Zero tolerance

The government targets the international group that oversees the probe into human rights violations.

B. MURALIDHAR REDDY in Colombo

AS the undeclared war between the military and the rebel forces rages on in Sri Lanka, the Mahinda Rajapaksa government has dug itself into a mode of denial on issues relating to human rights violations and humanitarian concerns. Shoot the messenger at point-blank range is the approach of the regime to anyone attempting to convey the unpalatable truth. There are no exceptions to the conviction of the government that in this "war against terrorism" either you are with us, or you are with them.

United Nations agencies, national and international non-governmental organisations (NGOs), opposition parties, dissidents within the ruling combine and the media have all been at the receiving end of the government at some point or the other since the escalation of hostilities in August last year. Allan Rock, Special Adviser to the Special Representative on Children in Armed Conflict for the UN Secretary-General, has faced vicious propaganda from the state and its allies since his visit in November last for an on-the-spot assessment of the fate of children caught in the conflict in the North and East.

Rock's "sin" was he hinted at the possible involvement of the Sri Lankan armed forces in aiding and abetting the breakaway Karuna faction of the Liberation Tigers of Tamil Eelam (LTTE) in the East in the recruitment of underage soldiers. The state and its agencies lost no time in denouncing him as a "sympathiser" of the Tigers and debunked his report as a figment of his fertile imagination to suit "ulterior motives", ignoring the fact that he had not spared the Tigers either on the subject. Senior functionaries in the establishment and the pro-government media raked up his supposed "shady political past" in Canada and cast aspersions on him. The lesser mortals with the NGOs and the media have faced worse threats.

However, even die-hard cynics and bitter critics of the government could not imagine that the 11-member Inter-continental International Group of Eminent Persons (IIGEP) headed by Justice P.N. Bhagwati, which was invited by the government in February to oversee the functioning of the presidential Commission of Enquiry (COI) set up in November to investigate prominent cases of human rights violations in the island since August 2005, would become part of the Allan Rock gallery.

To the disbelief of one and all, the government employed the services of the new Attorney-General to tear into pieces the two general preliminary public statements made by the group in the second week of June. The two statements merely sought to raise some fundamental issues relating to the functioning of the COI. The IIGEP noted some glaring deficiencies and contradictions in the system and the law which sought to undermine the status and functioning of the COI, and impressed upon the government the need for remedial action.

Attorney-General C.R. de Silva, in a hard-hitting response dated June 29 to the IIGEP's two public statements, not only questioned the jurisdiction of the group in respect of some of the issues it had raised but attributed all kinds of motives. He accused Bhagwati and his co-members of being "misled" by the group's assistants to form "misinformed, incorrect and partial conclusions" over the functioning of the COI. Further, invoking the authority of the Government of Sri Lanka, he questioned the "timing" of the release of the two public statements. The "conspiracy theory" rent the air.

Understandably, Bhagwati was outraged. In interviews to media in New Delhi, the former Chief Justice of the Supreme Court of India not only reiterated the essence of the two IIGEP statements but took serious exception to the language used by the Sri Lankan Attorney-General. He noted that he was never opposed to dissent in his long career as a Judge but was appalled at the conduct of de Silva. Bhagwati maintained that he had an international reputation and was not bothered about the allusions made by de Silva.

Political and diplomatic observers were initially surprised at the tone and tenor of the letter of the Attorney-General, particularly after a press statement by the President's Secretariat on June 12, two days after the IIGEP made its first public statement. The brief statement read: "President Mahinda Rajapaksa is thankful to the members of the IIGEP for the first Interim Report of the Group received at the Presidential Secretariat on June 4, 2007, which has since been issued as a Public Report. The President has directed that a careful study be made of the observations, concerns and recommendations stated in this Interim Report. Any response necessary will follow such study."

Subsequent events, particularly the letter written to Bhagwati on behalf of the President in the first week of July, revealed the fact that the Attorney-General was not quite out of tune with Rajapaksa. He was only faithfully articulating the sentiments of the President. The letter made no reference to the Attorney-General's statement; it only wanted the IIGEP chief to ensure that at least one of its 11 members was physically present in Sri Lanka to oversee the working of the commission. The letter made it known that the government was not satisfied with the present arrangement of the members keeping a watch on the COI through the IIGEP "assistants".

Well-placed sources suggest that Bhagwati has written back to the President suggesting a way out in the form of appointing a deputy to the IIGEP or following a "roster system". He is even supposed to have suggested a name. However, it appears that Colombo has reservations about the member concerned officiating in place of Bhagwati. There is no clarity at the time of writing this report as to how the row over the number of issues raised by the IIGEP and the objections would be resolved.

What are the issues raised by the IIGEP that have rattled the government so much and what is the government's perspective?

