Supreme Court states that it is aware of the powers vested in it by the constitution

Friday, 30 November 2012 - 01:16 PM

 

The Supreme Court today declared today that it was fully aware of the
powers vested in it by the countries constitution.

The observation in this regard was made during courts arbitration
regarding the parliamentary select committee appointed to investigate
the impeachment motion filed against the chief justice.

The Supreme Court also noted that its actions were well within the demarcations
of its constitutional endowments.

5 petitions requesting of the Supreme Court to issue a writ order
against the PSC are currently being considered before a trial at bar
comprising of justices
Nimal Gamini Amarathunga, K. Shripawan & Priyasad Depp.

Notice was issued to the respondents cited in three of these petitions
when they were taken up before the Supreme Court on a previous
occasion.

Accordingly Leader of the House Nimal Siripala De Silva speaking in
parliament yesterday noted that the speaker as well as the members of
the PSC had been issued notice.

None of the respondents or attorneys representing them were present in
court today.

Lawyers appearing on behalf of the petitioners however presented the
speakers ruling which was issued in parliament yesterday in this
regard.

In his ruling yesterday, Speaker Chamal Rajapaksa noted that no
external institution could notify, order or direct Parliament.

Taking the facts presented before it to consideration the Supreme
Court directed the Attorney General to issue written submissions
pertaining to the matter within 14 days, commencing from the 26th of
this month.

Accordingly the petitions will be recalled before court on the 13th &
14th of this month.

Attorney at law Krishmal Warnakulasuriya appearing on behalf of the petitioners expressed the following views to our news team regarding the day’s court proceedings.

Rift between Judiciary and Parliament ignites as Speaker , the President’s brother allegedly acts partially

(Lanka-e-News -29.Nov.2012, 11.50PM) The elder brother of the President Chamal Rajapakse an erstwhile Policeman and present speaker of Parliament today announced to the Select Committee hearing the impeachment motion appointed by himself and his (br)other self to reject the notice issued by the Supreme court (SC).

The Speaker’s announcement this afternoon on the impeachment motion inquiry constituted a gross betrayal of the confidence of the entire nation and undermined the sacrosanct judiciary of the country to which every individual including the highest in the hierarchy must bow down. The speaker while expressing his view rejected the notice issued by the SC yesterday directing the members of the Select Committee inquiring into the impeachment motion to appear in court following the hearing of a petition filed by the SL Bar Association and a group in the SC . In the petition it was clearly stated that the controversial Speaker is himself a respondent as the Select Committee that is not eligible to inquire was appointed by the Speaker. The petition further made it abundantly clear that since the Select Committee has no powers of a judicial court , it is an unlawful Committee. 
When the Parliamentarians expressed their opinions today , it was the view of the opposition leader that though the Select Committee has no judicial powers , he concurs in the view that was expressed by a former speaker Anura Bandaranaike. After the Govt. and opposition Parliamentarians discussed this issue for over two hours , the speaker made his bizarre announcement . The opposition leader became notorious when he agreed with the view of the Govt . on this issue imperiling the judiciary and the entire nation’s interests.

A legal luminary speaking on this subject said , the basic truth pertaining to this issue must be crystal clear to the people. Since the President himself takes his oath before the chief Justice (CJ) , he by swearing before the CJ is bowing to the judiciary, and is expected to respect the law.
Therefore neither the speaker nor the members appointed to the Select Committee can take the law into their hands.
Though the Parliament legislates it is the judiciary that holds the highest position in the implementation of the laws. It is the duty of all irrespective of their positions to bow to the laws that are legislated , and those who do not are bestial and they naturally will respect jungle laws .It is very unfortunate that because of the Rajapakse family ‘s maniacal obsession with power greed and its perpetuation , they are hell bent on subjugating the judiciary at any cost , but it is the entire nation that has to pay a heavy price for the devastation of justice and the rule of law wrought by this demonic family, he bemoaned.

