“It is a pity that the IIGEP pronouncements did not include details of these allegations. Instead they seem to have simply reiterated, as they had done so often previously, criticisms relating to three principal points.” Image: Justice P. N. Bhagwati talking to reporters in Colombo on April 22, 2008. A team of international legal experts Tuesday stepped up their criticism of Sri Lanka, noting that repeated calls to improve its record on the issue had fallen on deaf ears._______________________
by Prof. Rajiva Wijesinha
(April 23, Colombo, Sri Lanka Guardian) The Peace Secretariat notes with sorrow the claims of the International Independent Group of Eminent Persons (IIGEP) that ‘Colombo lacked the political will to investigate grave rights abuses.’ It was claimed also that the government was ‘blocking efforts to ensure minimum standards were maintained in probing serious abuses’ and that ‘the government's tone "was becoming increasingly disrespectful (of the experts)."
This last claim was attributed to British panel member Nigel Rodley who is also supposed to have said that ‘"They were accusing us of all kinds of nefarious stuff, including making way for an international panel to monitor the rights situation on the ground here. It's not true, the allegations are baseless,"’.
It is a pity that the IIGEP pronouncements did not include details of these allegations. Instead they seem to have simply reiterated, as they had done so often previously, criticisms relating to three principal points.
The first relates to the role of the Attorney-General’s Department. The IIGEP had claimed that this vitiated the independence of the Commission. When this claim was first made, it was pointed out that the Attorney General is a public servant in Sri Lanka, not a political appointment as in many nations from which the IIGEP was drawn. At the same time the Attorney General made it clear that the Department was quite happy to withdraw if the Commission of Inquiry preferred to use members of the private bar.
The CoI however made it clear that it had faith in the AG’s Department, though at the same time, given the load of work, it used members of the private bar in some instances. The IIGEP, whilst commending such members for the work they did, continued to make its complaint, ignoring the fact that they were not here to make decisions but only recommendations. If the CoI, which better understood the constitutional position than the IIGEP, decided to stick with the AG’s Dept, to go on and on about the issue only indicated that the IIGEP had not read the terms of its mandate carefully.
In this respect it should be noted that the Government appointed several eminent persons, but it transpired that much of the work was done by their assistants. The government did not appoint callow young men to do the work of eminent persons. However the IIGEP is able to take refuge behind the fact that delegation to assistants was permitted by the CoI. If they are content to rely on the decision of the CoI in this instance, a decision that was not in accordance with the government view of eminent persons contributing actively to the process, it is strange that they repudiate the decision of the CoI with regard to the AG’s Department.
A second complaint relates to the financial provisions for the CoI, which the IIGEP claims vitiates the independence of the CoI, a point that the CoI has felt no worries about whatsoever. Certainly there has never been any questioning of the independence of the Commissioners (except in the one case of a potential conflict of interests with regard to the association of one Commissioner with an NGO that is bitterly critical of the government). If the IIGEP is serious, it should cite instances of the CoI failing to act independently, instead of continuing to point fingers at the government. Unfortunately it has forgotten that its mandate was to report on the CoI, not on the government.
Typically, when it reported on the proceedings with regard to the case of the five Trincomalee students, it spent much time pointing out that the evidence produced before the CoI indicated that the original investigation was flawed. Doubtless the CoI would have been able to reach this same conclusion, and the establishment of this through its proceedings was what the CoI was all about. The IIGEP, instead of commending this, preferred to pronounce patronizingly on earlier deficiencies – whereas it was precisely the government awareness of such possible deficiencies that had prompted the appointment of the CoI in the first place. Had the IIGEP been able to deduce from the manner in which the CoI conducted itself that the earlier deficiencies were being concealed, then its criticisms would have been valid. But what we had here was a typical example of the IIGEP concentrating on berating Sri Lanka for earlier problems which the CoI was dealing with efficiently.
Finally the IIGEP has been worried about the lack of witness protection mechanisms. This is a worry shared by the government, which has obtained training in this regard and prepared legislation, though with no thanks to either the IIGEP or other international institutions which provided no assistance at all for this purpose. When staff at SCOPP arranged training for several people, all one of the IIGEP assistants could do was complain to the CoI, saying that this was interference with the training one of his associates had arranged for one person. Meanwhile there was a stone wall of resistance to requests for assistance made to the former UN Human Rights Senior Adviser in Sri Lanka, he who failed to use funds that had been provided for UN volunteers at the regional offices of the National Human Rights Commission, he who lied in saying that this was not done because donors refused to provide funding, he who seems to have been responsible for the suppression - even from his supposed superior who heads Capacity Building - of the UNDP issued Stocktaking Report on the National Human Rights Commission. It was only after SCOPP unearthed that report and brought it to the attention of the present UNDP head that the UN is now even belatedly trying to work on fulfilling its recommendations.
