SPECIAL REPORT : Part 353
President Gotabaya Rajapaksa shakes hands with Justice Nawaz after appointing him as the President of the Court of Appeal on January 20, 2021 (pic courtesy PMD)
Geneva proposes asset freezes, travel bans ahead of HR sessions
By Shamindra Ferdinando
An Extraordinary Gazette notification, pertaining to the nomination of Justice Abdul Hameed Dileep Nawaz, as the Chairman of a three-member Commission of Inquiry (CoI), to investigate, inquire into and report, or take required actions, regarding the findings of the former Commissions, or Committees, that investigated human rights violations, serious violations of International Humanitarian Law (IHL) and other such offences, was issued on January 20.
The Extraordinary Gazette notification was issued, close on the heels of a ceremonial sitting of the Supreme Court of Sri Lanka, to welcome Justice Nawaz, Justice Kumudini Wickramasinghe and Justice Shiran Gooneratne. They were among six new Supreme Court justices, named on Dec 1, 2020, in terms of the 20th Amendment to the Constitution, enacted two months before. The other new justices are Janaka de Silva, Achala Wengappuli and Mahinda Samayawardhena.
The new Amendment approved with a two-thirds majority, resulted in the expansion of the Supreme Court bench, from 11 to 17, and the Appeal Court bench, from 12 to 20.
Having won the presidency in Nov 2019, President Gotabaya Rajapaksa promoted Nawaz as the President of the Court of Appeal. The appointment made on January 20, 2021, is President Gotabaya Rajapaksa’s first high profile judicial selection. The appointment didn’t receive the media attention it really deserves.
With the elevation of Nawaz to the Supreme Court, Justice Arjuna Obeysekere received the appointment as the President of the Court of Appeal. The CoI, chaired by Justice Nawaz, includes one-time IGP Chandra Fernando, the incumbent Chairman of the National Police Commission, and retired District Secretary Nimal Abeysiri.
Nawaz is the first sitting judge and the senior-most judicial officer to have been charge-sheeted by the Commission to Investigate Allegations of Bribery or Corruption (CIABOC), during his time at the Attorney General’s Department, but cleared by courts during the tenure of the previous regime itself. So many actions, initiated by the CIABOC, judicial decisions and proceedings during the previous yahapalana administration, are under a cloud.
The CoI has been entrusted with the following tasks: (a) Find out whether previous CoIs, and Committees, which have been appointed to investigate into human rights violations, have revealed any human rights violations, serious violations of the international humanitarian law and other such serious offences (b) Identify the findings of the CoIs, and Committees, related to the serious violations of human rights, serious violations of international humanitarian laws and other such offences and whether recommendations have been made on how to deal with the issues at hand (c) The status of the implementation of those recommendations, so far, in terms of the existing law, and what steps need to be taken to implement those recommendations further, in line with the present Government policy and, finally (d) Ascertain whether action is being taken in respect of (b) and (c).
The CoI, headed by Justice Nawaz, is expected to finalize the report, within six months from the date of the appointment.
AG on role of judges
Welcoming the newly appointed Supreme Court Judges on Jan. 20 and Jan 21, Attorney General Dappula de Livera, PC, declared: “The credibility of a judicial system, in a country, is dependent on the Judges who man it. Judges must be persons of impeccable integrity and unimpeachable independence. A Judge must discharge his/her judicial functions with high integrity, impartially and intellectual honesty. Speaking of Intellectual honesty; the law would be like a ball of clay in the hands of an erudite Judge. Therefore, Judges should be ruthlessly honest, independent, and impartial and possess a judicial conscience to ensure that the ball of clay is moulded, according to the law. For over 2000 years of the island’s long history, the Courts of Law have occupied a unique place in the system of government. Public acceptance of the judiciary, and public confidence in the judiciary, is necessary for the rule of law to prevail in the country. Public confidence in the judiciary is dependent on the independence and integrity of the judiciary.”
The President’s Counsel further said: “The Judges in the exercise of judicial functions should be immune from outside control and influence and intimidation. That independence is also necessary from the other branches of government and from private and partisan interest. Judges should be above suspicion and should not leave even a glimpse for that suspicion to occur.”