Impeachment And Dilemma Of Independent Judiciary

By Kamal Nissanka -November 30, 2012

Kamal Nissanka

If my recollection is correct from Sir Edmund Codrington Carrington the first Chief Justice of Ceylon (maritime areas) to the Hon Dr (Mrs.)Shirani Bandaranayake there had been 43 chief justices in Ceylon and Sri Lanka. After the introduction of the 1978 Republican Constitution the judiciary was under eight Chief Justices beginning from Hon Mr.Neville Samarakoon to incumbent Dr (Mrs.). Shirani Bandaranayake. Out of eight Chief Justices three were destined to face impeachments. It is noted that Impeachment motions of both Hon Mr. Samarakonn and Hon.Dr (Mrs)Bandaranayake were initiated by the respective governing parties in the parliament  of the day under  the tenure  of respective Presidents. The two impeachment motions against   former Chief Justice Mr.Sarath Nanda Silva were initiated by then governing United National Party (UNP) government without the blessings of the President Mrs.Chandrika Kumaratunga. Mr. Silva was lucky to evade from the impeachments firstly as a result of proroguing the parliament and secondly by dissolution of the parliament by Mrs Kumaratunga. According to Sunday Leader of 28th September 2008 in an article written by  Ms. Sonali Samarasinghe (MR gets set to battle the judiciary as war takes its toll on IDP)an attempt had been taken to impeach Hon  Mr.Saleem Marzoof,  a  judge  of  the  present  Supreme Court  against a  comment made by him on non implementation of 17^th amendment to the constitution.(17^th amendment to the constitution is repealed now)

So, under this 1978 constitution as at present isn’t that there is a chance of 37.5 percent for a Chief Justice to be impeached?  If this is so, it is a grave situation and I must suggest that this unfortunate occurrence should be a deep concern to all honorable judges in Sri Lanka specially the superior court judges. In scrutinizing the   manner of appointments of these three judges who faced or facing impeachment one salient feature that could be clearly identified is that all three were not carrier judges.  For some reasons , late Mr.J.R. Jayawardene ,  former President ,founder of the 1978 constitution had relied and trusted  on  Mr. Samarakoon ,a  respected lawyer among the legal fraternity but  who at a crucial stage of the understanding of the  present constitution  felt that  the judiciary in Sri Lanka was not independent  as same as  under the Soulbury  Constitution. Further he clearly understood that the president of the day, his personal friend was marching expressly towards authoritarianism under the blessings of his draconian constitution. A man of principles and much respected Chief Justice Mr.  Neville Samarakoon courageously faced the proceedings of “Standing Orders” which were solely framed to trial him under the direction of his estranged friend, Mr. J.R.Jayawardene. (Similar to the Criminal Justice Commission that was formed to try Mr. Rohana Wijeweera in 1971 or 1972)                        Read More

