The International Eminent Persons and their Assistants

Secretariat for Coordinating the Peace Process (SCOPP)

02nd April 2008

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, the following question was asked, with regard to an issue receiving much publicity at the time -
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, Secretary General of the Peace Secretariat, 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 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 Atorney 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 Jayawardene 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 Presiident 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.