"If anybody had had any lingering doubts about the correctness of the President’s request to Nesiah to `stand down’ from the two inquiries in which the CPA is a party as an interim measure, his `Swansong’ should have dispelled them completely. We must all be grateful to Nesiah for his `Swansong’ because it proves beyond doubt that he is utterly unfit to serve as a member of any Presidential Commission of Inquiry or in any Public Office."
_________________
by S. L. Gunasekara and Gomin Dayasri
July 01 , Colombo, Sri Lanka Guardian: Presidential Commission of Inquiry official monitors TV screens as witnesses in the case of the murder of five students in Trincomalee in January 2006 give evidence, on March 14, 2008 in Colombo.
Dr Devanesan Nesiah has, at long last, resigned from the Commission of Inquiry and our attention has been drawn to his `swansong’ in the form of a self-serving statement to the media in respect of his resignation.
The proximate cause of his resignation was the fact of his close and intimate relationship with the Non-Governmental Organization known as the Centre for Policy Alternatives [CPA], which, at its request, was granted representation before the Commission as an interested party [with the right to examine witnesses, lead evidence and make submissions] in the two on-going public inquiries pertaining to the murders of 17 employees of ACF at Muttur and 5 youths at Trincomalee.
The proximate cause of his resignation was the fact of his close and intimate relationship with the Non-Governmental Organization known as the Centre for Policy Alternatives [CPA], which, at its request, was granted representation before the Commission as an interested party [with the right to examine witnesses, lead evidence and make submissions] in the two on-going public inquiries pertaining to the murders of 17 employees of ACF at Muttur and 5 youths at Trincomalee.
With Nesiah maintaining a deafening silence about his close links with the CPA, it was left to Counsel for the Army (Gomin Dayasri) to find and disclose to the Commission, Nesiah’s said close links with that party and object to his functioning as a Commissioner in respect of the Muttur Inquiry. Counsel for the STF (S. L. Gunasekera) then repeated the same objection in respect of the Trincomalee Inquiry. Nesiah however was not deterred. He neither contradicted any of the evidence adduced by Counsel for the Army in respect of his links with the CPA nor uttered even a hum while the damning evidence about those links was placed before the Commission. He simply continued to function as a Commissioner in those inquiries. We later learnt that he had, unbeknown to us who raised the objections, made some observations to the Commission only. It was in these circumstances that after we reported the said matters to the President, the appointing authority. He called for Nesiah’s explanation as was his duty, and very properly requested Nesiah not to function as a Commissioner in the said inquiries until he makes a decision on the matter after having considered Nesiah’s explanation. Having tendered his explanations only on the 11th and 16th of June, Nesiah tendered his resignation on the 24th of June saying a response is "long overdue". !!!
One does not have to be a `jurist’ or even `eminent counsel’ to know that a person who has close links to a party to a legal or quasi legal proceeding before a Court, Tribunal or Commission should not function as a judge of fact or law in such proceeding on the well known principle that a man should not be a judge in his own cause. This is something so basic that it is well known, understood and appreciated by any person possessed of a modicum of a sense of decency and fairplay whatever may be his level of education. Yet it would appear that Dr. Nesiah did not know, or if he knew, neither understood nor appreciated that principle and was adamant in functioning as a Commissioner in the said two inquiries in which the CPA was a party. One is constrained to wonder whether supplanting the above principle with a `principle’ that "any person may be a judge in his own cause" is a "Policy Alternative" advocated by the CPA !!!
The evidence of Nesiah’s close links with the CPA which was not denied by him or the CPA in any way whatsoever and presented to the Commission and thereafter to the President upon the Commission ruling that it had no jurisdiction to take action in respect of our objections to Nesiah but that only the President had, and that the President could take appropriate action if he is not satisfied with the conduct of one of its members was as follows:-
(a) Nesiah is described as a "Unit core staff of the Conflict and Peace Analysis Unit" of the CPA and designated in addition as a "Consultant" in the CPA web page
(b) The activities of the said Unit as described in the CPA web page include "peace with justice in Sri Lanka" which would fall within the sphere of this Commission and the contents of the Warrant. It also says it "works closely with the Legal and Constitutional Reforms Unit" of the CPA which would have been instrumental in making the application to have CPA made a party to the present inquiries.
(c) Nesiah has furnished to the Commission as set out in the "OFFIAL HAND BOOK OF THE COMMISSON" given to each Party upon being made a Party, his address as the address of the CPA (24/2 28th Lane, Flower Road Colombo 03). Further, according to the information provided by him, 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.
