Journalistic Misrepresentations and the Failure to Correct - 11 April 2008

The following letter was sent to the Sunday Times in response to some inaccuracies concerning the government’s interactions with the International Commission of Jurists. Though the Sunday Times is generally balanced in its reportage, occasionally its allegiance to the opposition shows through. This has become more marked in recent weeks as with its most recent assertion that ‘And now, a Provincial Council election, set for May 10, will determine whether the new process in the East will take a turn for the worse or call a halt for good. The turn for the worse will be if the ruling United People’s Freedom Alliance, its ally the TMVP and now renegade Sri Lanka Muslim Congress (SLMC top runger) M L A M Hisbullah win the mandate of voters in the East’.

This is followed by an amusing attempt to suggest that the UNP/SLMC combine has the ‘blessings’ of India. Certainly the relentless efforts of the opposition propaganda units to argue that India is opposed to this government, and supports the opposition, may divert some readers, but it should be seen in the context of increasing disregard for facts in recent weeks, perhaps following on the unexpected triumph of democracy, which the opposition had inveighed against, in the local government elections in Batticaloa in early March.

The letter to the Times, which points out inaccuracies with regard to events in Geneva, seems to have been based on the claims of Mr Desmond Fernando, rather than those who actually interacted face to face with the Secretary General of the ICJ. The correction was sent because it was necessary to draw attention to the false position of the ICJ. Appended to the letter is an extract from the original letter, sent just after the meeting in Geneva, to the Chairman of the ICJ. It makes clear the position regarding the dubious pronouncements of the ICJ Secretary General, with whom Sri Lanka has now refused to deal, given his incapacity to acknowledge his mistakes, even when pointed out the by forensic expert on whose report he had built up a farrago of false allegations.

Correction letter sent to the Sunday Times, not printed
The Editor Sunday Times

Dear Sir

I write with reference to the recent article in the ‘Sunday Times’ which misrepresents several facts with regard to the ACF case that is now before the Presidential Commission of Inquiry. I hope therefore that you will give equal prominence to this letter.

Desmond Fernando’s intervention on behalf of ICJ

You have related the controversy over what Mr Desmond Fernando said at the CoI recently to a discussion with Minister Mahinda Samarasinghe ‘when the International Commission of Jurists (ICJ) had slammed the Government over the killing of the 17 aid workers, citing a report from an Australian forensic witness’. You claim that ‘the Australian forensic expert admitted that he was not a ballistic expert to give a definitive opinion on the matter. At that stage, Minister Samarasinghe had contacted Fernando, who was a one-time Vice President of the ICJ and asked him to seek a withdrawal of the allegations made against the Government by the ICJ. Fernando had then faxed ICJ to this effect, and Samarasinghe was given an appointment to see the ICJ Secretary-General Nick Howen in Geneva. At the meeting Howen refused to budge from his position, and asked for an “independent ballistic expert” to go into the matter’.

I have no idea who your informant was, but you have got the sequence and the substance completely wrong. The meeting with Mr Howen took place on September 5th, as one of several meetings with diplomats and Human Rights Organizations, in connection with the Human Rights Council sessions taking place that month. It had previously been pointed out to Mr Howen that his allegation of tampering with evidence, which he had based on the report of Dr Malcolm Dodd, was totally unwarranted, and that it should be withdrawn. Mr Howen accepted this position, though he now brought up the question of further inquiry. Minister Samarasinghe however said that he saw no point in discussing the matter further unless Mr Howen was prepared to apologize for a gratuitous unwarranted allegation, and terminated the discussion when the apology was not forthcoming. He made it clear that the Sri Lankan government would have no further dealings with ICJ until the allegation was withdrawn and regretted.

It was in that context that Mr Fernando, perhaps contacted by Mr Howen, called up the Minister in Geneva. He also spoke to me, having perhaps read my detailed refutation of the ICJ allegation, and agreed that it had been unwarranted and should be withdrawn. He also told me that there were procedural problems with the manner in which ICJ now issued statements, and these were not forwarded to the governing body initially for approval. He accepted that it was unfortunate that ICJ should be held responsible for a statement that it seemed Mr Howen had sent off on his own.

Sri Lanka refuses to deal with ICJ until it apologizes for deliberate distortion

It may be understandable that ICJ would not want to repudiate Mr Howen, since we know that most institutions stand by their employees in general, but I pointed out to Mr Fernando that this was a case of blatant falsehood, and that ICJ would have to choose between standing by its employee totally, ensuring an apology, or else terminating relations with the Government of Sri Lanka. He said he would do his best to settle the matter, but nothing further has transpired and we have not met with ICJ since.

