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Why Dr N. Nesiah is unfit to function as a
Commissioner?
(By: Gomin DAYASIRI - Attorneys-at-Law)
1. Objection
The objection is against Dr. D. Nesiah (Dr. N) from
continuing to function as a Commissioner into the inquiry of the death
of 17 aid workers in Mutur, from the time that the Centre for Policy
Alternative (CPA) was made a party under section 16 of the Commission of
Inquiry Act.
There was no objection to Dr. N prior to CPA acquiring
a status under section 16 of the said Act. The position of the Sri Lanka
Army is that Dr. N cannot sit, hear, report, reach a finding and make
recommendations at an inquiry where CPA is a party as Dr. N is a member
of the CPA and/or is an office bearer of CPA and/or has represented and
continues to represent CPA.
It must be emphasized that the application for the
present is that Dr. N must not hear this case; and not that he should be
removed as a Commissioner from other inquiries where CPA is not a party.
This is not an application for the removal of Dr. N as a Commissioner
but that he should abstain from hearing this case as he is associated
with and represents a party to the inquiry namely the CPA, on which
material has been placed on record.
2. Material
The CPA made an application in writing on 24th March
08(Exhibit VIII) seeking representation by lawyers at the inquiry. The
said CPA along with several other organizations sought the-
(a) right to be present at all sessions;
(b) right to examine all witnesses;
(c) right to present submissions and present
arguments;
(d) right to examine and introduce evidence;
(e) right to full disclosure of all documents and
records relating to War Crimes Unit, Police, Criminal Investigation
Division, Human Rights Commission, as well as any prior testimony of
witnesses.
This application was supported at the sittings of the
Commission on 25th March 2008 and permission was granted under section
16 of the Commission of Inquiry Act No 17 of 1948(amended).
Therefore the disqualification of Dr. N commenced from
that moment.
It is significant that at the time the appearance for
the CPA was marked, Dr. N did not disclose his relationship with the
CPA, which he ought to have done to show his good faith whereupon
objection could have been taken or waived. There is a duty cast on a
person who has any "interest" with any party who appears before him to
disclose his interest as a Commissioner in the interest of justice to
the public, parties and the Commission at a sitting so that it becomes a
part of the record of the proceedings. The failure to so, shows the lack
of bona fides on the part of Dr. N.
Thereupon we did research on the web of the CPA on the
night of the 25th and presented documents marked as exhibit
I,II,,IV,VI,V,VI and VII before the Commission which documents reveals
the close nexus between the CPA and Dr.N, and placed an objection to Dr.
N on the 26th March 2008 before Dr. N, who has neither denied nor
disputed the correctness or the authenticity of the documents or
contents thereof; which fact was also brought to the notice of Dr. N
when an application was made on the next day of the sittings namely the
28th of March 2008 that he should withdraw from the sitting until an
order is made-otherwise if he continues to sit in the proceedings- the
final report will be flawed It could make the whole proceeding a
nullity. It is respectfully stated notwithstanding the possible peril
being placed before him, Dr. N continues to sit inviting a probability
of vitiating the entire proceedings of this inquiry before this
Commission if there is determination that he is not entitled to hear
this case.
The exhibits marked I to VIII reveal,
(a) Dr. N is described as a "unit core staff of the
Conflict and Peace Analysis Unit" of the CPA -Exhibit I
(b) The activities of the said unit include "peace
with justice in Sri Lanka" which would fall within the sphere of this
Commission and the contents of the Warrant. The activities described in
Exhibit I show the relevant unit touches the periphery of inquiry of the
Commission. It also says it "works closely with the Legal and
Constitutional Reforms Unit" of the CPA which would have been
instrumental in making this application to have CPA made a party to the
present inquiry. Therefore it could give the appearance of a possible
involvement of the Unit of which Dr. N is a core staff member designated
in addition as a Consultant, to be privy to the making of the
application and in overlooking the proceedings at which CPA is a
party.(Annexure I)
(c) It is made worse as Dr. N has furnished to the
Commission as setout in their handbook( name and address page of it is
marked as Exhibit II) given to parties on being made a Party, his
address as the address of the CPA (CPA 24/2 28th Lane, Flower Road
Colombo 03) his email address is the CPA email address (nesiah@cpalanka.org),
his telephone numbers are the CPA telephone numbers(2565304-6)his fax
number is the CPA fax number 94714460.In short his office as disclosed
to the Commission is the office of the CPA which is more fully set out
in the column "office" in exhibit II listing telephone and fax numbers
of Dr. N.(Compare Exhibit II and III)
Can there be fair play and justice if justice lives in
the office of one party appearing before it?
