( Commission on Missing Persons had 80% of its sitting in the North and East and recorded Statements from 6,400 complainants)
In an interview with Daily Mirror Retired High Court Judge, Maxwel Paranagama, Chairman of the Presidential ‘Commission on Missing Persons has said that ” the group of eminent persons was of great assistance to the Commission’s business. The Commission relied upon the legal expertise of the members of the Advisory Council, who had an unrivalled experience of international law practice before the ad hoc international tribunals created or sponsored by the United Nations. Indeed, this Commission expressly requested the assistance of international experts and is there been no shame in recognizing the fact that there may be lack of experience in the Sri Lankan jurisdiction of international humanitarian law practice? Amongst the experts we had international Prosecutors who had tried and investigated such cases, making judgments and decisions at the very highest level.”
Following are the excerpts of the interview:
Q: Could you please explain briefly the task former President Mahinda Rajapaksa entrusted upon you?
On August 15, 2013, former President of Sri Lanka, Mahinda Rajapaksa, established the Presidential Commission to investigate complaints regarding missing persons comprising of three members: former Judge Maxwell P. Paranagama (Chairman), Mano Ramanathan and Mrs. Suranjana Vidyaratne (‘Paranagama Commission’ or ‘PCICMP’). The Paranagama Commission has held public hearings in the North and East of Sri Lanka and has heard evidence in relation to approximately 6,400 complaints relating to what will hereinafter be referred to as its First Mandate.
The scope of the Commission’s mandate was expanded by Gazette notification on July 15, 2014 to address the facts and circumstances surrounding civilian loss of life and the question of the responsibility of any individual, group or institution for violations of international law during the conflict that ended in May 2009. The expanded mandate will hereinafter be referred to as the Second Mandate. According to the terms of the Second Mandate, this Commission is tasked with inquiring into and reporting on the following matters that have been referred to in the report of the Lessons Learnt and Reconciliation Commission (LLRC).
In view of the heavy workload of the Paranagama Commission, and at its request for assistance in addressing the complex questions of international law raised by the Second Mandate, former President Rajapaksa appointed a legal Advisory Council to this Commission comprised of international legal experts.
President Maithripala Sirisena was elected as the new Sri Lankan President on January 8, 2015 and on February 5, 2015, the time frame for the First and Second Mandates of the Paranagama Commission was extended to July 15, 2016.
Q: Are you satisfied that the 5-member Commission chaired by you has accomplished the assignment to the satisfaction of you and the government?
The issue as to whether the Government is satisfied or not, is not a matterfor me to decide upon. As the Chairman and Member of the Committee, it was my duty to ensure that the assignment undertaken was conducted fairly and impartially. I am confident that the Commissioners and the staff that I worked with fulfilled this obligation.
Q: What was the response from the families of missing persons to the Commission’s inquiries?
It is a matter of profound sadness to me that a Civil Society Organization was critical of the Commission’s process and from day one sought to undermine the work of the Commission. The first criticism we heard was that the Tamil translation was inadequate. We did what we could to rectify this and it should not be forgotten that the majority of sittings took place in the North and the East of the country where many of our staff were Tamil-speaking. Inadequate Court/Tribunal translation is not a problem that was confined to our Commission but it can occur in any Court proceedings in Sri Lanka. As a retired High Court Judge, I am well aware of this.
A further criticism was that those who came forward to give evidence received undue attention from members of the security/intelligence Services. I must say had any specific incident relating to this allegation been brought to my attention, I would have taken immediate action against the perpetrators. Such incidents could of course happen even today in any criminal process. But I do feel there was a deliberate attempt to insinuate that the Commission was in some way complicit in such practices. Nothing could be further from the truth and I believe despite campaigns in the North by certain NGOs we found more and more Tamil civilian witnesses coming forward to give evidence.
The numbers reached to about 20,000 minus duplicates of around 4,800 by July 15, 2016, and I wish to vindicate my genuine beliefs that we did our utmost to take evidence impartially and sympathetically. The Commissioners were very conscious of the fact that those giving evidence were traumatized and in some cases, were giving evidence for the third or fourth time. It was as difficult for these individuals as it was for us.
