Friday, November 30, 2012

The death of Freedom of Assembly, Expression and Religion in the North of Sri Lanka

WATCHDOG-1 Dec, 2012

Every 26^th[1] and 27^th of November since the end of the war (2009), we hear of people in the North not being able to moan their dead, not being able to carry out peaceful assemblies, not being able to partake in religious festivals or observances in public or at home, and every year it falls on deaf ears. Also noteworthy is the fact that such incidents are most often reported only in the Tamil media and sites or non-main stream news websites. This raises the question as to what “makes news” in the South, and what the mainstream media considers priority. The North not being one of them it would seem.

The trusty arms of the State once again ‘rose to the occasion’ with a real “vengeance” this time around, to suppress all events, deemed by them to be “unwarranted” or bearing potential to “incite” the populace, for the fourth consecutive year now. The only difference this year being that the State has blatantly ignored the recommendations made by its very own reconciliatory mechanism, the Lessons Learnt and Reconciliation Commission (LLRC), which has asked that the State “facilitate(e) their (the people’s) attendance at religious ceremonies, without placing any hindrance to such activities” and that “(p)eople, community leaders and religious leaders should be free to organize peaceful events and meetings without restrictions” (para. 9.116 and 9.118). The report has even gone as far as to recommend that a “separate event be set apart on the National Day to express solidarity and empathy with all victims of the tragic conflict…”(para. 8.304).

No Right to Assembly, Expression or Grieve Continue reading »

Direct The CJ To Refrain From Taking Any Further Part In This Unlawful Trial: Full Text Of Elmore’s Petition

By Colombo Telegraph - November 30, 2012

“Request/urge/direct the Chief Justice Shirani Anshumala Bandaranayake to refrain from taking any further part in the unlawful trial in terms of Standing Order 78A, pending final determination of this matter” Elmore Perera urges in a petition to the Supreme Court today.

Elmore Perera

The Petitioner Attorney-at-Law, Founder, Citizen’s Movement for Good Governance, Past President, Organisation of Professional Associations Elmore Perera asks ”Declare that the Petitioner’s fundamental right to a fair trial by a competent Court guaranteed by Article 13(3) of the Constitution, his fundamental right to be presumed innocent until he is proved guilty by a competent Court guaranteed by Article 13(5), and his fundamental right to apply to the Supreme Court in terms of Article 126 of the Constitution in respect of an infringement or imminent infringement of a fundamental right as guaranteed by Article 17 of the Constitution have been infringed or such infringement is imminent.”

“Direct the members of the Parliamentary Select Committee to refrain from proceeding with an unlawful trial in terms of Standing Order 78A pending final determination of this matter” he further asks.

We below publish the full text of the petition;

IN THE SUPREME COURT OF THE

DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

In the matter of an Application under

Article 126 of the Constitution

Elmore M. Perera,

144, Vipulasena Mawatha.

Colombo 10 Petitioner

S.C. Application Vs.

No. 682/2012 (FR)

1. Her Ladyship, Hon. Dr. (Ms.) Shirani Anshumala Bandaranayake, Chief Justice of the Supreme Court of the Democratic Socialist Republic of Sri Lanka, Supreme Court Complex, Hultsdorp, Colombo 12.

2. Hon. Chamal Rajapaksa, M.P.,

Speaker of Parliament.

3. Hon Anura Priyadarshana Yapa, M.P.,

Chairman, Parliamentary Select Committee (PSC)

4. Hon. Nimal Siripala de Silva, M.P.,

Member, PSC.

5. Hon. A.D.Susil Premajayantha, M.P.,

Member, PSC.

6. Hon. Dr. Rajitha Senaratne, M.P.,

Member, PSC.

7. Hon. Wimal Weerawansa, M.P.,

Member, PSC.

8. Hon. Dilan Perera, M.P.,

Member, PSC.

9. Hon. Neomal Perera, M.P.,

Member, PSC.

