By M.A. Sumanthiran –

M.A. Sumanthiran MP

Mr. Deputy Chairman of Committees, as I rise to speak on this Order that has been placed for approval, I cannot but recollect the time when the Hon. Minister of Justice and Labour Relations himself, seated on this side, opposed the extension of this Order when it came up two years ago. In fact, that Order had lapsed before it came up for extension and it was he, who pointed out to the House, that that Order could not be extended because it had lapsed and the Order had to be remade and that is why a bill had to be brought again, the Code of Criminal Procedure (Special Provisions) Act, No. 2 of 2013. The original Act having lapsed, the Hon. Minister, the person who pointed it out rightly at that time from the Opposition Benches, today is propounding the extension of this illogical and draconian provision. This is another one of those ironies that we are faced with of a Government that was established for good governance.

Twenty four hours time is the limit before which, under ordinary laws, a person must be produced before a magistrate, only to be produced before a magistrate. If he is suspected to have committed an offence that is non-bailable, as it is called, then the magistrate would remand the person, certainly at least for the first 15 days and thereafter, take over the directions of the investigations and under Section 115 of the Criminal Procedure Code, I believe, a magistrate would direct the investigations. That is the safeguard that our country is used to. The Hon. Minister himself said that merely extending it from 24 hours to 48 hours is not going to aid the investigation to be completed within 48 hours; nobody expects the investigations to be completed by 48 hours. If that be the case, what is the necessity for a person to be retained in the custody of the police when we have so much of evidence of abuse by the police of persons who are in their custody? The Prevention of Terrorism Act has an exceptional provision to the ordinary law, Section 25 of the Evidence Ordinance, that a confession made to a police officer maybe admissible in evidence if it is made to a police officer not below the rank of Assistant Superintendent of Police and subject to an inquiry by court if its voluntariness is challenged. That has been pronounced as a draconian provision and we know how that particular provision has actually impeded good investigations. Today, we have people convicted of offences purely on their supposed confession extracted through torture by the police whilst the actual offenders are, at large, roaming the streets. That is what the PTA resulted in. I think this maybe an opportune moment for me to urge the Government to repeal the Prevention of Terrorism Act. The Hon. Minister was heard to say that this is only a temporary provision, – Special Provisions – and that it will lapse in another two years. The Prevention of Terrorism Act was brought as a Temporary Provisions Act for a period of six months in 1979. But, for how long has it remained? In 1982, it was amended to remove, “Temporary Provisions” and it was made permanent and it has stayed in our statute books to the detriment of the country, to the detriment of several crimes being properly investigated and, at least, with the knowledge, with the good knowledge, of these facts, I am saddened that the Hon. Minister of Justice and Labour Relations is moving for the extension of this Order.

Talking of investigations, I would also like to raise another important issue today, and that is with regard to the Commission on Missing Persons chaired by Mr. Maxwell Paranagama. Missing persons or enforced disappearances is a scourge and an atrocity that we have committed on each other for quite a long time in this country. This is the most insidious and cruel act. It is also a crime that has not spared any corner of the country. We saw this spectacle in other parts of the country in the late 1980s. We must all, therefore, be united in the pursuit of remedies for those who have disappeared, for we are all witness to the desperation and trauma it has unleashed on all sections of our people. We are mercifully, only now, beginning to emerge from the shadows of the white-van culture and I appreciate what the Hon. Prime Minister said this afternoon that there is certainly a space that has opened up: people who are complaining about various misdemeanours and misdeeds are not getting threatening calls, white vans are not appearing at their doorstep, and that is to be acknowledged. Still, – the persons who are responsible for having committed – this dastardly act of disappearance of loved ones is continuing. No proper investigation has taken place for the disappearances that have taken place for the last several decades. It is in this background that this Commission on Missing Persons was appointed and I wish to categorically state that this Commission, the Paranagama Commission, has been a farce. I have been to the hearings of this Commission at least twice and I have raised some issues. The Government, and particularly the Foreign Minister are well aware of this because we have heard the Hon. Foreign Minister speak about this when he was on this side of the House. This Commission has received nearly 20,000 complaints, but there is a great selectivity in the way that witnesses are called to give evidence here. I have seen personally, the moment a witness comes close to identifying the perpetrator in her evidence, immediately, the Commission intervenes and stops that evidence and starts asking about whether they have received some chicken or some goats for their livelihood, and invariably the mothers of the disappeared scream and say, “I do not want a goat, I want my son back because I handed over my son to the security forces. I am an eye witness to this. I, myself, handed the person over. I do not want your chickens, I do not want your goats”. That is the pain that they suffer and this Commission has done more to inflict pain on them than it has done to ease it. This is one of those issues.

Now, there is another aspect to this. There was an expansion of mandate given to this Commission, an eminent group of advisers or they were so-called, “appointed to advise this Commission”. Sir Desmond de Silva was the Chairman of this Panel, of these advisers.

This House will note, Mr. Deputy Chairman of Committees, that the expanded mandate of inquiry that Sir Desmond was to advise included the question of “…whether such loss of civilian life – loss of life during the final stages of the war – is capable of constituting collateral damage of a kind that occurs in the prosecution of proportionate attacks against targeted military objectives in armed conflicts and is expressly recognized under the laws of armed conflict and international humanitarian law, and whether such civilian casualties were either the deliberate or unintended consequences of the rules of engagement during the said armed conflict in Sri Lanka”.