If the commission requires to contact Dr. N or send
him a document by fax or otherwise commission must contact the office of
the CPA- a party before it. A party can on its fax machine theoretically
receive confidential documents meant only for the eyes of the
commissioners-in other words on notice given to me as per the commission
handbook I have to despatch my documents addressed to Dr. N to the
office of the CPA .Lawful notice to Dr N has to be given to the office
of the CPA.
(d) Dr. N has signed a Press Release (exhibit IV) with
other prime members of the CPA (as shown in Exhibit II- P.Saravanamuttu,
Rohan Edirisingha, Mirak Raheem) on Trincomalee in March 2006, which
shows his close affinity to the CPA and that he subscribes to press
releases of the CPA revealing his identity with the CPA as he has signed
on behalf of the said CPA in the said document.
(e) Dr. N has identified himself on the international
front with the CPA on the issue of Burma. He has signed a communication
describing himself as from CPA Sri Lanka.(Exhibit V)
(f) The official newsletter of the CPA describes Dr. N
representing the CPA has traveled to Mannar, Pesalai and Talaimannar.
and describes his participation at a conference in Vienna Austria and
the issues, suggestions and recommendations of the conference has been
placed in the CPA library while the other seminar documents are with Dr.
N.(Exhibit VI)
(g) Dr. N has placed reports and conference papers for
the CPA (Exhibit VII)
(h) Dr. N is entitled to research assistant from the
Commission and officer selected is from the staff of the CPA (This fact
was stated in the oral submissions and not denied by Dr. N
(i) It was submitted that Dr. N is the recipient of
emoluments, allowances, perquisites and privileges on account of the
matters set out above along with travel facilities local and foreign
which were not denied by Dr N.
This material is placed to show nexus between Dr. N
and the CPA.
Dr N is part and parcel of the CPA.
3. Law
The rule of law arises from the principle nemo
judex in causa sua potest which introduces a rule of natural justice
that a person merely suspected of having a relationship with a party
before him at an inquiry where there could be the likelihood of bias
(not actual bias but the possibility of bias in the eyes of a reasonable
man) should not hear such a case. This is now strict law. The maxim
imports the doctrine that no man must be a judge in his own cause as
highlighted by Lord Hewitts in R vs Sussex Justices 1924 1 KB 256
echoing the theme now known to law as restated in the following words by
his Lordship "it is not merely of importance, but of fundamental
importance that justice should not only be done, but should manifestly
and undoubtedly be seen to be done".
This has been elaborated by our Supreme Court which
has stated "This is a safeguard which is really not concerned with
the fact that the decision maker was actually biased but with the
possibility that he or she might have been biased. People who are likely
to be biased cannot realistically be expected to make fair decisions".
2002 (2) SLR at page 181.
The Supreme Court in that judgment approved the
decision where the Lord Chancellor of the House of Lords (highest court
in the UK) was disqualified of bias as he had shares in a company which
appeared before him. As Lord Campbell stated and our Supreme Court
approved that principle enunciated by His Lordship "no one can
suppose that Lord Cottenhem (Lord Chancellor) could be, in the remotest
degree, influenced by the interest that he had in this concern; but my
Lords, it is of the last importance that the maxim that no man is the
judge in his own cause should be held sacred....This will be a lesson to
all inferior tribunals to take care not only in their decrees they are
influenced by their personal interest, but to avoid the appearance of
laboring under such an influence".
As stated by Justice Gunawardana in Fernando V.
Ceylon Tourist Board 2002 (2) SLR 181 Lord Cottenham was
disqualified by bias not because it created a real possibility of bias
but because it created a possibility which a reasonable person might
have suspected would taint the Proceedings. Justice Gunawardane went
further to cite Lord Denning in Metropolitan Properties Ltd vs
Lannon 1968 3 AER 304 wherein he stated:
'...The court looks at the impression that would be
given to other people. Even if he was as impartial as could be,
nevertheless if right minded persons would think that in the
circumstances there was a real likelihood of bias on his part, then he
should not sit'.
Justice Gunawardane stated in the aforesaid case:
"Bias being insidious, appearance is everything"
In Pinochet case 2000 1 AC 147 Amnesty
International were given the right to intervene and make itself a party
to safeguard interest. A law lord was an unpaid director and chairperson
of a subsidiary of Amnesty International. The law lord failed to
disclose his interest, but the court decided "substance of the matter
is that Amnesty International... ...and Amnesty International Charity
Ltd (AICL) are all various parts of the of a entity or movement working
in different fields towards the same goal" and led to the
disqualification of the law lord though AICL was not a party.