Tamil parties seek int’l intervention
The appointment of the three-member CoI under the leadership of a Supreme Court Judge, should be examined against a section of Parliament demanding international intervention, by way of a new Resolution adopted at the forthcoming 46th sessions of the Geneva-based United Nations Human Rights Council (UNHRC), scheduled for Feb-March 2021. The Tamil National Alliance (TNA) and two Northern Province, based new political parties – Ahila Illankai Tamil Congress (AITC) and Tamil Makkal Thesiya Kutani (TMTK) have written to 47 members of the UNHRC demanding punitive action against Sri Lanka on the basis that the administration quit the Geneva Resolution 30/1, co-sponsored by the previous yahapalana administration.
The three parties are represented in Parliament by 13 members. At the time Sri Lanka co-sponsored the controversial resolution against itself, in Geneva, the TNA had 16 lawmakers, including two appointed members, with its leader, R. Sampanthan, enjoying the privileged status as the Opposition Leader, though, ironically, the breakaway Joint Opposition (JO) commanded the confidence of well over 50 lawmakers. So that was how democracy was practiced then!
With the obvious blessings of Western powers, the Tamil parties, in a letter to UNHRC members, requested (a) Member States urge, in the new resolution, that other organs of the United Nations, including the UN Security Council, and the UN General Assembly, take up the matter and take suitable action by reference to the International Criminal Court and any other appropriate and effective international accountability mechanisms to inquire into the crime of genocide, war crimes and crimes against humanity (b) The President of the UNHRC refers matters on accountability, in Sri Lanka, back to the UN Secretary General, for action, as stated above (c) Member States to mandate the Office of the High Commissioner for Human Rights (OHCHR) to continue to monitor Sri Lanka for ongoing violations and have an OHCHR field presence in the country and (d) Without detracting from that which has been stated in Point 1 (above), take steps to establish an evidence-gathering mechanism, similar to the International Independent Investigatory Mechanism (IIIM,) in relation to Syria, established as a subsidiary body of the UN General Assembly, with a strict time frame of 12 months duration.
The TNA-led political grouping, backed by a section of the civil society that also supported a hybrid war crimes investigating mechanism, are backing the latest initiative against Sri Lanka.
The Ontario Centre for Policy Research, Canada and London Initiative, the United Kingdom have, however rebutted anti-Sri Lanka allegations with a timely comprehensive report recently to the UNHRC, especially in response to the growing threat of a new resolution. The lead Researcher and the Chairman of the Committee that prepared the report, Dr. Neville Hewage, and the UK-based practicing lawyer, Jayaraj Palihawadana, should receive public appreciation for countering the Western strategy. Let the public know of such initiatives and exert pressure on political parties to take up the Geneva challenge, together with the government.
Unfortunately, Sri Lanka’s defence in Geneva is likely to suffer in the absence of coordinated action and the failure on the part of those responsible to get their act together to attack the foundation of lies concocted by interested parties, hell-bent on hauling Sri Lanka up before an international war crimes court. With the UNP’s humiliating rejection by the masses, at the last general election, in August 2020, the TNA-led grouping, in spite of differences as regards political strategy, both in and outside Parliament, is confident of its new game plan.
The Swiss plot
The Tamil grouping believes the return of the Rajapaksas is advantageous to their strategy. Sri Lanka would have been in bigger trouble if the Swiss project, meant to ruin Gotabaya Rajapaksa’s presidency, succeeded in Nov 2019. If not for war-time Defence Secretary Gotabaya Rajapaksa’s refusal to allow Switzerland to evacuate Embassy worker Garnier Francis, who claimed that she had been sexually abused by government agents inside a vehicle close to the Swiss Embassy, within days after him being elected the President. Had that diabolical plot clicked with her being evacuated to Switzerland, in a special air ambulance, that had been brought down as part of the plot, the country would have been under heavy pressure now. Thanks to President Gotabaya Rajapaksa taking a tough stand on the matter, the Swiss plot went awry, much to the disappointment of those seeking to undermine the new administration. Investigations exposed those responsible for the diabolical propaganda offensive that had to be inquired into, taking into consideration unsubstantiated allegations directed at the SLPP presidential candidate, Gotabaya Rajapaksa, at a media conference, organized by the then yahapalana minister Dr. Rajitha Senaratne.
