Saudi Arabia claims anti-corruption purge recouped $100bn

Crackdown concludes with more than 50 royal family members and businessmen allegedly jailed

Martin Chulov Middle East correspondent Tue 30 Jan 2018 15.00 GMT

Saudi Arabia claims to have recouped more than $100bn (£70bn) through its anti-corruption purge and jailed up to 56 high-profile royal family members and businessmen who refused to surrender their wealth in return for freedom.

On Tuesday morning, the attorney general, Sheikh Saud al-Mojeb , announced the end of a three-month investigation that ensnared some of the kingdom’s best-known figures, who were alleged to have siphoned off billions from state revenues.

He said 400bn riyals had been forfeited by as many as 325 people detained in the Ritz Carlton hotel in Riyadh, where their personal finances were examined by forensic accountants.

The figure, which is impossible to verify, included the value of real estate, business, cash, shares and other assets that many of those detained had signed over during negotiations with the state.

It is more than double estimates made by senior Saudi officials in the early days of the operation, which was ordered by King Salman and launched by his son and heir, Mohammed bin Salman, the crown prince.

The saga has shaken the establishment of the conservative kingdom, removing protections from powerful figures who had long benefited from systemic corruption that riddled business dealings and all levels of governance for decades.

Alwaleed bin Talal, one of the world’s richest men, was released from detention at the weekend after coming to an agreement with state officials.

In an interview with Reuters before his release from a hotel suite purported to have been his home for the past three months, the prominent investor in Newscorp, Apple and Twitter described the situation as a “misunderstanding” and denied allegations of corruption.

His detention, and that of others including the former head of the Saudi royal court, Khaled al-Tuwaijri, has sorely tested alliances between the ruling Saud family and other powerful clans, who have collectively stewarded the modern kingdom for decades.

Dozens of those detained were from some of Saudi Arabia’s most prominent families, who had been considered untouchable during decades flushed with oil revenue, and have been left aggrieved by the arrests.

But as the kingdom’s wealth shrank under the strain of structurally lower oil prices and a costly war in Yemen, the country’s powerful heir sought ways to regenerate the moribund economy and shake up a society that had become accustomed to unchecked privilege, with next to no scrutiny.

A member of a leading family, whose relative was released from the Ritz Carlton earlier this month, said: “[The crown prince has] been prepared to take on the role of change agent.

“He has learned from [Jared] Kushner and [Donald] Trump that if you overwhelm people with change, you will stun them, and therefore be able to get things done.”

Two other prominent Saudi figures who spoke to the Guardian said most senior officials would in future need to do business on a more transparent footing. However, a much smaller number of senior figures would be allowed to continue to shield their affairs from public accountability.

Two years before the purge, Mohammed, then 29, bought a $500m yacht and a new-build chateau outside Paris for $300m – the world’s most expensive home.

In November, he was claimed to be the buyer of a $450.3m Leonardo da Vinci painting. Abu Dhabi’s culture department later said it had made the purchase but the claim was met with scepticism in the kingdom, where a prince with strong connections to the international art world had brokered the sale.
His critics have claimed his spending remains extravagant at a time in which other senior officials face relative austerity.

Mohammed has at the same time been trying to push through sweeping cultural reforms, removing rigidly conservative social norms that have severely limited women’s role in Saudi society for decades and promoted a hardline version of Sunni Islam, which has been used by extremist groups to underwrite terrorism.

The pace of change has shredded the long maintained view that it must be drip-fed to a reluctant Saudi society.

Since late last year, concerts – albeit for men only – have been held in Riyadh, and women have been allowed into sports stadiums, and will be allowed to drive carsfrom this summer.

Guardianship laws restricting women’s movements have been weakened and the feared religious police have lost the power to arrest. Laws governing fraternisation between men and women who are not related have also been loosened.

The Ritz Carlton is expected to open to tourists in mid-February. While detained, senior figures were given access to dining rooms, gyms, tailors and medics. The world’s most luxurious jail was run in such a way as to not further upset already offended clans, who would not have tolerated their family members being sent to a prison. Claims that detainees had been tortured or shackled were false.

The fate of the remaining 56 who did not reach terms with investigators remains unclear. The family member of the former detainee said speculation had been rife inside the Ritz Carlton that those who remained would be transferred to a state-run prison, opening a new phase in the ruling family’s relations with the country’s reluctant elite.

Food insecurity in Burma, Bangladesh nearing crisis point

Rohingya refugees stretch their hands for food near Balukhali in Cox’s Bazar, Bangladesh, September 4, 2017. Source: Reuters/Mohammad Ponir Hossain

By Emma Richards | 30th January 2018

CONFLICT and mass displacement have pushed parts of Burma (Myanmar) and Bangladesh near crisis or emergency levels of food insecurity, food agencies warned the UN security council on Monday.

The Global Early Warning – Early Action (EWEA) report from the Food and Agriculture Organisation of the United Nations (FAO) determines areas of the world that are most at risk of food insecurity, allowing them to mitigate or even prevent their impact. Both Burma and Bangladesh were rated as the highest level of risk and should start implementing action immediately, according to the report.

Rohingya refugees line up to receive food supplies at Hakim Para refugee settlement near Cox’s Bazar, Bangladesh, November 21, 2017. Source: Reuters/Susana Vera

The displacement of over 655,000 Rohingya refugees and the ongoing conflict in Rakhine State has led to a lack of food access and fuel options compound food insecurity. The report found that food insecurity in the swelling refugee camp, Cox’s Bazar, forces 77 percent of households to adopt negative coping mechanisms. These included relying on less expensive foods (90 percent), reducing the number of daily meals (69 percent) and restricting adult consumption (68 percent).

Clean water is also scarce, with 60 percent of drinking water in refugee camps being contaminated. Since Aug 25, more than 36,000 Acute Watery Diarrhoea (AWD) cases were reported, including 10 deaths. With poor hygiene practices in the camp, along with more refugees expected to arrive, the spread of disease will likely worsen in coming months, the report said.

The sheer scale of the refugee camps and the dramatic influx of people has led to a scarcity of resources that threatens lasting damage and tension with the host communities. The congestion has resulted in limited land space, and the adoption of survival mechanisms – such as the collection of firewood – has degraded the local environment.