(d) As displayed in the web page of the CPA, Nesiah has signed a Press Release with other prime members of the CPA P.Saravanamuttu, Rohan Edirisingha and Mirak Raheem on the situation in Trincomalee in March 2006, which shows his close affinity to the CPA and reveals his identity with the CPA as he has signed on behalf of the CPA
(e) Nesiah has identified himself with the CPA on the international front on the issue of Burma. He has signed a communication describing himself as from CPA Sri Lanka as seen in the web page of the CPA.
(f) The official newsletter of the CPA describes Nesiah as one who represented the CPA and has traveled to Mannar, Pesalai and Talaimannar in their company on their missions.
(g) Nesiah has placed reports and conference papers for the CPA
(h) Nesiah is entitled to a Research Assistant from the Commission, and the Research Assistant selected by him is from the staff of the CPA which is a matter within the knowledge of the Commission as payments are made accordingly.
(i) It was also submitted that Nesiah is the recipient of emoluments, allowances, perquisites and privileges on account of the matters set out above from the CPA.
Notwithstanding all this material which necessarily proves that Nesiah should undoubtedly have disclosed his close links with the CPA and offered to `stand down’ from the Muttur and Trincomalee Inquiries should any party so request, the moment the CPA was made a party thereto upon its own application, not only did he not do so, but continued to sit as a Commissioner in inquiries in which his alter ego, the CPA, was a Party, even after the President requested him to refrain from doing so until he considers Nesiah’s explanation and makes a final decision on the matter. It was only after Mr Gomin Dayasri objected to his so doing that Nesiah, after discussing the matter with his fellow Commissioners, stood down from the said Inquiries and then resigned. Why did Nesiah who was insistent on sitting notwithstanding objections from counsel and a request from the President to desist from sitting as a temporary measure, tender his resignation in a hurry stating that the response is overdue, without waiting till his explanation was considered and a determination made?
In these circumstances, it is evident that Nesiah who displayed what may be described as an `unwholesome anxiety’ to continue to function in the `judgement seat’ in the Muttur and Trincomalee Inquiries was finally compelled to resign because he could not justify his continuance as a Commissioner at least in respect of those two inquiries.
Having so resigned, Nesiah has now made a statement blaming Counsel for the Army and the STF, the Media and the President [but not himself] for the predicament in which he has placed himself by his utterly unsavory conduct referred to above. One glaring feature about his said swansong lies in the fact that he avoids the principal issue – namely, his continuance as a Commissioner in inquiries to which the CPA is a party. He seeks to gloss over this matter with the bald statement that "My conviction that there has been no conflict of interest has been endorsed by eminent lawyers who have confirmed that such charges are baseless". Perhaps out of consideration for the professional reputations of those supposedly "eminent" lawyers who are alleged to have given him the moronic advice that "there has been no conflict of interest", he has kept their identities secret !!! Without dealing, in his statement, with the crux of the matter, Nesiah proceeds to seek to cloud the issue by dealing with a host of extraneous matters.
While one could have expected such evasive conduct from one of the many `lumpen elements’ in our political scene, it is not the conduct one could expect of a former member of the elite Ceylon Civil Service – or was that conduct merely another `Policy Alternative’?
While avoiding the central issue of his undeniable conflict of interest, Nesiah proceeds to cast what may be considered to be, aspersions on his fellow Commissioners by saying:-
"On the other hand the Commissioners have their individual allegiances coming from their respective political and religious backgrounds which may naturally shift their loyalty towards a particular direction."
What Nesiah refrains from mentioning are the facts:-
a) that he and only he of the Commissioners had close links with a Party to the proceedings before the Commission;
b) that his said observations would be applicable to himself to the same extent as to any other Commissioner; and,
c) the fact of the "particular direction" to which his loyalty "may naturally shift" or has `naturally shifted’ !!!
In his attempt to cloud the issue pertaining to his resignation Nesiah pronounces some `obiter dicta’ critical of the suspension of the process of recording evidence by video conferencing. What Nesiah refrains from mentioning is that this exercise was suspended for more than good cause because the Commissioners, despite objection from some Commissioners, and without having even a semblance of authority to do so, negotiated financial assistance for that process from foreign countries which had been critical of the Government’s human rights record and its endeavors to reclaim from the terrorists, such of our territory over which they had forcibly usurped control, and even enlisted the assistance of some former Assistants of the malevolent and anti Sri Lankan body of persons known as the IIGEP for that process although those persons, having pulled out are now `functus officio’ and have no further role to play respect of any matter pertaining to the Commission.