Palestinian UN vote will hurt peace, says Israel's Regev Continue reading the main story Mark Regev: "This is negative political theatre because it takes us out of a negotiating process" Israel says a vote upgrading the Palestinian status at the United Nations is "negative political theatre" that will "hurt peace".30 November 2012 Government spokesman Mark Regev said the move had taken Palestinians and Israelis out of a negotiating process. The General Assembly voted resoundingly to recognise the Palestinians as a non-member observer state on Thursday. The Palestinians can now take part in UN debates and potentially join bodies like the International Criminal Court. Palestinian President Mahmoud Abbas said it was the "last chance to save the two-state solution" with Israel. There were celebrations on the streets of Ramallah in the West Bank as the result was announced. But Mr Regev, a spokesman for Prime Minister Benjamin Netanyahu, denounced Mr Abbas' bid as "litany of libellous charges against Israel". "This is negative political theatre that takes us out of a negotiating process. It's going to hurt peace," Mr Regev told the BBC. 'New ball-game' Some 138 members of the assembly, including many EU states, Russia, China, India and Brazil voted in favour of recognising the Palestinians as a non-member observer state. President Mahmoud Abbas: "The last chance to save the two state solution" Israel the US and seven other states, including Canada, the Marshall Islands and Panama, voted against the resolution. Forty-one nations including the UK and Germany abstained. "The General Assembly is called upon today to issue a birth certificate of the reality of the State of Palestine," Mr Abbas told the assembly in New York shortly before the vote. Opponents of the bid say a Palestinian state should emerge only out of bilateral negotiations, as set out in the 1993 Oslo peace accords under which the Palestinian Authority was established. US Secretary of State Hillary Clinton called the vote "unfortunate and counter-productive", saying it put more obstacles on the path to peace. UN Secretary General Ban Ki-moon also called for more talks, saying the resolution underscored the need to resume meaningful peace negotiations. The Palestinians are seeking UN recognition of a Palestinian state in the West Bank, Gaza and East Jerusalem, the lands Israel captured in 1967. Continue reading the main story While the move is seen as a symbolic milestone in Palestinian ambitions for statehood, the Yes vote will also have a practical diplomatic effect, says the BBC's Barbara Plett at the UN in New York. A successful application for membership of the ICC would give the court jurisdiction in the territories, and could potentially be used to accuse Israelis of war crimes. "This is a whole new ball-game now. Israel will be dealing with a member of the international community, a state called Palestine with rights," the Palestinian Liberation Organisation's Hanan Ashrawi told the BBC. "We will have access to international organisations and agencies and we will take it from there." There had been lobbying by Israel and the US to try to delay the vote or change the text to obtain guarantees that no international legal action would be taken against Israel. Settlement-building While Palestinians celebrated, Israeli officials denounced the UN General Assembly vote Last year, Mr Abbas asked the UN Security Council to admit the Palestinians as a member state, but that was opposed by the US. Two decades of on-off negotiations between Israel and the Palestinian Authority (PA) in the West Bank have failed to produce a permanent settlement, with the latest round of direct negotiations breaking down in 2010. In January, several months of indirect "proximity talks" ended without any progress. Palestinian negotiators insist that the building of Jewish settlements on occupied land must stop before they agree to resume direct talks. Their Israeli counterparts say there can be no preconditions. Mr Abbas was much criticised by many Palestinians for remaining on the sidelines of the conflict between the militant Hamas movement and Israel earlier this month in Gaza. His Fatah movement, based in the West Bank, is deeply split from Hamas, which governs Gaza. Hamas has not been part of any peace talks with Israel and does not recognise Israel's right to exist. Israel, the US and EU regard Hamas as a terrorist organisation. Gaza's Prime Minister Ismael Haniyeh said in a statement sent to the BBC that Hamas support for the UN bid "is based on the 'rule of non-recognition of the occupier'... and the right of Palestinians to return to their homeland". In the aftermath of the latest fighting, both Israel and Hamas have joined the international community in calling for a durable and comprehensive solution to the conflict.

Unity In Diversity: My Personal Experiences As Head Of State Of Sri Lanka

By Chandrika Bandaranaike Kumaratunga -November 30, 2012 

Chandrika Bandaranaike Kumaratunga

I wish to express my gratitude to the Osigwe Anyiam-Osigwe Foundation for giving me the privilege of being with you today, to deliver the Thirteenth Emmanuel Onyechere Osigwe Anyiam-Osigwe Lecture.  I am also glad, this has given me the opportunity to visit Nigeria for the first time.  I must hasten to add, I am not a stranger to Nigeria since that I have read much about Nigeria, its people, its politics and I am also familiar with some of your great writers.

Osigwe Anyiam-Osigwe Foundation has been created to fulfil the noble philosophy expressed by Emmanuel Onyechere Osigwe Anyiam-Osigwe.  His vision was to work for the good of humanity. His philosophy envisioned a holistic view of the world and the place occupied by Man in this world.  He believed in a Truth and Ultimate Reality which was a higher knowledge and understanding of human existence and its purpose, at a level that is higher than the mundane.

He did not only expound his philosophy but his quest also led him to action.  He created the West African Academy of Science to continue in his search to understand the spirituality of Man.  At the same time he has created an organization for the purpose of spreading the message of democracy in Africa.  This was called the Mission for Democracy in Africa.  He has also undertaken various enterprises for rural development, as well as other philanthropic initiatives.

His family and followers have undertaken the laudable initiative of creating the Osigwe Anyiam-Osigwe Foundation to progress the great philosopher’s thinking and objectives.  This is a rare occurrence in the third world.  I wish the Foundation good luck and much strength to continue along its inspired path.

I wish to talk to you today, of the need to build inclusive and integrated societies in our countries.  I shall attempt to demonstrate the relationship between inclusion of all groups of citizens in the process of governance and achieving sustainable progress and prosperity, or in the inverse case, the relationship between exclusion or marginalization and conflict.

Poverty and conflict are two issues that have caused many setbacks for developing Nations.

Poverty is considered to be the greatest challenge facing all countries.  Governments have formulated and implemented thousands of programmes to alleviate or end poverty and deprivation.