I have no idea what was said during Mr Fernando’s conversation with Minister Samarasinghe, but I should note that, despite Mr Howens’ attempt to insinuate that he would talk only to Minister Samarasinghe and not to me, the Minister was categorical in his refusal to discuss matters further unless an apology was forthcoming. There could have been no question of his seeking Mr Fernando’s help, since it was Mr Fernando who called him, doubtless to seek his intervention in restoring relations with the ICJ, and it was the Minister who asked him to speak to me on the subject, since I had carefully studied the ICJ statement and shown clearly that it was replete with falsehoods and inappropriate allegations also against the Sri Lankan forces.

I believe therefore that your assertion, that Mr Fernando finally said, ‘There was no talk about who the killers were’, seems correct, and whatever Mr Fernando may have loosely said earlier should not have been said. Hence his decision to excuse himself from the hearings in this case seems a correct one. Though Mr Fernando’s current political leanings are unfortunate, I should note that he did yeoman service in developing ICJ interest in Sri Lanka, when that organization was more professional, and when there were hardly and defenders of human rights in this country, during the eighties. It is to be hoped that, given his comments on the manner in which ICJ proceeds now, he will do his best to bring it back to its senses, so that the initially fruitful association between it and this country can be resumed.

I should conclude by noting that your account seems to suggest a Government desperate for approval, seeking support from individuals such as Desmond Fernando and Nicholas Howen. Nothing could be further from the truth. The Government was quite secure in its belief that there had been no tampering with evidence, and while Dr Dodd’s subsequent report in which he categorically dissociated himself from the ICJ allegation was most welcome, the position vis-à-vis an adventurer like Nicholas Howen had been made abundantly clear from the start.

Certainly discussion with a formerly respected individual such as Desmond Fernando is always welcome, and by now recusing himself from the inquiry he has made up for the report of what he was said to have claimed earlier at the Inquiry. Let me add in this respect that, interesting though your political column is, it would benefit from a greater awareness of Government positions, and less insinuation that the Government is necessarily on the defensive. Your account of Liam Fox’s visit would certainly benefit from another perspective, but doubtless you will return to this subject and the general British approach to Sri Lanka at another time, if you think it is of sufficient interest.

Yours sincerely

Prof Rajiva Wijesinha

Secretary-General

Secretariat for Coordinating the Peace Process

Extract from letter sent to the ICJ Chairman following a meeting with Mr Howen in Geneva on 5th September 2007
Dear Justice Chaskalson

I am writing in response to a letter from Mr Nicholas Howen, dated 5th September, and handed to me on that day in Geneva, in response to my letter to you of August 13th. I gather that that letter, and my previous correspondence to you to which Mr Howen had previously responded, were forwarded to you and that you asked Mr Howen to respond.

I am disappointed by this, since Mr Howen’s apparent misconduct was one of the points raised in my letter of August 13th. I realize that the head of an institute sometimes has to rely on a full time executive but, particularly after Mr Howen’s conduct when he met with a delegation led by our Minister of Disaster Management and Human Rights on September 5th, I believe the matter should be discussed by at least the Executive Committee of the ICJ. Mr Desmond Fernando, a pillar of the ICJ who contributed to your significant involvement in human rights activities in Sri Lanka in the eighties, when the then government was not concerned about such matters, rang us after the meeting, and seemed disappointed with procedures now adopted by the ICJ which seemed to him to detract from its objectivity. Perhaps you and senior members of the institution could discuss this with him, since it would be a pity if your vital contribution to Sri Lanka had to cease.

I say this because the Minister made it clear that Mr Howen’s attempt to put behind us, without any apology, his outrageous statements made on behalf of the ICJ in earlier releases, would not be tolerated. If Mr Howen is not gentleman enough, or indeed man enough, to admit a mistake, the Sri Lankan government will not be able to deal with your hitherto highly respected institution.

Mr Howen’s response was to indicate that there would be greater pressures if the matter was not allowed to rest. This came across as a threat, though I would assume that the ICJ itself is above such bullying behaviour. It would help however if you could assure us that such a threat was not intended by the ICJ.

Another matter on which Mr Howen indicated his immaturity were his attempts to belittle Dr Dodd, on whose report he and Mr Michael Birnbaum QC had developed their argument that there was evidence of tampering on the part of Sri Lankan officials.