The ACF Report: Unfolding
the Untold Story
By: Gomin Dayasri
Courtesy : The Island
North-eastern town of Muttur
A damning report has been issued by Action Contra Farm (ACF) a French
based NGO which employed the 17 workers who were killed in Mutur in
early August 2006 against Sri Lanka - titled "Muttur Massacre:
a Struggle for Justice". This is emblematic of reports originating
from some foreign funded NGO outfits which are packed with inspired
tales slanted with spin and swerve. The noteworthy characteristic is
the role played by the ACF before and after the death of the 17 workers.
Here is the unfolding of the untold story.
This article proposes to deal with extracts from the chapter titled
"Facts surrounding the Killing" in the ACF Report but does
not propose to deal presently with the other Chapters in the Report
as there is an ongoing inquiry and the recording of evidence before
a Commission of Inquiry which is a quasi judicial proceeding .However
the attacks launched on the Commission and the Attorney General will
be dealt briefly.
The writer together with S.L. Gunasekera has already placed articles
in the public realm (A) on the unbecoming conduct of the IIGEPs ( who
left Sri Lanka discrediting themselves after trying to discredit Sri
Lanka) (B) on the exercise by the Commission to seek financial contributions
from interested foreign embassies/agencies to video conferencing evidence
from abroad- which was disallowed due to the timely intervention by
the President as Sri Lanka provides the necessary funding on video conferencing
methodology proposed by the Commission was suspended and required to
be conducted according to the provision of the law consistent with the
admission of such evidence) and (C) on the presence of a inquirer(Commissioner)
who was a core staff member of a interested party appearing before the
Commission (who tendered his resignation before a ruling could be made
after tendering an explanation which was sought by the appointing authority-in
fairness to the Commissioner Nesiah no personal allegations were made
against him relating to his integrity ; the objection was purely on
a legal principle- that no man can be a judge in his own cause and the
likelihood of bias in the circumstances).
Now with the ACF publishing a report 'requesting an international investigation',
the time has dawned to unmask the ACF.
Background
Action Contra Farm(ACF) is a French based NGO which was present in
Sri Lanka attending to tsunami relief work and maintained a head office
situated in Colombo including a district office in Trincomalee and a
smaller unit office in Mutur. It was in the Mutur office premises that
17 workers attached to the ACF met with their death presumed to be in
the early hours of 4th of August 2006.They lived in the office premises
at Mutur due to the ongoing conflict..
Mutur town was in the control of the Government of Sri Lanka until
the night of the 1st of August when the LTTE after a comprehensive defeat
in nearby Mavil Aru launched an attack and gained control of the Mutur
town on the 2nd of August and held the town for several days until they
were ousted.
ACF sent 17 workers to Mutur who were found in their Mutur office when
the LTTE launched the assault on the night of the 1st of August. The
LTTE attack was launched initially at the Kattaparrichan Army camp away
from the Mutur Town on the road to Sampur which was under LTTE control,
at the Navy detachment at the Jetty away from the Town area and at the
Police station at the edge of the Town and the several police posts
situated in the town area. ACF office was in the centre of the Mutur
town.
ACF at the Commission
When the public sittings commenced on the 3rd of March 2006 before
the Commission, the Army marked its appearance through counsel Gomin
Dayasri; an Assistant of the IIGEPs Mr Urban a Queens Counsel made an
application for an adjournment on the basis that Mr Ratnavale the "presumed"
counsel for the ACF was not present and he was engaged in another case
in the Magistrate Court in Mutur and sought an adjournment of the proceedings.
The observations of the Commission were as follows;-
"Mr Chairman: Now Ratnavale did'nt make that application if he
said that he is not here today I am unable to be present he could have
done that, Mr Ratnavale has never appeared in this Commission.
