by Senaka Weeraratna Attorney – at – Law

The term ‘Bias’ is defined as an inclination of temperament or outlook to present or hold a partial perspective and a refusal to even consider the possible merits of alternative points of view. An individual may be biased towards or against another individual, a race, a religion, a social class, or a political party. Being Biased connotes being one-sided, lacking a neutral viewpoint, and not having an open mind. Bias arises in many forms and shapes and is generally treated as synonymous with prejudice or bigotry.

Bias and Conflict of Interest

The current High Commissioner of the United Nations Human Rights Commissioner (UNHRC) Ms. Navi Pillai has been accused of racial bias and conflict of interest in respect to her handling of the allegations on human rights violations relating to Sri Lanka.

Ms Navi Pillay is a South African of Indian Tamil origin. Race is a critical issue in this conflict which has been painted as an ethnic conflict between the Sinhalese and Tamils. An UNHRC sponsored investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka would require such an investigation, in the interest of fair play and justice, to be conducted by a third party unrelated to either of the two parties in conflict.  The neutrality of the party conducting the investigation is sine quo non (an indispensable or essential condition) in such a process.

The question has been raised whether Ms. Navi Pillai having emotional, genetic and ethnic ties being an ethnic Tamil with roots in Tamil Nadu, India (her Tamil grandparents had migrated as part of indentured labour from Tamilnadu to South Africa sponsored by the then British colonial Government in the early part of the 20^th century) can function evenhandedly, and in an unprejudiced and unbiased manner and be emotionally detached and act impartially in an investigation where her race and the manner in which the Human Rights of members of her race are alleged to have been violated are the primary issues in the probe.

Ms. Navi Pillai’s recent pronouncements and her own conduct vis a vis Sri Lanka while being at UNHRC and on her visit to Sri Lanka in 2013 provide much cause for worry not only to people of Sri Lanka but to all right thinking people in any part of the globe who have an interest in the moral credibility of the UNHRC and the integrity and uprightness of its High Commissioner.

The Influence of the Inquisition on the UNHRC

“Not only must Justice be done; it must also be seen to be done”. is no doubt a hackneyed phrase but it is still relevant particularly in the context of an investigation on human rights abuses in Sri Lanka. If it is going to be conducted on the lines of an Inquisition as has happened in Europe over a period of 600 years where a mere accusation was sufficient to establish guilt with the High Commissioner playing the role of a Grand Inquisitor, it will certainly revive memories of some of the most evil people in history such as Tom¡s de Torquemada, a 15th-century Spanish Dominican friar and the first Grand Inquisitor in Spain’s campaign to achieve religious orthodoxy and rid the country of heresy.   Torquemada sent thousands of innocent people to their deaths by conducting fake trials.  He died in 1498.

His tomb was ransacked in 1832””two years before the Spanish Inquisition was disbanded. His bones were stolen and ritually incinerated as though an auto – da – fe (an execution by burning at the stake) took place. Such was the revulsion of the people of Spain towards the Inquisition which was a huge crime against humanity committed by both the Church and State acting together.

The Inquisition spread Terror throughout Christian Europe. Its victims were mostly Jews, Muslims and those who had the moral courage to challenge the dogma or religious orthodoxy of the Church. They included prominent philosophers and scientists e.g. Giordano Bruno (a martyr of science burnt at the stake) and Galileo Galilei who played a major role in the scientific revolution but was punished nevertheless by the Church for holding the scientific view that earth revolved around the sun rather than vice – versa.  The Inquisition also led to a serious questioning of the role of the Church and State in society. In Fyodor Dostoyevsky’s novel ‘The Brothers Karamazov’ (1879–1880), the ‘The Grand Inquisitor’ is used as a parable.  It is a significant part of the novel and one of the most cherished passages in Western classical literature because of its ideas about human nature and freedom, and its fundamental ambiguity.

 Recusal

 Judicial disqualification, also referred to as recusal, refers to the act of abstaining from participation in an official action such as a legal proceeding or an investigation due to a conflict of interest of the Judge or investigating officer.  The underlying rationale of recusal is that the judge or investigating officer must be free from disabling conflicts of interest as it makes the fairness of the proceedings or investigation less likely to be questioned.

Even a first year law student knows that if a Judge or Commissioner realizes that he or she cannot look at a case or matter at hand dispassionately the correct thing to do in such an event is to withdraw and arrange for a totally neutral person to take over. Judges, investigators or anyone else acting in a quasi – judicial capacity are expected to recuse themselves from cases where bias or personal conflict of interest may arise.

Using the analogy in International cricket we know that a Test cricket match between two countries is always refereed by Umpires selected from a Third country.  This is not to say that well trained International umpires are not neutral.  All umpires are expected to be neutral. But the appearance of ‘ free of bias’ is as important as being free of bias.

High Commissioner Navi Pillai fails this very important test of natural justice in her role as an UNHRC Official investigating Human Rights abuses in Sri Lanka.

Moral Obligation of the High Commissioner

Ms. Navi Pillai is morally obliged to withdraw from any dealings with and in relation to Sri Lanka. Her failure to perform this ethical and professional obligation as a legally trained person who has once acted as a Judge of the International Criminal Court (ICC) is tantamount to serious misconduct or impropriety and contempt for justice.  A conflict of interest exists even if no unethical improper act results. A conflict of interest in the person handling an inquiry (a quasi- judicial role) can create an appearance of impropriety that can undermine public confidence in the objectivity or neutrality of the investigation or inquiry.

It appears that Ms. Pillai is unsuited to function in any role where Sri Lanka is concerned or for that matter any issue relating to India given the strident nature of Tamil Nadu calls for separatism and establishment of a greater sovereign Tamil nation through a balkanization of India with support from Western countries and with major parts of Sri Lanka annexed to it.

Senaka Weeraratna