"I cannot go to the PSC with a clear conscience unless I have a commitment from Mahinda’’

An exclusive interview with TNA leader R Sampanthan:

BY S VENKAT NARAYAN
Our Special Correspondent

NEW DELHI, October 13: Tamil National Alliance (TNA) leader Rajavarothiam Sampanthan declared here today that Sri Lanka’s Tamils are prepared for a give-and-take with the Sinhalese to evolve a pragmatic solution to the festering ethnic problem.

In an exclusive two-hour interview to the Sunday Island here today, Sampanthan made it clear that his party is committed to finding "a reasonable, workable and durable solution within the framework of a united Sri Lanka."

"The TNA is prepared to join the Parliamentary Select Committee (PSC) process to find such a solution. But, unless I have a commitment from President Mahinda Rajapaksa, I cannot go the PSC with a clear conscience. I am not prepared to betray my people," the 80-year-old veteran leader proclaimed.

(Sampanthan and six other TNA parliamentarians have been in the Indian capital since Wednesday evening. On Thursday, they met Prime Minister Dr Manmohan Singh, External Affairs Minister SM Krishna, Prime Minister’s National Security Adviser Shiv Shankar Menon and Foreign Secretary Ranjan Mathai to put forth their point of view on the stalled political process to evolve a solution to the Tamil question in their country. (They called on Leader of the Opposition in the Lok Sabha Sushma Swaraj, and met representatives from a dozen European countries to brief them about the TNA’s stand on the peace process. Sri Lankan High Commissioner to India Prasad Kariyawasam hosted a dinner in the TNA MPs’ honour on Friday night. They will return to Colombo on Sunday).

Sampanthan, who has been elected to Parliament five times since 1977, pointed out: "For the PSC process to succeed in evolving a decent devolution package, there must be a consensus on the contours of a political solution among the major players in the island’s political life, namely: the governing Sri Lanka Freedom Party (SLFP), the main opposition United National Party (UNP), and the TNA."

He made it clear that the TNA is not opposed to the PSC process per se. There have been seven rounds of talks between the Rajapaksa government and the TNA since Parliament passed the PSC resolution late last year.

The government delegation during these talks comprised only leaders from the SLFP. Notes were exchanged on all the issues. There were meaningful discussions on Mangala Moonesinghe’s proposals on devolution, the proposals put forth during 1995-97 and 2000 by then President Chandrika Kumaratunga, the ideas President Rajapaksa himself had put forth at the inaugural meeting of the All Party Representative Conference (APRC) in 2006, and those from the majority report of the multi-ethnic experts committee to assist the APRC.

On the basis of these confabulations, the TNA put forth a set of proposals on which the government representatives and the TNA had agreed. The TNA wanted the government delegation to commit to the proposals.

But there was no response from the government side for five months.

On 2 September 2011, Sampanthan met the President on the latter’s invitation. The President agreed to put on the table of the PSC the "consensus proposals" or ideas on which both sides had agreed during their deliberations, and requested the TNA leader to participate in the PSC process.

At a subsequent meeting, the President asked Sampanthan to nominate TNA representatives to the PSC so that it can begin its work. But the TNA leader declined.

He explained: "If we nominate our team, the President will call a meeting of the PSC. The TNA will boycott such a meeting unless the government agrees to put the "consensus proposals" on the table of the PSC. The government will then proclaim to the world that the TNA is not cooperating.

"That’s why I refused to nominate my team. But let me make it clear that we are not opposed to the PSC process. Let the government do what its representatives had agreed to during our talks: put the consensus proposals on the PSC table."

Sampanthan also pointed out that out of the 31 members on the PSC, 19 will be from the government and 12 from the opposition, including maybe four from the TNA.

He added: "The PSC process may become infructuous if the government team outvotes the opposition on the proposals. Which is why we want a commitment from the President about the contours of a political solution before we join the PSC process."

Canada PM in democracy push at DR Congo summit
  Monday, 14 October 2012 

MONTREAL — Canadian Premier Stephen Harper defended his attendance at the Francophonie summit in the Democratic Republic of Congo on Sunday while slamming the country's failure to abide by "democratic standards."

The Canadian leader admitted he came to the Congolese capital "with some reluctance," but that he did not regret the decision.

"It was worthwhile, because it did give us an opportunity to meet with people who are trying to make real change here," Harper said on Canadian television from Kinshasa.

"I hope that in the future, la Francophonie and other major organizations will decide to hold a summit only in countries with democratic standards," he said of the host nation.

The decision of the 75-member Organisation Internationale de la Francophonie to hold its 14th summit in Kinshasa raised eyebrows, given the government's dismal democratic credentials and human rights record.

In that regard, the Canadian prime minister threatened that he might not attend the British Commonwealth conference in Sri Lanka in November 2013 if that country does not improve its democratic efforts.

Meanwhile, on the sidelines of the summit Sunday, Harper announced an aid package worth $20 million over four years for an international fund through the World Bank aimed at helping developing countries "manage their natural resource industries responsibly and transparently while fostering prosperity, job creation, poverty reduction and good governance."

The 2011 polls in the DRC that saw President Joseph Kabila win a new term and retain his control of parliament were widely criticised as fraudulent.

And this year's Francophonie summit came amid fresh fighting in eastern DR Congo.

The summit's 2010 edition was moved from Madagascar to Switzerland over democracy concerns.

