Sir Desmond de Silva QC had a big

catch in the troubled waters!

Sir Desmond de Silva must have been very well aware of the public
criticism of Mahinda
Rajapakse to the extent of being branded as an authoritarian by none other
the former head of the UNHCR Mrs Navi Pillai. He could not foresee that his
report will be relevant to the efforts of the UNHCR. His engagement has
fattened his purse with irreparable reputational damage to him, discredit to
his legal profession and thus compounding the pains of victims of the war.
His effort proves to be a heartless crusade to earn wealth.
by Rajasingham Jayadevan
References/Quotes:
( April 27, 2-15, London, Sri Lanka Guardian) The Rt Hon Sir Desmond de Silva PC
QC is head of Argents International Law team and is one of this countrys leading
criminal Queens Counsel. He has particular expertise in Fraud (both national and
international), Business Crime, Extradition, Human Rights, Kidnap & Blackmail, Large
Scale Importation of Drugs, Money Laundering, Murder, Tax & VAT Fraud and
Terrorism. The high standing in which he is held as a lawyer has been underlined by
the honour of a Knighthood that was conferred upon him in the New Year Honours of
2007. Regarded as a superb tactician and a powerful and penetrating cross-examiner
who gets to the heart of the matter, he is also known as a great jury advocate for his
persuasive skills. Known as one of the most successful defence counsel in serious
criminal cases of the kind referred to above, he has also attracted national sporting
personalities who have come to him when facing grave offences. (Argent Chambers)
Sir Desmond de Silva, QC Sterling Pounds 407,336.00 or Rs. 85,550,666.37. Thus
he has been paid a total of exactly Sterling Pounds 764,672 or over Rs. 164 million (or
precisely Rs. 164,705,357.50) so far. Sir Geoffrey Nice, QC and Lady Nice Sterling
Pounds 86,358 or Rs. 18,060,558.98. Thus, he has been paid a total of Sterling
Pounds 122,358 or Rs. 25,697,251.08 so far.David M. Crane US$ 67,500 or Rs

8,796,799. Thus, he has been paid a total of US$ 127,500 or Rs. 16,611,060.50.
The payments revealed today appear to be only a fraction of what has been found out
so far. The fuller magnitude of the expenditure, which would have been enough to
build houses for hundreds, install electricity schemes for villages, provide medical
assistance to the North, or to build and equip a few schools, will unfold only when
investigations now under way are complete. Even the few disclosures today raise a
number of important questions. The role of foreign advisers and eminent persons, in
their own way, remains an important question. Since they did not sit at the sessions of
the Disappearances Commission, and visited the one time battle areas on their own,
were they involved in a process of formulating their own report to counter the one due
at the UN Human Rights Council next month?
Is that effort credible and worth more Rs. 400 million that has already been spent on
the exercise and more large amounts surfacing as the investigations continue? Was
such a project formulated after careful study of its acceptability by the international
community, more so since public funds are involved? This was particularly at a time
when living costs soared and the public were deprived of relief during the previous
UPFA regime. To make matters worse, would the present Government accept any
report prepared by the foreign advisors hired at great cost? This is particularly in the
light of the new Governments position that it is in favour of a credible domestic
mechanism to conduct a probe. Quite clearly, in its efforts to re-build credibility abroad
for Sri Lanka, the Government will not want the international community to believe in
the previous governments efforts to pay colossal amounts of money and obtain a
report seemingly to its advantage? Even to the most dim-witted, it is clear; it would
pose issues of credibility. Sunday Times Sunday, February 15, 2015.
The skeletons are quickly coming out of the Central Bank (CB) cupboard with news of
another high profile contract involving a well-known barrister from the UK with Sri
Lankan roots. Sir Desmond de Silva, QC, the Sunday Times reliably learns, was paid
a fee of UK sterling pounds 60,000 per month (about Rs.12 million) to prepare a
strategy for the regulator on how to counter human rights issues against Sri Lanka.
(Sri Lanka Brief)
From the outset, Sri Lankas Presidential Commission on Missing Persons has been
beset by controversy. We have previously written about our concern that it is little more
than an attempt to undermine international attempts for accountability via a discredited
mechanism containing inherent conflicts of interest. Since the demise of the
Rajapaksa regime there have been further revelations, with the Sunday Times alleging
that the Commissions lead international legal advisor, Sir Desmond de Silva, was paid
a salary of around 60,000 per month. Subsequent allegations suggest that payments
to Sir Desmond, the others five international legal advisors (David Crane, Geoffrey
Nice, Avdhash Kaushal, Ahmer B Soofi, and Motoo Noguchi) and another British QC
(Rodney Dixon) totalled around 660,000. Sri Lanka Campaign.
Based on my instructions, my analysis of the relevant law, from the factual matrix
made available to me and other research, my opinion is that the great mass of civilian

