'Eminent Persons' displayed lack of independence
(By: Gomin Dayasri)
Public statement of senior counsel (Mr.
S.L.Gunasekera and Mr. Gomin Dayasri) about the IIGEP
The several public statements made by the IIGEP and
their individual members thereof culminating with their "Public
Statement" dated 15 April 2008 are made with the following objectives:-
(a) to create a climate locally and internationally to
discredit national institutions especially the Attorney General and his
Department and to present Sri Lanka as a state without law and order.
(b) to establish an intimidating environment so as to
force and compel the Commissioners to reach a finding against the
security forces and their superior officers and absolve the LTTE of any
wrongdoing.
(c) to set a stage for a prosecutor to emerge who will
perform the rituals as desired by the IIGEP, in presenting prejudicial
evidence against the armed forces and covering the tracks of the LTTE
and their allies both local and foreign.
Furthermore, the IIGEPs have displayed their lack of
"independence" and displayed their arrogance [in an interview given by
the "Eminent Person" Judge Jean Pierre Cot of France published in the
Daily Mirror of 29.3.08 wherein he states that "if the Government is now
seeking to invite a new IIGEP"] and thereupon advises the Government to
"get some magistrates from different South East Asian Countries, or
police officers who are not eminent persons ..................". In
their exhibited arrogance of mocking the region of South East Asia,
these allegedly "Independent" and "Eminent" persons clearly expected us
"natives", including the Government and the Commission to pay homage to
them and obey their every whim and fancy.
Since this did not happen they departed making wild
accusations and ventilating their anger at every possible target. It is
good lesson for our Government not to grant eminence to such purported
"eminent persons" who disgrace our country by acting outside their
mandate. This is the obvious consequence of foreign interventions and
the government is now made to look stupid when they blow hot and cold
against such so called human rights tourists to whom they once rolled
out the red carpet.
These IIGEPs have come to Sri Lanka with `minds'
filled with gross prejudice against our Country and our Government
possibly at the instigation of some NGOs and INGOs, and therefore
acquired a settled `opinion' arrived at arbitrarily, that our Security
Forces must be found guilty of the several acts of murder which are the
subject matter of the inquiries pending before the Commission,
regardless of the evidence. Their mandate does not give them the right
of making public statements on the affairs of the Commission and such
related matters of the Commission. Their rights are limited to reporting
to the HE the President, the President of the Commission and to notify
the Attorney General. No more. However acting outside the warrant
issued, they have sought to make public declarations to humiliate,
expressly or impliedly, the aforesaid reporting authorities and more so
prime national establishments
The four `public statements' made by the IIGEP which
had no mandate to make, but made, are, ex facie severely damaging to the
Government, the Security Forces and their counsel, were obviously timed
to coincide with meetings of the UN Human Rights Commission in Geneva
and were clearly designed to create an international climate of opinion
hostile to the Sri Lanka in general and the Security Forces in
particular, so as to intimidate the Commission into arriving at findings
against the Security Forces even in the absence of any credible evidence
which establishes their guilt, with the implicit threat of their issuing
further public statements saying "We told you so" in the event of their
not arriving at such findings against the Security Forces or arriving at
findings against anyone else including the LTTE.
While we do hope that the Commission would not succumb
to such blatant and insidious attempts at intimidation,, we placed
relevant objections openly before the Commission so they do not succumb
to such endeavors. They are as follows:-
a) When Mr S L Gunasekara who appeared for the STF was
cross-examining the witness Ponnudorai Yogarajah who was giving evidence
from some foreign country through video conferencing on the 19th March
2008, [in the Trincomalee Case], one Savage, an Assistant of the IIGEP
who was in that foreign Country had the audacity to take the witness
away while he was being questioned without the leave of the Commission
with the peremptory statement "I am concerned about the witness so have
adjournment (sic) this witness is not fit to go on thank you", thereby
impeding the cross-examination and publicly showing utter contempt for
the Commission in the course of the hearing while it was the Commission
and the Commission alone which had the authority to decide whether the
witness was not fit to go on, particularly since the witness himself did
not say so. The Commission, however, did nothing: it did not even
reprimand Savage.
b) When the cross examination of the witness was
resumed on the next day, another Assistant, one Milner, who was also in
that foreign Country, displayed even greater contempt for the Commission
and impeded the cross-examination further by arrogantly usurping the
authority of the Commission displaying a pronounced "culture of
impunity" by having the insolence to purport to determine that some
questions Mr Gunasekara asked were irrelevant and/or inadmissible and
directing the witness not to answer them, although it was the Commission
and only the Commission that had the authority to make any such
determination and/or disallow any question Once again, the Commission
did nothing and did not even reprimand Milner. This conduct of Milner
was all the more reprehensible and the passivity of the Commission all
the more disquietening when one considers the fact that, none of the
questions which Milner purported to over-rule had been objected to by Mr
Ranjit Abeysuriya P.C. who led the evidence of the witness.