SEE ALSO: Rohingya crisis: International advisor steps down as Asean lawmakers urge action

As January to March is planting and growing season in Burma and Bangladesh, the FAO have recommended charities and authorities support home production and micro-gardening efforts among refugee populations where possible. They also suggest supplying refugee households with safe food storage equipment to prevent infestations and food-borne illnesses.

Rohingya refugees prepare food in Cox’s Bazar, Bangladesh, September 27, 2017. Source: Reuters/Cathal McNaughton

To avoid further degradation of the environment, land stabilisation and erosion control are needed in areas where water sources, population security and agricultural lands are threatened.

The organisation also recommends collaborative forest management farming systems, and plant fast-growing fuelwood plants, tree nurseries and seedlings to replenish the surrounding forests and restore resources for the local communities.

In 2016, the number of hungry people in the world increased for the first time since the turn of the century, to 815 million people, with more than half of them – 489 million – in conflict zones. The intensification of conflict was a key driver of the surge in hunger levels, after decades of decline.

Francis Mwanza, head of the World Food Programme office in London, expressed his concern over the effects conflict was having on food supply globally.

“For the World Food Programme, the price of conflict is becoming too high. Eighty per cent of WFP expenditure occurs in conflict zones,” he told The Guardian.

“The fear is if we continue having no access in a number of countries, we may have famine conditions in some areas. If we want to reach zero hunger, ending conflict is a major step in reaching that goal.”

Memoir of dementia

Victoria Macdonald-29 Jan 2018Health and Social Care Correspondent

What do you do when you begin to lose your most precious memories at just 58 years old? Wendy Mitchell was a busy NHS manager when she was diagnosed with early onset dementia.

Now she has written a memoir like no other, recording the creeping loss of her independence and her ability to remember.

Locked Up Without Evidence-Abuses under Sri Lanka’s Prevention of Terrorism Act

Summary

January 29, 2018

In August 2008, Sri Lankan police were searching for Malathi’s son, Kanna, whom they accused of aiding and abetting the insurgent Liberation Tigers of Tamil Eelam (LTTE). Malathi, who asked that her real name not be used, believes Kanna escaped abroad, as she has not heard from him since. However, when the police could not find Kanna, they arrested his 37-year-old wife, Durga (also a pseudonym). Malathi says that Durga was detained for nearly a year before being produced before a magistrate. It was a further six years before any charges were filed against her. Durga was eventually acquitted of all charges in 2015.

Durga has received no apologies, compensation, or answers for her seven years in detention. She remains psychologically and physically impaired because of her long incarceration. Her three young children were raised during those years by her mother-in-law. Malathi says it has been difficult:
My youngest grandchild was 18 months old at the time of Durga’s arrest. I am old but I had no choice but to raise the children, so I took menial jobs cleaning people’s homes to support them, to have some money for them. Even now that Durga is out, I don’t know what happened to her in there, but she’s not strong enough to work on the tea estates. So I have to keep working.
* * *
Hundreds of people like Durga have been arbitrarily detained in Sri Lanka under the Prevention of Terrorism Act (PTA), which was enacted in 1979 to counter separatist insurgencies, notably the LTTE. The law allows arrests for unspecified “unlawful activities” without warrant, and permits detention for up to 18 months without the authorities producing the suspect before a court pre-trial.
While other insurgent groups proved short-lived, the LTTE sustained a 26-year-long civil war in Sri Lanka that involved horrific abuses by both LTTE and government forces. The LTTE carried out targeted killings, suicide bombings, and torture, among other abuses. Military abuses included arbitrary arrests, summary executions, and forced disappearances, as well as indiscriminate attacks in the war’s final months. Government forces defeated the LTTE in May 2009.

Nearly nine years since the end of the fighting, the PTA has remained in effect, and has been used to arrest and hold people without charge or trial for months, even years. Many PTA detainees have been tortured in custody, and others have been among those forcibly disappeared. Those released have suffered psychologically as well as physically.

 

The Sri Lankan government has failed to fulfill its pledges to abolish the abusive Prevention of Terrorism Act (PTA). For decades, the PTA has been used to arbitrarily detain suspects for months and often years without charge or trial, facilitating torture, and other abuse.

In October 2015, following elections in August, the Sri Lankan government under President Maithripala Sirisena agreed to a consensus resolution at the United Nations Human Rights Council under increasing diplomatic pressure. The resolution committed the government to ensure accountability for conflict-related abuses by enacting several transitional justice mechanisms. Along with other human rights related reforms, the government also pledged to repeal the PTA, but has not yet done so.

This report, based on interviews with 34 former detainees or their relatives, documents serious human rights violations under the PTA including severe torture and sexual abuse, as well as systematic denials of due process. While the cases detailed here address the experiences of only a tiny fraction of the hundreds of people who suffered under the PTA, the accounts underscore the need to ensure that any new counterterrorism legislation is rights-respecting and does not replicate past abuses.

Protests calling for the release of PTA detainees have increased in recent years. In October 2017, students at Jaffna University began a protest against the PTA that led to a brief shutdown of the campus. A hunger strike by PTA detainees has reportedly led to one prisoner being released and a second hospitalized.

The PTA has been used to arbitrarily detain an unknown number of people without access to legal recourse. One former detainee, held without trial from 2007 to 2010 at the Welikada prison in the capital, Colombo, told Human Rights Watch that there were at least 800 PTA prisoners detained with him, many of them held without any credible basis.

“A few years after the war ended, some were charged, some were sent for rehabilitation, some signed confessions and were given short sentences,” he said. “In my experience, they just use the PTA to keep you locked up with no evidence.”

The PTA has also been used for politically motivated arrests of peaceful activists. In March 2014, prominent human rights campaigners Ruki Fernando and Father Praveen Mahesan were arrested while attempting to assist a 12-year-old girl whose mother, Jeyakumari Balendran, had been arrested under the PTA. An international outcry quickly led to Fernando and Father Praveen’s release on bail. The charges have yet to be dropped, and they continue to occasionally face harassment by immigration authorities when they are leaving the country for travels abroad.

