Retired High Court judge Maxwell Paranagama, who headed the Presidential Commission to Investigate Into Complaints Regarding Missing Persons yesterday told The Island that in case the government of Sri Lanka established a purely a domestic mechanism without the participation of foreign judges, the proposed tribunal should secure international technical assistance. The Commission also called for the process to be monitored by foreign observers.
Paranagama said that he felt an urgent need for clarifying the matter as some of the recommendations made in the Commission’s Second Mandate report had been misinterpreted in some quarters.
Many questioned whether the Commission had recommended a domestic or foreign process for accountability, Paranagama said, adding that the paragraph 625 of the report dealt with the issue of accountability.
An International Legal Advisory Council (LAC) headed by Sir Desmond de Silva, QC has thrown its weight behind the recommendations made by the Commission. The LAC comprised Sir Geoffrey Nice, QC (UK), Professor David M. Crane (US) and several other foreign experts, including Maj. Gen. John Holmes, formerly the Commanding Officer of the elite Special Air Services (SAS) Regiment of the UK.
Paranagama sent the following statement to The Island : “International Customary Law comprises what States do and what actions States take. Therefore, in order to deal with an accountability mechanism suitable to Sri Lanka, it was incumbent upon the Commission to embark upon a review of measures taken in other countries before proposing a specific mechanism for Sri Lanka. At Paragraph 616 of the Paranaganna Report, the Commission deals with a hybrid court in Gambia that took on judges from the Commonwealth.
In Paragraph 616 of the Report,
The Commission says, “In the event Sri Lanka was to set up a purely domestic tribunal without the participation of any foreign judges, it is the view of the Commission, that there should be international technical assistance and observers”.
International technical assistance does not equal foreign judges sitting in judgment over Sri Lankan citizens.
In paragraph 625 under the heading, “A proposed Mechanism”, the Commission goes on to set out a mechanism without reference to foreign judges, foreign investigators or foreign prosecutors.
The actual process of a trial is dealt with at paragraph 625N. (d), where the trial process is set out as follows.
“The matter will proceed in the same way as any other criminal trial within the jurisdiction of Sri Lanka”.
Thus there is no reference to foreign judges.
There is Latin legal maxim “Expression unius est exclusion alterius meaning the express mention of a thing, person or method implies the exclusion of all others.”