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Desmond Fernando, PC, is the Chairman, Sri Lanka National Commission of Jurists and a Past President of the Bar Association of Sri Lanka. He now serves as the Vice-President of the International Commission of Jurists and has also served as President of the International Bar Association. Here,the Sunday Observer speaks to him on the issue of the LTTE law and order offices or 'courts' as some would prefer to call them.

Interviewed by ASIFF HUSSEIN

Q: A controversy has arisen on what have been called LTTE 'courts'. Since these LTTE law and order offices have been actually functioning for at least 10 years, do you think there is a good reason for any controversy at this point of time?

A: I would say that there is no need for controversy at this point of time. Now that the government is involved in negotiations with the LTTE , one of the matters that is being taken up is the question of law enforcement. It is necessary that the administration of justice be taken over by the government and this could perhaps be achieved by negotiation at the forthcoming discussions. I feel that it is the duty of the government to negotiate and see to it that justice is administered only by the Sri Lankan courts.

Q: Even though they are being referred to as 'courts', do you think that these law and order offices are an entirely separate and new judicial system that rejects Sri Lankan sovereignty?

A: In the case of criminal courts, one could certainly say that it impinges on the sovereignty of the country.

This is because they are issuing summons and arresting people on the orders of the Court. Such acts would impinge on the sovereignty of Sri Lanka since only the writ of the government should run throughout the country. However, in the case of Civil Courts, if both parties were to agree on the jurisdiction of the Court, then of course one cannot say that there is any infringement on Sri Lankan sovereignty since in that case it would be similar to arbitration which takes place in hotels every day in Colombo. The similarity with the concept of arbitration lies in the fact that both parties agree that they will abide by the decision of the Court.

But what of a civil case where the plaintiff files an action and the Court issues summons on the defendant, but the defendant prefers to have his case tried by a Government Court. In that case it could be said to impinge on our sovereignty.

However, at the same time it must be said that before one finds fault with the LTTE for running their own Courts, it is necessary that we put our own judicial system in order. For instance, a recent delegation of the International Bar Association which visited Sri Lanka in November 2001 found that our Judicial Services Commission was seriously malfunctioning. The Commission is the body which appoints, maintains discipline and control and decides on terminating judges, and yet we find that they have no proper procedures.

There now exists an atmosphere of fear, and judges are afraid to act impartially as they might be found fault with by the Commission. During the tenure of the previous government, the Commission used to interfere in verdicts involving matters of political importance such as political meetings and the use of State-controlled media during election time.

Thus there is a lack of public confidence in our justice system. It is therefore imperative that we put our own house in order before we find fault with the Tigers for running their own Courts. A recent delegation of Amnesty International which visited Sri Lanka found that the LTTE had appointed suitable judges to their Courts and the people in those areas may well be getting a higher quality of justice than those under government jurisdiction.

Q: Do you see the LTTE's law and order system as an obstacle to a political settlement and the re-integration of the country?

A: No, not at all. Once there is a political settlement, the justice system will be brought under the central government. As far as law and order is concerned, there will be negotiations with regard to law enforcement.

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