Mr. Deputy Chairman of Committees, I state with responsibility that Sir Desmond de Silva was previously retained by the then Government of Sri Lanka to provide it with an opinion with respect to the legality of the conduct of the Government forces during the last stages of the war. On 23^rdFebruary, 2014, five months before he was appointed by former President Mahinda Rajapaksa to chair the Advisory Council to the Commission, he provided his client – the Government – with a legal opinion stating: “Based on my instructions, my analysis of the relevant law, from the factual matrix made available to me and other research, my opinion is that great mass of civilian deaths which occurred in the final stage of the conflict were regrettable, but permissible collateral damage”.

Sir, this is the most serious matter. What this means is that when Sir Desmond de Silva was appointed as Chair of the Advisory Council to the Commission of Inquiry – a Commission under our law is supposed to function independently and impartially – Sir Desmond de Silva had already come to a conclusion on, at least, some of the questions the Commission he was asked to advise, was mandated to investigate and had communicated this position to the Government of Sri Lanka. In other words, the Government appointed a person who it already knew, had formed an opinion on the question to be investigated by the Commission, to advise that Commission. What then, is the independence of this Commission? In fact, the framing of the expanded mandate of the Commission suggests that the questions may have even been drafted, based on the opinion provided by Sir Desmond de Silva. This is the most perversion of justice and I demand that the new Government immediately constitute an investigation into the conduct of Sir Desmond de Silva and the previous Government, in conspiring to undermine the independence of the Commission of Inquiry. I also demand that His Excellency the President immediately rescind Sir Desmond de Silva’s appointment to the Advisory Council as a matter of urgency in order to secure the Rule of Law and Good Governance.

But, that is not the end of the matter. Sir Desmond de Silva was clearly retained by the Government prior to his providing the Government with the opinion on 23^rdFebruary, 2014. There was, therefore, an attorney-client relationship between Sir Desmond de Silva and the Government on questions of liability pertaining to loss of civilian life during the last stages of the war. It was in the context of this prevailing relationship that Sir Desmond de Silva was appointed to chair an Advisory Council to a supposedly independent Commission that would inquire into the guilt or otherwise of the Members of the Government – his client. This is a clear case of blatant conflict of interest and on this count too, I demand that the new Government of Sri Lanka, not only immediately rescind Sir Desmond de Silva’s appointment but also forward a complaint to the Bar Standards Board of the United Kingdom against Sir Desmond de Silva’s patent professional misconduct. I also urge other interested parties to do the same. This behaviour must not be tolerated by this country or by the Bar of which Sir Desmond de Silva is a Member. What then of the Commission of Inquiry that has been stripped of any independence in this way? I do not understand why the Government continues to let this Commission of Inquiry to function. I propose that the existing Commission be discontinued for it is too flawed for any good to come of it. Instead, I propose that a fresh investigation with real investigative powers be constituted to actively seek out the fate of the disappeared. The complaints and proceedings of the Paranagama Commission can be used by this new investigation, if necessary. That body should have the power to search, seize and even detain, if necessary. They should be mandated with bringing victims, sons and fathers, back.

Mr. Deputy Chairman of Committees, this is a very serious issue with regard to inquiries. This Government, in the latter part of February, has given a written undertaking to the United Nations High Commissioner for Human Rights that it will set up a local mechanism with technical assistance and advice from the OHCHR. But, in fact, what it has done is that without discontinuing with this flawed Commission, has allowed this Commission to continue and that is the reason why when this Commission had sittings in Trincomalee, first time after this new Government came into being, there was widespread protest. The protest was not about inquiring into the fate of the disappeared, but it was about the Paranagama Commission and how flawed that was and despite this Government’s own undertaking that this would be rectified and a new mechanism put in place with international supervision and assistance, this flawed Commission was allowed to continue with the so-called experts in international law, the Chairman of whose panel, Sir Desmond de Silva, became most unsuitable to function in that post due to his attorney-client relationship with the Government of Sri Lanka five months prior to his appointment to this Advisory Council, in addition to several other flaws that I have explained. This Commission continuing to function in this way would be blatantly in violation of the undertakings given in writing by this Government to responsible international actors – to the UN Human Rights Council, to the UN High Commissioner for Human Rights – and I urge that you put these things right at the beginning itself, because if you start going down this wrong path – it is only the beginning – you too will end up like the Rajapaksa regime and that is not something that we want to see.

You have clearly articulated and very bravely declared – even today, the Hon. Prime Minister made a very bold speech in this House and we welcome that – but, if your words are to translate into actual actions, we would like to see some of these things properly rectified. Please do not go down that same path. You are extending the Order made which was flawed, even according to you, Hon Minister, when you were seated on this side and you are doing that today. I gave you another example of the Paranagama Commission and the Panel of Advisers. I urge that you do not continue with that utterly-flawed system, the system that was an eyewash to the world. Rather, I most respectfully urge you: be transparent, be sincere, face the truth, because that is the only way in which we can all together retrieve this country from the mess that it has got into.

Thank you very much.

*Speech Made in Parliament by M.A. Sumanthiran M.P. on the 17th March 2015