Mr Urban:
That's true if he could be here then perhaps wouldn't need to abide
an adjournment but he is not here and certainly within the power and
discretion of the Commission perhaps due to the seriousness of this
nature to adjourn the matter until tomorrow when Mr Ratnavale can be
here"( extract from the proceedings)
This shows that ACF through lawyers or otherwise had not sought representation
before the Commission on the opening date of the public sittings but
the IIGEPs representative was seeking an adjournment on behalf of the
ACF. The foreign IIGEPs cannot, as independent observers, make applications
on behalf of ONE interested party if they are truly independent. Here
was an Assistant to the IIGEPs with or without instructions from the
ACF (which he failed to disclose) making an application on behalf of
the ACF, an interested party for an adjournment of the sittings of which
public notice was given by the Commission in daily newspapers. How did
Mr Urban know that ACF was to be represented by Mr Ratnavale unless
there were earlier communications between the ACF and IIGEPs and the
appearance by Mr Ratnavale on behalf of the ACF in the future before
the Commission, was known to Mr Urban? Mr Urban made no such application
on behalf of the Police who are an affected party which was known to
him on the recording of statements of witnesses before the Commission
under clause 8 since the IIGEPs were present at those sessions. This
reveals the conduct of the IIGEPS and their biased partial approach
towards the ACF and whether they were in fact truly independent as they
pretend to hold out?
This is further revealed in the observations of Commissioner Mr Javid
Yusuf at the sittings:
" Mr Yusof:
Mr Urban, now Mr Ratnavale has not appeared before us and as you said
that he is counsel for ACF, he may be counsel for ACF in Mutur case,
we don't know whether he has been retained by ACF to appear before the
Commission we have the practice that lawyers are retained for different
purposes, may be Mr Ratnavale if he was retained may have advised himself
that he does'nt have to be present today. Since you are making a submission
on behalf of Mr Ratnavale I don't see how the Commission can take cognizance
of that because you see merely on your interpretation if he{ should
read "we"} take action that we should put it off one of the
criticisms of the IIGEP is making about the Commission is that we are
delaying proceedings, now you are asking us to postpone on the belief
that Mr Ratnavale might want to appear before us we have no information
on that surely'. [extract from the proceedings]
MR Urban had to admit at this stage he is not making an application
on behalf of Mr Ratnavale. Since Mr Urban appears to be interested in
the ACF only, if he was a balanced unbiased impartial observer in terms
of international norms and standards as he sought to maintain, how did
he fail to make an application on behalf of other affected parties but
only in respect of the ACF?
"Mr Premaratne:
The international norms require the counsel who represent the client
present before the inquiry to make the application if necessary, he
has so far not made an application'[extract from the proceedings].
The next date was cancelled as Mr Bagwathie the Chairman of the IIGEPs
sought a meeting with the Commission for that date and the counsel for
the ACF Mr Ratnavale marked his appearance for the ACF with junior counsel
Mr Samsudeen at the next date of sittings and the Commission rightly
recognized ACF as an interested party. Though even a junior counsel
was retained by the ACF he did not appear before the Commission on the
relevant date to make an application for an adjournment and Mr Urban
the IIGEP's Queens Counsel took upon himself to make an application
purportedly on behalf of the ACF. Surely if the senior Counsel was not
available, the junior counsel could make an application for an adjournment
if retained instead of Mr Urban. It appears from such conduct that the
IIGEPs and the ACF were on an orchestrated course of action with a common
objective
Contents in the Report
The report states " A fall back plan of moving the 17 staff members
to an internally displaced persons camp was also considered by the ACF,
however the stranded staff members told the ACF that it would not be
possible for them to leave the office due to constant shelling".
According to the evidence narrated by the relatives of the deceased,
the deceased were made captive in the office of the ACF with instructions
not to leave the office by their superiors in Trincomalee and the deceased
informed their relatives on the phone of their sad plight.
Evidence reveals(names withheld at the request of the Commission).A
relative of the deceased described the state of affairs in the Mutur
ACF office as narrated by his deceased relative on the phone and the
instructions given by the ACF office in Trincomalee to them-
"Food arrangements have been made by the office so we have no
problem about the food, they asked us not to leave the office because
if we leave the office it is difficult for them to trace us so we were
asked to stay in the office itself" [extract of the proceedings]
So though the ACF holds out in their report their staff at Mutur who
met with their death told them it would not be possible for them to
leave the office due to constant shelling. it was in fact the ACF who
held them captive at the Mutur office for their own convenience because
"they asked us not to leave the office because if we leave the
office it is difficult for them to trace us so we were asked to stay
in the office itself." [ previous extract highlighted]
Watch how the ACF is indulging in spin and swerve to safeguard themselves
from blame? For the easy convenience of the ACF officers of tracing
their employees notwithstanding the dangers of remaining in the office
of the ACF in Mutur, they insisted they remained in the office in Mutur
where they met with their unfortunate death. .However the ACF maintain
a false front in the Report not disclosing the truth which is revealed
in the evidence.
