Former OMP Chief now at BASL helm

By Shamindra Ferdinando

Editor of ‘Annidda’, Attorney-at-Law K.W. Janaranjana, in a piece in its Feb 21, 2021, edition that dealt with the election of Saliya Pieris, PC, as the President of the Bar Association of Sri Lanka (BASL), asserted that the government hadn’t made a special intervention in the contest.

The government hadn’t made political intervention, though a group of people, including the Secretary of the Sri Lanka Podujana Peramuna (SLPP), and its National List MP, and Attorney-at-Law Sagara Kariyawasam, made a bid to secure the backing of the government for Saliya’s rival. Such attempts made at the provincial level, too, failed to produce the desired results.

Saliya Pieris, who succeeded Kalinga Indatissa, PC, polled 5,093 votes at the election conducted on Feb 24. His rival, Kuvera de Zoysa, PC secured 2,797 votes. The winner secured a staggering 2,386 vote majority – just 321 short of the number of votes polled by De Zoysa.

Janaranjana, a leading member of the civil society grouping Purawesi Balaya, who played a significant role in the yahapalana political campaign, claimed that some of the lawyers who represented top government figures, too, backed Saliya Pieris. Emphasizing that all of them worked for Saliya’s victory, Janaranjana dismissed assertions that the victory achieved by Saliya Pieris was a severe debacle suffered by the Rajapaksas.

Janaranjana attributed the President’s Counsel’s victory to his commitment to the rule of law, independence of the judiciary and human rights throughout his legal career.

A battle between SLPP and Opp.

 In spite of the government refraining from taking a stand, as pointed out by Janaranjana, the contest received unprecedented attention, with the lawyer electorate turning it into a battle between the SLPP government and the Opposition. Saliya Pieris, in an exclusive interview with Janaranjana, also published on the Feb 21, 2021 edition of Anidda, three days before the election, flayed the rival group. Pieris emphasized the responsibility, on the part of the BASL, to take a principled stand on contentious issues, regardless of the consequences. Pieris explained his public role since the arrest of High Court Judge Mahanama Tillekaratne, in 1998. Essentially, Pieris flayed the BASL for its failure to take up issues, such as the alleged attack on the Mannar Court by supporters of the then Minister Rishad Bathiudeen, during Mahinda Rajapaksa’s presidential term. However, Bathiudeen, leader of the All Ceylon Makkal Congress (ACMC), now represents the Samagi Jana Balavegaya (SJB).

Pieris also referred to the impeachment of Chief Justice, Shirani Bandaranayake 43, also during the previous Rajapaksa administration. However, there hadn’t been any reference at all to the BASL receiving Rs 2.5 mn sponsorship, in 2016, from disgraced Perpetual Treasuries Limited (PTL) in support of a high profile event conducted at a leading hotel, with the participation of the then Chief Justice, Attorney General, Solicitor General, the President and the Prime Minister. The BASL never explained why funds were obtained from PTL, despite its perpetration of Treasury bond scams, in Feb 2015, and March 2016.

The BASL should be also be seriously concerned about Hejaaz Hizbullah, a prominent lawyer arrested on April 14, 2020 over his direct involvement with the 2019 Easter Sunday attacks. Hizbullah was recently produced in court on a directive issued by Attorney General Dappula de Livera. The lawyer’s arrest, too, caused a sharp division among BASL members and contributed to the overwheming victory achieved by Pieris.

When the writer asked a lawyer, who voted for the winner, why he did so, he explained his position, on the condition of anonymity. The lawyer said: “Voted at the DC polling booth in Colombo. I didn’t vote last time. Lawyers preferred an anti-establishment candidate since the independence of the bar is paramount. On the other hand, lawyers detested hitherto unseen level of inducements being offered to win votes, as well as fabricated false accusations. Anonymous accusations and despicable strategies resulted in further revulsion towards the losing candidate. Unprecedented number of members turned up to ensure a resounding mandate to the winning candidate.

Saliya Pieris responds

 The writer sought views of the newly elected BASL President as regards several issues.