Human Rights Watch and other organizations have long documented widespread torture of individuals in custody, particularly of ethnic Tamils detained under the PTA for suspected involvement with the LTTE. Ben Emmerson, then the UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said after his July 2017 visit to the country: “The use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds.” He noted that the PTA was used “disproportionately against members of the Tamil community,” and that the community “has borne the brunt of the state’s well-oiled torture apparatus.”

After a two-week country visit in December 2017, the UN Working Group on Arbitrary Detention called for the immediate repeal of the PTA, referring to it as “one of the key enablers of arbitrary detention for over four decades.”

In a positive step, the Sri Lankan government announced it would adopt the UN Optional Protocol to the Convention against Torture during its Universal Periodic Review in November 2017.

Many of those detained under the PTA said that they were tortured to extract confessions or intelligence. Of the 17 individuals whose cases are detailed in this report, 11 reported beatings and torture. A senior judge responsible for handling PTA cases said in July 2017 that he was forced to exclude confession evidence in over 90 percent of the cases he had heard in 2017 because it had been obtained through the use or threat of force.

Sahan Kirthi, then 21, was arrested under the PTA in February 2007. He remained in detention without charge for five years. He ultimately confessed to a criminal offense, he said, because security forces threatened to rape his sister. In 2012, he was finally charged with conspiring against the government. Security forces did not have evidence to convict him, and the courts acquitted him two years later, in 2014. Kirthi had by then spent nearly a decade in prison, and still has injuries, including loss of hearing, from the torture that he endured.

As noted above, other former PTA detainees who spoke to Human Rights Watch described severe torture including sexual abuse. Several, including those interviewed for the 2013 Human Rights Watch report “We Will Teach You a Lesson,” said that security forces raped them, burned their genitals or breasts with cigarettes, and caused other injuries through beatings and electric shocks. Noting an “open door policy” for routine use of torture by security forces, Juan Méndez, then the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, described the use of sexual abuse after his 2016 visit to Sri Lanka:

Torture and ill-treatment, including of a sexual nature, still occur, in particular in the early stages of arrest and interrogation, often for the purpose of eliciting confessions. The gravity of the mistreatment inflicted increases for those who are perceived to be involved in terrorism or offences against national security. The police resort to forceful extraction of information or coerced confessions rather than carrying out thorough investigations using scientific methods.

Former detainees and their family members said that despite coerced confessions, they agreed to plead guilty simply to end the indefinite detention.

Vivodhani Givoshan described the case of his brother, Soriyamoorthy Givoshan, who became trapped in the war zone and eventually surrendered to the army in Mullaitivu in 2009, during the final days of the war. Soriyamoorthy was initially detained in a military-run displacement camp in Vavuniya with others who had fled or surrendered to the government. In August 2009, members of the Sri Lankan police’s Terrorist Investigation Division (TID)—notorious for torture in custody—arrested him and took him from the camp. He was secretly detained for a year until he was finally produced before the Kandy Magistrate Court in August 2010. Vivodhani said his brother faced a range of charges and decided to plead guilty to end the indefinite detention:

We decided that it would be easier for him to plead guilty, so there was actually no trial. Although we know the prosecution had no evidence, or at least none that my brother’s lawyers could see.… My brother was young when he was arrested. So many of those arrested were young, many of them arrested on flimsy evidence of buying a SIM card, renting a bike.

Proposed Counterterrorism Legislation

After the end of the armed conflict with the LTTE in May 2009, the government relaxed some of its emergency regulations, which had given the security forces wide-ranging search, detention, and arrest powers, and in 2011 it allowed most of the measures to expire. Government directives issued in June 2016 require security forces to ensure that the fundamental rights of persons arrested or detained are respected, but the PTA remains in force, although it has not been used in 2017.

There is still no clarity on the number of people held under the PTA. In August 2017, the government released a list of 84 people in custody under the PTA and facing trial, and 12 others who had not been charged. A month earlier, the government had told Special Rapporteur Ben Emmerson that of the prisoners “currently in the judicial phase of their pre-trial detention, 70 had been in detention without trial for over five years and 12 had been in detention without trial for over 10 years.”

While the government has taken some steps to charge or release PTA detainees, lawyers working on these cases believe that the numbers are not accurate given the discrepancies in official numbers. This is not the first time the government’s information on the number of PTA detainees has shown discrepancies. In a meeting with Human Rights Watch in October 2015, Prime Minister Ranil Wickremesinghe admitted that getting an accurate count of PTA detainees was difficult because the various security agencies all had different numbers.

Since the 2015 Human Rights Council resolution, the government has made little progress on security sector reform, and in 2016 continued to use the PTA to arrest and detain supposed counterterrorism suspects. One significant act of compliance with its security sector reform pledge was the government’s establishment of a separate Ministry of Law and Order, removing the police and related agencies from the purview of the Ministry of Defence. However, other reforms within the security sector have yet to be enacted or implemented.

In June 2016, the government adopted directives recommended by the Human Rights Commission of Sri Lanka to protect detainees from abuses, particularly at the time of arrest and ensuing detention. These include guarantees of medical and legal assistance, registration of arrest, the right to be addressed in the language of the detainee’s choice, security from torture and other ill-treatment, and special protection for women and children. The directives also reassert the commission’s mandate to be promptly informed of all PTA arrests, to access any person arrested or detained under the PTA, and to access any place of detention at any time. These directives are meant to be an interim measure until the PTA is repealed and replaced with rights-respecting legislation.

Although several drafts of a new counterterrorism law have been floated, none have complied with international human rights standards. The government has not discussed these draft laws with human rights or affected victim groups. In March 2017, Ravinatha Aryasinha, Sri Lanka’s permanent representative in Geneva, told the Human Rights Council that the government was drafting a law that “seeks to effectively and comprehensively respond to contemporary manifestations and threats of terrorism, consistent with principles of democracy, good governance and the rule of law.”

In May 2017, the cabinet approved with little public consultation a draft Counter Terrorism Act (CTA), intended to replace the PTA. In the face of severe public criticism, the government has not, as it was expected to do, moved forward with outlining its plans for the new law. The bill falls far short of the government’s pledges to the Human Rights Council to end abusive detention without charge, and it remains unclear whether the government has taken on board recommendations from the UN Counter-Terrorism Committee Executive Directorate and other UN agencies.

