Conspiracy by counsel to discredit the commission
The justice Udalagama Presidential Commission (COI) report on human rights violations, in its recently released report, states that NGOs such as the Centre for Policy Alternatives and INFORM etc., "were more interested in satisfying their paymasters'', the foreign INGO ACF (....whose employees, 17 aid workers were shot and killed, which was one subject of the commission investigation....) "than securing compensation for the victims.''
The commission report cites in detail the subterfuge of the NGOs such as the Centre for Policy Alternatives, which in furtherance of their "well known'' agendas are alleged, according to the commission report, to have had a one-track objective, which was to "attempt to discredit every possible institution and authority of this country before the Commission, and attempt to hold one party responsible for the gruesome crime. ''
The commission report states that the Centre for Policy Alternatives etc., went to great lengths to discredit the security forces, and was not interested in finding who was responsible for the crime except to pin it on their "targeted group."
At one point the commission report states that "it appears from the above that there had been a preconceived plan or a conspiracy to discredit the Commission by making false allegations and or exaggerating and twisting the truth to suit their purpose in order to achieve the long term objective of interested parties including their paymasters to discredit and disrupt the Commission for the consumption of some of the international organizations.''
In a stinging indictment on counsel who appeared for the NGOs such as CPA, the report states at one point ".....false positions were) taken by Counsel who withdrew from the Commission thereafter, which enables them to make irresponsible statements and then run away.''
Pinpointing various instances where "counsel repeatedly took up matters obviously to cater to other interests'' the report states that the counsel for these NGOs had a "conflict of interests'', manifest by a "narrow outlook'' to pin the blame on the security forces. Counsel are also faulted for 'making wild allegations'' at various times, and at times against the officers of the Commission to discredit their credibility. Below are some of the relevant extracts of the Report:
It is necessary to consider some of the matters referred to in the written submissions filed on behalf of the so called civil society consisting of seven organizations namely, Centre for Policy Alternatives, Home for Human Rights, INFORM, Law & Society Trust, Mothers and Daughters of Lanka, Rights Now-Collective for Democracy and Sri Lanka National Commission of Jurists, and the counsel of the next of kin who previously represented ACF which suddenly left the Commission without giving reasons. The purported "civil society'' before the Commission were non Governmental organizations, known in the public domain to hold a common point of view of supporting causes that in the public perception are well known, on which the Commission does not desire to elaborate; but has considered their line of conduct and cross examination before the Commission requires comment. The lawyers who represented the said organizations and the next of kin though purportedly watching matters of public interest, as set out in the civil societies mandate placed in writing before the Commission, showed total disregard in matters affecting the interests of deceased persons' next of kin.
This aspect should have been the prime fact of concern in terms of the mandate presented to show their interest and gain representation in the case, but they appeared to be more anxious to safeguard the interest of the foreign based NGO, the ACF. It was sad that their contribution was negligible with regard to enhancing the compensation package due to the next of kin, which should have been a matter in which they should have interested themselves. Instead they left it to the others who assisted the Commission. The Counsel who represented the next of kin and previously the ACF, may have been in a conflict of interest situation. Their main function was in the attempt to discredit every possible institution and authority of this country before the Commission, and attempt to hold one party responsible for the gruesome crime. They did not consider any other group being possible offenders, or show any interest in ascertaining on whom responsibility could be placed except their targeted group. They appeared not to ascertain the truth but to engage in a fault finding exercise of the security forces of Sri Lanka. We consider it as a suspiciously narrow outlook to adopt, not worthy of a role to be played by responsible civil society members, who should have looked at issues broadly to ascertain who the actual culprits are in this ghastly act.
We have prefaced our findings with these sentiments as the said civil society organizations have been critical of so many functionaries before the Commission, in their several submissions when their own conduct required examination. It is for these reasons we dwell on this subject. One of the submissions made by them:
1. The so called harassment of witnesses, as alleged is as follows:
(a) It is alleged that Rev. Father Swarnaraj who was a witness in this case was approached by two unknown individuals during the Commission's tea break and these two individuals "aggressively questioned him regarding his on-going testimony".