The CoI, headed by Justice Nawaz, will have to examine the overall campaign against Sri Lanka, without restricting its investigation in terms of the mandate received. It would be pertinent to mention Sri Lanka paid a huge price for not properly countering lies propagated by interested parties’ hell-bent on hauling Sri Lanka before hybrid war crimes investigating mechanism. In the wake of Gotabaya Rajapaksa’s emergence as the President, with an overwhelming victory, over his nearest opponent, the same lot wanted Sri Lanka investigated by the international community.
Sri Lanka has pathetically failed to comprehend the threat, hence the absence of proper defence, in spite of some elected members of Parliament working against the country. The government’s failure has allowed the TNA, that had no qualms in recognizing the LTTE as the sole representative of the Tamil speaking people in late 2001, and having being the mouthpiece of the world’s most ruthless terrorist organisation, to pursue a high profile strategy, detrimental to the country, while enjoying perks and privileges as a recognized political party.
The TNA-led campaign is part of an overall project meant to overwhelm Sri Lanka. The Swiss operation, if succeeded, could have impaired the Office of the President.
A wider examination of facts needed
Let us hope that the Justice Nawaz-led committee would examine all factors, pertaining to the accountability issue, though its primary objective seems simple. Their responsibility in terms of the statement issued by the President’s Office, is to examine the previous CoI and Committees and the implementation of their recommendations. The Lessons Learnt and Reconciliation Commission (LLRC) chaired by the late Attorney General C.R. de Silva, examined the conflict. The LLRC was appointed in response to a study undertaken by UN Secy. General’s so-called Panel of Experts (PoE). The PoE report, released in March 2011, is the basis for all subsequent measures taken by the UN though Sri Lanka simply ignored the threat. In addition to the LLRC, the Presidential Commission of Inquiry into Complaints of Abductions and Disappearances (the report on the Second Mandate of the Presidential Commission of Inquiry into Complaints of Abductions and Disappearances) examined the conflict. However, Sri Lanka cannot turn a blind eye to the PoE report, and related reports, as they remained the very basis of the Geneva initiatives, though the incumbent government quit the 30/1 resolution. Foreign Minister Dinesh Gunawardena made the announcement on Feb 26, 2020 at the 43rd UNHRC sessions.
The government certainly owed an explanation why the appointment of the CoI to examine previous CoIs and Committees, was delayed till January 20, 2021. The continuing crisis caused by the Covid-19 pandemic shouldn’t be faulted for the government’s failure. For some strange reason, Sri Lanka continues to delay using Lord Naseby’s revelations, based on wartime British High Commission dispatches from Colombo (January-May 2009) as well as revelations made by Wikileaks to counter UN lies. Lord Naseby, in an interview with the writer in Sept 2019, regretted Sri Lanka’s failure to exploit his disclosure, made in Oct 2017. The senior Conservative politician said that he was quite disappointed and surprised by Sri Lanka’s response to information provided by him. The British diplomatic cables obtained by Lord Naseby, following a legal wrangle with his government disputed the PoE’s primary allegation. The information provided by Lord Naseby, when examined together with wartime US Defence attaché Lt. Col. Lawrence Smith’s explosive statement in 2011 (read US official’s defence of Sri Lankan military), exposed the UN lie.
The primary allegation in PoE on Sri Lanka alleged that at least 40,000 civilians perished on the Vanni east front. In terms of the UN dictates, the accusations made against Sri Lanka by mystery accusers cannot be verified till 2031 due to a strange confidentiality clause. Where in the world do you get a system of justice where one is precluded from facing one’s accusers for 30 years, let alone challenge their specific allegations? Meanwhile, Sri Lanka is regularly bashed by interested parties on the basis of unverified accusations. Wouldn’t it have been better if Sri Lanka made reference to this most unusual confidentiality clause that effectively prevented examination of allegations? Perhaps, Sri Lanka will take it up at least now, well over a decade after the PoE report, and seven years after the country ended up in the Geneva agenda.