In making his observations about evidence by video conferencing, Nesiah has failed to even consider the most pertinent fact that the purpose of hearing evidence being to ascertain the truth, that purpose is defeated by the adoption of the procedure followed by the Commission in so recording evidence in that that the witnesses give evidence from an undisclosed location/s in an undisclosed foreign country/countries and are thus possessed of a licence to commit perjury because they are outside the jurisdiction of our Courts; the witnesses are financed by foreigners who are present with them while they give evidence and are free to coach and prompt them to their hearts desire; and those foreigners have even had the audacity to interfere with the cross-examination of witnesses and purport to `over-rule’ some questions asked by Counsel for the STF !!! The ascertainment of the truth does not appear to be high on Nesiah’s list of priorities. Is this another "Policy Alternative" ???
Finally, parroting the stupid cry of the discredited foreigners called the IIGEP, Nesiah with consummate unfairness, accuses the Attorney General of a conflict of interest. What Nesiah refrains from mentioning in this regard is that while the Attorney General is and has always been the legal adviser of the Government, it is not and never has been the legal adviser of errant state officials whether civil or military, and is the sole authority vested by law with the jurisdiction to indict any person whomsoever with serious crimes who has already indicted several members of the security forces including commissioned officers with serious offences such as murder. We are personally aware of 10 such cases. Nesiah also ignores the undeniable facts that if the Commission finds any person `guilty’ of complicity in any of the crimes being investigated/inquired into by it, it is the Attorney General and the Attorney General alone who will have to set about prosecuting such persons.
If anybody had had any lingering doubts about the correctness of the President’s request to Nesiah to `stand down’ from the two inquiries in which the CPA is a party as an interim measure, his `Swansong’ should have dispelled them completely. We must all be grateful to Nesiah for his `Swansong’ because it proves beyond doubt that he is utterly unfit to serve as a member of any Presidential Commission of Inquiry or in any Public Office.
- Sri Lanka Guardian
July 01 , Colombo, Sri Lanka Guardian: Presidential Commission of Inquiry official monitors TV screens as witnesses in the case of the murder of five students in Trincomalee in January 2006 give evidence, on March 14, 2008 in Colombo.
Dr Devanesan Nesiah has, at long last, resigned from the Commission of Inquiry and our attention has been drawn to his `swansong’ in the form of a self-serving statement to the media in respect of his resignation.
The proximate cause of his resignation was the fact of his close and intimate relationship with the Non-Governmental Organization known as the Centre for Policy Alternatives [CPA], which, at its request, was granted representation before the Commission as an interested party [with the right to examine witnesses, lead evidence and make submissions] in the two on-going public inquiries pertaining to the murders of 17 employees of ACF at Muttur and 5 youths at Trincomalee.
The proximate cause of his resignation was the fact of his close and intimate relationship with the Non-Governmental Organization known as the Centre for Policy Alternatives [CPA], which, at its request, was granted representation before the Commission as an interested party [with the right to examine witnesses, lead evidence and make submissions] in the two on-going public inquiries pertaining to the murders of 17 employees of ACF at Muttur and 5 youths at Trincomalee.
With Nesiah maintaining a deafening silence about his close links with the CPA, it was left to Counsel for the Army (Gomin Dayasri) to find and disclose to the Commission, Nesiah’s said close links with that party and object to his functioning as a Commissioner in respect of the Muttur Inquiry. Counsel for the STF (S. L. Gunasekera) then repeated the same objection in respect of the Trincomalee Inquiry. Nesiah however was not deterred. He neither contradicted any of the evidence adduced by Counsel for the Army in respect of his links with the CPA nor uttered even a hum while the damning evidence about those links was placed before the Commission. He simply continued to function as a Commissioner in those inquiries. We later learnt that he had, unbeknown to us who raised the objections, made some observations to the Commission only. It was in these circumstances that after we reported the said matters to the President, the appointing authority. He called for Nesiah’s explanation as was his duty, and very properly requested Nesiah not to function as a Commissioner in the said inquiries until he makes a decision on the matter after having considered Nesiah’s explanation. Having tendered his explanations only on the 11th and 16th of June, Nesiah tendered his resignation on the 24th of June saying a response is "long overdue". !!!
