Rebutting a defence of the Sansoni Commission

By Kishali Pinto Jayawardena

A dull Tuesday afternoon this week was somewhat enlivened by a heated response sent by Mr Tissa Devendra to last Sunday's column. As all 'good' Secretaries of Commissions of Inquiry are wont to do, Mr Devendra has taken exception to my criticism of the Sansoni Commission. While I have no objection to his remarks as an 'insider' (as he terms himself), I am however entitled to join issue with him on the several strenuous objections that he has raised, whilst being most scrupulous in reproducing these objections.

"I have never before headed a political Commission"

First, he objects to the quotation with which the column commenced, in the course of which a statement that 'I have never before headed a political Commission" is attributed to the late Justice Sansoni. He states that this remark is 'totally unprovable,' made to a confidante who is '"naturally, remains shrouded in anonymity' and further, remonstrates that 'attribution of this statement to a long dead, and honourable, man is totally improper and unjustified.'

However, in holding me accountable for this quotation, Mr Devendra is grievously in error. If he had read the column carefully, which he unfortunately appears not to have done in his indignation, he would see that I had reproduced a quotation taken verbatim from a publication by Mr Rajan Hoole, one of the founders of the University Teachers for Human Rights (UTHR) written as far back as in 2001, namely 'The Citizenship Acts and the Birth of the Federal Party', in Sri Lanka, The Arrogance of Power; Myths, Decadence and Murder, University Teachers for Human Rights (Jaffna), Wasala Publications, Colombo, at page 37. Curiously, Mr Devendra has quite failed to appreciate the significance of quotation marks as well as a citation immediately below the quote. I am therefore at a loss to comprehend as to how this statement can be attributed to me or as to how Mr Devendra's patently snide comment that I seem "to have no end of anonymous informants" can be justified. His tendentious alacrity to hold me accountable for this and other assertions (as explained later) is disappointing to say the least.

Subsequently to reading this publication over a year back, my conversations with Mr Hoole, an analyst and researcher whom I respect as possessing the ability to cut through obfuscatory detail with merciless skill and with commendably little regard for personalities, sufficed to convince me of the validity of these observations. Mr Hoole's own research comprised exhaustive readings of the proceedings of the Sansoni Commission as well as intimate conversations with individuals close to Justice Sansoni, including Justice Sansoni's secretary, (as distinguished from the Commission's secretary to which title Mr Devendra lays claim). For obvious reasons, the 'confidante' to whom this remark was made by Justice Sansoni and who himself was a 'stickler for accuracy' (according to Mr Hoole) was not named in the quotation.

Secondly, there is objection taken to the reference in the column that the Commission faced threats to its sittings. This reference too was taken from the above publication, thus attracting the same response.

Withdrawal of Justice GPS de Silva from the Commission

But I come now to the crux of Mr Devendra's objections, namely my 'insinuations' (as he terms) regarding the 'brief tenure of Mr.G.P.S de Silva (later Chief Justice) in assisting the Commission.' He objects to my statement that Justice GPS de Silva withdrew from assisting the Commission, ostensibly for personal reasons and professes rather that the withdrawal was due to the fact that the Department "just could not spare the services of the Deputy Solicitor General to assist a long term Commission." This expedient reading of the situation exposes a lamentably suspect motive on the part of Mr Devendra, and needs to be answered in explicit detail.

Mr Hoole's comment is instructive to this effect; "Those who defend Sansoni point out that the Commission and Sansoni himself were handicapped in many ways….. The State decided to intervene when it thought that things might get out of hand. Deputy Solicitor General GPS de Silva who appeared for the State at the beginning later dropped out citing personal reasons. He was considered a person who would have been uncomfortable about lowering his ethical standing. His place was taken by state counsel ADTMP Tennekoon." (at page 36). Quite apart from this quotation, there is no doubt that the three legal personalities directly involved in this proceeding (namely Justice Sansoni, Justice GPS de Silva and state counsel ADTMP Tennekoon) are the best persons to speak to this controversy. I need only to state at this point that it was after personal conversations with one of the three legal personalities named above (Mr Devendra may make his own, and hopefully informed guess) that I was satisfied of the corroboration of Mr Rajan Hoole's above observation. These conversations remain sufficient to convince me of the validity of this critique.

However from this point, Mr Devendra springs to a wholly unwarranted assumption on his part, that the context relating to 'withdrawal' from the Commission was referred to, by me in relation not only to Justice GPS de Silva but also to two other state lawyers at that time, namely Mr.Sarath Silva (now Chief Justice) and the late Mr.P.Ramanathan (later Supreme Court Justice). Mr Devendra states thus; 'They assisted the Commission, in turn, only for the first seven sittings - far too few for them to get disillusioned [as implied by KPJ] and withdraw, ostensibly for personal reasons." I can only conclude that in reading my column, Mr Devendra may have been interpolating his own ideas into the text for at no point did I refer to either of these two gentlemen or indeed to any disillusionment on their part. At all times, it was only Justice GPS de Silva that I was referring to and I am astonished by Mr Devendra's inferences.

Defence of state counsel ADTMP Tennekoon

Lastly, he objects to my criticism of state counsel ADTMP Tennekoon's manner of leading the police witnesses. Mr Devendra appears to believe that this criticism was a figment of my own imagination and indeed, claims that Justice Sansoni did not make a specific reference to this. Unbelievably however, he appears to be unfamiliar with the contents of the very Report of his Commission which he is so quick to defend. I would only refer him to pages 19 and 20 of Sessional Paper No VII-July 1980 for an ample illustration of the manner in which Justice Sansoni considered and dismissed (as he must do, given that the functioning of the Commission was at stake) these criticisms. Mr Devendra would therefore be better advised to refresh his memory by reading the Report of his Commission more thoroughly.

His citation of the latter, impressive (according to him) honours of becoming Chief Justice of the Marshall Islands and a professor of Hong Kong's City University closes his vigorous defence of Mr ADTMP Tennekoon. I will not waste space by contesting the seemingly impressive nature of these credentials. The only point in issue was the involvement of state law officers with the Sansoni Commission at that time, not as to their track record, past or future. Regardless of Mr Devendra's vehement but not quite wise protestations, I still stand by those criticisms.

Justifiable Criticisms of the Sansoni Commission

Indeed, the Sansoni Report itself is subject to a wider range of criticisms, some of which have been highlighted by the (unofficial) de Kretzer Commission Report., regarding which there is no space here to elaborate. Unsurprisingly, one observation made in this column last week that is not subjected to challenge, relates to non prosecution of even the few perpetrators named by Justice Sansoni. This remains a fact that is important above all other considerations. While defences of individuals are all well and good, much has been lost to this country by persons in public life who have refused to acknowledge the wrongs done to victims through these inquiry processes. This, at least, has to change now.