However, rarely do governments recognize the importance of searching out the causes of conflict and resolving them.  Unresolved conflict invariably leads to violence and civil war.  This in turn compounds the problems of poverty.                                                         Read More

25 yrs on, veteran’s book throws IPKF debate wide open

Pranav Kulkarni : Wed Nov 28 2012

’There would be replacement of every dead LTTE cadre as long as the idea of Eelam remained’

“There would be prompt replacement of every dead LTTE cadre or leader as long as the idea of Eelam remained,” Brigadier (retd) Ravi Palsokar quotes Lt Gen AS Kalkat, who commandeered the IPKF in Sri Lanka as having said, in ‘Ours Not to Reason Why’.

Pune-based Palsokar, who raises questions on the operational goals of the Indian Peace Keeping Force (IPKF) 25 years after it was sent to Sri Lanka as part of the Indo-Sri Lankan Accord (ISLA) comments, “Do I detect a hint of exasperation and frustration in the above words of our senior officers? Forgive me, but I do.”

Published by Power Publishers ‘Ours Not to Reason Why’ is Palsokar’s narration of commanding the 7 Infantry Brigade in Sri Lanka, the then LTTE citadel, Mullaitivu. Incidentally, it is the same brigade Brigadier John Dalvi commanded in the 1962 operations along the Thang La ridge. And like Dalvi’s ‘Himalayan Blunder’, Palsokar’s book is factual, and raises similar questions, and leaves the interpretation to the reader.

In the same vein, Palsokar admits his own occasional errors.

Referring to B G Deshmukh’s ‘A Cabinet Secretary Looks Back’, where the then Army Chief General K Sundarji has been quoted as saying that the Indian Army will finish LTTE in 10 days, Palsokar says, “What did neutralise mean? Did it mean LTTE’s capability was not to be entirely destroyed, but only partially so? Were we to go in for a Bangladesh-type surrender by LTTE? If we were to ‘finish’ LTTE, we should have used all the strength and firepower at our disposal. Much of the confusion of the task of IPKF stemmed from lack of a clear objective. We went into this adventure with eyes wide open, and the fact that LTTE may have confronted us militarily did not come as a surprise. Yet, two weeks stretched into months...two years.”

... contd.

Palsokar does not forget to name those who fought bravely and lost their lives. This without excusing those in the higher formations who put the soldier in the situation without basic equipment like bulletproof jackets or AK-47 rifles, which even the LTTE had. Palsokar says, “How did we arrive at the figure of 50,000 troops?” Just one ‘arrangement’ - reinforcing all infantry battalions under his brigade with an additional rifle company- narrated by Palsokar is enough to show lack of planning by the higher formations.

“The book is not a complaint. I am putting down facts for everyone to judge. My Brigade and IPKF as a whole did not receive the credit. I have written this book to put on record the heroic work of the 7 Infantry Brigade. What I did is on record. 25 years later, shouldn’t anyone above me, political or military, answer as to why the IPKF is not considered to have succeeded,” said Palsokar.

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Protest in front of Archeological Dept. THURSDAY, 29 NOVEMBER 2012  “Bodu Bala Sena” an organization of Buddhist monks and laymen today came to the Department of Archeology to urge the authorities to protect the archeological sites in the Eastern Province.

National Heritage Minister Mahinda Balasuriya and Archeology Department Director General Senerath Dissanayake assured the Buddhist monks they would do everything possible to secure the sites by January next year. Pix by Pradeep Pathirana

 

Palestinians celebrate UN statehood vote

November 30, 2012

RAMALLAH, West Bank (AP) — Palestinians erupted in wild cheers Thursday, hugging each other, setting off fireworks and chanting "God is great" after the United Nations granted them, at least formally, what they have long yearned for — a state of their own.

The historic General Assembly decision to accept "Palestine" as a non-member observer state won’t immediately change lives here, since much of the territory of that state — the West Bank, Gaza Strip and east Jerusalem — remains under Israeli control.

Yet many Palestinians savored the massive global recognition — 138 of 193 General Assembly members voted "yes" — following decades of setbacks in the quest for Palestinian independence in lands Israel captured in the 1967 Mideast War.

"It’s a great feeling to have a state, even if in name only," said civil servant Mohammed Srour, 28, standing in a flag-waving a crowd of more than 2,000 packed into a square in the West Bank city of Ramallah. "The most beautiful dream of any man is to have an independent state, particularly for us Palestinians who have lived under occupation for a long time."