Having faulted the Sri Lanka Army, on three major counts, the PoE (Panel of Experts) accused Sri Lanka of massacring at least 40,000 civilians. Let me reproduce the paragraph, bearing no 137, verbatim: “In the limited surveys that have been carried out in the aftermath of the conflict, the percentage of people reporting dead relatives is high. A number of credible sources have estimated that there could have been as many as 40,000 civilian deaths. Two years after the end of the war, there is no reliable figure for civilian deaths, but multiple sources of information indicate that a range of up to 40,000 civilian deaths cannot be ruled out at this stage. Only a proper investigation can lead to the identification of all of the victims and to the formulation of an accurate figure for the total number of civilian deaths.“
Key issues that needed CoI attention
In the absence of a cohesive strategy to counter UN lies, vested interests, both here and abroad, propagated canards against the country to varying degrees. Let me mention issues that had to be examined in the overall defence strategy: (1) Dismissal of war crimes accusations by Lt. Col. Lawrence Smith in Colombo. The then US official did so at the May-June 2011 first post-war defence seminar in Colombo, two months after the release of the PoE report. The State Department disputed the official’s right to represent the US at the forum though it refrained from challenging the statement. (2) Examine the US statement along with Lord Naseby’s Oct 2017 disclosure, based on the then British Defence advisor Lt. Colonel Anthony Gash’s cables to London during the war. (3) Wikileaks revelations that dealt with the Sri Lanka war. A high profile Norwegian study on its role in the Sri Lanka conflict examined some cables. However, the Norwegian process never strengthened Sri Lanka’s defence. Instead Norway merely sought to disown its culpability in the events leading to the annihilation of the LTTE. One of the most important Wikileaks revelations cleared Sri Lanka of deliberately targeting civilians. The cable proved that our ground forces took heavy losses by taking the civilian factor into consideration. (4) Wide discrepancies in loss of civilian lives, claimed by UN, and various other interested parties. The UN estimated the figure at 40,000 (March 2011) whereas Amnesty International (Sept 2011) placed the number at 10,000 and a member of the UK Parliament (Sept 2011) estimated the death toll at 100,000. (5) Disgraceful attempt made by Geneva to exploit the so called Mannar mass graves during the yahapalana administration. The Foreign Ministry remained silent on the Mannar graves while Western diplomats played politics, only to be proved utterly wrong. Geneva faulted Sri Lanka before the conclusion of the investigation.
The then Northern Province Chief Minister Wigneswaran rejected scientific findings of Beta Analytic Institute of Florida, USA, in respect of samples of skeletal remains sent from the Mannar mass grave site. Human Rights Commissioner Michelle Bachelet went to the extent of commenting on the Mannar mass grave in her report that dealt with the period from Oct 2015 to January 2019.
Had the US lab issued a report to suit their strategy, would they have accepted fresh tests in case the government of Sri Lanka requested? The following is the relevant section bearing No 23 from Bachelet’s report: “On May 29, 2018, human skeletal remains were discovered at a construction site in Mannar (Northern Province), Excavations conducted in support of the Office on Missing Persons, revealed a mass grave from which more than 300 skeletons were discovered. It was the second mass grave found in Mannar following the discovery of a site in 2014. Given that other mass graves might be expected to be found in the future, systematic access to grave sites by the Office, as an observer, is crucial for it to fully discharge its mandate, particularly with regard to the investigation and identification of remains, it is imperative that the proposed reforms on the law relating to inquests, and relevant protocols to operationalize the law be adopted. The capacity of the forensic sector must also be strengthened, including in areas of forensic anthropology, forensic archaeology and genetics, and its coordination with the Office of Missing Persons must be ensured.” (6) Wigneswaran in his capacity as the then Northern Province Chief Minister in August 2016 accused the Army of killing over 100 LTTE cadres held in rehabilitation facilities. Wigneswaran, now an MP and leader of TMTK, claimed the detainees had been given poisonous injections resulting in deaths of 104 persons. The unprecedented accusation made by the retired Supreme Court Judge had been timed to attract international attention. Wigneswaran is on record as having said that a US medical team visiting Jaffna, at that time, would examine the former rehabilitated LTTE cadres, who he alleged had fallen sick because they were injected with poisonous substances at government detention or rehabilitation centres.
Sri Lanka paid a very heavy price for its pathetic failure to counter a web of lies fashioned by interested parties, both local and foreign, and well-funded by the West, to coerce the country to adopt a new Constitution to suit the separatist agenda. Had they succeeded, Sri Lanka’s unitary status could have been done away through constitutional means against the backdrop of eradication of the LTTE’s conventional power.