Finally, it is astonishing that the IIGEP claims that the CoI has not done much. Clearly they have no idea of the pace of similar commissions in other countries. To name just one instance, so as not to point fingers at any government now in power, the inquiry into the Bloody Sunday massacres in Northern Ireland, which took place nearly forty years ago, has still not been completed.
Unfortunately, once the IIGEP set off on a confrontational approach, the purpose of which was clear when its assistants demanded from the Commissioners that they respond to a draft in time to ensure that it could be published in time for the UN Human Rights Council meeting in Geneva in June 2006, it lost sight of its original mandate. From then on, given the common tendency of superiors to stand up for their men, the concentration on criticism continued, culminating in the assertion, just in time again for the HR Council in Geneva in December, for the Dutch Ambassador to announce before even the Sri Lankan delegation knew about it, that the IIGEP did not wish to continue with its work beyond March 2008.
The determination to publicize this decision in Geneva, several months before it was to be made operational, makes clear the purpose of at least some of the assistants, the tail wagging a dog that – having failed to make its appearance before the Commission for any serious period, leaving that aspect of the work to the assistants – could not but follow its tail, to go round and round in circles to make the same simple points.
To fill in some of the details of the pernicious nature of this tail, appended below is the text of an exchange about The International Eminent Persons and their Assistants, that took place at the session on ‘International Dimensions’ during the Seminar on Conflict in Sri Lanka: Road Ahead, held at the Bandaranaike Centre for Ethnic Studies, March 26th & 27th.
Question -
Now some of the actions initiated by the Sri Lankan Government have backfired on the government, so as this is a relevant platform I would like to ask the panel about one of them. There was the eminent group of persons and one of the most renowned Indian scholars Justice Bhagwathi, but what has happened. They have resigned, with much publicity? Why? My reading is that we did it in all in good faith but why is it coming back to us? Perhaps that could be explained here, as there was so much faith in Justice Bhagwathi, so this is relevant to interaction between India and SL.
Prof Rajiva Wijesinha, responded as follows –
It is certainly a very relevant question. I don’t know if everyone is at all familiar with the IIGEP but essentially what happened is that there were a number of cases, such as a military action that it was alleged was an attack on civilians, and the government thought it best to set up a commission of inquiry. There were people who wanted an international commission of inquiry. But the government point was this was inappropriate. We had perfectly good people in Sri Lanka, and they appointed a panel of 8 commissioners and no one has ever impugned their integrity or questioned them, except I think today, we saw in the papers, someone from the government has said one of these commissioners should not be there for a particular reason. I should add that the man’s integrity is beyond question.
But because some parts of the international community kept saying no, this is not enough, the government decided to set up a panel of eminent persons to observe the inquiry to make sure that nothing untoward happens. And for this purpose it asked what it considered concerned countries and people to nominate eminent persons, and some extremely eminent persons were nominated including Justice Bhagwathi. The current French Foreign Minister, (who was then not Foreign Minister) was nominated. Professor Yokota of Japan and Mr Darusman who was the former Attorney General of Minister of Justice for Indonesia - but the problem was that they were so eminent that they couldn’t really come for all the hearings. In fact, when a lot of criticism occurred, the Minister for Disaster Management, whose initiative this was, had actually made a study of how often they attended these inquiries and it was very infrequently. Now, in what is obviously one of the most controversial cases, it seems there are only two of them there.
So what did they do? They set up assistants and those assistants became observers. But unfortunately most countries can’t afford assistants. Justice Bhagwathi cannot afford an assistant. Professor Yokota does not have one and Mr Darusmann does have an assistant because she was nominated by the IPU but his assistant - who has been deeply engaged and concerned – just cannot attend because she is actually a functionary of the IPU. So in actual fact there have been only 4 or 5 assistants. And (this makes me sound racist) but surprise, surprise they are all white! They all come from countries that have been for various reasons critical of us. This does not mean that they would necessarily be so but many of them from the outset started a confrontation and one of their big points was they did not want the Attorney General’s Department involved. But many of them did not realise that in Sri Lanka the Attorney General’s Department is not as it is, let us say, in Britain where the Attorney General is a member of the Cabinet. Or in Indonesia. Even in India where he is not a member of the Cabinet, it is an appointment, I believe, that a new government makes whereas here in Sri Lanka the present Attorney General was the No. 2 in this department in the last government. It is not that he belonged to either government, he was independent. In Sri Lanka the Attorney General’s position has never been politicized – except perhaps in the bad old days of the 80s but we won’t go into President Jayewardene now – except to say that that Attorney General, who faithfully represented a racist government, now represents the LTTE. And on the whole no one has ever questioned the integrity or the capacity of Attorney Generals. And the Attorney General’s Department was quite furious because they said this is inappropriate. But they also said, look, we don’t have to be here. If the Commission does not want us, we will go away. But the Commission said no, we need you, but to make the position clear, in certain instances like for instances in some controversial cases, we will go to the private bar. So it wasn’t that the Government said no, the AG’s Dept must do it. But this turned into a bone of contention.
