JDSLanka

Witness as Investigator: Conflict of interest in Sri Lanka's OMP

By A Special Correspondent

The Association for Relatives of the Enforced Disappeared in Sri Lanka has complained of “glaring contradictions” in the composition of the Office of Missing Persons. In fact there is at least one glaring conflict of interest.

One of the newly appointed commissioners to investigate thousands of disappeared and missing in Sri Lanka was chief lawyer for the Army at the time many of the victims disappeared in its custody. At the very least the commissioner is both a witness and an investigator, a dual role prohibited by Sri Lanka’s rules of conduct and etiquette for lawyers.

Major General (ret) Mohanti Peiris was the chief lawyer (Director General Legal) for the Sri Lankan Army from 2007-10 when the bulk of the disappearances occurred [1]. Her job description  included [2]: preparing courts martial, suspending army personnel, preparing charges against them, and preparing the army commander’s opinion on courts of inquiry.

In February 2018, she was appointed as a Commissioner on the country’s new Office of Missing Persons. The OMP is mandated to “initiate an inquiry and/or investigation into the whereabouts and/or circumstances of disappearance of a missing person”. It also has to “collate data related to missing persons obtained by processes presently being carried out, or which were previously carried out, by other institutions, organizations, Government Departments and Commissions of Inquiry and Special Presidential Commission of Inquiry ”. (OMP Act)

The OMP has quite rightly said its priority case will be the hundreds of surrendees who disappeared in one day at the end of the war on 18th May 2009 in army custody.

A Witness

This means Maj. Gen. Mohanti Peiris should be called as a witness for the army, as its former lawyer, to testify as to whether this issue was previously investigated by the army, and if not, why not and who ordered it not to be investigated. Indeed she could have vital information about the existence of data the OMP is mandated to collate  – namely the surrender list which the 58 Division purportedly had and refused to hand over to a court.

It would not be the first time she would be called upon to play this role –the International Independent Group of Eminent Persons (IIGEP) cites her writing to the Commission investigating the ACF killings on 2 August 2007 to confirm this incident had NOT been investigated by her department [3].

Moreover, the former Army Commander, Sarath Fonseka, recently denied [4] that anyone disappeared on 18 May 2009 after surrender . Obviously Maj. Gen. Mohanti Peiris is not responsible for his current views but both she and Field Marshall Fonseka should be called to testify to OMP about where his information comes from and whether it is based on legal advice previously given by Mohanti Peiris. This would put her in an untenable position as a Commissioner.

Conflict of Interest

Sri Lanka’s Supreme Court prohibits any lawyer from acting in a conflict of interest and from acting in any matter where the lawyer has reason to believe he or she would be required as a witness. [5]

Maj Gen Mohanti Peiris has to be questioned as to whether she investigated, influenced or failed to investigate these cases while the most senior lawyer for the Army. It is not a question of whether Maj Gen Mohanti Peiris has been compromised by any past decision she made. Whatever her personal integrity, she held a position in the past that makes her current role untenable.

Answering written questions from JDS she said, “My service in the Army will not in anyway affect or hinder the performance of my duties in the capacity of a Commissioner of the OMP, which I intend to do independently to the best of my ability, without any fear or favour”. Trying your best to be independent is not an adequate response to an appearance of conflict of interest.

The chair of the OMP, Saliya Peiris, was asked to comment on this conflict of interest and has not replied.

Gotabaya Rajapaksa

A Wikileaks telex indicated former defence secretary Gotayaba Rajapaksa wished to send Maj Gen Mohtani Peiris to Washington at the height of the war in 2008 “to share information with USG officials on GSL efforts to bring human rights violators to justice…” [6]. Mohanti Peiris should be asked to testify about whether she agreed to go to the USA for Gotabaya Rajapaksa and what were those efforts to bring human rights violators to justice and whether any of them involved disappearance cases, which is likely given disappearances peaked at this time.

OISL Disappearance Allegations

The OHCHR investigation into Sri Lanka cites numerous specific cases in which the Sri Lankan army is referenced in relation to disappearance cases. As DG Legal at the time of these incidents, Maj Gen Mohanti Peiris will need to testify regarding what OISL said about these cases.

War Conduct

As DG Legal for many years, Maj Gen Mohanti Peiris also has to testify regarding the conduct of war in East and the North, including enforced disappearances, the army-run “rehabilitation” camps described by ICJ as mass arbitrary detention – and from which several people disappeared, as well as the “IDP camps” that interned all war survivors and from which several people disappeared.☐

© JDS

Notes:

1. Director General Legal: 1 Jan 2007- end 2010.
Director Humanitarian Law and Human Rights: 1 Jan 2005- 3 May 2007.
Directorate of Legal services, Director Legal – Jan 2004-Dec2004.
[source: army aannual performance reports to parliament].
2. As outlined in annual performance reports to parliament from the Sri Lankan Army.
3. FOOTNOTE 62: Letter to the Commission from M.A.M. Peiris, Major General, dated 2 August 2007).  This is with reference to Case 2 – the ACF case.
4. Fonseka - "During the last two weeks of the war, we had a good system where we had beautiful arrangements. I am 100 percent sure incidents of this nature never took place. People being taken in busloads and never returning - that is definitely an exaggerated story," he says.
5. P 31 IIGEP Report, Rule 8 and 12, Supreme Court (Conduct of and Etiquette for Attorneys-at-Law) Rules (1988).
6. Wikileaks 11 March 2008  - Gotabaya asked “if Army Legal Director Maj Gen Mohanti Peiris, a Tamil and the highest ranking woman in the Army, could visit Washington to share information with USG officials on GSL efforts to bring human rights violators to justice… Action request: Mission would appreciate guidance on whether a visit can be arranged for MajGen Peiris within the next two or three weeks. Post notes that Peiris is in charge of our ongoing human rights judicial exchange with the Sri Lankan military, and her visit would be an excellent opportunity to touch base on the next steps on DILS training. Mission would plan to meet with her first, prior to any Washington visit”.