Q: Are there any contributions by the Commission to clear Sri Lanka’s name from allegations of human rights violations during the final phase of the Humanitarian Operation?
It was no part of the Mandate to clear Sri Lanka’s name from allegations of human rights violations. It should be underlined that this Commission comprised of a number of High Court Judges and senior retired Civil Servants of all communities. To my knowledge, there has never been any personal attack on any individual Commissioners, and no doubt they were chosen on the basis of their flawless reputation and the impeccable character. It is my hope that the two Reports that we had delivered would contribute to both a deeper understanding of the very complex and difficult law that applied in the final stages of the armed conflict as well as give an overall picture of recommendations that could be made on the conflict as a whole. Although we delivered the very detailed Second Mandate Report on time in August 2015, due to understandable circumstances our First Mandate Report which encompassed a greater time frame could not be completed. Having said that we were able to provide detailed recommendations in both First and Second Mandate Reports which we hope the current Government will utilize and pass on to the incoming Office of Missing Persons (OMP).
Indeed, given that some witnesses have provided testimony on multiple occasions, we hope that the ability to provide Certificates of Absence would be a method of curtailing the necessity for the repetition of some evidence. Given that we have taken statements from 6,400 complainants that if the OMP can utilize this product efficiently, it could save huge costs and time.
Statements from 6,400 complainants have been recorded from 8 districts of North and East at 19 public sittings.
Q:The international community and the UNHRC insist that Sri Lanka initiates a credible domestic inquiry into alleged violations of the International Humanitarian Law (IHL) which reportedly took place in the final phase of the war. How could your inquiries throw some light on this so-called credible domestic inquiry?
It is a matter for the Government of Sri Lanka, not this Commission, to decide on the type of justice mechanism that would be implemented to deal with any violations that may have taken place during the conflict. However, the Commission, as I have already stated, conducted an extensive review of the legal framework that we believe was applicable to events during the period of the war. This can be found in Chapter 6 on page 62 to 98 of the second Mandate Report. In addition, we conducted an extensive examination of accountability mechanisms in other jurisdictions in Chapter 8 in the Second Mandate Report. It was our recommendation that a Special Crimes Division should be created within the Sri Lankan Court system and at paragraph 625 (page 156), the Commission’s recommendation was that a wholly domestic special Court with a parallel Truth and Reconciliation Commission might be an appropriate transitional justice solution. However, we did say that in the event of a purely domestic tribunal that it was the Commission’s view that there may be international technical assistance and observers.
Q: Former President Mahinda Rajapaksa appointed a group of eminent persons including an internationally-reputed expert on IHL, Sir Desmond de Silva QC. Have they been of any help for the Commission’s business?
Undoubtedly, the group of eminent persons was of great assistance to the Commission’s business. The Commission relied upon the legal expertise of the members of the Advisory Council, who had an unrivalled experience of international law practice before the ad hoc international tribunals created or sponsored by the United Nations. Indeed, this Commission expressly requested the assistance of international experts and is there been no shame in recognizing the fact that there may be lack of experience in the Sri Lankan jurisdiction of international humanitarian law practice? Amongst the experts we had international Prosecutors who had tried and investigated such cases, making judgments and decisions at the very highest level. Similarly, the military and military law experts we had were of world renown. Amongst them, was the former Commanding Officer of the UK’s Special Air Service, the most elite regiment in the British Army. This is not to say that we agreed on every point, but it is my belief as Chairman, that we benefited enormously from the experience of these individuals, although ultimately the Report was the product of the Commission’s deliberation.
Q: The Commission has reportedly received over 20,000 complaints. There is no doubt that conducting inquiries on all those complaints is a daunting task as it requires a huge volume of time, financial, material and human resources. How did you cope?
