Equal opportunities for all

External Affairs Minister Prof Gamini Lakshman Peiris in conversation with Asia Society Executive Vice President Tamie Metzl in New York on September 27, 2010. First part of this article was published yesterday

Q: How can you challenge the result of an election?

A: Through elections. I will just talk about the United States. But its conceivable that one family can become so powerful in our system here in the United States. That it would be possible for them to amass so many benefits, so many (inaudible) that their defeat will be increasingly less likely.

In our country, that’s the role term limits play because we recognized that even under the leadership of probably one of our most popular Presidents in history, Franklin Roosevelt, that the President of the United States could amass so much power in so much momentum, that defeating him will become more and more difficult over time and we in the United States came to a conclusion that would become a threat to our democracy. So I do think there is an issue of checks and balances.

Q: May I make a comment on that? That’s what I had in mind when I spoke of judgemental postures and a certain kind of facile assumption that what is consonant with one’s own culture and historical antecedence must be right for the rest of humanity. That simply does not work. Now the dominant feeling in Sri Lanka today is this.

A: The dominant feeling in Sri Lanka today is that we now have a unique and unrivaled opportunity that eluded us for two long decades. Now we need to get things done. To get things done you must empower the Executive.

In Sri Lanka the feeling is not if the President is having too many relatives in Parliament or in Government, that’s not at all the issue that is agitating the minds of ordinary people up and down the country.

They want delivery and a degree of empowerment of the Executive which will result in effective delivery over a brief time span is something that is eminently acceptable to the people of Sri Lanka and they have demonstrated that time and again.

How many elections? Not just one election. There was the Provincial Council elections. There was the Presidential elections, there was the Parliamentary elections, so there is this series of elections, total consistency, a strong message, an unequivocal judgement on the part of the people of Sri Lanka who are saying ‘get on with the job, equip yourself as you think you should, we support you and we will judge you by your results,’ not by Motets Theory of the Separation of Powers or the doctrines of the founding fathers.

We want you to do a job of work and we are going to judge you at the end of three years. If you don’t perform we will throw you out but use these powers to deliver. We expect you to do that, we think you will, now get on with the job. That is the dominant feeling in Sri Lanka today.

Q: It is interesting. In every society there is this balance between efficiency and due process. Last week we hosted the Prime Minister of Mongolia and afterwards I went out to dinner with a good friend who is the Head of the State Secretary and we had this exact conversation about the role of efficiency versus some of the process issues which frankly and honestly in the United States, we sometimes feel we are sinking under our process, not able to make kinds of decisions. I don’t want to make any kind of universal claim or judgement and yet it really struck me about what my Mongolian friend was saying about efficiency.

He said we made that deal for efficiency in the old days when they were under the Soviet system and they said that we recognized the long-term costs of that. Certainly there are people here in the United States who are pulling their hair out. I used to have more hair.

A: We have another set of elections coming up in January, February so if there is wide spread public disillusionment and if people of the country reflect the views that you, as a devil’s advocate, they may necessarily not be your own views, but if the people of Sri Lanka are convinced that that is the case, then we can expect that to be reflected in the results that we will see in less than three months down the road.

Q: We will move on to another topic. You mentioned in your remarks of the LLRC. There are many different models for the truth and reconciliation process. I think that South Africa and perhaps El Salvador are held up as models. And you talked about the mandate.

Some of the things that your Government has said is that the LLRC is not an accountability process, it focuses on restored of justice and this is a quote, and this is from a Defence Ministry statement, designed to further strengthen national amity.

In South Africa there is always a balance between justice for allegations of what’s happened in the past and wanting to help a society move on to a future where people can collaborate and there are different traditions which I wouldn’t characterize as Western or Eastern because within different societies they are handled in different ways.

But there have been many questions raised bout the mandate of the LLRC which was mentioned to the Commissioner on LLRC which is appointed by the President.

There are some who have alleged that the mandate is exceedingly vague and when it’s not vague it focuses more on the failure of the 2002 ceasefire agreement than on particularly the allegations of what happened at the end of the war last year, as you and I know you have reacted angrily to these words.

The International Crisis Group has said that war crimes were committed by both sides and the ICG has questioned the possibility of a quote: “meaningful domestic investigation much less prosecution of alleged crimes committed by the Security Forces under the current Government.” Could you describe with as much precision as possible, what you see is the mandate of the LLRC and specifically, is the LLRC empowered to investigate allegations of wrong doing, perhaps even war crimes, by both sides, particularly at the end of the conflict in 2009.