When this matter was brought to the notice of the Commission, it caused an immediate inquiry, and within few minutes. Counsel was informed at the hearing that an officer of the Investigation Unit, which Unit that had already recorded Father's statement, had asked the Rev. Father the name and address of a particular Reverend Brother who was referred to by the Father during the course of his evidence. This had taken place in the presence of Witness Protection Officers.
This was a sequel to the instructions given by the Commission to the Investigation unit at the time the Unit was formed. They were told to follow the proceedings and in the course of the evidence of any witness any new name transpires who would be of importance to arrive at the truth, to obtain particulars of that person, from the witness and record the statement to ascertain whether his testimony would be of any assistance. However, the day this alleged incident took place the Commission warned the Unit not to speak to any witness during the course of his testimony before the Commission. All these matters were brought to the notice of both Counsel for the so called civil society and the deceased party. Notwithstanding the above, these two Counsel repeatedly took this matter up on two occasions later obviously to cater to some other interests.
It is false to say that two officers questioned the Father. It is also palpably false and dishonest to say that Father was "aggressively questioned regarding his ongoing testimony". It is surprising and shocking to hear for the first time that "under individual questioning the officers gave conflicting testimony". No such thing ever happened, and these intentional and deliberate false positions taken by Counsel who withdrew from the Commission thereafter, which enables them to make irresponsible statements and then run away. Counsel assisting the Commission should act in a more responsible manner and not make wild accusations against officers of the Commission. The nature and the contents of the allegations reflect a deliberate design to discredit the Commission and its officers.
The Rev. Father's testimony and statements made to the police and the Investigating Unit of the Commission when taken together, are not favourable to the LTTE as he speaks of LTTE presence on the 4th morning and the other alleged parties were not seen in the town area at that time according to his evidence. If there were any threats to him, as alleged, it could originate from the LTTE against whom his evidence was unfavourable.
However, after his testimony before the Commission, it has been brought to the notice of the Commission that the Father has sought asylum and is now in a foreign country. One wonders whether all these "theatrics" and uproar were to facilitate his seeking asylum.
(b) The Rev. Father "felt threatened" when Counsel for the Army, Mr Gomin Dayasiri, "used a mobile phone camera to take pictures of him and a Commissioner" during a Commission tea break. In actual fact Commissioner Dr Nesiah had been talking to the Father at a critical stage of his evidence during the adjournment, and a picture had been taken for the purpose of establishing the said fact by evidence. It must be noted that Mr Dayasiri had raised the propriety of Dr Nesiah sitting as a Commissioner due to his relationship with the Centre for Policy Alternatives, a party before the Commission. In fact this matter was brought to the immediate notice of the Commission by Mr Gomin Dayasiri himself, to the impropriety of a Commissioner talking privately to a witness in the course of his giving evidence. The photograph was shown to the Commission to support the submission. In fairness to Dr Nesiah, being a laymen, would have been unaware of the inquirer - witness relationship that should prevail during an inquiry, and no intentional fault could be attributed to Dr Nesiah. There may have been an undoubted lapse on the part of Commissioner Nesiah and the Rev. Father through ignorance. In the circumstances we see no merit in this objection.
(c) It is alleged that they received unconfirmed reports "of continuing visits to witnesses' homes by the Criminal Investigation Division, both prior to and after their testimony before the Commission. There is no Criminal Investigation Division in the Commission nor is the Commission aware of any such Division elsewhere. This type of false misleading allegation can seriously affect the credibility of the Commission.
All witnesses are given protection before and after their testimony by the Victim and Witness Protection Unit headed by a DIG (retired). They were well looked after and were assured protection and secrecy. Never a complaint was received from any witness about any kind of harassment. This is obvious fantasy on the part of the Counsel for the Civil society.
(d) At one stage Counsel indicated to the Commission that some officers of the Investigation Unit, by their body language, were attempting to influence a witness before the Commission. The Commission found that this was totally false. It is the officers of the investigation Unit who record the statements of witnesses before they are called to give evidence.
