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Last modified on: 12/30/2010 11:26:34 PM<% on Error Resume Next Response.Expires = 0 %> 'Eminent Persons' displayed lack of independence

'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.


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