The second thing they said was that Sri Lanka needs a Witness Protection Act. And when I was first asked to comment on the report, I said yes, certainly we do. We should expedite it. When I said this, I was told by someone that it sounded as though I were critical of the government. Maybe I was, but I have no problem about being critical if criticism is required, and this was not with regard to policy, it was speed. The government’s policy was clear, The President had said very clearly he wanted a Witness Protection Act, and though I know sometimes things move slowly, my point was that we could have been quicker about it. My belief is that if you should do something, do it the day you realize you have to. But unfortunately this does not happen, in Sri Lanka or anywhere in the world. As you know the Bloody Sunday inquiry in Britain is still going on. Inquiries take a long time. So I think the COI worked quite well and nobody impugned their integrity but the IIGEP assistants have got this confrontational attitude. I think the secret of what was going on emerged when the first report of the IIGEP was due. The government had asked for quarterly reports, and said show them to us, we will respond and try to have joint reports, if there is no consensus then both versions. The first report was given to the Commissioner who said we can’t respond immediately because one of us will be away, but the assistants said, “No, we need your responses at once, since we must present the report to the Human Rights Council meeting in Geneva.” And the Commissioners said, “But that is not part of the mandate”, this has nothing to do with the HRC, but the assistants obviously had a different idea.
So you understand what I mean? These assistants had assumed that their job was to produce a report every three months to coincide with the Human Rights Council in Geneva so that someone could get up and say ‘ Ah! How bad you are.’ So this was the June report. In September the report appeared without the responses of the Commission. I happened to be in Geneva at the time, and I asked the assistant to Mr Darusman, why the Commissioners’ response was ignored when it had been sent in time. And what she told me was that the Assistants claimed that they had never got the report. Why? Because the Commission sent it to the eminent persons, Justice Bhagwathi etc. These assistants did not bother to check with Justice Baghavathi whether he had got a response. They said, ‘No one sent it to our Secretariat’. I mean, the Government was not dealing with a Secretariat of assistants; it was dealing with eminent persons. So you see, I could see a little bit of bad faith in all this.
Then, when an assistant was suggested for Justice Bhagwathi, an assistant who is himself a very distinguished lawyer, it turned out that there was no money to pay him. I think some Europeans were asked and they said they had no money to pay him. But they had money to pay the salary of these young gentlemen of dubious virtue and distinction who have been hanging around Sri Lanka for the last year but they did not have money to pay an absolutely distinguished jurist who worked for the UN. And to me the proof of what I would call bad faith is that. Of course, Europeans have every right to pay only for their own people, we have no right to ask them to pay for others, our poverty is not their fault, but at the same time we should recognize that he who pays the piper calls the tune, and because of their wealth, it is the perspectives of some of the countries which had eminent persons serving which dominated.
But let me give you another example of bad faith. I was very concerned about Witness Protection. Our legal director who has been involved in this was also very concerned and she set up, with the assistance of the New South Wales police a training program for two policemen, one commissioner, one member of the AG’s department, to have 3 weeks of training for this in Australia. Those who were trained were very grateful because the Australians it seems did a fantastic job. But do you know that one of these young gentleman wrote a letter to the Commission complaining about our Legal Director, saying that one of them had set up another program and this woman was interfering. What was his training program? Taking just one policeman from Sri Lanka to Australia. We had set up a program which included that component, and that senior policeman was also part of the group. So here you have a patronizing approach which was very destructive.
Now we have to accept that, all of us, though sometimes perhaps in Sri Lanka this does not happen, when our assistants do something wrong, we stand by them. So the IIGEP will not, cannot, repudiate the reports that are written for them, they cannot but stand by their assistants’ actions.
Anyway, all this was between September and December. In December what happens? At Geneva, when the Human Rights Council is going on, the Dutch Deputy Ambassador gets up and says ‘And I must tell this Council that the international eminent persons have resigned forthwith.’ Very strange. How did he know? We did not know? It turned out that he had been informed of a letter sent by them, in time for this HRC meeting. Fortunately we were able to check, and the letter was faxed to us, saying the resignation would only be in March. So these people decided in December that they were not going to renew their contract because nothing was happening - they have obviously not studied what happened in Abu Ghraib or Guantanamo or anything like that – and they send this letter so that a Dutchman can read it out at the HR Council. So you really begin to see that there is a political agenda attached, by these assistants who of course, as Ambassador Rodrigo described in another context, spend most of their time in the social world of Colombo which is a very pleasant world for those who like that sort of thing. So I think that is part of the problem.
(The Writer, Secretary-General Secretariat for Coordinating the Peace Process in the Government of Sri Lanka)
- Sri Lanka Guardian
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