After the euphoria over the vote, Palestinians will return to their harsh reality. They lack most trappings of statehood, including control over borders, airspace or trade. In a further complication, they are ruled by rival governments, one run by Palestinian President Mahmoud

Abbas in the West Bank and the other by the Islamic militant group Hamas in Gaza.

Yet, Palestinians say the recognition isn’t just symbolic. They believe U.N. recognition will strengthen their hand in future talks with Israel, which has lambasted the the Palestinian move as an attempt to bypass such negotiations.

The warm embrace by the international community could also help Abbas, who led the recognition appeal, restore some of his domestic standing, which has been eroded by years of standstill in peace efforts. Hamas, entrenched in Gaza, has seen its popularity rise after holding its own during an Israeli offensive on targets linked to the Islamists there earlier this month.

After initially criticizing the U.N. bid as an empty gesture, Hamas has come around to supporting the popular move, with reservations.

Palestinians in the coastal strip also celebrated the vote, though on a smaller scale than after the massive eruption of joy in the streets after last week’s cease-fire deal with Israel.

Some set off fireworks, others shot in the air and children in the streets cheered and flashed victory signs. "Today is a big joy for all of us," Abu Yazan, a 29-year-old Abbas supporter, said.

Izzat Rishaq, a senior Hamas figure in exile, said he welcomed the U.N. vote an achievement, but that Hamas counts on "heroic resistance" to create a Palestinian state — underlining the group’s deep ideological rift with Abbas who opposes violence.

In Israel, Prime Minister Benjamin Netanyahu dismissed the U.N. vote as meaningless and accused Abbas of delivering a "defamatory and venomous" U.N. speech "full of mendacious propaganda" against Israel. Netanyahu argued that the U.N. move violated past agreements between Israel and the Palestinians and that Israel would act accordingly, without elaborating what steps it might take.

The Palestinians reject Israel’s claim that the recognition bid is an attempt to dictate the future borders of Palestine. Instead, they say, it’s a last-ditch attempt to rescue peace efforts threatened by Israeli settlement building on occupied land. Since 1967, half a million Israelis have settled on lands the U.N. says are part of Palestine.

Abbas aides say that with its vote, the U.N. is rebuffing Israeli attempts to portray these territories as "disputed," or up for grabs, rather than occupied.

Abbas aide Nabil Shaath said it will no longer be up to Israel to decide whether the Palestinians can have a state.

"The notion that Israel should approve the Palestinians’ inalienable right to self-determination is simply illogical, immoral, and totally unacceptable," he wrote in an opinion piece in the Israeli daily Haaretz.

The affirmation of the pre-1967 line as the border of Palestine also poses a direct challenge to Netanyahu who has refused to accept that demarcation as a basis for border talks with the Palestinians. Abbas and his aides have said that the Israeli leader’s rejection of such a framework for negotiations, accepted by his predecessors, helped push them to go to the U.N.

The Palestinians could also gain access to U.N. agencies and international bodies, most significantly the International Criminal Court, which could become a springboard for going after Israel for alleged war crimes or its ongoing settlement building on war-won land.

However, Abbas has signaled that he wants recognition to give him leverage in future talks with Israel, not as a tool for confronting or delegitimizing Israel, as Israeli leaders have alleged. He told the U.N. on Thursday that the Palestinians will "behave in a responsible and positive ways in our next steps."

Palestinian technical teams have studied the laws of all U.N. agencies and put together recommendations for Abbas, said a Palestinian official involved in the effort. He said Abbas told the experts there is no rush, and the next Palestinian moves would in part depend on international reaction, said the official who spoke on condition of anonymity to disclose internal deliberations.

Most immediately, the Palestinian Authority, which relies heavily on foreign aid and is struggling with the worst cash crisis in its 18-year history, could face further funding cuts over the U.N. bid.

In Washington, a bipartisan group of senators warned the Palestinians they could lose U.S. financial support of millions of dollars a year and risk the shutdown of their Washington office if they use their enhanced U.N. status against Israel

Israel could also suspend the monthly transfer of millions of dollars in tax rebates it collects on behalf of the Palestinians, a punitive step it has taken in the past.

In recent months, the Palestinian Authority has been struggling to cover its public sector payroll, paying salaries in installments.