c) The following week Mr Gomin Dayasri who was
appearing for the Army in the the Muttur Case objected to Commissioner D
Nesiah participating as a member of the Commission in the Muttur case
because of his close nexus to an NGO named the Centre for Policy
Alternatives and had given the Commission the address, telephone and
facsimile numbers of that NGO as being his address, telephone and
facsimile numbers and was described as a core staff member holding the
designation of consultant while the said NGO was granted representation
as a interested party by Counsel and was participating in the inquiry in
such capacity. The identical objection was taken by Mr Gunasekara a day
or two later in the Trincomalee case. The IIGEP who show great anxiety
to maintain the purity of the proceedings has selected to remain silent
.Surely, the principles of natural justice are known to them?
d) When Mr Gomin Dayasri was cross-examining witness
R. Perera a senior officer of ACF in the Muttur Case and had elicited
from him, the most material and useful evidence that the murdered Aid
Workers of ACF had told him they were scared of the LTTE who were all
around the ACF office. However the Commission compelled only him to cut
short his cross-examination, which limitation was not directed to any
other counsel of any other party who were given all the time so desired.
When Mr Dayasri complained of discriminatory practice against him only
on time restrictions; one Commissioner accused Mr Dayasri of repeating
the same questions(correctness of which allegation Mr Dayasri challenged
instantly, at which time, no material was presented to substantiate the
allegation made by the Commissioner and the said Commissioner remained
silent)The said Commissioner did not level any such accusation at Mr
Abeysuriya PC who continually repeated the same questions in the
Trincomalee case.
The accusation leveled ad nauseam by the IIGEP against
the Attorney General and the officers of that Department that they are
disqualified from assisting the Commission on the ground of an alleged
conflict of interest is unsupported by an iota of evidence. Although the
Commission has functioned with officers of the Attorney General's
Department assisting it for over one year, the IIGEP has been unable to
point to even one act that those officers or any of them have committed
that they ought not to have committed or to one act which ought to have
been committed that they or any of them have failed to commit.
Accordingly, the irresistible conclusion that arises is that they have
made the said accusations on nothing more `substantial' than blind
prejudice.
What should be, but is not even more strange, but
confirms that prejudice beyond doubt is the fact that the IIGEP which
never ceases to protest against the non-existent conflict of interest of
the Attorney General and his officers, has maintained a deafening
silence about the manifest conflict of interest of Dr Nesiah of which
there is ample evidence, and the incredible fact of his continuing to be
a judge in his own cause as stated above which is against all norms and
standards of conduct in our Country. Whether or not the "International
Norms and Standards" referred to by the IIGEP reach up to ours in
respect of this matter we do not know.
Mr Dana Urban an Assistant to the IIGEP made an
application to have the the French International NGO, the ACF, in their
absence from the inquiry on the opening day of public sittings, be given
representation to watch the interest of the 17 deceased workers who
worked at the ACF office in Mutur. Thereupon on the next date of inquiry
an appearance was made by counsel for the ACF. Most of the witnesses
before the Commission, blamed the ACF for being so insensitive to the
conditions in the area and holding their 17 workers captive on their
directions of the office in Trinco to the office in Mutur without
permitting them to move to a refugee camp or permit the said workers to
make their way to safety in a secure ground. Notwithstanding these
allegations the ACF, who had a resident French lawyer in Sri Lanka to
monitor affairs in the case, as stated by their official witness,
suddenly withdrew their local counsel and jettisoned the case and
deserted Sri Lanka notwithstanding the application made on behalf of the
ACF by the IIGEP to obtain representation at the inquiry, so as to
enable them to watch the interest of the deceased. Ironically the IIGEP
makes no stricture on the international NGO for their callous conduct or
their failure to fulfill their assigned engagement or to provide the
necessary supporting evidence before the Commission. It is indeed
bewildering that the IIGEP are totally silent on this subject especially
as they were so vociferous in obtaining the right of representation to
the ACF in the Mutur case.