The IIGEP's observations are fundamental in nature. The report contains concerns about the COI:

"We reported to the President that the Commission has so far made hardly any noticeable progress in investigations and inquiries since its inception in November 2006. Moreover, since our formation in February 2007, we have identified and raised a number of concerns with the Commission and the Government of Sri Lanka.

"We remain concerned that current measures taken by the Government of Sri Lanka and the Commission to address issues such as the independence of the Commission, timeliness and witness protection are not adequate and do not satisfy international norms and standards. Independence: We are concerned about the role of the Attorney-General's Department as legal counsel to the Commission. The Attorney-General's Department is the Chief Legal Adviser to the Government of Sri Lanka. Members of the Attorney-General's Department have been involved in the original investigations into those cases subject to further investigation by the Commission itself."

The IIGEP lamented that the Commission did not commence even preliminary investigations and inquiries until May 2007, despite being constituted six months earlier, and to date, internal processes had not been transparent. It expressed concern that there were no adequate victim and witness protection provisions under the Sri Lankan law. On the mandate of the COI, the Group maintained that the presidential warrant limited the scope of the Commission to a retrospective and fact-finding role.

"We regret that public statements from state officials are creating the misleading impression that the Commission and IIGEP have wide mandates and powers and the resources to address ongoing alleged human rights violations in Sri Lanka. This is not the case. In the current context, in particular, the apparent renewed systematic practice of enforced disappearance and the killings of Red Cross workers, it is critical that the Commission and IIGEP not be portrayed as a substitute for robust, effective measures including national and international human rights monitoring," the IIGEP said.

In its second statement on June 15, the IIGEP noted, "Central to our concerns is the role of the Attorney-General's Department in the Commission. On 27 February 2007, we raised these concerns with the Chairman of the Commission, stating that the conflict of interest arising from the involvement of the Attorney-General's Department in the Commission compromises national and international principles of independence and impartiality that are central to the credibility and public confidence of the Commission. We urged the Commission to reconsider the role of the Attorney-General's Department and to appoint independent counsel in its place."

It said that during the initial sessions of investigation and inquiry, conducted from May 14 to 29, on the execution-style killing of 17 national workers of the French NGO Action Against Hunger (ACF) in August 2006 in Muttur in the East, the IIGEP observed instances of lack of impartiality. "Taking evidence in this manner will not, in our opinion, reveal the information and evidence necessary to identify perpetrators of human rights violations and enable the Commission to achieve its mandate in a timely manner," it said.

The Attorney-General's public response on June 29 came like a stringer missile. He charged the Group with having "exceeded" its mandate by indirectly proposing to the government that an international human rights monitoring mechanism be established or invited to visit Sri Lanka. "In view of the serious harm and prejudice caused by your public statements to the Commission of Inquiry and to the Attorney-General's Department, I am compelled to issue this communication to you publicly," de Silva wrote.

On a point of agreement with the IIGEP, he noted: "It is indeed a fact that, the absence at national level of legislation for the protection of victims of crime and witnesses is affecting the Commission implementing a full-fledged victim and witness assistance and protection programme. You would note that Sri Lanka does not stand alone as a country which does not have such modern legislation."

On the objections regarding the involvement of his department in the COI, de Silva reasoned: "The opening address made by counsel from the official Bar outlined the salient features of the case relating to the killing of the 17 aid workers of ACF in Muttur in early August 2006. This inconsequential statement made by counsel was a mere outline of the case scheduled to be investigated by the Commission and was made at the instance of the Commission. You would agree that you were not present when the address was made... . In the circumstances, you would appreciate that your reservations are void of merit."

Charging the IIGEP with being influenced by its assistants, the Attorney-General noted:

"Based on certain statements made by the assistants before the Commission, it has become apparent that they did not appreciate the legal practices and procedures pertaining to the conduct of criminal investigations in this country... . In the circumstances, I am concerned that your observations and comments are based on possible information given to you by some assistants to IIGEP members... You would appreciate that it would have been far more prudent had you personally observed the proceedings of the Commission, and thereafter formed your views.

"I would, therefore, request you to hereafter desist from making such comments. Your comments were inappropriate, incorrect and adversely affect public confidence in the Commission of Inquiry. I wish to add that, the fact that the IIGEP made two public statements in quick succession ... clearly reveals that those who were interested in releasing the statements were not acting in good faith and were seeking to time the releases in such a way that the Government of Sri Lanka would be embarrassed at certain international fora and meetings."

The Attorney-General's missive is the surest way to smother an experiment, touted by the government at every available international forum as one of its kind to ensure total transparency and zero tolerance for human rights violations. If the Rajapaksa regime is serious about its intent, it is high time it valued the messengers and their messages and stopped imagining "conspiratorial ghosts" everywhere.