One does not have to be a `jurist’ or even `eminent counsel’ to know that a person who has close links to a party to a legal or quasi legal proceeding before a Court, Tribunal or Commission should not function as a judge of fact or law in such proceeding on the well known principle that a man should not be a judge in his own cause. This is something so basic that it is well known, understood and appreciated by any person possessed of a modicum of a sense of decency and fairplay whatever may be his level of education. Yet it would appear that Dr. Nesiah did not know, or if he knew, neither understood nor appreciated that principle and was adamant in functioning as a Commissioner in the said two inquiries in which the CPA was a party. One is constrained to wonder whether supplanting the above principle with a `principle’ that "any person may be a judge in his own cause" is a "Policy Alternative" advocated by the CPA !!!
The evidence of Nesiah’s close links with the CPA which was not denied by him or the CPA in any way whatsoever and presented to the Commission and thereafter to the President upon the Commission ruling that it had no jurisdiction to take action in respect of our objections to Nesiah but that only the President had, and that the President could take appropriate action if he is not satisfied with the conduct of one of its members was as follows:-
(a) Nesiah is described as a "Unit core staff of the Conflict and Peace Analysis Unit" of the CPA and designated in addition as a "Consultant" in the CPA web page
(b) The activities of the said Unit as described in the CPA web page include "peace with justice in Sri Lanka" which would fall within the sphere of this Commission and the contents of the Warrant. It also says it "works closely with the Legal and Constitutional Reforms Unit" of the CPA which would have been instrumental in making the application to have CPA made a party to the present inquiries.
(c) Nesiah has furnished to the Commission as set out in the "OFFIAL HAND BOOK OF THE COMMISSON" given to each Party upon being made a Party, his address as the address of the CPA (24/2 28th Lane, Flower Road Colombo 03). Further, according to the information provided by him, 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.
(d) As displayed in the web page of the CPA, Nesiah has signed a Press Release with other prime members of the CPA P.Saravanamuttu, Rohan Edirisingha and Mirak Raheem on the situation in Trincomalee in March 2006, which shows his close affinity to the CPA and reveals his identity with the CPA as he has signed on behalf of the CPA
(e) Nesiah has identified himself with the CPA on the international front on the issue of Burma. He has signed a communication describing himself as from CPA Sri Lanka as seen in the web page of the CPA.
(f) The official newsletter of the CPA describes Nesiah as one who represented the CPA and has traveled to Mannar, Pesalai and Talaimannar in their company on their missions.
(g) Nesiah has placed reports and conference papers for the CPA
(h) Nesiah is entitled to a Research Assistant from the Commission, and the Research Assistant selected by him is from the staff of the CPA which is a matter within the knowledge of the Commission as payments are made accordingly.
(i) It was also submitted that Nesiah is the recipient of emoluments, allowances, perquisites and privileges on account of the matters set out above from the CPA.
Notwithstanding all this material which necessarily proves that Nesiah should undoubtedly have disclosed his close links with the CPA and offered to `stand down’ from the Muttur and Trincomalee Inquiries should any party so request, the moment the CPA was made a party thereto upon its own application, not only did he not do so, but continued to sit as a Commissioner in inquiries in which his alter ego, the CPA, was a Party, even after the President requested him to refrain from doing so until he considers Nesiah’s explanation and makes a final decision on the matter. It was only after Mr Gomin Dayasri objected to his so doing that Nesiah, after discussing the matter with his fellow Commissioners, stood down from the said Inquiries and then resigned. Why did Nesiah who was insistent on sitting notwithstanding objections from counsel and a request from the President to desist from sitting as a temporary measure, tender his resignation in a hurry stating that the response is overdue, without waiting till his explanation was considered and a determination made?
In these circumstances, it is evident that Nesiah who displayed what may be described as an `unwholesome anxiety’ to continue to function in the `judgement seat’ in the Muttur and Trincomalee Inquiries was finally compelled to resign because he could not justify his continuance as a Commissioner at least in respect of those two inquiries.
Having so resigned, Nesiah has now made a statement blaming Counsel for the Army and the STF, the Media and the President [but not himself] for the predicament in which he has placed himself by his utterly unsavory conduct referred to above. One glaring feature about his said swansong lies in the fact that he avoids the principal issue – namely, his continuance as a Commissioner in inquiries to which the CPA is a party. He seeks to gloss over this matter with the bald statement that "My conviction that there has been no conflict of interest has been endorsed by eminent lawyers who have confirmed that such charges are baseless". Perhaps out of consideration for the professional reputations of those supposedly "eminent" lawyers who are alleged to have given him the moronic advice that "there has been no conflict of interest", he has kept their identities secret !!! Without dealing, in his statement, with the crux of the matter, Nesiah proceeds to seek to cloud the issue by dealing with a host of extraneous matters.