Mahmoud Khamis, a civil servant from the West Bank village of Deir Jareer, said he is willing to bear the negative consequences of U.N. recognition, including further disruptions in getting his salary. "It’s good to have that state recognized, for the people of the world to hear our voice and know our cause," he said.

FOUR ELEPHANTS ELECTROCUTED IN VALAICHCHENAI

November 30, 2012

Four wild elephants were electrocuted in the area between 129 and 130km post of railway in Valaichchenai, after coming into contact with a low lying high-tension power cable last night.

 The bodies of the elephants were discovered by police after a villager had contacted the 119 emergency police hotline to report the incident this morning.

Police said several power poles have leaned causing a high tension line to lower, and that they believe the elephants may have come into contact with the cable. 

Four elephants electrocuted in Valaichchenai

[ Friday, 30 November 2012, 12:45.28 PM GMT +05:30 ]

Four wild elephants were electrocuted in the area between 129 and 130km post of railway in Valaichchenai, after coming into contact with a low lying high-tension power cable last night.

The bodies of the elephants were discovered by police after a villager had contacted the 119 emergency police hotline to report the incident this morning. Police said several power poles have leaned causing a high tension line to lower, and that they believe the elephants may have come into contact with the cable.

[MK Sivajilingam M.P] 

Sri Lankan Army deserter gives ‘rare’ insider account of government forces torturing civilians at refugee hearing

Stewart Bell-Nov 29, 2012

Passport photo of Ravindra Watudura Bandanage, who was a captain in the Sri Lanka Army until he fled to Canada and deserted. He has told immigration officials the army ordered him to place a bomb in the home of a Tamil Member of parliament in Sri Lanka. / Federal Court of 

An officer in the Sri Lanka Army, who fled to Canada and claimed he was ordered to plant explosives at the home of an outspoken opposition politician, is raising new questions about military abuses committed during the island nation’s long civil war.

Captain Ravindra Watudura Bandanage, 38, deserted after flying to Toronto in October 2009.

He has since told Canadian immigration officials he was aware of torture and other crimes carried out by government forces against minority Tamils.

Testifying at his refugee hearing, he said a colonel ordered him to place bomb materials in the home of a member of parliament named “Silva Jilingam,” an apparent reference to M.K. Sivajilingam, a controversial Sri Lankan MP then aligned with the Tamil National Alliance party.

But the captain said he refused and was transferred to Colombo, where he helped with search and cordon operations that rounded up ethnic Tamils. He said he knew the army was torturing, beating and raping civilians.

“I admit that it is a harassment of these people,” he said. “I admit that.”

While there has been mounting evidence both sides in the Sri Lankan conflict committed atrocities, the testimony is noteworthy because it comes from a veteran former commissioned officer.

Passport photo of Ravindra Watudura Bandanage, who was a captain in the Sri Lanka Army until he fled to Canada and deserted. He has told immigration officials the army ordered him to place a bomb in the home of a Tamil Member of parliament in Sri Lanka. / Federal Court of Canada

Frances Harrison, a British journalist and author of Still Counting the Dead, a new book that tells the stories of survivors of the brutal end of the civil war, agreed it was unusual to hear such allegations from an ex-soldier and member of the country’s ethnic Sinhalese majority.

“A few Sinhalese have helped bring out war crimes evidence from Sri Lanka but, assuming this testimony is truthful, it’s unheard of for a Sinhalese soldier to speak out openly about human rights violations. It would be a huge blow to the Sri Lankan government,” the former BBC correspondent said.

The captain’s allegations come amid growing international pressure for an independent investigation into the final months of the Sri Lankan civil war. Two weeks ago, a UN review concluded the international body had failed to protect civilians despite verified evidence of atrocities.

A kung fu champion who joined the army in 1993, Mr. Watudura Bandanage told the Immigration & Refugee Board he had been trained in counterinsurgency.

I know my life is at risk if I go back to Sri Lanka

While he denied taking part in combat, the IRB did not believe him.

He recounted how, in 2008, a colonel had asked him “to do something which was not right…. He said there is an order in regards to this MP, there’s an order from the Defence Ministry…. I was asked to go to this MP’s residence and place some explosive material and detonator, and maybe they had planned to blame him for something and make him leave that area and to do something in that area that way or maybe they wanted to get rid of him.”