The Commission commenced its sittings in January 2014 and indeed, as you state, we received over 20,000 complaints. We were of course, funded by the Government of Sri Lanka and over time, I would like to think that we improved the evidence giving process for victims. As I have already stated, I accept that there were teething problems when sittings first commenced, but I do think that as time went on, the processes were improved as the translations improved and most importantly, victim confidence increased. I was only able to cope by the huge efforts of my dedicated staff and my fellow Commissioners, to whom I am eternally grateful.
Q: Have you proposed any punitive measures against those with prima facie cases which you may have come across during the inquiries?
We have proposed a full domestic mechanism as set out in paragraph 625 (page 156) of the final report of the second mandate. According to this process we have recommended that if any person charged with any crime denies so committing it, a criminal High Court should be available presided by our local judges for him to go through the legal process. The prosecution should be conducted by our Attorney General and investigations should be conducted by local expert investigators, at the same time if a person charged with a crime who wants to admit committing the crime stating under which circumstances the crime was committed, a truth and reconciliation committee must be established for him to obtain amnesty.
The amnesty may be an accountable amnesty, in other words an amnesty coupled with conditions such as withholding salary increments, promotions etc. This process must be available for LTTE and other militant groups involved in the conflict.
Punitive measures should not be strictly considered in line with regular criminal in cases because where security forces were concerned, such isolated incidents had occurred when they operated during the humanitarian process to save over 300,000 hostages. In other words, while they were doing the duties assigned to them.
Similarly the same process must be available for LTTE and other militant groups because they were to achieve an illegal goal through an illegal process, and at times, unwillingly and forcefully recruiting child soldiers after brainwashing them.
Q: What relief have you proposed in your final report to immediate family members of victims?
We have made recommendations in the interim reports of the first mandate and the final report in the second mandate that relief should be granted to the immediate family members of the victims. Briefly, counselling, granting adequate compensation for loss to family ranging up to Rs. 500,000 assistance to livelihood, assisting to dispose their products in agricultural activity, housing, release of agricultural land, providing information with regard to missing people, providing opportunities for interaction with all communities to release suspicion and insecurity, promote Sri Lankan identity among all communities, release of inmates from prisons with the advice of the Attorney General.
I believe grant of such relief may relieve the suffering of those families who are missing their loved ones. In dealing with offenders through the proposed domestic process as set out in the report may also be the base for reconciliation.
Q: You had no choice but to wind up all your activities after the passing of the Office of Missing Persons (OMP) Bill in Parliament on August
11 this year. But you have a heavy backlog of untouched inquiries on complaints or statements recorded by your commission. What is the fate of these complaints and statements and don’t you think the family members of missing persons would end up with broken hearts and hopelessness?
It is a matter for the Government to decide as to how they wish to proceed with the issue of missing persons. The processes required to uncover the truth of what happened are far from simple, and some of these investigations date back to the 1980s. I believe the Commission and the Government were at fault in not managing the expectations as to what could be achieved. With the limited funding that was available as I have stated above, I hope we have built some victim confidence and contributed to changing some of the narratives of events of the conflict. It is my hope that the improvements to this process by way of a creation of a permanent OMP that can issue certificates of absence would go a long way in providing some respite to bereaved families.
Q:There are many talks about engaging foreign Judges for a ‘credible domestic inquiry’ on war crimes that allegedly took place during the final phase of the humanitarian operation. Do you think our Judges are not capable or independent enough for such an inquiry?
Few of our Judges have served in international tribunals or as Commissioners in Truth and Reconciliation Commissions. Some of them have been internationally recognized. Although there may be a dearth of experience in both the local judiciary and the local bar in the area of law that applies in the context of conflict here, I do believe that our Judges are both capable and sufficiently independent to conduct such investigations and can perform their tasks successfully. Providing training from international experts could be considered useful.
I see there is no problem in having international experts for technical assistance and in advisory capacities to ensure local Judges and lawyers could conduct trials successfully. For transparency, foreign observers may be accommodated.
Q: Is it possible to use your inquiries and findings as a part of any future domestic inquiry proposed by the joint US-Sri Lanka resolution andpassed on September 24, 2015 at the UNHRC sessions in Geneva?
Of course yes!