While one could have expected such evasive conduct from one of the many `lumpen elements’ in our political scene, it is not the conduct one could expect of a former member of the elite Ceylon Civil Service – or was that conduct merely another `Policy Alternative’?
While avoiding the central issue of his undeniable conflict of interest, Nesiah proceeds to cast what may be considered to be, aspersions on his fellow Commissioners by saying:-
"On the other hand the Commissioners have their individual allegiances coming from their respective political and religious backgrounds which may naturally shift their loyalty towards a particular direction."
What Nesiah refrains from mentioning are the facts:-
a) that he and only he of the Commissioners had close links with a Party to the proceedings before the Commission;
b) that his said observations would be applicable to himself to the same extent as to any other Commissioner; and,
c) the fact of the "particular direction" to which his loyalty "may naturally shift" or has `naturally shifted’ !!!
In his attempt to cloud the issue pertaining to his resignation Nesiah pronounces some `obiter dicta’ critical of the suspension of the process of recording evidence by video conferencing. What Nesiah refrains from mentioning is that this exercise was suspended for more than good cause because the Commissioners, despite objection from some Commissioners, and without having even a semblance of authority to do so, negotiated financial assistance for that process from foreign countries which had been critical of the Government’s human rights record and its endeavors to reclaim from the terrorists, such of our territory over which they had forcibly usurped control, and even enlisted the assistance of some former Assistants of the malevolent and anti Sri Lankan body of persons known as the IIGEP for that process although those persons, having pulled out are now `functus officio’ and have no further role to play respect of any matter pertaining to the Commission.
In making his observations about evidence by video conferencing, Nesiah has failed to even consider the most pertinent fact that the purpose of hearing evidence being to ascertain the truth, that purpose is defeated by the adoption of the procedure followed by the Commission in so recording evidence in that that the witnesses give evidence from an undisclosed location/s in an undisclosed foreign country/countries and are thus possessed of a licence to commit perjury because they are outside the jurisdiction of our Courts; the witnesses are financed by foreigners who are present with them while they give evidence and are free to coach and prompt them to their hearts desire; and those foreigners have even had the audacity to interfere with the cross-examination of witnesses and purport to `over-rule’ some questions asked by Counsel for the STF !!! The ascertainment of the truth does not appear to be high on Nesiah’s list of priorities. Is this another "Policy Alternative" ???
Finally, parroting the stupid cry of the discredited foreigners called the IIGEP, Nesiah with consummate unfairness, accuses the Attorney General of a conflict of interest. What Nesiah refrains from mentioning in this regard is that while the Attorney General is and has always been the legal adviser of the Government, it is not and never has been the legal adviser of errant state officials whether civil or military, and is the sole authority vested by law with the jurisdiction to indict any person whomsoever with serious crimes who has already indicted several members of the security forces including commissioned officers with serious offences such as murder. We are personally aware of 10 such cases. Nesiah also ignores the undeniable facts that if the Commission finds any person `guilty’ of complicity in any of the crimes being investigated/inquired into by it, it is the Attorney General and the Attorney General alone who will have to set about prosecuting such persons.
If anybody had had any lingering doubts about the correctness of the President’s request to Nesiah to `stand down’ from the two inquiries in which the CPA is a party as an interim measure, his `Swansong’ should have dispelled them completely. We must all be grateful to Nesiah for his `Swansong’ because it proves beyond doubt that he is utterly unfit to serve as a member of any Presidential Commission of Inquiry or in any Public Office.
- Sri Lanka Guardian
![](https://pinterest.com/pin/create/button/?url=http://www.srilankaguardian.org/2008/07/presidential-probe-into-violations-of.html&media=https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhKohQ0i8wWym1qbcoU3zcnRtHB_7I_4vMZUzUfd3yhmhyW5mtAMVocWjsR1Q5H18fJhwy_4IFZubfhnKy8CC89dOGMyT2TXKbYvKXwYpZSYHqlmKsvD5blWtcksAl5GQtbatUNz1cR4qKR/s72-c/1-human-rights-in-iran-sajad-asadi-iran-thumb.jpg&description="If anybody had had any lingering doubts about the correctness of the President’s request to Nesiah to `stand down’ from the two inquir...){kind=link}
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