The bill would in some ways improve upon the previous law, but it would still allow arbitrary and abusive detention. Some provisions provide potential safeguards against abuses, but as long as prolonged detention without charge is permitted, the likelihood of abuse remains high. Ultimately, the proposed law does not comply with security sector reforms sought by the Human Rights Council and required by Sri Lanka’s international obligations, and suggests that the government does not intend to fully relinquish the broad and too easily abused powers available to it under the PTA.

Among his concerns with the draft law, Special Rapporteur Emmerson noted that the broad definition of torture in the law “poses a real risk that the legislation could be used in circumstances very far removed from acts of real terrorism, or against minorities or human rights defenders in a discriminatory and sectarian manner.”

The Sri Lankan government should not enact any law that will perpetuate the wrongs committed for decades under the PTA or provide room for other abuses. The government should consult with Sri Lankan victim groups, human rights organizations, the Human Rights Commission of Sri Lanka, and international experts to draft a law that protects both national security and human rights. It should also seek technical assistance from the UN Counter-Terrorism Committee Executive Directorate and the Office of the United Nations High Commissioner for Human Rights.

Key Recommendations

• Repeal the Prevention of Terrorism Act (PTA) and replace it with rights-respecting counterterrorism legislation that meets international standards for due process.
• Undertake a consultative process with victim rights groups, civil society, human rights lawyers, and relevant experts to assist in drafting the new legislation.
• Implement the recommendations of the UN special rapporteur on counter-terrorism and human rights following his July 2017 country visit, including a prohibition on the use of confessions made to the police, unfettered access for the Human Rights Commission of Sri Lanka to all places of detention, and abolishing the attorney general’s right of veto over the granting of bail.
• Implement the recommendations of the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment following his 2016 country visit, including ensuring that any new counterterrorism law provides protections against arbitrary arrests and detentions, strong judicial overview of law enforcement and security agencies, and safeguards to ensure legal counsel from the moment of arrest.
• Accept and implement the recommendations of the Office of the United Nations High Commissioner for Human Rights investigation on Sri Lanka, including reviewing all cases of detainees held under the PTA, and investigating and prosecuting all allegations of torture committed by law enforcement and security agencies.
• Implement all recommendations made by the UN Working Group on Arbitrary Detention in its December 2017 preliminary findings report.
• Fully comply with the Human Rights Commission’s guidelines on arrest and detention procedures in all cases, especially PTA cases.

President’s threatening speeches have multiple objectives 

By Jehan Perera-January 29, 2018, 8:25 pm

President Maithripala Sirisena’s recent criticisms of his partner in the ruling coalition, the UNP, have sent signals that the UNP-SLFP alliance may be ending sooner rather than later. At the general elections of August 2015, the two parties entered into an agreement to be in partnership for a period of two years. Those two years have ended and it appears that their partnership may be ending, too. Among the criticisms that the President has made are those about governmental involvement in the Central Bank bond scam case and the middling performance of the economy. The President declared his intention to take over the reins of the economy through the National Economic Council he had set up three months ago.

The media reported that it was not clear if the President would take over the three key economy-related portfolios currently held by the UNP. The National Policies and Economic Affairs portfolio is held by Prime Minister Wickremesinghe while the UNP also holds Finance and Development Strategies and International Trade portfolios. There was no reaction from the Prime Minister or the UNP. The President’s statements have been cast in a negative light by sections of the media and those who voted for the President at the presidential elections of January 2015 at the urgings of the UNP. Most of the President’s votes came from traditional UNP supporters who accepted the decision of the UNP leadership to field Maithripala Sirisena as the common opposition candidate. The President’s criticisms of the UNP have alienated many of them.

Members of the government from the UNP too have found the President’s statements to be disquieting. They have said as much from their political platforms. Even a cabinet meeting presided over by the President became a site of acrimony. The media reported that the President had walked out of a cabinet meeting after delivering a lengthy speech in which he had outlined the sacrifices he had been prepared to make, the risks he had taken and the issues relating to the establishment of good governance on which he wanted action taken. However, neither the walk out that he staged, nor his criticisms of his coalition partners, are likely to deter the joint UNP-SLFP search for a unifying formula that would benefit all concerned and keep the common foe, the SLPP, at bay.

SERIOUS PROBLEMS

The problem facing President Sirisena is not an easy one to resolve. The SLFP is about to face the local government election while divided into two. A section of the party is being led by former president Mahinda Rajapaksa and is contesting as a rival party. The SLPP led by the former president will be competing for the same SLFP vote base with the SLFP led by the President. Neither the President nor former president can hope to get the votes of either the UNP, JVP or ethnic minority parties. They have to compete for the SLFP vote. The SLFP vote bank has traditionally been nurtured on an anti-UNP platform. Both the SLFP led by the President and the SLPP led by the former president have to compete for this SLFP vote. The President’s strong criticism of the UNP is meant to resonate with the SLFP voter.

President Sirisena’s second way to maximize his party’s votes at the local government election has been to assert that his stay in power as President will be longer than the five years to which he is entitled. The President even went to the extent of appealing to the Supreme Court to decide on whether he was entitled to a five or six-year term. A longer term would have given the SLFP voter an added reason to vote for an SLFP that will continue to enjoy the power and patronage of the presidency. Due to the fact that his faction of the SLFP has only about 43 MPs in parliament, the SLFP members who follow the president realize that they cannot bargain on equal terms with the UNP which has 106 MPs unless backed by the presidency. Therefore preserving the presidency and the power and patronage it brings with it is a political necessity to the SLFP.

In the aftermath of the Supreme Court opinion that the President is only entitled to five years in office, and not six, the President’s supporters are claiming that he will contest a second time. Although the President swore in the past that he will only be a one term president, he has been non-committal on the issue of whether he will run for a second term or not. The President’s latest stance is to say that he will decide at the appropriate time. The reason again is that preserving the presidency and the power and patronage it brings with it is the only way to induce SLFP voters to vote for the SLFP rather than for its rival, the SLPP. Those who are of the view that a continuation of the UNP-SLFP alliance is better than any other alternative need to find a solution that is mutually beneficial rather than criticizing the president for going back on his word.