The Sri Lankan forces routinely framed government opponents during the war to discredit them and justify their arrests, said Gary Anandasangaree, a Toronto lawyer who has been making presentations about human rights violations in Sri Lanka to the UN Human Rights Council in Geneva. But he said it was “rare” to hear such an account from a former soldier.

In his refugee claim, Mr. Watudura Bandanage said he spent 16 years in the army, but feared for his life because he had complained to police about a prominent politician and his connection to drugs and prostitution.

He said he had also leaked sensitive information to a Sri Lankan newspaper.

“I know my life is at risk if I go back to Sri Lanka,” he said.

A tank drives its to Puthukudiyiruppu during 2009 fighting between the Sri Lanka army the Liberation Tigers of Tamil Eelam (LTTE). Nir Elias / Reuters / Files

But the board ruled in February he was not eligible for refugee protection because he was complicit in crimes against humanity. It said the fact he was asked to place a bomb at an elected official’s home showed he was a trusted officer and aware of the “relentless brutality” of the Sri Lanka Army toward Tamil civilians.

“I find that during the last few years of the civil war in Sri Lanka, which includes the entire period that the claimant was a captain in the Sri Lankan army, military forces conducted ongoing widespread and systematic attacks on the civilian population in Sri Lanka. I find that the military forces of Sri Lanka committed countless crimes against humanity,” IRB member Michal Mivasair wrote.

Mr. Watudura Bandanage’s appeal to the Federal Court of Canada was dismissed last week.

“I think it’s very significant,” John Argue, Amnesty International Canada’s co-ordinator for Sri Lanka, said of the ex-soldier’s allegations.

“I hope it gets discussed publicly because then we get closer to what really happened in the last stages of the armed conflict and could have a serious discussion about accountability.”

The ICG Report on Tamil Politics and the Quest for a Political Solution: The Blind Spot

The ICG Report on Tamil Politics and the Quest for a Political Solution: The Blind Spot

Niran Anketell-30 Nov, 2012

Image courtesy ICG Facebook page

Groundviews

The recently released report “Sri Lanka: Tamil Politics and the Quest for a Political Solution” by the International Crisis Group [ICG] is a timely contribution to the international community’s understanding of current Tamil politics, and reiterates a number of useful recommendations for all parties concerned. Its prescient analysis of the prevailing tensions within Tamil politics; its recounting of the failure on the part of the government to reciprocate the Tamil National Alliance’s reasonable demands; and its description of the military juggernaut unleashed in the North and East of the country point to the urgent nature of the problem at hand. Yet, the ICG sound caution where caution is due, urging Tamil leaders to speak directly to the Sinhala and Muslims people and find common cause with them. These are good, meaningful and sensible observations. Despite the unfortunate timing of the release, which coincided with the impeachment saga, the report will eagerly be read by Sri Lanka watchers.

While there is much to applaud in the report, it falls short in one crucial aspect. The report maintains an almost perfect silence on the demand of Tamil political parties in Sri Lanka – and the TNA in particular – for full accountability in respect of war crimes and crimes against humanity committed during the latter stages of the war, and the importance of an accountability process for the achievement of the constitutional and structural changes the ICG identifies as necessary. It therefore fails to pay any attention to a major challenge facing the TNA and Tamil civil society: how best to leverage international pressure on accountability without relegating the right to justice as an expendable commodity with which to barter a negotiated constitutional settlement? This is an important and complex question deserving serious academic and political thought, to which the ICG – with its global reach and access to comparative experiences – could have contributed innovatively.

I have observed elsewhere that the TNA has now emerged as a consistent and forceful advocate for full accountability in respect of the crimes committed during the last stages of the war. The alliance has made the demand for accountability both overseas and at home, campaigning heavily in the 2011 local authority election based on their support for an international investigation, and later interpreting their victory as a mandate for such an investigation.  That they do so consistently despite the obvious risks is significant. The ICG report, however, does not trace these developments, and as a result, fails to convey the strength of the demand of Tamils [by this I mean Tamils in Sri Lanka] for accountability.