10. Hon. Lakshman Kiriella, M.P.

Member, PSC.

11. Hon. John Amaratunga, M.P.,

Member, PSC.

12. Hon. Rajavarothiam Sampanthan, M.P.,

Member, PSC.

13. Hon. Vijitha Herath, M.P.,

Member, PSC.

2^nd to 3^rd Respondents all c/o The Secretary General of Parliament, House of Parliament, Sri Jayawardhenepura, Battarumulla.

14. Hon. Attorney General,

Attorney General’s Department,

Hultsdorp, Colombo 12.

Respondents

TO: HER LADYSHIP THE CHIEF JUUSTICE AND THE OTHER HONOURABALE

JUSTICES OF THE SUPREME COURT OF SRI LANKA Read More

No one is above the law: Asgiri Mahanayake

SATURDAY, 01 DECEMBER 2012

Asgiriya Chapter Maha Nayake Thera the Venerable Udugama Sri Buddharakkita Thera yesterday underlined the statement made by the Mahanayake Theras against the impeachment motion on the Chief Justice. He said if there was a law in the country it should be applied equally to all.

Speaking to US ambassador Michele J. Sison who paid a courtesy call on the Prelate, he said some people in the country were accusing others when they could not fulfill their personal agendas.

“There should be an opportunity for those who act in a fair and just manner to carry out their duties without let or hindrance,” he said.

Ms Sison visited the historic Dalada Maligawa and paid homage to the Tooth Relic before her courtesy call on the Mahanayake Thera.

She asked the Thera about a statement on the Impeachment of the Chief Justice and excessive borrowings .made by the Mahanayake Theras. It was published in the English daily newspapers

The Mahanayaka Thera said they had issued the statement to the effect that all were equal before the law of the land, but it had become apparent now that some were using it for their own agendas.

He said when politicians find it difficult to achieve their personal agendas they try to bring disrepute to those who abide by the law.

“It is not fair and therefore we issued a joint statement as the Mahanayaka Theras of the Three Nikayas.

We observed that some were bent on creating a situation to embarrass those who uphold the laws of the country,” the Mahanayke Thera said.

He commended the assistance rendered to Sri Lanka by the US government and extended his blessings and good wishes to President Barack Obama who had been re-elected for a second term.

“The US government has helped our country in the past and does so in the present. We hope it will continue it in the future as well,” he said.

The ambassador responded by saying the US helped Sri Lanka during the tsunami and there exists a cordial relationship between the two countries.
She said the US for its part would continue maintaining the good relationship and added that she appreciated the sentiments expressed by the Mahanayaka Thera.

Ms. Sison also met the Diyawadana Nilame Nilanga Pradeep Dela at the precincts of the Dalada Maligawa.

University students lighted lamps, forces were in pandemonium. "Udayan" reporter assaulted by forces.

University students lighted lamps and gave their respects to the heroes who sacrificed their lives for the Tamil Eelam freedom, the day treasured of their valuable service to the Tamil people.

During this time, in the aim of obstructing, the forces were engaged in unscrupulous activities.

Jaffna University students with much enthusiasm organized the events from the beginning of heroes’ week, whatever obstacles come their path, they were not in a mind to obliterate their memories.

In view of TamiL Eelam Liberation tiger Leader V.Pirabakaran's birthday, they distributed handbills. Today morning too they sprinkled flowers to the heroes’ remembrance place located inside the university premises.

From the time the news story got edited, police and military were vastly deployed around the university premises. Intelligence unit personnel attired in civil clothes were roaming freely pistols in hand inside the university compound which was much visible.

Students were making arrangements to light the lamps at 6.05 p.m at the University Balasingham hostel and Ananthacumarasmy hostel. Unexpectedly with arms and batons the military entered the males’ hostel and began to assault blindfolded who ever came across.

The telephone calls which came at that time from the students to the "Udayan" media office and "Udayan” Administration Director and Tamil National Alliance Parliament Member E.Saravanabawan rushed with the reporters to Balasingham hostel.