(Q) What would be your priorities?

(A) Securing the rights of lawyers in the profession; making a positive impact on issues pertaining to the rule of law, independence of the judiciary and protection of fundamental rights; supporting juniors in the profession and supporting the welfare of the membership.

(Q) You served as first Chairman, OMP (Office of Missing Persons), an apparatus set up in terms of the 2015 Geneva Resolution. GoSL in March 2020

quit the Geneva process. What can BASL do to address accountability issues, both during the conflict and the post war period?

(A) The role of the BASL is different from the OMP. As I have stated, upholding the rule of law, the independence of the judiciary will be a priority. All domestic institutions which address these issues must be independent so that the people who seek relief from them trust these institutions and have confidence in them.

(Q) You secured well over 2000 votes than your rival. How do you intend to win the confidence of those who voted against you?

(A) I have received support from lawyers, across the country and from every community and area. My support cut across all lines, be it party, race, religion or area. On the very day of the announcement of my election, I reached out to all those members who did not vote for me and will continue to.do so. At the same time, I am sure that the members who voted otherwise at the elections will work with me for the betterment of the bar.

(Q)What would you do to prevent deaths in police custody?

(A) Police torture and deaths in custody affect the rule of law and should be condemned. There must be zero tolerance. The Bar must carefully examine these issues and, if needed, lobby the government to ensure fair investigations and that the perpetrators are punished.

(Q) What is your stand on implementation of death penalty and presidential pardon?

(A) These have not been discussed at the Bar Council as yet. My personal view is that I am opposed to the implementation of the death penalty. On presidential pardons, I am of the view that the power of pardon must not be used unreasonably, and must be done by taking into account several factors including the nature of the crime and the views of the aggrieved party. 

Let me remind the readers of nine previous BASL Presidents, before Saliya Pieris, who won the presidency: Desmond Fernando, PC (2005 – 2006), Nihal Jayamanne, PC (2006 – 2008), W. Dayaratne, PC (2008 – 2010), Shibly Aziz, PC (2010 – 2012), Wijeyadasa Rajapakshe, PC (2012 – 2013), Upul Jayasuriya, PC (2013 – 2015), Geoffrey Alagaratnam, PC (2015 – 2017), U. R. De Silva, PC (2017 – 2019) and Kalinga Indatissa, PC (2019 – 2021).

Of those 17,200 eligible to vote at the Feb. 24 election, approximately 8,000 voted, though usually only about 6,500 voted in previous years. In other words, nearly 47 per cent chose not to participate in the process.

Who betrayed the country?

 Janaranjana discussed how the rival camp depicted Saliya Pieris as a person who betrayed the country by being involved in a treacherous international conspiracy to undermine the armed forces. According to Janaranjana, the rival camp exploited social media and other propaganda means to depict Saliya Pieris as a traitor whose election would lead to the division of the country, on ethnic lines. Janaranjana pointed out how the unprecedented victory achieved by Saliya Pieris proved the failure of the rival camp’s strategy.

Against the backdrop of unsubstantiated allegations, directed at Saliya Pieris, as regards his role as the Chairman of the OMP, it would be pertinent to examine the failure on the part of the BASL to genuinely address accountability issues related to Sri Lanka’s war against the Liberation Tigers of Tamil Eelam (LTTE). The OMP was one of the four mechanisms established in terms of the controversial resolution 30/1 ‘Promoting reconciliation, accountability and human rights in Sri Lanka.’ The four apparatuses are (i) A hybrid judicial mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law (ii) A Commission for truth, justice, reconciliation and non-recurrence (iii) An Office for Missing Persons and (iv) and Office for Reparations.

The previous UNP-SLFP administration established the first permanent official body, tasked with tracking down missing persons, in terms of Act No. 14 of 2016. This was done in line with one of the recommendations in the 2015 UNHRC Resolution co-sponsored by the Government of Sri Lanka. Due to political turmoil, the government was able to establish the OMP two years after the Act was passed. The OMP initiated ‘operations’ in May 2018 with members visiting Mannar to meet the families of those disappeared in that District.