In the case cited previously Sussex Justices an acting
clerk to the justices was a member to the firm of lawyers who was acting
for a party. Justices retired to consider the decision the acting clerk
retired with them. They reached a finding without consulting the acting
clerk but the courts quashed the case due to likelihood of bias.
On the basis of these decisions likelihood of bias on
the part of Dr. N is overwhelming as he is the inquirer required to make
a report containing the findings of their inquiries and investigations
and make their recommendations that may affect national security and the
good name of my clients the Sri Lanka Army on whom he has already made
strictures in Exhibit IV with allegations as to how the armed forces did
nothing and allowed burnings and killings to go unattended and did
nothing to abate violence. Dr. N has shown he is hostile to the Sri
Lanka Army (Exhibit IV) which reflects the position of the CPA also as
their key officials are signatories. So jointly CPA and Dr. N are
hostile to the Sri Lanka Army. What more is there to establish bias or
inherent hostility combined in the party CPA and its agent /
representative who is the inquirer to reach findings. Could such a
person give a report of this nature in an impartial unbiased manner.
On this report we observe that Mrs Muttetuwegama has
joined in making strictures on the Sri Lanka Army and it may become
necessary after closer examination to see whether her conduct warrants
disqualification which we will reserve the right to make, after studying
her other writings and her conduct and in any event in the interest of
justice she should make a full disclosure to disclose her bona fides if
she has made remarks or signed similar statements adverse to the Armed
Forces. Mr Javid Yusoof was a former member of the CPA but had tendered
his resignation so there is no objection to his participation. We do not
raise objections recklessly until satisfied on facts and law.
In the case of Fowzie vs Goonewardane 1978-79
2SLR 322 at 355 considering section 16 of the Commission of
Inquiry act (same as the section in the present case) the appellate
court concluded the commissioners had a duty to act judicially in the
sense to act fairly by observing the rules of Natural Justice. In this
case the appellate court sitting with a Special Bench of three judges
opened the door to writ jurisdiction to control Commissioners appointed
Commission of Inquiry Act. Justice Vythialingam held that writ
jurisdiction lies after making a thorough search of the development of
the law and now deemed to be the prevailing law on the subject .It was a
development of the law from the time of Fernando vs Jayaratne 78
SLR 123 where Justice Sharvananda commented that a Commissioner
appointed under the Commission of Inquiry Act must "act fairly by
observing the rules of natural justice". In fact he went further and
remarked though there may be no duty to act judicially, it does not
follow that there is no duty to act fairly with the rules of natural
justice. Fowzies case jettisoned the view previously determined in Dias
vs Abeywardane 66 NLR 409 and Re Ratnagopal 70 NLR 409.
Justice Sharvananda cited the dicta of Lord
Denning in R vs Pergamon Press Ltd 1970 3 AER 535
"They have to make a report which may have wide
repercussions. They may findings of fact which are very damaging to
those whom they name. They may accuse some; they may condemn others.
They may ruin reputations or careers. Seeing that there work and their
report may lead to such consequences I am clearly of the opinion that
they must act fairly"
Justice Sharvananda commented that a commissioner
appointed under the Commission of Inquiry Act should act fairly and
rules of natural justice such as audi alterem partem rule should
prevail. After Fowzie's case it is clearly established that writ
jurisdiction does extend to such Commissioner who are obliged to follow
the rules of natural justice where the elements of bias are attracted.
The development of the law since Fowzie's case, shows
natural justice principles have attracted even domestic tribunals as
shown in Fernando vs Ceylon Tourist Board 2002 SLR 169.Here
again there was only a recommendation and made in terms of regulations
in the present case the inquiry is held under a statute. The inquiring
officer was required to act judicially.
4. Conclusion
If the Commissioners do find that natural justice
requires Dr. N not to hear the case; they must safeguard the purity of
the inquiry and not permit it to be declared a nullity in view of Dr.
N's presence. The whole exercise can become futile considering the loss
of time money and labour spent on the case. It is an obligation on the
part of the Commissioners to reach a valid finding in law. Any obstacle
must be removed and the removal of Dr. N will not affect the quorum or
the validity of the final order. On the contrary it will safeguard the
purity of the proceedings without a possible impediment.
Therefore the Commissioners are bound to make order as
decided by them when written submissions were sought by the Commission.
The order should to ensure Dr. N does not sit or refuse to sit with him
and also bring to the notice of the order to the appointing authority
namely HE the President to take whatever action he deems required. It
will be wrong in law to make no order as there is an obligation to make
order after requesting written submissions.
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