INTERNATIONAL EXPERTS WERE OF

GREAT ASSISTANCE TO THE

COMMISSION MAXWEL PARANAGAMA

( Commission on Missing Persons had 80% of its sitting in the North and East and
recorded Statements from 6,400 complainants)

07/10/2016
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 Commissions 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 Commissions 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 Commissions inquiries?
It is a matter of profound sadness to me that a Civil Society
Organization was critical of the Commissions 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 Tamilspeaking. 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.

Commission report has not been published yet

Q: Are there any contributions by the Commission to clear
Sri Lankas 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 Lankas 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 socalled 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 Commissions 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 Commissions view that there may be
international technical assistance and observers.
Q: Former President Mahinda Rajapaksa appointed a
group of eminent persons including an internationallyreputed expert on IHL, Sir Desmond de Silva QC. Have
they been of any help for the Commissions business?
Undoubtedly, the group of eminent persons was of great
assistance to the Commissions 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 UKs 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 Commissions 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 dont 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!
Original Caption
Posted by Thavam