POSITIVE FEATURES

The main feature of governance at the present time is not the slowness of decision-making or continuation of corruption. On the contrary it is that the two main political parties in the country, which have been traditional rivals, are working together which brings in an in-built check and balance system to the government. Neither party can do as it wants in the government, which is extremely positive. In the past ruling party politicians used to go and sit in the chairs of OICs (Officers-in-Charge) at police stations or in the chairs of GAs (Government Agents) at the district secretariats. Now this is no longer possible and no longer happens because the other party in power is there to put a stop to such nonsense. This is also the reason why there is freedom from the fear which prevailed during the period of the last government, which enjoyed unbridled power and no checks and balances.

Accompanying these positive features of the two main political parties working together is the opportunity to resolve the ethnic conflict through a political solution that has eluded governments since the first attempt was made in 1957. The constitutional debate that took place in parliament in November before the announcement of local government elections gave an indication that most parties in parliament felt that such a solution was necessary and should be strived for. However, since the declaration of local government elections, there is little political discussion about a political solution to the ethnic conflict as the SLPP and joint opposition have taken up nationalist positions. A strong electoral performance by the SLPP would be interpreted that there is opposition to a political solution.

It is significant that Prime Minister Ranil Wickremesinghe has not reacted adversely to the President’s criticisms of his party and its doings. On the contrary he has directed his party members to desist from any criticism of the president. It appears that the UNP leadership is aware of the political needs of the President and is willing to accommodate them even at the cost of being publicly criticized by him. The worst case scenario for the government, and its plans for national reconciliation, would be a winning performance by the SLPP and anything that could be done to reduce the margin of its victory (and increase the margin of its defeat) would be in the interests of the parties in government and of a political solution to the ethnic conflict.

Good Governance Should Lead To Good Enough Humane Governance

By Lacille de Silva –January 29, 2018

“Politics have no relation to morals”- Niccolo Machiavelli

The present government during their election campaign pledged that they would take steps to re-create the independent Commissions. There promise was to de-politicise the public sector to prevent political interference and to improve the quality of public service and the public servants. They hurriedly enacted the 19^th Amendment. And provided therein a mechanism too, the (new)  provision, not to exceed the constitutional restriction, relating to  the number of ministerial posts , if in case they do not form a ‘NATIONAL GOVERNMENT’. However, for their own advantage, they themselves violated the relevant Article and began falsely identifying themselves as members of a ‘NATIONAL government’! They have also deferred enacting the enabling laws – The National Audit Bill – a must. They have appointed the independent commissions too, minus the powers.

The framers of the 1972 Constitution introduced provisions to abolish the independent Public Services Commission (PSC) in the Soulbury Constitution (1947). This constitutional modification gradually paved the way for the demolition of the public sector which had an excellent reputation for honesty, integrity, vision, fidelity and honourableness.   

 

In 1978, once again, when JRJ government introduced another Constitution, there had been widespread consensus that the PSC should be re-established, in line with the previous model in the Soulbury Constitution (1947), which had been given complete independent status in order to create an impartial, effective and efficient public service, shielded from political interferences.

They however re-created the PSC minus the crucial powers. Article 55(2) provided that appointments, promotions, transfers, disciplinary control and dismissal of all Heads of Departments be assigned to the Cabinet of Ministers. In addition, the power of appointing Secretaries to Ministries had been assigned to the President by Article 52 (1).  The drafters had also seen to it that the permanency of the Secretaries too removed.  In effect, under both these Constitutions, (1972 and 1978) they had surreptitiously incorporated the necessary provisions to give constitutional strength and thereby legitimise political appointments and interference over the public service to the Cabinet of Ministers. The present PSC does not therefore have the necessary powers which it had enjoyed under the Soulbury Constitution. It is now a decorated name board only.

The 17^th Amendment was passed with multi-party consensus in Parliament. The aim had been to curtail excessive powers of the Executive President and to depoliticise the public sector by introducing the much needed checks and balances into the system of governance through independent Commissions.

Under the 17th Amendment, term of office of the first PSC expired on 1^st December, 2005. The previous government did not take steps to nominate members to the PSC and hence PSC had been defunct during the period 2^nd December, 2005 to April, 2006. The second PSC was appointed on 10^th April, 2006 by presidential decree without observing the constitutional requirements.  

The question of unconstitutional appointments to the PSC and the Police Commission had been challenged before the Court of Appeal. The court thereafter had held the view hat the President’s action could not be challenged in a court of law.

 

This was another unique instance where the Executive President had failed to perform the legitimate constitutional functions. Present government too had mis-interpreted the concept of the NATIONAL GOVERNMENT, for their own benefit. The Constitution is the highest law of the land, which stipulates the basic structural and procedural principles of governance.  The President and the PM had jointly exceeded the number of Cabinet, State and Deputy Ministers having flagrantly violated the provision introduced by them. This is sufficient proof that they are also concerned only about rewards, perks and benefits.

I am convinced the President and PM did not truly uphold the principles that they were duty bound to establish GOOD GOVERNANCE. The ‘good governance team’ led by the President and the Prime Minister happily run day to day governance contrary to the provisions in the Constitution from day one. Crooked politicians betray the common man. We are now tired of promises that they have broken!

The President and PM had reiterated that the Public services need to be up graded to enable the public servants to perform their duties with integrity, centred around citizens, and responsive to the needs, particularly the needs of the most vulnerable. Both have substituted rhetoric in place of action. As they had pledged, if they sincerely need to achieve greatness, they must not merely talk, they must do it right. Aren’t they too late now?

Kofi Annan on “Preventing War and Disaster” had said – “In practice, good governance involves promoting rule of law, tolerance of minority and opposition groups, transparent political processes, an independent judiciary, an impartial police force, a military that is strictly subject to civilian control, a free press, and vibrant civil society institutions, as well as meaningful elections. Above all, good governance means respect for human rights”.

The 18^th Amendment which was enacted during the second term of the former President gave unlimited powers back to the President to appoint all important officials, judges of the Supreme Court, Appeal Court and High Court at his discretion.

