Presidential Commission on Missing Persons has been beset by controversy

commission of inquiryThe Rt Hon Sir Desmond de Silva PC QC is head of Argent’s International Law team and is one of this country’s leading criminal Queen’s Counsel. He has particular expertise in Fraud (both national and international), Business Crime, Extradition, Human Rights, Kidnap & Blackmail, Large Scale Importation of Drugs, Money Laundering, Murder, Tax & VAT Fraud and Terrorism. The high standing in which he is held as a lawyer has been underlined by the honour of a Knighthood that was conferred upon him in the New Year Honours of 2007. Regarded as a superb tactician and a powerful and penetrating cross-examiner who gets to the heart of the matter, he is also known as a great jury advocate for his persuasive skills. Known as one of the most successful defence counsel in serious criminal cases of the kind referred to above, he has also attracted national sporting personalities who have come to him when facing grave offences’. (Argent Chambers)

‘Sir Desmond de Silva, QC – Sterling Pounds 407,336.00 or Rs. 85,550,666.37. Thus he has been paid a total of exactly Sterling Pounds 764,672 or over Rs. 164 million (or precisely Rs. 164,705,357.50) so far. Sir Geoffrey Nice, QC and Lady Nice – Sterling Pounds 86,358 or Rs. 18,060,558.98. Thus, he has been paid a total of Sterling Pounds 122,358 or Rs. 25,697,251.08 so far.David M. Crane – US$ 67,500 or Rs 8,796,799. Thus, he has been paid a total of US$ 127,500 or Rs. 16,611,060.50.

‘The payments revealed today appear to be only a fraction of what has been found out so far. The fuller magnitude of the expenditure, which would have been enough to build houses for hundreds, install electricity schemes for villages, provide medical assistance to the North, or to build and equip a few schools, will unfold only when investigations now under way are complete. Even the few disclosures today raise a number of important questions. The role of foreign advisers and eminent persons, in their own way, remains an important question. Since they did not sit at the sessions of the Disappearances Commission, and visited the one time battle areas on their own, were they involved in a process of formulating their own report to counter the one due at the UN Human Rights Council next month?

Is that effort credible and worth more Rs. 400 million that has already been spent on the exercise and more large amounts surfacing as the investigations continue? Was such a project formulated after careful study of its acceptability by the international community, more so since public funds are involved? This was particularly at a time when living costs soared and the public were deprived of relief during the previous UPFA regime. To make matters worse, would the present Government accept any report prepared by the foreign advisors hired at great cost? This is particularly in the light of the new Government’s position that it is in favour of a ‘credible domestic mechanism’ to conduct a probe. Quite clearly, in its efforts to re-build credibility abroad for Sri Lanka, the Government will not want the international community to believe in the previous government’s efforts to pay colossal amounts of money and obtain a report seemingly to its advantage? Even to the most dim-witted, it is clear; it would pose issues of credibility.’ Sunday Times Sunday, February 15, 2015.

‘The skeletons are quickly coming out of the Central Bank (CB) cupboard with news of another high profile contract involving a well-known barrister from the UK with Sri Lankan roots. Sir Desmond de Silva, QC, the Sunday Times reliably learns, was paid a fee of UK sterling pounds 60,000 per month (about Rs.12 million) to prepare a strategy for the regulator on how to counter human rights issues against Sri Lanka’.(Sri Lanka Brief)

‘From the outset, Sri Lanka’s Presidential Commission on Missing Persons has been beset by controversy. We have previously written about our concern that it is little more than an attempt to undermine international attempts for accountability via a discredited mechanism containing inherent conflicts of interest. Since the demise of the Rajapaksa regime there have been further revelations, with the Sunday Times alleging that the Commissions lead international legal advisor, Sir Desmond de Silva, was paid a salary of around £60,000 per month. Subsequent allegations suggest that payments to Sir Desmond, the others five international legal advisors (David Crane, Geoffrey Nice, Avdhash Kaushal, Ahmer B Soofi, and Motoo Noguchi) and another British QC (Rodney Dixon) totalled around £660,000’.’ Sri Lanka Campaign.

‘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 the great mass of civilian deaths which occurred in the final stage of the conflict were regrettable but.. permissible collateral damage. It was occasioned in the process of the security forces fighting to overwhelm and defeat the LTTE who had taken hostages in such large numbers. that this may well be considered to be one of the largest hostage takings in history The human stakes were colossal considering that the hostages were being murdered if they had tried to escape. The end result of saving some 290,000 hostage lives and the defeat of the ruthless LTTE were legitimate military and humanitarian objectives and the collateral damage was not disproportionate to the military advantage and was wholly consistent with the humanitarian imperatives that prevailed at that grim time.’ (Conclusion Sir Desmond De Silva’s report)

‘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 23rdFebruary, 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 23rdFebruary, 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.’ M A Sumanthiran MP in the National State Assembly.