This is troublesome for a number of reasons, not least of which is that this unwitting silencing of Tamils on the question of accountability is counterproductive to the excellent work done by many – ICG included – to ensure a process of reckoning in respect of the crimes of the past. Any international campaign for the rights victims in Sri Lanka that is not visibly seen to be having the support of those on whose behalf the campaign is conducted is unlikely to be sustainable in the long term. While foreign governments may now be aware of the nature of the TNA’s demands, the same cannot be said of voters and pressure groups in foreign countries. By failing to recognize and highlight Sri Lankan Tamil demands for accountability, those pressing for accountability from outside Sri Lanka run the very real risk of lending credence to the claim that the accountability agenda is an imposition on Sri Lanka, and that even victims of alleged crimes in Sri Lanka do not desire it. To be clear, this silencing of the TNA and other Sri Lankan Tamil voices demanding accountability is a consistent failing of INGO’s and others. Very few if any of the multiple public debates, seminars, forums and panel discussions on Sri Lanka that have taken place in the West feature Sri Lankan Tamil politicians or activists, despite the obligatory presence of a Sri Lankan government voice beamed and sometimes flown in. The burden of carrying the pro-accountability argument is often left to INGO activists and diaspora activists, none of whom are unqualified to speak, but nevertheless lack the authenticity and moral authority that a Tamil representative from within the country would bring.

The failure to recognize the strength of the Tamil demand for accountability is also incongruous with international best practice. These practices now favour victim centered approaches and victim participation. It is for this reason that the International Criminal Court [ICC] and the hybrid Extraordinary Chambers of the Courts of Cambodia [ECCC] place victims’ interests at the heart of the judicial process, including by ensuring the right of victims’ lawyers to participate in proceedings, and ensuring some form of reparations through the criminal process itself.

In the final analysis though, what is most troubling about the ICG report is its overly limited conception of ‘political solution’, and the failure to visualize how an accountability process could complement steps to change the unitary structure of the state and devolve more power. While ‘political solution’ and ‘devolution’ have become synonymous over time, there are dangers in viewing a political solution based on power sharing as distinct from accountability for serious crimes. For one, this approach gives those opposed to accountability the room to portray accountability as mutually incompatible with national reconciliation. It also ignores the constructive role that an accountability process could potentially play in ushering in an agreement on power sharing. In this regard, the importance of truth telling cannot be overstated. As Mendeloff notes, truth telling encourages social healing and reconciliation, promotes justice, allows for the establishment of an official historical record, serves a public education function, aids institutional reform, helps promote democracy and preempts as well as deters future atrocities.[1] In Payam Akhavan’s recasting of Theodor Meron’s defense of criminal trials for war criminals, “truth‐telling promotes interethnic reconciliation through the individualization of guilt in hate‐mongering leaders and by disabusing people of the myth that adversary ethnic groups bear collective responsibility for crimes.”[2] Moreover, vetting and lustration practices common to most effective transitional justice [TJ] mechanisms help, for want of a better phrase, weed out those most likely to cause a return to violence. Further, a well-designed TJ process could in fact constitute “one of the first lessons for citizens in a newly‐democratic multination state in how to learn to live with the ambiguities of contested nationhood.”[3]

For Tamil political parties and civil society groups then, the challenge is particularly delicate. While international pressure on accountability serves an instrumental purpose in mobilizing international opinion in respect of their rights, and while this pressure may eventually lead to a softening of the inflexible stance of the majoritarian state on issues of power sharing – bartering away the right to demand justice for power sharing in return is simply not acceptable, as a matter of strategy, normative theory, international law or Tamil electoral politics. Yet, history and experience tells us that perfect justice is never possible, and that some compromises on criminal justice are necessary to avoid deadlock and secure the path to reconciliation. In these circumstances, what then are the tools and strategies that Tamil politics must develop? How do Tamil political and civil society leaders build their capacity to make optimal decisions when the opportunities eventually appear?

Whatever the answers to these questions may be, they are not made more accessible by excluding Tamil victims and their representatives from global conversations on accountability, or by glossing over the contributions already made under trying circumstances.

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[1] David Mendeloff, Truth‐telling and Postconflict Peacebuilding: Curb the Enthusiasm? 3

Int’l Studies Rev. 6, 355 (2004)

[2] Payam Akhavan, Justice in The Hague, Peace in the Former Yugoslavia? A Commentary on

the United Nations War Crimes Tribunal, 20 Human Rights Quarterly 737, 816(1998)

[3] Will Kymlicka, Transitional Justice, Federalism, and the Accommodation of Minority

Nationalism (Oxford Centre For The Study Of Inequality And Democracy, Working Paper No.

5, 2009)