The IIGEP has repeatedly asserted, in their latest
`Public Statement' and their Press Conference that "The Government
should respect and implement the internationally agreed doctrine of
command responsibility........where superiors of those who have
committed criminal acts may also be held responsible". The question of
the Government implementing this doctrine could only arise IF the
Commission finds any members of any of our Security Forces guilty of any
of the crimes under investigation. That doctrine would be irrelevant if
the Commission does not come to any such finding. The Commission has not
arrived at any such finding: indeed, with the inquiries being still
incomplete it has, quite properly, arrived at no findings. Therefore
this is undoubtedly a premature pronouncement made by the IIGEP to lead
the Commissioners to reach such a finding so that heads of our security
forces can be tried, as desired by them as war criminals in
international tribunals.These pontifical statements of the IIGEP
therefore, leave no room for doubt that their approach to their mandate,
suffused as it is with perversity, is to seek to ensure that our
Security Forces [whose members suffer untold hardship and risk their
lives day in day out to restore peace in our land by ridding it of the
malignant cancer of terrorism] and their Commanders must be presumed to
be guilty regardless of the evidence and crucified to appease some
perverted segments of international opinion.
The conduct of the IIGEP also shows that their
sanctimonious references to the doctrine of "command responsibility"
notwithstanding, none of them has so much as "lifted a finger" to cause
their own countries to follow this doctrine. Thus, for example:-
a) The Chairman of the IIGEP PN Bagwati of India has
not, to the best of our knowledge and belief, made any demand that
either the Commanding General or any of the officers of the IPKF should
be punished for all or any of the unspeakable crimes against humanity
committed by members of the IPKF against Tamil Civilians, some of which
make the Trincomalee and Muttur Murders pale into virtual insignificance
[see `The Broken Palmyrah' by the UTHR(J) pp.210 to 280]. These crimes
against humanity include the Mass Murders committed by the IPKF at the
Jaffna Hospital on the 20th October 1987 when they entered the hospital
and indiscriminately murdered patients, doctors, nurses and attendants
by shooting and exploding grenades indiscriminately [ibid - pages 265 to
272].
b) It was/is, indisputably a horrific crime against
humanity for armed forces of affluent countries to invade the sovereign
State of Iraq with the most advanced weaponry ever devised, murder
Iraqis and destroy their property on their soil, depose its Head of
State, hunt and murder the relatives of its Head of State and hunt,
capture and lynch that Head of State on the provenly fraudulent pretext
of there being Weapons of Mass Destruction [which most of those affluent
countries had/have in plenty] in Iraq.
So also was/is, it equally indisputably a horrific
crime against humanity for the armed forces of affluent countries to
invade the sovereign State of Afghanistan with the most advanced
weaponry ever devised, murder Afghans and destroy their property on
their soil, merely because it was suspected that a Saudi Arabian
terrorist named Bin Laden who was suspected of having instigated the
acts of terrorism against the USA on "9/11" was residing in that
Country.
Hence, on the doctrine of "command responsibility" not
only the Commanders of those Armed Forces, but also the Heads of
State/Government responsible for instigating those horrific on-going
crimes against humanity, notably, George W Bush and Tony Blair bore/bear
that command responsibility.
Yet, to the best of our knowledge and belief no member
of the IIGEP from any Country including the UK and the USA who have
played a leading roll in these despicable crimes have, despite their
much touted alleged "Independence" and "Eminence", demanded the
punishment of anyone responsible for such crimes or invoked the doctrine
of "command responsibility" which they so freely preach to us in a
situation in which that doctrine is yet irrelevant.
Another matter about which the IIGEP has kept berating
our impoverished Country is the absence of a `Victims and Witness
Protection Scheme' . The IIGEP was well aware of the fact that we, like
most third world countries, did not have such a scheme. It was in the
full and complete knowledge of this fact that they accepted the
invitation of the President. Why then, do they, thereafter, berate us
for this fact.
The silly allegation in the IIGEP's Public Statement
that the deficiency caused by the lack of "witness protection and
assistance..... became more pronounced after counsel for the Government
forces [namely, ourselves] were given standing .........the Commission
has not always intervened on behalf of affected witnesses in a way that
is sensitive to the needs and trauma of the witnesses and their families
and is consistent with international norms and standards relating to
vulnerable witnesses. Counsel for the Government forces has (sic) often
adopted court-room styled cross-examination tactics which may intimidate
the witnesses and discourage them from revealing the truth. This may
negatively impact on the Commission's ability to fulfil its mandate"
As in the case of their grossly irresponsible
allegations against the Attorney General, the IIGEP has failed to point
to a single inappropriate or irrelevant question asked by any of us nor
have they specified the alleged "international norms and standards"
which outlaw that which they pejoratively refer to as "court-room styled
cross-examination tactics" and dictate that a different styled
cross-examination should be adopted for witnesses who have suffered
trauma. In Sri Lanka most witnesses are members of families that have
experienced traumatic experiences and judges and counsel have wide
experience in handling such witnesses to elicit the truth which is
paramount This is another effort to make the Commissioners stifle the
cross examinations of the counsel for the security forces which may have
led to the time restrictions being placed only on their counsel-a
practice so far not extended to counsel of any other party.