Balasingham hostel was in chaotic situation, but at the Ananthakumaraswamy hostel at the prescribed time, lamps were lighted. The lamps were glowing in darkness and with much anger the forces rushed to that direction.

Forces intruding to the female’s hostel whatever they got into their hands they broke. The closed rooms of the students were knocked. The rooms which were opened, the forces illegally entered.

The students in panic screamed and cried. Everywhere tension prevailed, meanwhile the female students were petrified in much fear. Many female students were crying uncontrollably and one female student fainted but came to conscious after a very long time, was reported by a journalist.

At this moment "Udayan" reporter who was taking photographs through his camera, was strongly assaulted by an official from the Military Intelligence unit. Attempts were made to grab the camera, but his attempt did not turn positive.

Two persons tied their face in black cloth severely assaulted the reporter and attempted to snatch his camera but his attempt turned unsuccessful. Intelligence unit personnel with much anger pelted stones to the parliament member and tried to assault him. Meanwhile the security unit and others cordoned the parliament member, safely took him to his vehicle.

Due to the forces presence at the university at the time the students were assaulted, the university security employees and officials behaved in an inconsistent manner which were much observable is according to reports.

Thursday , 29 November 2012

Speaker’s Ruling Has No Bearing Upon The Substantive Issues In The Impeachment – AHRC

Speaker

By Colombo Telegraph -November 30, 2012

“The Speaker’s ruling may indicate that the government may not abide the decision by the Court in this instance – This possibility exists relating to all decisions that a court make on the constitutionality of any law or other acts of the parliament or that of the executive.” says the Asian Human Rights Commission

We below publish the full text of the statement;“A government could ignore the court, and if does so, it openly violates the constitutional architecture and the law. On no instance should a court desist from making decisions on matters referred to it on the basis that the government may disrespect its ruling. If a court were to take such a view, it would be in no position to decide any matter at all. If the government decides to take a confrontational approach to the Supreme Court, that is a matter left to the government, and upon such an event the outcome should be left to the people to decide what course they should take.” issuing a statement AHRC further says.

The Speaker‘s ruling relating to the Supreme Court’s notice to the Speaker and the members of the Parliamentary Select Committee does not in any way prohibits the constitutional right of the Court to entertain and to determine the Reference made by the Court of Appeal for a specific question relating to the scope of Article 107 (3) of the Constitution. Since the issue mooted is of utmost importance, various aspects relating to it should be reflected upon on the basis of constitutional principles and logic.

Based on this the following issues could be highlighted:

The basic structure of Sri Lanka’s constitution as a democracy – It is beyond question that Sri Lanka’s constitution is that of a republic and a democracy. In this there is no fundamental difference between the Indian constitution and the Sri Lankan constitution. The Supreme Court of India finally laid the issue to rest through a historic judgment, Keshavananda Bharati vs. Union of India and others. In going into the questions referred by the Court of Appeal to the Supreme Court, the issue of the basic structure of the Constitution of Sri Lanka is an unavoidable issue. All the maters arising out of the Speaker’s ruling should be considered relative to the basic issue of Sri Lanka as a democracy. The Speaker’s powers need to be looked at within the constitutional architecture that defines Sri Lanka as a democracy.

Any reference to the ultimate supremacy of the parliament should only be understood with reference to the overall consideration of Sri Lanka as a democracy. Such phrases as “supremacy of the parliament” should not be given any meaning that will be detrimental to Sri Lanka’s constitutional structure as a democracy.

The Speaker’s ruling cannot limit the power of the Supreme Court to decide on the constitutionality of any matter – It is a settled principle that the primary opinion on the question of constitutionality of any issue is with the judiciary. To hold otherwise would be to deviate from the basis that Sri Lanka is a democracy.