deaths which occurred in the final stage of the conflict were regrettable but..
permissible collateral damage. It was occasioned in the process of the security forces
fighting to overwhelm and defeat the LTTE who had taken hostages in such large
numbers. that this may well be considered to be one of the largest hostage takings in
history The human stakes were colossal considering that the hostages were being
murdered if they had tried to escape. The end result of saving some 290,000 hostage
lives and the defeat of the ruthless LTTE were legitimate military and humanitarian
objectives and the collateral damage was not disproportionate to the military
advantage and was wholly consistent with the humanitarian imperatives that prevailed
at that grim time. (Conclusion Sir Desmond De Silvas report)
I state with responsibility that Sir Desmond de Silva was previously retained by the
then Government of Sri Lanka to provide it with an opinion with respect to the legality
of the conduct of the Government forces during the last stages of the war. On
23rdFebruary, 2014, five months before he was appointed by former President
Mahinda Rajapaksa to chair the Advisory Council to the Commission, he provided his
client the Government with a legal opinion stating: Based on my instructions, my
analysis of the relevant law, from the factual matrix made available to me and other
research, my opinion is that great mass of civilian deaths which occurred in the final
stage of the conflict were regrettable, but permissible collateral damage.
Sir, this is the most serious matter. What this means is that when Sir Desmond de
Silva was appointed as Chair of the Advisory Council to the Commission of Inquiry a
Commission under our law is supposed to function independently and impartially Sir
Desmond de Silva had already come to a conclusion on, at least, some of the
questions the Commission he was asked to advise, was mandated to investigate and
had communicated this position to the Government of Sri Lanka. In other words, the
Government appointed a person who it already knew, had formed an opinion on the
question to be investigated by the Commission, to advise that Commission. What
then, is the independence of this Commission? In fact, the framing of the expanded
mandate of the Commission suggests that the questions may have even been drafted,
based on the opinion provided by Sir Desmond de Silva. This is the most perversion of
justice and I demand that the new Government immediately constitute an investigation
into the conduct of Sir Desmond de Silva and the previous Government, in conspiring
to undermine the independence of the Commission of Inquiry. I also demand that His
Excellency the President immediately rescind Sir Desmond de Silvas appointment to
the Advisory Council as a matter of urgency in order to secure the Rule of Law and
Good Governance.
But, that is not the end of the matter. Sir Desmond de Silva was clearly retained by
the Government prior to his providing the Government with the opinion on
23rdFebruary, 2014. There was, therefore, an attorney-client relationship between Sir
Desmond de Silva and the Government on questions of liability pertaining to loss of
civilian life during the last stages of the war. It was in the context of this prevailing
relationship that Sir Desmond de Silva was appointed to chair an Advisory Council to a
supposedly independent Commission that would inquire into the guilt or otherwise of