Whatever the Courts may be in the countries of the
IIGEP, Courts of Law in our Country are honorable institutions designed
to dispense justice where no unfair "cross-examination tactics" are
permitted in respect of any witness. Cross-examination is the principal
means by which falsehoods uttered by a witness can be exposed. It is a
vital weapon to protect persons or institutions wrongly accused of
various crimes. The fact that a witness had suffered trauma by the loss
of a member of his family is no guarantee that the sworn evidence he
gives is true: nor is it a circumstance that precludes him from
committing perjury. Accordingly, the interests of justice demand that
those affected by the evidence given by such witnesses who contend that
the whole or a part of such evidence is false should be given the
opportunity of cross-examining them as they would, any other witness
whose evidence they challenge. To do otherwise would be to impede the
Commission in the discharge of its function to ascertain the truth. No
person can be deemed to be "Eminent" if he is unaware of these basic
facts of life.Thus, the fact that the IIGEP while knowing the above
facts has seen fit to make the aforesaid allegation is indisputably a
circumstance that points unerringly to the manifest bias of the IIGEP
and their disregard for the truth.
Two other factors that must be borne in mind in this
regard are:-
a) that the witnesses referred to by the IIGEP being
witnesses who are now resident abroad in some Country/Countries unknown,
it should be obvious to even the IIGEP that they cannot possibly be in
need of protection against intimidation from Sri Lanka; and,
b) that since cross-examination commences only after
evidence in chief when the witness has had the amplest of opportunity of
giving such evidence as he wished, whether true or false, no style of
cross-examination, whether "court room" or otherwise [assuming that a
`non- court room style of cross-examination' exists] which is designed
to expose falsehood could conceivably so intimidate the witness so as to
prevent him from speaking the truth.
These self-evident facts make crystal clear the
facts:-
a) that what the IIGEP mean by "Witness Protection" is
protection from cross-examination and protection from the exposure of
the falsehoods uttered by the witness/witnesses concerned; and,
b) that to the IIGEP "truth" means whatever is said by
a witness against any of our Security Forces.
While there is a wealth of evidence indicative of the
manifest bias of the IIGEP against our Security Forces and in support of
those opposed to them such as the Foreign Funded NGOs, we cite but one
glaring example of that outrageous situation to keep this statement
within manageable limits.
When the Muttur Case was taken up on 3.3.08, one Dana
Urban `QC', [the rough equivalent of one of our `PCs'] an Assistant of
the IIGEP moved for a postponement on the ground that the foreign NGO,
ACF was not represented. The said application was very properly refused
by the Commission on the ground that ample notice of the public sittings
had been given and no application for representation had been made by
ACF. Thereafter Bagwati, the Chairman of the IIGEP whose appearances at
sittings of the Commission were deplorably few, had made an application
for a cancellation of the sitting fixed for the following day which the
Commission, inadvisably accepted on Bagwati's request seeking a meeting
with the Commission as informed to us and cancelled the following day's
sitting.
Did such a meeting, which can be held at any time,
warrant the cancellation of the sittings especially as the IIGEP are
placing strictures on delay? On the next date of the Inquiry, the ACF
had the opportunity of being represented by Counsel. Accordingly,
Bagwati's said application for a postponement, which was, most
regrettably granted by the Commission, was designed to undermine and
nullify as far as possible, the order of the Commission refusing the
unfounded application for a postponement by the Assistant Urban QC.
Another interesting circumstance vis-…-vis the
touching concern displayed by Urban for the dictates of transparency
which, according to him, demanded that ACF be represented, is that it
did not extend to the Armed Forces in that the inquiry in the
Trincomalee case in which the STF is accused proceeded for several days
while the STF was unrepresented or the Police or para militaries are
still not represented in the Mutur case but neither Urban nor any of his
colleagues or masters in the IIGEP made any application for a
postponement to enable the STF/Police/Para Militaries to be represented.
Is this the equal or fair treatment or justice as contemplated by the
IIGEP.
These are but a few of the circumstances that
establish the incurable bias of the IIGEP against our Country and its
Forces.
All we who, with a genuine and well justified belief
that our Nation, comprised as it is of all racial and ethnic groups who
inhabit it, owes a debt of gratitude to our Security Forces for their
total commitment and monumental sacrifices on behalf of all citizens
[including the acolytes and `alms gatherers' of treacherous foreign
funded NGOs] demand that they should not be sacrificed at the `altar of
political expediency' to satisfy and appease any person/s,
institution/s, and/or organization/s however much money and/or influence
they or any of them may have. |