A case to answer

Mr Sumanthiran has articulated his claims very well. Neither the government nor Hon Desmond de Silva have so far countered or responded to his well thought arguments. So far, there is no official inquiry into the dealings with Hon Desmond de Silva & Co by the new government.

Sunday Times and Mr Sumanthiran’s findings have revealed the extent of the conflict of interest and the lack of cost consideration in engaging Desmond de Silva. Has such a costly biased report improved the status of Sri Lanka on the war crimes issues internationally? This meaningless report has been done and dusted upon its release as no one considered it seriously so far.

Hon Desmond de Silva QC, who undertook the ‘The Report of the Patrick Finuance Review’ for the UK government in 2012 on the murder of Patrick Finuance by the paramilitary group of the Ulster Defence Association (UDA) in 1989, specifically addressed his report to the House of Commons. But he could not see the necessity to be transparent and impartial when acting for the government of Sri Lanka. No one knows what his terms of reference are and the charge out rate being applied by him.

Though Sri Lanka is not a signatory to the 2002 Rome Statute to prosecute individuals for serious war crimes, it is a signatory to the Geneva conventions on war crimes. In his findings, he did not relate the Geneva Convention and the responsibility of the government on the accountability issues that the Rajapakse government was attempting to hide in a devious manner.

Such a shallow and partisan finding of the QC only proves that he too has stretched beyond his professional repute to cash in from the troubles in Sri Lanka. It is a big haul for him from the pains and tears of the war victims.

The central issue is, who is answerable to such a colossal sum of payment to Sir Desmond de Silva QC. Was his conflict of interest assessed by anyone or even by the Attorney Generals department of Sri Lanka? Why did he act in a secret manner and was paid discretely for such an onerous task? Why didn’t he reject the tempting financial reward to uphold his professional standing? ‘A conflict of interest is a set of circumstances that creates a risk that professional judgment or actions regarding a primary interest will be unduly influenced by a secondary interest.’ The definition originally appeared in Thompson (1993) and a person of such standing, by negating this principle, decided to undertake the engagement to bolster the confrontational Rajapakse regime.

‘Chapter 3 on Conflicts of interests of the Solicitors Regulation … deals with the proper handling of conflicts of interests, which is a critical public protection. It is important to have in place systems that enable ..to identify and deal with potential conflicts. Conflicts of interests can arise between: ‘you and current clients (“own interest conflict”); and… You can never act where there is a conflict, or a significant risk of conflict, between you and your client. If there is a conflict….you must not act for …. unless the matter falls within the scope of the limited exceptions ….’ The advice further states: ‘you do not act if there is an own interest conflict or a significant risk of an own interest conflict;’ and that ‘you do not act if there is a client conflict, or a significant risk of a client conflict’. Will Desmond De Silva QC counter this guideline that there was no ‘own interest conflict’ in his engagement with the Mahinda government?

A report of public interest is produced in utter secrecy without disclosing the remit of such engagement. Production of the report and payment of fees was not debated in the parliament and there is no knowledge of any such decisions made at any cabinet meetings. There is even no clear evidence who was responsible for the payment of the fees and one of the news stated: ‘The skeletons are quickly coming out of the Central Bank (CB) cupboard with news of another high profile contract involving a well-known barrister from the UK with Sri Lankan roots’. If this is true, what is the level of engagement of the former Central Bank Governor Ajith Navrall who himself has outstepped his remit to extend the hostile foreign policy of the Rajapakse regime?

The opposition too was not made aware of the deal involved in engaging Sir Desmond de Silva and to this date, even after the change of government, the true facts of his engagement are not revealed. In a democratic country, the opposition too is a stakeholder to dissect any issues publicly but unfortunately such a disingenuous contract found its way through without any public outcry.

Sir Desmond de Silva must have been very well aware of the public criticism of Mahinda Rajapakse to the extent of being branded as an authoritarian by none other the former head of the UNHCR Mrs Navi Pillai. He could not foresee that his report will be relevant to the efforts of the UNHCR. His engagement has fattened his purse with irreparable reputational damage to him, discredit to his legal profession and thus compounding the pains of victims of the war. His effort proves to be a heartless crusade to earn wealth.

It will be generous if Desmond de Silva views the recent Al Jazeera filming of the war widows Sri Lanka: Widows of War – Al Jazeera English and donate his questionable income after deducting his reasonable disbursements to a reputable charity that could help alleviate their sufferings. He will be the beneficiary of Gift Aid relief if it is paid through a registered charity. He would be able to at least mitigate his reputational damage with his farsighted magnanimity, instead of being clobbered into the bandwagon of bonus rich and knighthood stripped former head of Royal Bank of Scotland Fred Goodwin. (Sri Lanka Guardian)

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