A call for fairplay and natural justice

Army's Attorney writes to President Mahinda Rajapaksa:

Gomin Dayasri, Counsel for the Commander of the Sri Lanka Army, has written to President Mahinda Rajapaksa on the matter of Dr. Nesiah functioning as a Member of the Commission of Inquiry on Human Rights while still having links with the Centre for Policy Alternatives (CPA) which is a party to Commission proceedings.

"Dr Nesiah, made the case worse for himself by not disclosing his links, which he ought to have done to show his bona fides; but waited silently until it was discovered and revealed by counsel for the Sri Lanka Army. Thereupon he refused the request to withdraw and continued to sit and thereupon the formal objection was taken against Dr D. Nesiah (Dr N) before the Commission of Inquiry," Dayasri wrote.

He said: "It was brought to the notice of Dr Nesiah (Dr N) a Commissioner of Inquiry, since he had many close links with the Centre for Policy Alternatives (CPA)-(outlined in detail below) - and since the CPA had applied and sought to be made a "party" at the Commission; and thereupon since the CPA was indeed made a party by the Commission, Dr N should on his own withdraw from the inquiries where CPA is a party.

CPA was given representation at the inquiry as a necessary party and now CPA has marked its appearance with a team of lawyers at all the sittings led by Mr Desmond Fernando P.C and examines witnesses and make submissions where, Dr N is a inquirer.

Dr N, made the case worse for himself by not disclosing his links, which he ought to have done to show his bona fides; but waited silently until it was discovered and revealed by counsel for the Sri Lanka Army. Thereupon he refused the request to withdraw and continued to sit and thereupon the formal objection was taken against Dr D. Nesiah (Dr N) before the Commission of Inquiry.

The ruling of the Commission is that- "We are of the view that whether a particular member is qualified to sit or not is a matter to be considered by the appointing authority as the Commissioners of Inquiry Act provides for the President to take appropriate action if he is not satisfied with the conduct of one of its members"

Thereupon in view of the ruling by the Commission, we requested certified copies of the relevant proceedings, so that you will have a comprehensive picture to enable you to seek assistance from the Attorney General and other legal opinion, if required.

This would be inclusive of the submissions/annexure made by all the parties which consists of the submissions made by several NGOs including the Centre for Policy Alternatives(CPA).It is noteworthy the CPA made submissions that DR N SHOULD REMAIN AND FUNCTION AS A COMMISSIONER.

The request for such certified copies was made in writing by the Chief Legal Officer of the Army with my endorsement and orally by me in the in the open tribunal. SADLY UPTO THE DATE THERE IS NO RESPONSE AND THERE APPEARS TO NO INTIMATION IF AND WHEN IT WOULD BE HANDED OVER.

Therefore we have doubts, as to when it would be forthcoming and write to you without the necessary particulars to substantiate our position, requesting you to ask the Commission to send all relevant papers inclusive of the annexure where we placed hard evidence of the relationship between Dr N and the CPA with the supporting documentation which carries the same marking as in this letter.

We consider any delay as fatal to the purity of the proceedings of the Commission.

Dr N continues to sit and influence others by his presence, the process is suspect and can make a reasonable man look at the Commission as being tilted in favour of the CPA.

Not only must justice be done it must appear to so. The subject matter of the Commission is Human Rights in terms of the Mandate; and attitude of the CPA on human rights is well known.

Contents of the Objection

The objection is against Dr. D. Nesiah (Dr. N) from continuing to function as a Commissioner into the inquiry of the death of 17 aid workers in Muttur, from the time that the Centre for Policy Alternative (CPA) was made a party to the Commission under section 16 of the Commission of Inquiry Act.

There was no objection to Dr. N prior to CPA acquiring a status under section 16 of the said Act.

The position of the Sri Lanka Army is that Dr. N cannot sit, hear, report, reach a finding and make recommendations at an inquiry where CPA is a party as Dr. N is a member of the CPA and/or is an office bearer of CPA and/or has represented and continues to represent CPA.

It must be emphasized that the application for the present is that Dr. N must not hear this case; and not that he should be removed as a Commissioner from other inquiries where CPA is not a party.

This is not an application for the removal of Dr. N as a Commissioner but that he should abstain from hearing this case as he is associated with and represents a party to the inquiry namely the CPA, on which material has been placed on record.

Material

The CPA made an application in writing on 24th March 08(Exhibit VIII) seeking representation by lawyers at the inquiry. The said CPA along with several other organizations sought the-

(a) right to be present at all sessions; (b) right to examine all witnesses; (c) right to present submissions and present arguments; (d) right to examine and introduce evidence; (e) right to full disclosure of all documents and records relating to War Crimes Unit, Police, Criminal Investigation Division, Human Rights Commission, as well as any prior testimony of witnesses.