Furthermore there is evidence of the relative of the deceased on what
their dead relative told on the phone-"He said that they were frightened
to stay there" and explained the cause of the fear as " ...the
people had all evacuated the places so we were alone in the office"
[Extracts from the proceedings]. So notwithstanding the fears entertained
by the employees in Mutur the ACF compelled them to stay in the office
and then gave spin and swerve in the Report to misrepresent the facts
that the staff did not want to leave the office This is typical of the
standards maintained by the "double speak" of the so called
good Samaritans- the foreign NGOs when they submit reports adverse to
Sri Lanka.
When the workers sought permission from the ACF office to proceed to
refugee camps was refused by the ACF which operated from Trincomalee
by a newly arrived dark skinned French official by the name of Mr Komo
who was unaware of local situation as narrated by the relatives of the
deceased.
"At one stage he{ deceased} said that they were also thinking
of going to the Church for safety but they contacted the ACF Office
and when they asked the ACF Office they had replied back stating that
they should continue to stay in the office so that they will be collected
them and if they go out, leave the office, they will find it difficult
when they are scattered"[extract from the proceedings]It is obvious
spin and swerve when the ACF Report states the exact opposite to the
evidence on the record to save their skin to overcome their lapses of
negligence which led to the death of 17 workers. The report states
"however the stranded staff members told the ACF that it would
not be possible for them to leave the office due to constant shelling"
A relative of the deceased stated specifically
"Q. So what happened was that the ACF office in Trincomalee had
requested them to remain in the ACF office in Mutur rather than go to
a refugee camp?
A. Yes."[ extract from the proceedings]
It must be stated that people had died in refugee camps also.
The 17 workers were scared to remain in the office as the evidence
shows the hospital which was next to the ACF office was shelled by the
LTTE and the doctors and staff together with the patients deserted the
Mutur hospital immediately through fear. ACF office was next door to
the hospital.
There is evidence on record that all those in the refugee camps were
shepherded to safety from Mutur by Muslim prelates, Christian priests
and high public officials to Kantalai and Trincomalee in the vehicles
of the International Red Cross and a tractor from the Church.and on
foot. Neither the Forces nor the LTTE disturbed any person fleeing Mutur
and according to the evidence all those who left Mutur reached safe
sanctuaries. However it is in evidence there was a Land Rover and two
cabs in the ACF office with 3 drivers (who died) in the office of the
ACF in Mutur at the relevant time without being used to take the 17
workers to safety. Why did ACF not use these vehicles with drivers in
attendance to move their workers to safe ground? There was transport
moving on the streets of Mutur during the period according to evidence,
even bicycles and motorcycles.
"Q. You said already in your evidence that it is the ACF office
who had instructed them to remain in the office without going to any
refugee camp because there was difficulty in collecting them?
A. Yes.'[extract from the proceedings]
The obvious negligence or lack of duty of care is on the part of the
ACF but more disgusting aspect is the attempt to cover their tracks
and shift the blame on all others especially Sri Lanka as revealed in
the Report by the foreign NGO.
The cat is out of the bag in the Report. These were decisions taken
by the ACF in Colombo and Paris. As the report states
"A decision was taken in Colombo and the Paris to request all
staff members to remain in the ACF office until the fighting ceased"
Probably as testified by the relatives of the deceased it is to enable
an easy pick up of the employees for the easy collection and the inconvenience
for the ACF if they were scattered in several refugee camps to collect
them-so a decision was made in Colombo and Paris with or without wisdom
to the detriment of the deceased workers to confne them to the office
in Mutur. As testified by a relative of the deceased
"Foreigners will not have that opportunity for seeing the incidents,
it is only the local people will know what is happening". [ extract
from the proceedings]
Disappearance of the ACF
The disappearance of the ACF from the sittings of the Commission was
more bizarre than their appearance. After the relatives and friends
of the deceased gave unfavorable evidence against the ACF on 7th April
2008 Mr Ratnavale declared he is no longer appearing for the ACF as
the ACF had ceased all operation in Sri Lanka and ACF informed him they
will not be taking any further part in the proceedings.
