The Commission acted as a deterrent: Justice Udalagama

Judge recommends permanent body to probe violations
By Chandani Kirinde

Two and a half years after the Presidential Commission of Inquiry headed by retired Supreme Court Judge Nissanka Udalagama was appointed to look into cases of serious violations of Human Rights occurring since August 1, 2005, including the assassination of former Foreign Minister Lakshman Kadirgamar, the killing of 17 aid workers of the French INGO Action Contre Le Faim in Mutur , the killing of five youths in Trincomalee and the disappearance of Rev. Nihal Jim Brown of Philip Neri's Church at Allaipidi on August 28, 2006, it’s term came to an abrupt end last week with hearings into only seven cases concluded.

Justice Udalagama

The Sunday Times spoke with Commission Chairman Justice Udalagama to ascertain his views on the workings of the Commission.

Why did the term of the Commission end abruptly?

A: The term of the Commission was extended every six months, but this time when we wrote to the President and sought a further extension, we were asked to submit a report on the cases into which we had concluded hearings. We had concluded seven of the cases and the report will be handed over by next week.

What cases have you completed?

A: We had to leave out the Lakshman Kadirgamar case as indictments had already been filed in Courts. We concluded our investigations into the killing of the 17 aid workers, the five students in Trincomalee, the Muslim villagers in Mutur in early August 2006, the execution at Welikanda of 14 persons who were being transported in ambulances from Mutur as well as the deaths that took place following an air attack at Sencholai. The other two cases were the bomb attacks on a bus carrying Navy personnel at Digampathana, Sigiriya and the claymore mine attack on a bus at Kebitigollewa, both of which were carried out by the LTTE.

What were the conclusions you arrived at with regard to some of these cases?

A: According to two witnesses in the Sencholai case from whom we heard evidence, the students had been taken by force in a bus from their school and forced to undergo armed training. Three girls survived the attack and one died later in Vavuniya Hospital. One came before the Commission and gave evidence. The other gave a statement from Hospital.

The killing of the aid workers is one case that drew international attention, Are you satisfied with the conclusion you have reached into this case?

A: I can’t say I am fully satisfied because not every witness could testify. There were two important witnesses, one a woman labourer who was the last to visit the ACF office before the incident took place .She sought asylum and now lives abroad. The other is a policeman who had seen the whole episode. He too is abroad. They were vital witnesses but would not give evidence.

Why could they not testify?

A: In the aid workers case as well as the killing of the five students, through the assistance of the International Independent Group of Eminent Persons (IIGEP) that was appointed to assist us, we heard testimony from several witnesses through the video link. But we could not hear evidence of all the witnesses as the video conferencing was stopped.

Why was it stopped?

A: There was an instance when one witness was giving evidence, it was obvious that they were manipulating the whole thing. So much so that when Counsel S.L.Gunasekera was questioning the witness through the video link, a person seated next to him told him not to answer the question. So there were protests. So we were told to stop the video conferencing. Instead we were told a Witness Protection Law would be passed by Parliament soon but that also did not happen. Hence several witnesses could not testify freely.

Can you say your findings are conclusive regarding the aid workers’ killings? Are you pointing the finger at any one or group in particular?

A: We have said there were two or three possibilities. When looking at the possible time of death, Mutur was in the control of the LTTE. But within the Police Force there were home guards that had a motive to carry out such an attack. We have given the possibilities and asked the President to pursue further investigations into this.

With regard to the killing of the students in Trincomalee, are your findings conclusive?

A: The evidence we heard was that the students were shot by men in uniform. One boy who escaped with injuries and who gave evidence before a Magistrate said that they were men in uniform but he could not identify them. One of the students who was the only other eyewitness and living abroad and was willing to give evidence could not testify after the video link was discontinued. The others who gave evidence in the case were parents of the dead boys.

What about the other cases?

A: With regard to the disappearance of Rev. Nihal Jim Brown at Allaipidi in August 2006, inspite of all the effort we were unable to find his body or find anyone who saw the body. An inquiry into it would have become a futile exercise because we cannot recommend it to the High Court because the Court will not take up a case where there is no body.

What about the assassinations of TNA MP Joseph Pararajasingham in Batticaloa in 2005 and the Deputy Director General of the Peace Secretariat Ketheesh Loganathan in Dehiwela in 2006?

A: We could not start on these cases as we had no time.

The role of the International Independent Group of Eminent Persons (IIGEP) was a controversial one and the members eventually left due to disputes with the Commission last August. Did their presence serve any purpose?

A: The IIGEP was created to assist the Commission but from the beginning they were confrontational. They were questioning the independence of the Commission. They were also complaining over the delays but we were taking time for good reasons. Under the Commission of Inquiry Act, we had to have a quorum of all eight members on sitting days but this was difficult. So we had to have the Act amended by Parliament for the Commission to meet with five members including the Chairman present at all sittings. . That process took eight months.

How important is witness protection?

A: We were asked to inquire into these incidents and to do so we needed witnesses. But the situation was such that many witnesses failed to come forward. So, if we had a scheme where we could have safe houses and other methods of protecting them that would have helped us.

Do you feel that these presidential commissions serve a useful purpose or are they a waste of money?

A: One recommendation that we made to the President was that this kind of Commission must be there permanently. Since our Commission began functioning, the kinds of incidents we were investigating stopped taking place. This means the existence of the Commission acted as a deterrent of sorts. I know that members of the armed forces and police were told about the existence of such a Commission.

What other recommendations have you made?

A: There is a UN Protocol on Command Responsibility. Parliament needs to enact laws to give legal effect to it. That too we have made recommendations. The other issue is adequate compensation for victims and families of victims of such crimes. In the ACF case for example, the French NGO needs to take some of the blame for what happened and compensate the families. But the families were not adequately compensated.

Based on your report, can legal action be initiated against anyone?

A: No, that is not possible. The perpetrators of these crimes have to be found.

What about the role of the Police. Are they doing their investigations satisfactorily?

A: This Commission was unique because we were asked to do the investigations based on the premise that Police investigation was not satisfactory. This is what took up a lot of our time. We had to do what the Police were supposed to do. At the end of the police investigation, they concluded there were no witnesses and closed the cases. We put newspaper notices calling witnesses to come forward, that we will provide adequate security and bear travel costs. But I can’t say it was successful. Later the CID took over but they too had the same problem.

Isn’t it because people have no confidence in the system?

A: One of the reasons I think is the environment prevalent in the country. If things get better, we may have more witnesses coming forward and giving evidence. It is the civic duty of a citizen to do so but we cannot force them. For example there was a man who lost one of his sons in the ACF incident and the other son in the Trincomalee student shooting. When we went on a field visit, we met him and asked him to give evidence. He said not to ask him to give evidence saying he had already lost two sons and had two more and needed to safeguard them. But there were others who came forword and gave evidence voluntarily.

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