COLOMBO: While Muslims in India are meekly putting up with lynchings and attacks by state-backed Hindutva goons, Sri Lankan Tamils are standing up for their rights, taking their issues to the United Nations Human Rights Council (UNHRC) and even threatening to haul Sri Lanka before the International Criminal Court (ICC).

In Sri Lanka, in contrast to India, governments have been open to international intervention since the Thimpu talks of 1985 between Tamil militants and the Lankan government under the aegis of India. This was followed by the more potent India-Sri Lanka Accord in 1987. Then in 2002, the Norwegians were allowed to negotiate a ceasefire and initiate a peace process. And after the end of the last war in 2009, the Lankan government again entertained foreign intervention, which came in the guise of protecting the victims of war.

The new pro-West government which came into existence in 2015, went to the extent of co-sponsoring a resolution against itself at the UNHRC. It co-sponsored such resolutions in 2017 and 2019 as well.

India, on the other hand, has stoutly refused any foreign role in settling any internal issue, although it had tacitly accepted foreign intervention to end wars with Pakistan, and has itself intervened in conflicts in neighbouring countries. Any report of UN agencies against its dismal human rights record is rejected outright, irrespective of its content or authenticity. The world also meekly backs off, perhaps because India is too politically important to be alienated, while tiny Sri Lanka is considered fair game.

Last Friday, Sri Lankans saw the latest assertion of the Tamil determination to secure their rights vis-à-vis the Sri Lankan state. M.A.Sumanthiran, MP from Jaffna and member of the Ilankai Tamil Arasu Katchi (ITAK) party, refuted the government’s contention that there was a constitutional bar on appointing foreign judges to the proposed Judicial Mechanism to try cases of alleged war crimes.

Speaking in Parliament, Sumanthiran said that if the government ignored this and the UNHRC resolutions enjoining it to set up a “hybrid court” with Lankan and foreign judges, prosecutors and defence lawyers, the Tamils would have no alternative but to seek a completely foreign court such as the ICC.

Sumanthiran was responding to the Sri Lankan government’s assertion at the UNHRC on March 21, that the Lankan constitution does not allow foreign judges and lawyers to function in Lankan courts.

If they were to be allowed, the government contended, the constitution would have to be amended with a two-thirds majority and a referendum to boot.

But Sumanthiran pointed out that Article 105 of the constitution lays no restriction, and Article 111, with regard to the High Court, lays no restriction with regard to the nationality of judges.

“It is false to say that the constitution prohibits the participation of foreign judges. It does not prohibit it. There are judicial decisions in this regard,” he said.

“Unlike in the case of the Indian and Pakistani constitutions, the Lankan constitution does not contain any guidelines qualifying or restricting or circumscribing the act of appointment of judges,” he added.

Referring to former Justice Minister Wijeyadasa Rajapakshe’s objections to foreign judges, Sumanthiran recalled that when Rajapakshe and he were in Geneva when the issue of foreign judges was being considered, Rajapakshe had agreed that there was no constitutional bar on the appointment of foreign judges to a Sri Lankan court.

“It was upon Rajapakshe’s agreement that UNHRC resolution 30/1 was signed by the government of Sri Lanka, " Sumanthiran pointed out.

Further it was Rajapakshe, who, as an opposition MP in 2013, presented to Parliament a private member’s bill providing for foreign judges. If Rajapakshe thought it was unconstitutional, he could not have done that,” Sumanthiran said.

The ITAK MP went on to ask why the Sri Lankan government co-sponsored resolution 30/1 of 2015 and twice subsequently, if it was sure there was no scope for foreign judges under the Lankan constitution.

Sumanthiran went on to warn that if the government were to stick to its position, Tamils would have no option but to ask the international community to take Sri Lanka to the International Criminal Court.

Asked how this could be done without Sri Lanka’s first signing the Rome Statute, which is the basis of the ICC, Sumanthiran said that the Tamils would try and get the UN Security Council to order a reference to the ICC. And if that move were vetoed by Russia or China, as one would expect, other avenues of forming an international tribunal could be explored.

“I want to make one thing very clear. The government of Sri Lanka has made these commitments three times in writing. But if they do not adhere to this commitment of including independent foreign judges in the judicial mechanism, then we the Tamil people, will be left with no alternative but to move towards an entirely international judicial mechanism. That is possible and our people have been asking for this, asking that Sri Lanka be referred to the International Criminal Court,” Sumanthiran emphasised.

“We prefer a hybrid judicial mechanism, but if the government, despite all these written commitments, and the fact that it is possible under the constitution to do so, doesn’t do it, then I today announce to the government and to the country, that we will take steps to move the ICC or some other entirely international judicial mechanism.”

Sumanthiran stated that it would be in the Sri Lankan government’s interest to go by the UNHRC resolutions it had co-sponsored, and set up a hybrid court of Lankan and foreign judges.

“If the words of the Foreign Minister in Geneva are to be realised, that we must find mechanisms for reconciliation within the country, then you must adhere to these commitments. It is only through the participation of foreign judges that independence can be assured.”

Justifying the demand for a hybrid court with foreign and Commonwealth judges, prosecutors and defence lawyers, Sumanthiran said: “In a matter where 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, the state of Sri Lanka cannot be an independent arbiter. It is for an independent judicial mechanism that nobody can complain about, that we have asked for the participation of foreign judges.”

And if that is not adhered to, and the commitments given to the international community are breached, then the country would have to face a tribunal that is entirely international, Sumanthiran warned.

Sumanthiran’s contentions have put the government headed by Ranil Wickremesinghe in a spot, because the latter had stated at the UNHRC and other platforms that there was no room for foreign judges under the constitution.

After Sumanthiran’s revelations, the government cannot now put that argument before the UNHRC, dominated as the latter is by Euro-American nations wedded to the human rights concept.

The government may have to find ways of involving foreign judges without damaging its own case that no war crimes were committed. This will be a challenging task.

However, a way out for the government would be to take shelter under a provision in the UNHRC’s resolution which says that the UN should take steps only with the “concurrence” of the Sri Lankan government. Sri Lanka may not give its concurrence to any proposal for appointing foreign judges.

Nevertheless, in the wake of a state-sponsored genocide that resulted in hundreds of thousands of casualties, Lankan Tamils appear determined to fight for their rights, both at home and abroad.