The Sri Lanka Governance Report 2012/13 says – “The Attorney General who is the Chief Law Officer of the government was expected to act independently, … was brought directly under the President so that he (AG) can no longer use his independent judgement but must carry out wishes of the President. So, when deciding whether to file criminal cases against an accused or not, the AG had to forego his right to make his own judgement on the basis of the law and evidence and instead, carry out the orders of the President in cases where he personally or for reasons of state policy gives instructions. These orders and instructions are not given in writing, as they should be in any democratic governance procedure, but only orally. Democratic governance should be based on written decisions and written records should be kept of them. This practice in democratic governance procedures is to ensure that decision making is in accordance with the law and good judgement and not arbitrary or influenced by extraneous considerations. It is also to hold government officials accountable to the law”.

The above extract shows clearly how the executive interfered with the public sector. It is unfortunate that due to callous disregard for rule of law and good governance, politicians, their family members and henchmen openly flouted law with impunity in this country. According to the Repot of the International Bar Association, the Attorney General had not prosecuted those who had committed crimes and who had access to those politicians in power.    

After 1970s, at the highest level, most of the senior posts were filled by politically connected personnel. These new breed of bureaucrats became obedient servants of the politicians to whom they owed their appointments. Politically neutral public service and the bureaucracy became so cheap and they started accepting bribes and commissions and even carried out illegal orders to satisfy the political bosses. If so, accepting corrupt political bosses, gives a clear indication, that there is fraud and corruption, within public officers too.

The institutions that have been designed to be close and accessible to the citizens have become ineffective, detached and unresponsive. The institutions, National, Provincial or Local, in the minds of citizens have become synonymous with corruption. The biggest mistake we made is that Yahapalana Government would act in the public interest.

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Another navy officer arrested of disappearance of Tamil youths

29Jan 2018

Another retired Sri Lankan navy officer was arrested this month in relation to the enforced disappearance of 11 Tamil youths during 2008 - 2009. 

Luthuwahandige Thushara Mendis was arrested January 23 and remanded by Colombo Fort Magistrate's Court the following day. 

The CID alleged Mr Mendis was involved in the abduction of 8 Tamil youths who were transported to the Trincomalee naval base. He was also involved in the abduction of an individual named Ali Anver, whilst he served as the senior Master Chief Petty Officer in the Special Intelligence Unit lead by Lieutenant Commander Sumith Ranasinghe, the Daily News reports. 

Daily News report follows: 

"Mendis had also been part of the Navy Special Intelligence team that had allegedly taken the eight abducted youths to the Gun side underground camp at the Trincomalee Naval Base, from where they were being held at the Naval camp in Chaithya Road, Colombo Fort.

A CID source told the Daily News that Mendis had been in charge of a boat which provided support to this special intelligence team, especially in the disposing of bodies. He had served under Ranasinghe from 2008 to 2009 attached to the Parakrama Naval base.

CID investigations had revealed that on October 17, 2008, the intelligence team had obtained an open warrant and raided a house near the Dehiwela Police Station and arrested five youths including Rajiv Naganathan, Pradeep Vishvanathan, Thilakeshwaran Ramalingam, Mohommed Jilan and Mohommed Saajith.

The five youths were allegedly taken in their black Indigo car (KC 5565) and held at the ‘Pittu Bambuwa’ jail under Lt.Commander Hettiarachchi.

However, during the period from December 31, 2008 to the end of March 2009, one of the abducted youth, Rajiv Naganathan had been in contact with his parents Govindasamy Naganathan and Maarachchige Sarojini Perera.

The Navy personnel guarding these abducted youths had lent them their mobile phones for them to contact their families.

The CID sources said that Ali Anver had been the informant to this special Navy team, but he too disappeared in 2009. However, it was revealed during the investigations that in fact, Rajiv Naganathan had told his parents that Ali Anver had also been arrested and he was being beaten up. The five boys had been later taken to Trincomalee by Mendis and Ranasinghe.

Further, the Indigo car had been taken to Giriulla by Thammitage Dharmadasa and Aluthgedara Upul Bandara, who had also given evidence.

The duo were residents of Giriulla. Further, several Navy personnel too had given evidence confirming the detention of these youths. CID sources also added that they had obtained evidence that the Indigo car had later been handed over to the former Navy Spokesman Commander Dassanayake. Further investigations are under way."

Related Articles: 

25 January 2018 : Navy intelligence officers threaten Tamils protesting against land grabs in Kayts

12 January 2018 : Former navy spokesperson released on bail

10 October 2017 : CID accuses Sri Lankan navy of providing false information over disappearance case

The long-awaited MMDA report, a façade!

Tuesday, 30 January 2018 

After nine years of snail-paced deliberations, the Justice Saleem Marsoof (JSM) Committee Report to reform the Muslim Marriages and Divorce Act (MMDA), sometimes called the Muslim Personal Law (MPL), is out at last, bravo!

The Chairperson of the committee, Justice Saleem Marsoof handed over a report to Minister of Foreign Employment and Minister of Justice Thalatha Athukorale on 22 January. It is regrettable that the JSM committee could not arrive at a consensus among the learned members who sat for a record nine long years.

The report submitted by the Chairperson Justice Marsoof has already hit the fan with the majority in the MMDA committee disputing its validity. They claim that the Chairperson has submitted a report that did not include the recommendations of nine eminent members who signed off on their report and handed over to the chair on 21 December 2017, which has not been included as part of the main report as agreed but relegated to the last without any special mention of the process. It is also claimed that a non-member and two others who did not attend any meetings of the committee too have signed, which may invalidate the long-awaited report.

They also complain that the Chair did not even have the courtesy to share his final report amongst or inform the committee before submitting it to the Minister. The Chair should have invited at least a few of members to take part in handing over the report to the Minister. After all, nine years of their valuable time was spent on this report that may now be relegated to the dusty shelves of the Justice Ministry.

There are also accusations that the date and time of submission was leaked to some activists so that they could stage a protest outside the Justice Ministry to get maximum media coverage. A justifiable claim considering the fact that the activists lined up outside the ministry to protest during the time of the submission, while the committee was unaware.