2. Vide the written submissions, attempts have been made to pass the blame on the Commission for the resignation of Dr Devanesan Nesiah. Objection was taken by Counsel for the Army/Navy and the STF that in view of the participation of the seven civil societies, one of which was the Centre for Policy Alternatives, it has been stated Dr Nesiah had connections with the said society as an employee and therefore there was a conflict of interest in the participation of Dr Nesiah in the Commission. Dr Nesiah denied that he was an employee of the Centre for Policy Alternatives. Counsel stressed the fact that this objection was only so long as CPA was a participant in the proceedings, that Dr Nesiah acts as an employee of the CPA.
3. Reference has been made by the "Civil Societies" to what is termed as "evidence of profound irregularities". To substantiate this assertion they refer to the evidence of a particular Lieutenant who had made a statement during the investigating stage of the Commission. It is alleged this particular witness has subsequently, about a month after, written a letter to the Commission to change the record of his testimony. It is further alleged that the Commission never intended to disclose this letter but that it had accidentally got included in the Commission's records.
This position is absolutely incorrect and is an attempt to discredit the Commission by the so called "Civil Society". At the initial stage of the investigating proceedings, it was brought to the notice of the Commission that statements made by witnesses before the Commission cannot be made use of before a Court of Law in the event of any criminal prosecution. In view of this the Commission decided to get the witness sign his statement after his testimony before the Commission. The typing of witnesses' testimony before the Commission takes about a month as the stenographers have to check the audio tapes and type the proceedings. When this particular witness was called to sign the statement about a month later, he was required to go through the statement and sign it as the correct reflection of his testimony. At that stage he had discovered that a particular answer had not been correctly recorded and wanted to correct it. It is at this stage that the officer responsible for keeping records has requested a letter, if he needs a correction to be made. This was purely a bona fide exercise and in fact was done quite transparently.
The assertion that this was a profound irregularity is absolutely misleading and incorrect, especially when this position was clearly indicated to the Counsel who apparently accepted it. The Commission finds that this was the only instance where a witness sought to correct the record.
It appears from the above that there had been a preconceived plan or a conspiracy to discredit the Commission by making false allegations and or exaggerating and twisting the truth to suit their purpose in order to achieve the long term objective of interested parties including their paymasters to discredit and disrupt the Commission for the consumption of some of the international organizations.
Much has been said about the inadequacy of witness protection. It must be said at the very outset that Witness and Victim Protection is a concept new to Sri Lanaka. In fact most countries, like India, Pakistan, Indonesia amongst others do not have any kind of witness protection schemes. The Commission on its own initiative, even before the Bill that is now before parliament was introduced, decided to have its own Victims and Witness Protection scheme.
The following Sri Lankan civil society organizations made a request for full standing before the Commission which was granted.
(i) Centre for Policy Alternatives 24/2, 28th Lane, Off Flower Road, Colombo7.
(ii) Home for Human Rights, 14, Pentrive Gardens, Colombo 3
(iii) INFORM, 5 Jayaratne Avenue, Colombo 5
(iv) Law and Society Trust, 3 Kynsey Terrace, Colombo, 8
(v) Mother's and Daughters of Lanka, 19 1/1 Sri Dhamma Road,.Colombo, 10
(vi) Rights Now - Collective for Democracy, 237/22, Vijaya Kumarathunga Mawatha, Colombo, 5
(vii) Sri Lanka National Commission of Jurists, 26 Charles Place, Colombo 3.
These organizations were represented by the following Counsel:
Mr. Desmond Fernando P.C, Dr. Jayantha de Almeida P.C. Mr. Chandra Kumarage,
Mr. J.C. Weliamuna, Mr. M.S. Sumanthiran, Mr. V.S. Ganeshalingam, Ms. Nimalka Fernando,
Mt. B.N. Thmboo
Mi. Kishali Pinto Jayawardane
Ms. Bhavani Fonseka
Ms. G.C. Ranitha
Mi. Sandamal Rajapakse
Mr. K. S. Ratnavel, Mr. S.M.M. Samsudeen and Ms. SheIrene Ahilan appeared for 1)r. K. Manoharan, father of one of the victims.
Mr. Priyantha Gamage subsequently appeared for Law and Society Trust. These counsel were present from 24th March to 15th September 2008.
Courtesy : Lakbima News