In this photo released by the United Nations, Heraldo Munoz, left, the Permanent Representative of Chile to the United Nations and chairman of the Bhutto Commission of Inquiry; joins Abdullah Hussain Haroon, the Permanent Representative of Pakistan to thte United Nations, center left; United Nations Secretary-General Ban Ki-moon, center right; and Bhutto Commission of Inquiry member Marzuki Darusman of Indonesia, for the commission's formal presentation of the report on the assassination of form.
by Gomin Dayasri
(May 08, Colombo, Sri Lanka Guardian) The first principle in selecting an inquirer is to satisfy yourself that he is impartial and does not carry previous prejudices. Otherwise rules of bias disqualify a person from being an inquirer. The appearance of impartiality has been stressed a requisite for an inquirer. A report signed by a person with traces of prejudice, bias and partiality is deemed to be a nullity.
Why did Moon select Maruzuki Darusman, after being outrageously critical of the Sri Lankan Government and its institutions including the Special Presidential Commission of Inquiry on Human Rights Violations, Attorney General and the Investigating Authorities of Sri Lanka, while remaining a member of the International Independent Group of Eminent Persons (IIGEP) observing the proceedings in the Special Presidential Commission into alleged Human Rights violations? Is it proper to appoint a person with in-built exhibited prejudices on Sri Lanka’s human rights record to function as the chairman of a panel to examine Sri Lanka’s war records? Was there no other person in the world that the Secretary General could have selected without having to resort to select a prejudiced mind, a proven critic of Sri Lanka on the same subject he was to function as an inquirer?
Wikipedia writes that the IIGEPs’ (inclusive of Darusman) on the Special Presidential Commission of inquiry into Human Rights violations in Sri Lanka, opined that there was lack of political will from the Government of Sri Lanka to support the search for the truth; officers of the Attorney General’s department were playing an inappropriate and impermissible role in the proceedings; there was lack of transparency and lack of full cooperation by state bodies.
Indeed serious allegations made by the IIGEP including Darusman on Sri Lanka, which is overwhelmingly sufficient to disqualify him from being a member of an inquiring panel into affairs on Sri Lanka’s human rights aspects. Having obviously checked his credentials, Moon nevertheless appointed him. With this background did Moon expect Darusman to be objective and impartial? This reveals that Moon and Darusman with knowledge of the infirmities attached to the post of inquirer, confirmed the appointment by an offer and acceptance.
The present chairman of the LLRC, Chitta Ranjan de Silva, was the then Attorney General, whose Department was subject to severe criticism by the IIGEP and C .R. de Silva countered by making a spirited response to the IIGEP report defending the government and his Department.
It comes as no surprise that the Moon panelist attempted to lower the esteem of the LLRC and its members including its chairman C.R. de Silva, as Darusman had reservations of the Attorney General’s Department when C.R.de Silva headed it and came into conflict as an IIGEP. There was a conflict of interest between Darusman and De Silva. Therefore any criticism of the LLRC that included C.R. de Silva is a reflection of an act of a prejudiced and prejudged mind on the part of the Moon panelists.
The IIGEP including Darusman declined to participate at the sessions of the Commission of Inquiry into Human Rights violations and walked out in protest to show their hostility to local human rights proceedings. C,R. de Silva as the Attorney General faulted the Group on their stand and urged that they cannot terminate their exsistence but can merely resign from their positions.
After walking out The IIGEP consisting of Darusman and others made the following comments in a press release-
(a) "They can no longer see how they can contribute further to the protection and enhancement of human rights in Sri Lanka and regretfully decided to bring to an end their activities in Sri Lanka".
(b) "When the IIGEP has reported being accused of going beyond its mandates and of interfering with national decision making, this has never been the intention…"
(c) "Official correspondence directed to IIGEP has often being characterized by lack of respect and courtesy.
These are indeed bitter, resentful and painful statements leaving an unpleasant taste at the time of departure against Sri Lanka.
Moon had a wide choice of persons to select from to sit on his panel. If so, why did he have to pick a person who was a member of the IIGEP in Sri Lanka who had made hostile observations and appoint him as the chairman to investigate and advise him of the final phase of the war period in Sri Lanka? Was there no other unbiased impartial person to hold the pivotal position of the chairman of the panel? Did he make such appointment knowing well the background, so as to obtain a result unfavorable to Sri Lanka?
Circumstances permit a reasonable man to reach such conclusions, which is the reason that untainted persons must be appointed as inquirers to avoid their decisions to be treated as null and void. It appears that the Secretary General of the United Nations together with his many advisors, legal or otherwise, deliberately overlooked such principles that are known to small time administrators.
With that background it could always be justifiably alleged that Darusman carried prejudices in his luggage and it was not possible for him to function as an independent member of the panel. The oft- repeated maxim is not only must justice be done; it must appear to be so. What matter is not actual bias but the appearance or likelihood of bias. Was there a lurking desire to bring Sri Lanka into disrepute by appointing a man with a prejudiced mind? Moon has fatally damaged the inquiry by making such an appointment and has discredited his office.
It is sad that with this material accessible, objections were not raised on bias at the time the panel was named by the state lawyers and given notice to the international community to expect a biased report.
Darusman should have declined to accept the post or resigned when he realized that the panel would be embarrassed by his previous conduct.
The criticism against LLRC by the Moon panelists is not surprising as IIGEP of which Darusman was a member, condemned the present chairman of the LLRC, the former Attorney General in his official capacity, for the role his department played as counsel for the Commission?
Ironically, a private counsel appointed to assist the Commission from the unofficial bar was the President of an NGO that appeared as a party in the case that made allegations against the security forces.
Moreover the IIGEP that included Darusman directed their adverse report on Sri Lanka to be released to coincide with the sessions of the Human Rights Council. This reveals there was hidden agenda to punish Sri Lanka and such a man was selected to head the Moon panel. If so, was it the same target that the Moon panel sought knowing of Darusman’s experience as a member of an IIGEP? Was the chairman appointed with this target in mind?
There is solid evidence of this fact as reflected in an opinion issued by the members of the Commission of Inquiry into an objection taken by the lawyers for civil society before it, where they stated that IIGEP admitted that their critical report was timed to coincide with the sessions of the Human Rights Council. [To quote "This was fact admitted by the IIGEP at one of the meetings with the members of the Commission at the JAIC Hilton."]
If so did the Moon panel with Darusman as chairman produced their report targeting the Human Rights Council? Did the panel target the Human Rights Council after it misfired on the attempts made by the IIGEP? The irony is Darusman appears on both panels.
These are aspects that could be urged by the government’s lawyers and the Ministry of External Affairs as they have the required papers on this matter at their disposal rather than a private lawyer whose access to official papers are limited.
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