The OMP’s mandate, according to Part II Section 10 of the Office on Missing Persons Act, No. 14 of 2016:

(a) To search for and trace missing persons and identify appropriate mechanisms for the same and to clarify the circumstances in which such persons went missing;

(b) To make recommendations to the relevant authorities towards addressing the incidence of missing persons;

(c) To protect the rights and interests of missing persons and their relatives as provided for in this Act.

(d) To identify avenues of redress to which missing persons and relatives of missing persons are entitled to, and to inform the missing person (if found alive) or relative of such missing person of same.

(e) To collate data related to missing persons obtained by processes presently being carried out, or which were previously carried out, by other institutions, organizations, Government Departments and Commissions of Inquiry and Special Presidential Commission of Inquiry and centralize all available data within the database established under this Act.

(f) To do all such other necessary things that may become necessary to achieve the objectives under the Act.

Saliya Pieris received the appointment as Chairman, OMP on May 1, 2018. The civil society activist quit the Human Rights Commission of Sri Lanka (HRCSL) to take the leadership of the OMP. The outfit comprised Saliya Pieris, PC, Ms. Jayatheepa Punniyamoorthy, Major General (Rtd.) Mohanti Antonette Peiris, Sriyani Nimalka Fernando, Mirak Raheem, Somasiri K. Liyanage and Kanapathipillai Venthan.

The now defunct Constitutional Council picked the OMP members. The then President Maithripala Sirisena finalized their appointments. It would be pertinent to mention that OMP member Mirak Raheem had been a member of the Consultation Task Force on Reconciliation Mechanisms (CTFRM), headed by Attorney-at-Law Manouri Muttetuwegama. The outfit called for full participation of foreign judges in the proposed inquiry.

OMP’s intervention helps Lanka

The then Joint Opposition campaigned both in and outside the OMP, alleging the outfit would pave the way for unprecedented international scrutiny of the war-winning armed forces. However, thanks to OMP’s intervention, Sri Lanka was able to disapprove the high profile accusations, pertaining to the Mannar mass graves. Whatever the accusations, the OMP helped Sri Lanka to counter an extremely serious allegation raised in the run-up to the March 2019 Geneva sessions by UN human rights Chief Michelle Bachelet.

Bachelet served as the Chilean President for nine years, beginning 2006. Bachelet had been in an indecent hurry to pressure Sri Lanka over accountability issues and she blindly blamed the Mannar mass graves on the Sri Lanka Army before a leading US lab, contacted by the OMP, tested the bones and found them to be several centuries old and belonged to the colonial period. Unfortunately, the then government never bothered to further examine the Mannar mass graves case as part of an overall investigation into unsubstantiated allegations. In fact, Sri Lanka never properly examined the campaign conducted by interested parties to undermine post-war Sri Lanka.

President Mahinda Rajapaksa’s government brought the war to a successful conclusion in May 2009. Wartime disappearances are certainly politically sensitive issues, exploited by political parties here, as well as various other interested parties.

The scientific findings of Beta Analytic Institute of Florida, USA, in respect of samples of skeletal remains, sent from the Mannar mass grave site, quite upset the Tamil National Alliance (TNA). TNA appointed then Northern Province Chief Minister C.V. Wigneswarn rejected the US findings. 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.

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.”

Disappearance of Ekneligoda

However, Sri Lanka cannot ignore the issue as disappearances took place during successive governments. Disappearances took place during the conflict and also in the post-war period. The disappearance of media personality Prageeth Ekneligoda on the eve of the 2010 January presidential election, is a case in point. The failure on the part of Sri Lanka to address Ekneligoda disappearance increased international pressure on Sri Lanka. The government owed an explanation as regards the media personality’s disappearance over a decade ago. There cannot be any rationale in blanket denial of accusations. In fact, efforts to deceive the public, and the international community in respect of perhaps isolated cases such as the Ekneligoda disappearance had facilitated the high profile Western strategy meant to subvert Sri Lanka on unsubstantiated war crimes allegations.