the Members of the Government his client. This is a clear case of blatant conflict of
interest and on this count too, I demand that the new Government of Sri Lanka, not
only immediately rescind Sir Desmond de Silvas appointment but also forward a
complaint to the Bar Standards Board of the United Kingdom against Sir Desmond de
Silvas patent professional misconduct. I also urge other interested parties to do the
same. This behaviour must not be tolerated by this country or by the Bar of which Sir
Desmond de Silva is a Member. What then of the Commission of Inquiry that has been
stripped of any independence in this way? I do not understand why the Government
continues to let this Commission of Inquiry to function. I propose that the existing
Commission be discontinued for it is too flawed for any good to come of it. Instead, I
propose that a fresh investigation with real investigative powers be constituted to
actively seek out the fate of the disappeared. The complaints and proceedings of the
Paranagama Commission can be used by this new investigation, if necessary. That
body should have the power to search, seize and even detain, if necessary. They
should be mandated with bringing victims, sons and fathers, back. M A Sumanthiran
MP in the National State Assembly.
A case to answer
Mr Sumanthiran has articulated his claims very well. Neither the government nor Hon
Desmond de Silva have so far countered or responded to his well thought arguments.
So far, there is no official inquiry into the dealings with Hon Desmond de Silva & Co by
the new government.
Sunday Times and Mr Sumanthirans findings have revealed the extent of the conflict
of interest and the lack of cost consideration in engaging Desmond de Silva. Has such
a costly biased report improved the status of Sri Lanka on the war crimes issues
internationally? This meaningless report has been done and dusted upon its release
as no one considered it seriously so far.
Hon Desmond de Silva QC, who undertook the The Report of the Patrick Finuance
Review for the UK government in 2012 on the murder of Patrick Finuance by the
paramilitary group of the Ulster Defence Association (UDA) in 1989, specifically
addressed his report to the House of Commons. But he could not see the necessity to
be transparent and impartial when acting for the government of Sri Lanka. No one
knows what his terms of reference are and the charge out rate being applied by him.
Though Sri Lanka is not a signatory to the 2002 Rome Statute to prosecute individuals
for serious war crimes, it is a signatory to the Geneva conventions on war crimes. In
his findings, he did not relate the Geneva Convention and the responsibility of the
government on the accountability issues that the Rajapakse government was
attempting to hide in a devious manner.
Such a shallow and partisan finding of the QC only proves that he too has stretched
beyond his professional repute to cash in from the troubles in Sri Lanka. It is a big haul
for him from the pains and tears of the war victims.
The central issue is, who is answerable to such a colossal sum of payment to Sir
Desmond de Silva QC. Was his conflict of interest assessed by anyone or even by the

Attorney Generals department of Sri Lanka? Why did he act in a secret manner and
was paid discretely for such an onerous task? Why didnt he reject the tempting
financial reward to uphold his professional standing? A conflict of interest is a set of
circumstances that creates a risk that professional judgment or actions regarding a
primary interest will be unduly influenced by a secondary interest. The definition
originally appeared in Thompson (1993) and a person of such standing, by negating
this principle, decided to undertake the engagement to bolster the confrontational
Rajapakse regime.
Chapter 3 on Conflicts of interests of the Solicitors Regulation deals with the
proper handling of conflicts of interests, which is a critical public protection. It is
important to have in place systems that enable ..to identify and deal with potential
conflicts. Conflicts of interests can arise between: you and current clients (own
interest conflict); and You can never act where there is a conflict, or a significant
risk of conflict, between you and your client. If there is a conflict.you must not act for
. unless the matter falls within the scope of the limited exceptions . The advice
further states: you do not act if there is an own interest conflict or a significant risk of
an own interest conflict; and that you do not act if there is a client conflict, or a
significant risk of a client conflict. Will Desmond De Silva QC counter this guideline
that there was no own interest conflict in his engagement with the Mahinda
government?
A report of public interest is produced in utter secrecy without disclosing the remit of
such engagement. Production of the report and payment of fees was not debated in
the parliament and there is no knowledge of any such decisions made at any cabinet
meetings. There is even no clear evidence who was responsible for the payment of the
fees and one of the news stated: The skeletons are quickly coming out of the Central
Bank (CB) cupboard with news of another high profile contract involving a well-known
barrister from the UK with Sri Lankan roots. If this is true, what is the level of
engagement of the former Central Bank Governor Ajith Navrall who himself has
outstepped his remit to extend the hostile foreign policy of the Rajapakse regime?
The opposition too was not made aware of the deal involved in engaging Sir Desmond
de Silva and to this date, even after the change of government, the true facts of his
engagement are not revealed. In a democratic country, the opposition too is a
stakeholder to dissect any issues publicly but unfortunately such a disingenuous
contract found its way through without any public outcry.
Sir Desmond de Silva must have been very well aware of the public criticism of
Mahinda Rajapakse to the extent of being branded as an authoritarian by none other
the former head of the UNHCR Mrs Navi Pillai. He could not foresee that his report will
be relevant to the efforts of the UNHCR. His engagement has fattened his purse with
irreparable reputational damage to him, discredit to his legal profession and thus
compounding the pains of victims of the war. His effort proves to be a heartless
crusade to earn wealth.
It will be generous if Desmond de Silva views the recent Al Jazeera filming of the war

widows Sri Lanka: Widows of War Al Jazeera English and donate his questionable
income after deducting his reasonable disbursements to a reputable charity that could
help alleviate their sufferings. He will be the beneficiary of Gift Aid relief if it is paid
through a registered charity. He would be able to at least mitigate his reputational
damage with his farsighted magnanimity, instead of being clobbered into the
bandwagon of bonus rich and knighthood stripped former head of Royal Bank of
Scotland Fred Goodwin.
Posted by Thavam