Even a decision of the parliament arrived through a vote in the parliament is subject to judicial review - There is no limitation for the Supreme Court’s authority for judicial review concerning any decision of the parliament or that of a Select Committee constituted by the parliament. The Court has also the power to review the material on which the decision of the parliament or that of the Select Committee is arrived at. The Indian Supreme Court in the S. R. Bommai case has dealt with this matter in great clarity.

The cornerstone of the objection concerning the impeachment process is that a Parliamentary Select Committee cannot exercise judicial power and that such a Committee cannot be considered an impartial and a competent tribunal to decide on the matters relating to the charges against the Chief Justice. This being so from the beginning the functions of the Select Committee in this regard would have no impact on law and could not this lead to any valid decision relating to the impeachment. Therefore the Court has the jurisdiction to declare the legality and the constitutionality of such a process and to declare it void.

The Court has the power to examine the material on which the decision is made - the decision of the Select Committee that is acting as a tribunal cannot lead to a valid decision, and therefore even if the parliament is to vote in favour of an impeachment on the basis of such finding the court has the power to declare such a decision as one that violates the constitution.

The actions of a Select Committee or the Parliament are actions of the government and therefore the court alone has the jurisdiction to review the constitutionality of any such action by a government – The decision relating to the impeachment and the process thereto are not different to any other action by the government. These cannot be claimed as exceptions to the rule that the court has the power to examine the constitutionality of any action of the government.

On the basis of the above considerations the ruling of the Speaker is of no practical importance to the substantive issues relating to the impeachment – Since no substantive issue rests on the Speaker’s ruling there is no reason to give any serious consideration to this ruling as a substantive obstacle to the Court entertaining its jurisdiction in the matter.

The Speaker’s ruling may indicate that the government may not abide the decision by the Court in this instance – This possibility exists relating to all decisions that a court make on the constitutionality of any law or other acts of the parliament or that of the executive. A government could ignore the court, and if does so, it openly violates the constitutional architecture and the law. On no instance should a court desist from making decisions on matters referred to it on the basis that the government may disrespect its ruling. If a court were to take such a view, it would be in no position to decide any matter at all. If the government decides to take a confrontational approach to the Supreme Court, that is a matter left to the government, and upon such an event the outcome should be left to the people to decide what course they should take.

Sinhala doctor attacks nurse at Vavuniya hospital

[ Friday, 30 November 2012, 01:52.20 PM GMT +05:30 ]

Doctor attacks nurse serving at the Chettikulam base hospital in Vavuniya yesterday.

Doctor has order the nurse to inject injection for a patient at the hospital, when the nurse engage in the preparation work anger doctor carried out attack against the , sources said.
Nurse is a resident of Batticaloa area and the doctor is member of majority community.
When the nurse informed the director general this regard he advice the nurse to maintain silence where the particular doctor has political influence.

Court Of Appeal Ordered To Provide Fonseka’s Release Document

Fonseka

By Colombo Telegraph -November 30, 2012

The Registrar of the Court of Appeal has been ordered to provide former Army Chief and Common candidate at the 2010 Presidential election, Sarath Fonseka, with a certified copy of the document pertaining to his release from prison.

The Counsel told the Court the document pertaining to the release of the former Army CommanderSarath Fonseka is necessary for the Writ Petition filed against his expulsion from Parliament. The hearing on the case was put off to 13 December.

A Bench comprising Judges of the Court of Appeal, Sisira de Abrew and Sunil Rajapaksa, made the directive to the Registrar of the Court of Appeal following the submission made by Counsel Saliya Pieris on behalf of the former Army Commander, yesterday.

“I still don’t know the details of my release. All I was told was to bring my bag of belongings and come outside. They didn’t tell me anything else. I think that in some ways I am still a prisoner in Welikada. The only difference is that I am outside those walls. Other than that I have not seen a single letter. In fact, when I was leaving Welikada Prison, I didn’t even sign a book saying I was leaving to go home,” the former General told last week.

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

Palestinians celebrate in the West Bank city of Ramallah on 29 November 2012

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