" Commissioner Mr Yusuf stated
So at the crucial time when the case is being inquired into we would
like to have
their presence. It is rather funny for them to leave at this point
of time.
Mr Ratnavale
The decision was taken by them and they stated the decision came from
the head office so I have no control over it. Mr Yusuf I know you are
not a party to that decision but it strikes me rather unusual when they
should be present to ensure this case is brought to its proper fruition.
Mr Ratnavale
That is so"
So agreed the former counsel of the ACF. Mr Ratnavale ceased to be
counsel for the ACF and remained as counsel for a relative of a deceased.
ACF came into the case on the application of the IIGEP Assistant Mr
Urban and deserted without tendering a reason to the Commission.. If
the ACF was interested in ascertaining the truth they would have remained
but the reason for their departure could be the adverse evidence that
was laid on their doorstep by the relatives of the deceased in their
testimonies. ACF could not face the Truth. They left at a time, when
material was surfacing on ACF's of lack of knowledge of the ground situation
in Mutur especially by their foreign staff who were making the decisions
on incorrect assessments, of stupid instructions given to their employees
in Mutur making them captive in the office at Mutur, of not using the
transport available to proceed to safety which reveals negligence and
the lack of due care. After acting irresponsibly ACF is now attempting
to shift the blame on others by submitting a distorted Report from abroad.
Role of the AG
The ACF report faults "the active participation of the AGs representatives
at the hearing of the Commission". There is no appearance for the
Attorney General at the Commission. The evidence is conducted by members
of the official and unofficial Bar as the Commission's selected panel
of counsel. It consists of Mr R.K.W. Goonesekera as the lead counsel
from the unofficial bar. A respected and eminent counsel, Mr Goonesekera
is also the Chairman of Law and Society Trust (as disclosed in their
letter head annexed to their written submissions) a party to the proceedings
on behalf of the Civil Societies who are watching the humanitarian interests
of the deceased. In fact it is an unusual feature, where such a "party
interested" is made a party to the proceedings, has its Chairman
as the lead counsel with the right to all the material and documentation
of the Commission. This demonstrates the so called transparency and
the tilt towards the interest of the parties of the civil societies
by the Commission. Counsel for the Commission, Mr R.K.W. Goonesekera
is featured in a dual role and can guide the Commission from his vantages
position for the civil societies as the chairman of a interested party.
Instead ACF focuses on the role played by the partners of the official
bar who are members of the Attorney Generals department but do not act
in such capacity at the Commission but assist the Commission as one
of the Lead Counsel. Human Rights groups have been conferred rights
not granted to other interested parties such as the Defense Forces at
the Commission. ACF blames only the Attorney General who finally has
to prosecute an offender. This displays the latitude granted to the
civil societies by the Commission which is a beneficial feature from
their point of view.
The Commission of Inquiry
Finally the ACF faults the Commission of Inquiry quoting extracts from
a report of the IIGEPs. It is ironical that the IIGEPs also left at
a time criticism was mounting against their own conduct which they failed
to answer. But the significance lies in the omission of the parting
words of the Chairman IIGEPs which the ACF conveniently forgot to mention
in their Report-
"...so far as the Commission is concerned it has been doing very
good work and the members of IIGEP have had the best of cooperation
from the Chairman and Members of
COI. I have no doubt that COI will continue to carry on its work with
zeal and dedication as it has been doing so far"
The value that the ACF attaches or any other should attach to the words
of Mr Bagawathie the Chairman of the IIGEPs is debateable but it reveals
that both the ACF or the IIGEPs do not tell the frank truth and take
contradictory and inconsistent positions and need to be exposed.
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