A: Yes. I will answer those questions directly. When I was in Washington in May just a few months ago, to meet the Secretary of State Hillary Clinton, I met several Congressmen.

At one of those meetings at which our Ambassador was present, the Aide to the Congressmen expressed the same view. He said, this Commission does not help the authority to probe allegations against particular individuals for violations of human rights or international humanitarian law.

I contested that. I said no, the mandate is wide enough to enable the Commission to do this. Then the Aide of the Congressmen happened to have a copy of the terms of reference.

The Congressmen said I am a lawyer, bring it to me, let me have a look at it myself. He then read it and said that I was perfectly satisfied that the terms of reference are broad enough to enable the Commission to go into questions involving the attribution of responsibility to individuals in respect of grave crimes or delinquencies and the President of Sri Lanka has publicly stated that, if there is hard evidence, not hearsay, that particular persons committed serious crimes, then the criminal justice system of Sri Lanka will take over at that point, the Attorney General will indict the persons concerned and no less than the President of Sri Lanka is on record as having said that is the position.

If evidence is elicited which would stand up in a Court of Law, evidence that would enable the establishment of guilt in accordance with the standards of proof required by Sri Lanka’s criminal laws, then prosecutions will take place. That is very clear. The Commission has now asked the International Crisis Group, Amnesty International and all these people come to us and let there be now, because these are not proceedings in camera.

The law in setting up the Commission contains provision enabling proceedings to be held in camera. But happily the vast majority of people who have testified so far have rejected that option and they have said that they prefer to testify in public.

So if we have anything to hide, there is no onus on us to invite these people to come. We don’t think that their reports are substantial. Look at some of the reports. I think that they are grossly unfair.

A source indicated to us that such and such a thing happened.

How can they verify? What’s the acceptability there? We don’t know who is saying this, there is no attribution to any person, a source said we understand from someone who has spoken to us. It is all as vague and as nebulous as you can imagine.

Q: I imagine they are trying to protect the source.

A: Well that is one explanation and there may be others because the sources may be far from objective. They may have their own purpose.

The International Crisis Group is being guided by people whose motives are not clear at all. So there is no objectivity. There is no verifiability. We don’t think that is a fair method of setting about it.

But now, they have the opportunity of appearing before the Commission. They can’t hide behind this cloak of anonymity. Let them come forward with the material they have and let that be tested in the glare of public opinion.

Q: If, lets just say, that these claims have been made, what kind of promises of protection and witness protection will the LLRC make? Let’s say that there is somebody who has a claim that they feel is legitimate and wanted to come forward, but are afraid that something might happen to them if they did? What are the protections? (inaudible)

A: There again. Our cultures are different. Somebody who has grave fears of that kind does not have to come out into the open and proclaim to the whole world what they have to say. The Commission has taken the initiative in going out to places like Kilinochchi and Vavuniya and talking to people.

It is not as though their program is drawn up for them by Government agents or the Government officials. They decide themselves, I would go to this village, I will talk to people if there are known to be special problems in a particular village or town, they go there and talk to people there. And a lot of this, can be done in confidence, without anybody being any other visor of what was said by a particular person.

All these modalities are well within the options at the disposition of the Commission. These are largely imaginary fears. The witness protection legislation is before Parliament.

Parliament was dissolved, in principal there was no objection to that but it has to be framed in such a way as it to be acceptable in Sri Lanka’s social and cultural context.

But nobody, I don’t think many people in Sri Lanka will believe that this is an overpowering kind of inhibition or disincentive. There are lots of ways you can say what you want to say in private without exposure of the kind that you are talking about.

Q: As you as a lawyer, a lawyer trained in the British system, recognizing the metaphor of (inaudible), recognized that there are process rights many of which that do come out of the common law tradition, but which over time, has at least in our perspective, which is not always perfect, which are essential process rights to protect people in just this kind of situation.

You said that if there is a specific case that can be made with specific evidence, that information can be presented. As you know, Channel 4 in Britain came forward with a video of Tamil prisoners being executed. Your Government said that the video was a fabrication. The UN and others who reviewed it and didn’t come to that conclusion. But if there was that kind of case and you say that they can make the case and if there is sufficient evidence, prosecution would be made. What would be the mechanism?