This application was supported at the sittings of the Commission on 25th March 2008 and permission was granted under section 16 of the Commission of Inquiry Act No 17 of 1948(amended) to be a party to the proceedings in the Muttur case.

Therefore the disqualification of Dr. N commenced from that moment. It is significant that at the time the appearance for the CPA was marked, Dr. N did not disclose his relationship with the CPA, which he ought to have done to show his good faith whereupon objection could have been taken or waived.

There is a duty cast on a person who has any "interest" with any party who appears before him to disclose his interest as a Commissioner, in the interest of justice to the public, parties and the Commission at a sitting, so that it becomes a part of the record of the proceedings.

The failure to so, shows the lack of bona fides on the part of Dr. N. Thereupon we did research on the web of the CPA on the night of the 25th and presented documents marked as exhibit I,II,,IV,VI,V,VI and VII before the Commission which documents reveals the close nexus between the CPA and Dr N, and placed an objection to Dr. N on the 26th March 2008 before Dr. N, who has neither denied nor disputed the correctness or the authenticity of the documents or contents thereof; which fact was also brought to the notice of Dr. N when an application was made on the next day of the sittings namely the 28th of March 2008 that he should withdraw from the sitting until an order is made-otherwise if he continues to sit in the proceedings- the final report will be flawed. It could make the whole proceeding a nullity.

It is respectfully stated notwithstanding the possible peril being placed before him, Dr. N continues to sit inviting a probability of vitiating the entire proceedings of this inquiry before this Commission if there is determination that he is not entitled to hear this case.

The exhibits marked I to VIII reveal,

(a) Dr. N is described as a "unit core staff of the Conflict and Peace Analysis Unit" of the CPA -Exhibit I. This is publication of the CPA.

(b) The activities of the said unit include "peace with justice in Sri Lanka" which would fall within the sphere of this Commission and the contents of the Warrant. The activities described in Exhibit I show the relevant unit touches the periphery of inquiry of the Commission.

It also says it "works closely with the Legal and Constitutional Reforms Unit" of the CPA which would have been instrumental in making this application to have CPA made a party to the present inquiry.

Therefore it could give the appearance of a possible involvement of the Unit of which Dr. N is a core staff member designated in addition as a Consultant, to be privy to the making of the application and in overlooking the proceedings at which CPA is a party.(Annexure I)This material appears in the publication of the CPA.

(c) It is made worse as Dr. N has furnished to the Commission as setout in Commission Handbook( name and address page of it is marked as Exhibit II) given to parties on being made a Party, his address as the address of the CPA (CPA 24/2 28th Lane, Flower Road Colombo 03) 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 which is more fully set out in the column "office" in exhibit II listing telephone and fax numbers of Dr. N.(Compare Exhibit II and III) This material is taken from the Commission Handbook.

Can there be FAIR PLAY AND JUSTICE IF JUSTICE LIVES IN THE OFFICE OF ONE PARTY APPEARING BEFORE IT?

IF THE COMMISSION REQUIRES TO CONTACT DR. N OR SEND HIM A DOCUMENT BY FAX OR OTHERWISE COMMISSION MUST CONTACT THE OFFICE OF THE CPA- A PARTY BEFORE IT.A PARTY CAN ON ITS FAX MACHINE THEORETICALLY RECEIVE CONFIDENTIAL DOCUMENTS MEANT ONLY FOR THE EYES OF THE COMMISSIONERS-IN OTHER WORDS ON NOTICE GIVEN TO ME AS PER THE COMMISSION HANDBOOK I HAVE TO DESPATCH MY DOCUMENTS ADDRESSED TO DR N TO THE OFFICE OF THE CPA .LAWFUL NOTICE TO DR N HAS TO BE GIVEN TO THE OFFICE OF THE CPA.

(d) Dr. N has signed a Press Release (exhibit IV) with other prime members of the CPA (as shown in Exhibit II- P.Saravanamuttu, Rohan Edirisingha, Mirak Raheem) on Trincomalee in March 2006, which shows his close affinity to the CPA and that he subscribes to press releases of the CPA revealing his identity with the CPA as he has signed on behalf of the said CPA in the said document.

(e) Dr. N has identified himself on the international front with the CPA on the issue of Burma. He has signed a communication describing himself as from CPA Sri Lanka.(Exhibit V)

(f) The official newsletter of the CPA describes Dr. N representing the CPA has travelled to Mannar, Pesalai and Talaimannar. and describes his participation at a conference in Vienna Austria and the issues, suggestions and recommendations of the conference has been placed in the CPA library while the other seminar documents are with Dr. N.(Exhibit VI)

(g) Dr. N has placed reports and conference papers for the CPA (Exhibit VII) ALL THIS INFORMATION IS CULLED FROM DOCUMENTS PUBLISHED BY THE CPA.