The nine eminent members who form the majority group in the MMDA committee include former Attorney General and current member of the Constitutional Council, Shibly Aziz PC, Faisz Musthapha PC, Abdul Salam, former Judge of the Civil Appellate High Court; Justice Mackie, Attorney-at-Law Fazlet Shahabdeen, President of the Jamiathul Ulema; Ash Sheikh Rizwe Mufthi, Secretary of the Jamiathul Ulema; Ash Sheikh M.M. Mubarak, former Director of Jamiah Naleemia; Dr. M.A.M. Shukri and the former Chairman of the Quazi Board of Review and Attorney-at-Law Nadvi Bahudeen.


Long delay 

The long delay in the report seeing the light of day was mainly due to the Committee being divided as two groups – one that had the majority of the members claiming to take a stand based on Islamic principles while adapting to modern realities, and the other claiming to take a position of a rights based approach while being within the principles of Islam; the Chair miserably failed to negotiate a consensus.

The delay in submitting the JSM report prompted former Justice Minister Wijeyadasa Rajapaksa to propose to the then Cabinet the need to amend the MMDA Act urgently as some provisions in the Muslim Law including the lack of a minimum age for marriage did not conform to the norms stipulated in certain international conventions. A Cabinet sub-committee was thus appointed in October 2016 but that Committee decided to wait for the JSM report before taking any further action.

Rights groups, including Muslim and other women activists claim that some sections of Act 16 (1) of the Constitution which governs Muslim personal law is a violation of basic human rights of women while the majority in the Muslim community insist that it adheres to their religious rights and obligations. They also accuse the Chair of taking the side of the minority group within the Committee without being an independent mediator.

Justice Saleem Marsoof who has done extensive research in to Islamic jurisprudence explains the Muslim Marriage and Divorce Act (MMDA) in his paper ‘Insights into Sri Lankan Family Law’. The current MMDA in Sri Lanka exists after going through several modifications and reviews from the Muhammedan Code of 1806 to what is now called the MMDA of 1951. The Muhammedan Code originally was brought to Sri Lanka from the current-day Indonesia that was established during the Dutch rule in 1770 and has prevailed since then.

The Sri Lankan Parliament first enacted the Muslim Marriage and Divorce Act (MMDA) in 1951 to govern the Muslims of Sri Lanka. This law has been amended a few times to fill in procedural shortcomings. During the last 30 years, Muslim women activists have been demanding amendments to the act, which they claim discriminates against Muslim women.


The JSM Committee

In 2009 the then Minister of Justice Milinda Moragoda after having extensive discussions with several eminent Muslims, acknowledged that certain reforms to the Muslim Personal Law was urgently needed. He obtained Cabinet approval to set up a 16-member committee consisting of senior legal personalities, heads of the All Ceylon Jamiyatul Ulema (ACJU), lawyers, and academics and members of civil society organisations. The letter appointing this committee has also been attached to the said report. The JSM Committee was headed by Justice Saleem Marsoof, a respected Judge of the Supreme Court to “Consider and Propose Reforms to the Muslim Matrimonial Law and Upgrading of Quazi Courts in Sri Lanka”.

The JSM Committee appointed by Milinda Moragoda comprised of Justice Saleem Marsoof PC (Chairperson), Justice Abdul Salam, former Judge of the Civil Appellate High Court; Justice Mackie Mohamed, former Attorney General and current member of the Constitutional Council Shibly Aziz PC, Faisz Mustapha P.C, Deshabandu Jezima Ismail, President of the Jamiathul Ulema; Ash Sheikh Rizwe Mufthi, former Dean of the Law Faculty of the University of Colombo; Prof. Sharya Scharenguivel, Attorney-at-Law Razmara Abdeen, Attorney-at-Law Safana Gul Begum, Attorney-at-Law Fazlet Shahabdeen, Secretary of the Jamiathul Ulema; Ash Sheikh M.M. Mubarak, Member of the Mediation Commission; F.B. Juranpathy, former Director of Jamiah Naleemia; Dr. M.A.M. Shukri and the then Chairman of the Quazi Board of Review Nadvi Bahudeen. Dilhara Amerasinghe acted as the Secretary to the Commission.

The Committee sat through the deliberations for nine long years, and has sent out a report that has no consensus among the 16-member committee. This could lead to major conflict between the activists and the majority of the Muslim community on the MMDA.

One report has been signed by a majority of nine and delivered to the Chair on 21 December 2017 which the Chairperson and the activists do not agree with, and hence have submitted their own report. On the other hand, the majority group claims that there are certain provisions proposed by the dissenting group, which could be in contradiction with Sharia that is followed by Muslims. This is a debatable question as many Islamic countries have changed their laws in recent times and issued fatwas that may or may not be compliant with the Muslim Marriage and Divorce Act as practiced presently in Sri Lanka.

The activists and the minority group within the Committee claim that Justice Marsoof has extensive knowledge and has researched on Muslim Marriages and Divorce Acts across the world, while the majority feel that he has been made a pawn in the hands of the activists. They also claim that the Chair has not acted as an independent Chairperson and hence divided the Committee, which has resulted in two reports.

The majority group that includes the All Ceylon Jamiathul Ulema (ACJU) has come under severe criticism in recent times for promoting archaic and rigid interpretations of Islamic practice as claimed by some Activists. They have managed to garner wide media attention against ACJU, which painted these Muslim religious leaders in Sri Lanka as medieval thinkers and extremists. The majority of Muslims feel that the stand taken by these religious leaders is based on divine law and cannot be changed on the whims and fancies of ‘modern Muslims’.


The MMDA

The Muslim Marriage and Divorce Act deals with personal laws concerning the Muslim community in Sri Lanka. Article 16 (1) of the Sri Lankan Constitution states: “All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter,” thereby diluting the supremacy of the Constitution by allowing the Muslim Personal Law to supersede it.

The General Marriage and Registration Ordinance (GMRO) clearly states that Muslims cannot marry under any other law except the Muslim Marriage and Divorce Act (MMDA). The MMDA reigns supreme where Muslims are concerned, despite the Constitution’s existence. It simply means that a Muslim’s marriage would be illegal and could be annulled if they married outside the MMDA.

The 1907 Sri Lankan General Marriage Registration Ordinance (GMRO) is applicable to all citizens of the country with the exception of Muslims who marry within their faith. Two communities – the Kandyan Sinhalese and Sri Lankan Muslims have separate Acts for marriage and divorce, on the basis of ethnicity and religion respectively. The present Muslim Marriage and Divorce Act (MMDA) was enacted in 1951.