A: Well, there was a great deal of technical evidence on the basis of which Government of Sri Lanka asserted that it was not genuine. It wasn’t a balled assertion unsupported by any technical consideration. There were compelling, cogent technical considerations which prompted us to come to that conclusion. Now, if such material is to be used, there is no objection to that.

Why not bring it before the Commission? Why not take advantage of the invitation that has been explicitly extended to these bodies, this is the material we have, so they can present it.

Of course, they can’t say we understand from a source, when they appear in front of a Commission they will have to say what the source is.

So lets find out whose speaking the truth, who is camouflaging and how much of a smoke screen is there.

So lets penetrate all these things about sources and anonymity and so on and lets get down to the nitty gritty of it. The opportunity for that is now freely available.

Q: That provides a real opening, in the sense, if these individuals and organizations who have this evidence can have a meaningful conversation with you and your Government about what kind of process protections would be required so that they would feel that in making the case, they wouldn’t be potentially compromising somebody’s safety or security and you can have a two part conversation.

First is what is that level of due process and secondly, once there is a general level of confidence, those people and their identities would be sufficiently protected, there could be a mechanism for delivering that. (interruptions)

A: I want to make one comment there. What I am strenuously objecting to is the kind of presumption that the Commission is not genuine, it’s not going to war, that is wrong. There must be good faith. Now Secretary of State, Hillary Clinton, when she met me and when she addressed the media soon after her meeting with me, she said, not I, she said, “this Commission holds promise.”

And she said ‘we have confidence, it must work, we expect it to work and any help.. she said we expect it to work.. it holds promise. These were her words. I don’t think there must be a presumption that it’s not going to work.

That is not fair. At least suspend judgment. Don’t approach it with a prejudiced mind. Let the Commission continue its work. Give the space for the Commission to get on with its work and if you come across things then criticize at that point and not now. Not at the inception (inaudible). Not at the threshold. I think that is grossly unfair.

Q: To be fair the State Department report did question the impartiality and the mandate of the LLRC, but I think it’s also fair what you say. (inaudible) Let’s test it. Now we have some questions from the audience. The first one is a logical outgrowth of what I just asked and that has to do with the UN panel of experts.

As you know on June 22nd, Secretary General Ban-Ki-Moon announced this creation of a three person panel of experts which is designed only to advise him and to be a resource to the Government of Sri Lanka, should the Government of Sri Lanka choose to avail herself to that resource.

You afterwards called this an unwarranted and unnecessary interference with a sovereign nation and announced that visas would not be provided to the members of the advisory panel.

So these questions for you are, why are you so opposed to working with the UN advisory group, would you consider working with it and would you offer visas to its members?

Particularly because there are questions about this reconciliation process and this level of involvement of these people who are all experts with background in other parts of the world, dealing with truth and reconciliation.

A: What we said was there is no gap here. We have appointed a Commission. Now as we appointed the Commission, the Ambassador of the United States to the UN Dr Susan Rice, welcomed the appointment of the Commission and went on to stipulate five criteria. Said that if this is to be acceptable and credible, we think that these norms must be satisfied. Now it is our considered view that all those criteria are amply and demonstrably satisfied.

The fine criteria that Dr Susan Rice laid down. So we have an effective Commission consisting of people of stature. One of who is a (inaudible) professor of law in an American University not a Sri Lankan University.

Another person is chairing UN discussions on anti terrorism (inaudible) in this country. So our concern was, that this Commission has been appointed, it has started its work and we see no reason for a foreign body to be appointed at that time. How is it going to help? Because the mandate of the UN panel was also very unclear because the reference was to international best practice, comparative experiences and issues relating to the process.

We were not quite clear what kind of contribution they were expected to make. In any case, there was our Commission working on the ground. It had started its work. It was something ongoing. We didn’t think there was going to be any value addition. In any realistic sense, what was going to be provided by the panel that the Secretary General was proposing to appoint? Well of course, I will say this.

Even as recently as a couple of days ago, when we met the Secretary General, the position was very clear. He was saying ‘no, this is not a panel that has any investigative capability.’ Then why? If you have a Sri Lankan Commission, what is the gap, what is the hiatus that one is trying to fill?

We were never clear about that. Nobody gave us a satisfactory explanation. We talked to many people representing the UN and we said, please explain to us, what exactly you are trying to do? What exactly is the deficiency that you are trying to supply? And there was never a convincing answer to that question. To be continued tomorrow