to the world, if one is to believe Donald as Trump.

Already critics say that before long CPC, as it is called, for convenience, will be “yuan territory”. Still others add derisively, and unfairly, that someday Sri Lanka’s chief justice would be named Foo Yoong Hai, which my culinary knowledge tells me, is a Chinese omlette

 I would not go that far. Anyway many of us would not be around if and when that day dawns.

(Neville de Silva is a veteran Sri Lankan journalist who was Assistant Editor of the Hong Kong Standard and worked for Gemini News Service in London. Later he was Deputy Chief-of-Mission in Bangkok and Deputy High Commissioner in London.)