Kandyan Sinhalese too have the option of marrying under the 1952 Kandyan Marriage and Divorce Act as well as the GMRO. However this option does not extend to Muslims as only the Muslim Marriage and Divorce Act of 1951 (MMDA) governs Muslims who marry another Muslim (including reverts to Islam). Muslims however are allowed to marry partners who are of a different ethnicity or religion under the GMRO.

If reforms to the MMDA would mean that the fundamental rights of Muslim citizens would be protected and not violated, then Article 16(1) should not be such a major concern. Only in the event discriminatory provisions contribute to be present – the absence of Article 16(1) is seen as an alternative legal remedy to address issues faced by Muslim women, men and children in matters of marriage and divorce through civil courts like any other Sri Lankan citizen.

Muslims have faced the wrath of some Buddhist extremists during the last decade that led to the majority of them voting against Mahinda Rajapaksa, who was seen as providing impunity to the Bodu Bala Sena. Any attempt by the current Government to repeal 16 (A) of the Constitution or amend it without the consent of the majority in the MMDA committee would be seen as trespassing on the rights of the Muslims. Like Wimal Weerawansa’s constant claim of “international conspiracy”, the Muslims feel that this is a conspiracy hatched by the Government to please Geneva.

It is a sad fact that after nine long years for this much-awaited report, the Muslim community continues to be divided even on issues that govern them. The Muslim Personal Law that the Muslims have enjoyed under section 16 (1) of the Constitution has become yet another dividing factor, where there have been calls by some activists to repeal it.

The Minister of Justice would do well to summon the entire committee and inquire in to the dispute prior to submitting it to the Cabinet sub-committee that was appointed in October 2016. This committee needs to consider the submissions of the majority group of the JSM Committee so that the Muslims could amend the laws that govern them while adhering to their religious rights and practices.

Sri Lanka's ex-defence secretary; to arrest or not: analysis

Jan 29, 2018

ECONOMYNEXT - Our political correspondent examines how Sri Lanka's ex-defence secretary Gotabhaya Rajapaksa has avoided arrest despite being implicated in the murder of Editor Lasantha Wickrematunga and several other crimes.

Economynext's political correspondent says both President Sirisena and Prime Minister Ranil Wickremesinghe may want Gotabhaya to remain a free man, but the two leaders have difference reasons for not making the high profile arrest.
 
President Maithripala Sirisena last week confirmed rumours that circulated in Colombo late last year that he had intervened to prevent the arrest of former top defence official of the Mahinda Rajapaksa regime.
 
Speaking to senior editors, Sirisena for the first time admitted he saved Gotabhaya despite having repeatedly denied he ever blocked the prosecution of the one-time de facto head of state under brother Mahinda.
 
 For President Sirisena, Gotabhaya Rajapaksa could be a useful ally to rally hard-line Sinhala-Buddhists within the splintered Sri Lanka Freedom Party (SLFP) and eventually to secure the leadership of the party.
 
Even though Sirisena is nominally the leader of the SLFP, he knows that a majority of SLFP members of parliament and the rank and file are with his predecessor Mahinda.
 
However, Sirisena could use the plethora of criminal cases pending against Gotabhaya to twist his arm into supporting him (Sirisena). Support from Gotabhaya could help Sirisena win over the hardliners within the SLFP.
 
Gotabhaya has emerged as a symbol of hard-line Sinhala-Buddhist nationalism and his association with the extremist Bodu Bala Sena (BBS) of Ven. Gnanasara is well-documented.
 
Any truck with Gotabhaya will cost Sirisena the support he received from the two main minority groups, the Tamils and the Muslims, but for Sirisena the most pressing issue is the leadership of the SLFP.
 
A drubbing at the February 10 local council elections could make Sirisena more desperate to cut a deal with Gotabhaya and other hardliners in the Rajapaksa faction. That is probably why he announced last week that he is ready to ditch the UNP and form an SLFP government if all SLFP MPs stood behind him.
 
Sirisena justified interfering in the imminent arrest of Gotabhaya Rajapaksa in November last year saying that he did not want any action taken without a water-tight case prepared by the Attorney General.
 
Sirisena made it clear that he had no faith in the dossier prepared by the AG's department and wanted private senior legal experts to re-examine the case file before proceeding to indict Gotabhaya Rajapaksa.
 
With Sirisena pulling the handbrake with both hands, Gotabhaya Rajapaksa has left the island last month and is conspicuously absent from his brothers’ local election campaign.
 
For Prime Minister Ranil Wickremesinghe too, not arresting Gotabhaya Rajapaksa could be a blessing in the long run.
 
Wickremesinghe is hoping to run for the presidency in 2020. Any split in the main opposition SLFP could only help Wickremesinghe. To perpetuate a division within the SLFP, the Gotabhaya Rajapaksa factor could be vital for Wickremesinghe and the UNP.
 
Gotabhaya Rajapaksa is a divisive figure. Many SLFP stalwarts such as Nimal Siripala de Silva, John Seneviratne and several other seniors believe that their positon in the party could be undermined by the former defence secretary.
 
Groups that support Gotabhaya Rajapaksa target the SLFP’s Maithripala faction more than the UNP. For Wickremesinghe, the challenge is to keep the SLFP split going till 2020 and Gotabhaya Rajapaksa is an important cog in that strategy and for that he must be free to deepen the divisions within the SLFP.
 
There have been allegations that Wickremesinghe's Law and Order Minister Sagala Ratnayaka, had a cosy relationship with Gotabhaya Rajapaksa and that he too may have helped him evade arrest.
 
Political sources say former President Chandrika Kumaratunga has openly criticised Ratnayaka for the very slow progress in prosecuting Gotabhaya Rajapaksa. Minister Ratnayaka’s brother Kavan Ratnayaka is also known to be a close associate of Gotabhaya Rajapaksa.
 
Rajapaksa has also secured interim court of appeal orders preventing the police from arresting him for the misappropriation of state funds to build a memorial for his late parents.
 
However, police investigators said there was nothing to prevent them from taking Gotabhaya Rajapaksa into custody in connection with several other more serious crimes, if not for political interference. (COLOMBO, January 30, 2018)