With Saliya Pieris at the helm of the BASL, it can certainly play a significant role in Sri Lanka’s effort to ascertain the truth. The new BASL Chief, with valuable experience as a member of the HRCSL as well as the Chairman, OMP, can undertake a thorough examination of events/developments leading to the final confrontation between the Army and the LTTE on the banks of the Nanthikadal lagoon, in the Mullaitivu district, on the morning of May 19, 2009. The BASL had been largely silent on the Geneva issue though one of its high profile members, TNA lawmaker M.A. Sumanthiran, declared, in mid-2016, the acceptance of foreign judges in local war crimes investigation mechanisms. The declaration was made in Washington in the presence of the then Sri Lanka’s Ambassador there Prasad Kariyawasam. The Foreign Ministry remained conveniently silent on the issue. In August 2017, Kariyawasam received the appointment as the Foreign Secretary, whereas President Sirisena brought in Tilak Marapana, PC, and a one-time Attorney General as the Foreign Minister. Marapana, too, followed the UNP strategy. The UNP-led government turned a blind eye to the UK House of Lords disclosure on Oct 12, 2017 how the British government suppressed confidential dispatches from its Defence Advisor in Colombo Lt. Col. Anthony Gash (Jan-May 2009). The UK, now leading the Sri Lanka Core Group targeting the country in Geneva, in the absence of the US, continues to shamelessly suppress dispatches, pertaining to Sri Lanka, as the disclosure of such would jeopardize the Western campaign against the country.

Perhaps the appointment of Saliya Pieris couldn’t have taken place at a better time for the country. The respected lawyer received the BASL leadership, the day Foreign Minister Dinesh Gunawardena responded to Michelle Bachelet’s damning report. The writer is of the opinion that Minister Gunawardena, in his speech, should have requested Michelle Bachelet, as well as the 47-members of the UNHRC, to re-examine all available evidence, information and data. Minister Gunawardena should have formally requested the UK, a member of the UNHRC, to disclose all such dispatches sent by Gash to London. The UK released only a section of heavily censored dispatches, following the unprecedented intervention made by Conservative Party veteran Lord Naseby. Sri Lanka pathetically failed to exploit Gash dispatches in spite of Lord Naseby raising the issue, ahead of the Geneva sessions. Let me reproduce the relevant question raised by Lord Naseby and the response received.

Lord Ahmad of Wimbledon, the Foreign, Commonwealth and Development Office, on Feb 16, 2021, told Parliament that the UK Government had not received any request from the Geneva Council for copies of dispatches written by the former defence attaché at the British High Commission in Sri Lanka Gash about events in Sri Lanka related to the civil war, and had not provided any.

Lord Ahmad was responding to Lord Naseby’s query raised on Feb 4, 2021, whether the UK government provided to UNHRC any (1) censored, and (2) uncensored, copies of dispatches from Lieutenant Colonel Gash, the former defence attaché of the British High Commission in Sri Lanka about events in that country between 1 January and 18 May 2009, relating to the civil war.

Unfortunately, Sri Lanka for some strange reason, refrained from raising the the US disclosure, in 2011, that battlefield executions didn’t take place, or confidential UN report that contradicted the main Geneva accusation the military massacred 40,000 civilians.

Perhaps, the BASL, under its new leadership, can examine the whole gamut of issues, with the focus on the UNSG’s Panel of Experts (PoE) report (March 31, 2011) that prevented examination of unsubstantiated war crimes allegations on the basis of which Sri Lanka co-sponsored the 2015 Geneva resolution. According to the PoE (paragraph 23, titled Confidentiality of the Panel’s records), the examination of unsubstantiated allegations wouldn’t be allowed till 2031 in terms of the UN directive. Even after the 20-year period of classification as confidential records, those unsubstantiated allegations wouldn’t be examined without a declassification review. Let us hope the BASL undertakes a thorough study on accountability issues. Pieris, is certainly the most qualified to lead the inquiry.