(h) Dr. N is entitled to research assistant from the Commission and officer selected is from the staff of the CPA. Her allowances are paid by the Commission. (This fact was stated in the oral submissions and not denied by Dr. N)

(i) It was submitted that Dr. N is the recipient of emoluments, allowances, perquisites and privileges on account of the matters set out above along with travel facilities local and foreign which were not denied by Dr N.

THIS MATERIAL IS PLACED TO SHOW NEXUS BETWEEN DR. N AND THE CPA.

DR N IS PART AND PARCEL OF THE CPA Evidential Value

All the above material was placed in open tribunal orally in the hearing of Dr N while he sat on the bench and Dr N did not refute or contradict or contest or deny any of the matters therein. This was the best opportunity to do so which would have enabled the counsel for the Army to respond.

Instead he remained silent and behind the back of all parties has sent a SECRET NOTE to the Commission on the subject matter of the allegations against him which NOTE was accepted by the Commission.

This has surfaced as it is reflected in the order of the COMMISSION. It is indeed shocking that a Commission with a retired Supreme Court judge sitting should accept responses to show innocence from a party accused of impropriety behind the back of the party levelling these charges. It is unknown and unparalleled in any sitting where rules of fair play, reasonableness and natural justice should prevail.

At the very least the Commission should have passed Dr N's Note to the party alleging the charges so that we could have responded. Instead the Commission hid it from the party alleging misconduct it and utilized it in he order. In this case it remains still hidden from us and is destined to be a Secret Note between the Commission and Dr N but considered by the Commission in its order.

If the commission was acting correctly and properly why did they hide this Note until we now complain. An extract of it appears in their order a follows:- "Dr Nesiah in a Note submitted to the rest of the Members of the Commission has stated that (a) he receives an allowance from the CPA as well as access to CPA communication facilities (b) in return he attends the CPA office work twice or thrice a week for part time work-mostly ad hoc assignments.

(c) his position at CP is peripheral (d) he had never been nominated to represent the CPA at International Conferences(in Vienna or elsewhere)or paid his travel expenses for any such conferences that he attended (e) after his appointment to the Commission he has carefully avoided involvement in the publication of any document relevant to any of the 16 cases before the Commission

This more than proves the correctness of our accusations, as he has denied none of the allegations expressly or impliedly; but confirmed them and made a vain attempt to distance himself which shows him still more poorly. If this Note was shown to us we would have exposed him still more, and it is probably the reason it was kept away and only an extract reproduced in the order.

It was never alleged that Dr N was nominated to attend a conference at Vienna but quoted a CPA publication which stated that Dr N participated at a conference in Vienna and the papers of that conference are in the CPA library and some with Dr N. It appears Dr N to exculpate himself is indulging in adding spin.

Subsequent Conduct of Dr N

During an early tea adjournment sought by the Commission to clarify divergent recordings in the statements made by a Methodist Father who was testifying in the witness box, Dr N was found during the said adjournment to spend a long period walking with the said witness and talking to him along the corridors of the BMICH.

This was photographed by the counsel for the Army and shown immediately on his hand phone to the Chairman and a few other Commissioners during the adjournment.

This was totally improper practice as the said witness is under the care of the witness protection unit and debarred from talking to persons associated with the Commission. In this instance the adjournment was to clarify contradiction in the statement of the Rev Father and still greater vigilance had to be ensured especially as it was a special adjournment sought by the Commission.

Imagine the state of affairs if a judicial officer is found talking privately to the witness currently in the witness box during an adjournment at a crucial stage of the case? This was brought to the notice of the attention of the Commission in the open tribunal and Dr N heard it recorded and said nothing to explain the content of the conversation. My complaint was ignored by the Commission.

However on the next day when during the tea adjournment when a police officer had spoken to the same Rev Father while in the witness box and of which he complained, action was taken by the Commission with explanations called in open court and the police officers requested to explain the contents of their conversation.

We are annexing our written submission which includes matters of law relating to the relevant issues

We would suggest the proper course would be, after consulting legal opinion especially in view of the order of the Commission to direct Dr Nesiah not to participate in any inquiry where CPA is a party before the Commission. Thereupon if he fails to do so legal consequences will follow.

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Clarification

The article 'The Buddhist concept of Rebirth' appeared on May 20 on this page was written by Daya Sirisena.

The ommision is regretted.