Brevet colonels: Militarization of our schools? 
Sunday 14 October 2012

Principals as Colonels ( Photo: MOD)

Twenty three Grade 1 principals of the Sri Lankan Education Administrative Service were commissioned as Brevet Colonels of the National Cadet Corp last week, after a training programme conducted at the National Cadet Training Academy in Rantambe. Plans are also afoot to commission another batch of Grade 2 principals as Majors of the National Cadet Corp. The rationale of this new endeavour is that military training would inculcate discipline, as stated by Secretary of Defence Gotabaya Rajapaksa. 
That is a flawed and equally dangerous premise, which has apparently been borrowed from our neighbour, Pakistan, which itself is a basket case in terms of democracy, and was ruled by the military during two thirds of its independent history. 
Successful modern schools are not regimented; they are the bastions of free flowing ideas, independent thinking and innovation, where students are coached according to the best of liberal traditions. Pakistan, has largely been a misnomer in this regard.
The dismantling of other elite institutions of the state, including civil society, political elites and bureaucracy, and co-opting them with the military since the immediate aftermath of independence turned Pakistan into a graveyard of democracy in the subsequent decades.  Military run schools, which are playing a dominant role in Pakistan’s education system, are yet another symptom of the democratic deficit in our South Asian neighbour. Pakistan, in fact, offers stark choices for its children. In the absence of real government investment in primary and secondary education, Islamic madrasa’s, some of which are  run by Islamic fundamentalist groups such as Lashkar-e-Taiba (LeT) and Jamaat-e-Islami offer the other only alternative for Pakistani youth to have an education. The Taliban was trained in madrasas in Peshawar, run by Pakistan’s Inter Services Intelligence. 
Ours is a country blessed with a well connected network of public schools, built by Buddhist, Hindu and Muslim philanthropists and enlightened western missionaries, all of whom, not withstanding their religious differences, contributed to build an education system that rivalled any of their counterparts in the Commonwealth. These schools, which were built on liberal traditions, produced great minds who served humanity at home and in far flung lands. 
If the standard of education imparted by these institutions was compromised at one point of time in history, it was due to a short sighted political decision that forced upon a compulsory Swabasha education on local students. That decision denied local students a global outlook, and was instrumental in fostering and perpetuating many evils that haunted Sri Lanka in the later decades of her independence. It was the intellectual deficit of those subsequent generations of local school products, who later replaced their enlightened predecessors in bureaucracy, including in the education service that has now enabled the military encroachment in our schools. 
If we had lost our early momentum in public education, it was because we shut the doors to modernity through the compulsory Swabasha education. The solution to rectify problems that beset our school system lies in opening those doors that were shut six decades ago. 
It is in this context that the government’s attempt to bring in military discipline to our schools is patently ludicrous. The Sri Lankan army or its national Cadet Corp could hardly provide an enlightened modernizing influence for our public school system. In fact, enabling the military to make inroads into the local school system could have the opposite result. That could, in the long term, force the other institutions of government to play second fiddle to the military and create a contemporary Spartan society which is built in line with modern day pariah states such as North Korea and Eretria.
In order to achieve a qualitative improvement in our schools, the government should train our principals and teachers in the best administrative and teaching practices, which have been adopted by government schools in the UK, US or Singapore.  The British Council or the Fulbright Commission is better equipped to provide that exposure to our principals than the Sri Lankan military. 
To ensure that future generations of this country are equipped with modern skills and knowledge, the government should build online libraries, computer centres, language laboratories and other repositories of knowledge. To this end, the government should strive to adopt the ‘one laptop per child’ policy, advocated by some futurist educationalists and adopted by some countries, including India, subjected to some modification of the original program.
To rectify the costly blunder committed in the past, the government should prioritize English language education, and as the decades of Swabasha education has brought down the standard of English teaching in public schools to rock bottom, the government should bring down foreign academics to train our teachers at our English Teachers’ Training Colleges, such as the one located at Pasdunrata. Institutions such as the British Council would respond to such a request for assistance, not out of sheer altruistic nature on their part, but due to the fact that such a gesture would help enhance the soft power of countries represented by those institutions. Last but not least, there is one salient point one needs to highlight: Despite their drawbacks, our schools continue to provide a world class education, most importantly, free of charge. Those who pass out in local Advanced Level examination with higher grades – especially in mathematics and bio science streams – are truly geniuses. 
Sure enough, we have our own problems. But militarization of our schools in the form of brevet colonels is not the solution.

Opposition Cannot Abdicate Its Role To Judiciary

By Jehan Perera -October 15, 2012 

Jehan Perera

The crisis that is brewing between the executive and judiciary is a sign that the system of checks and balances continues to be functional.  In the past eight years since President Mahinda Rajapaksa became the Chief Executive the accumulation of power in the executive branch of government has grown apace and appears to be an unstoppable march.  It was thought to have reached its apogee with the passage of the 18th Amendment to the Constitution by the present Parliament with a 2/3 majority.  One section of this Amendment gave its assent to the President taking over the powers of appointment of heads to all key departments of government.  This was a power that the previous 17th Amendment had thought fit to share between Parliament and the Executive President.  This power sharing Amendment had been passed unanimously by a differently constituted Parliament a decade earlier.

It was disappointing to see senior members of Parliament, especially those on the side of the government, who had both publicly and privately expressed their disagreement with the 18^thAmendment, nevertheless voting for it in Parliament.  Among those who voted for the Amendment were those who had been elected as opposition Parliamentarians, and who had crossed over to take over ministerial positions in a jumbo cabinet of ministers of over 50 that was expanded to accommodate such crossovers.  The critics of the 18^th Amendment who voted for it were cognizant of the political reality that the government leadership would brook no opposition to the 18^th Amendment which additionally gave to the President the right to run for unlimited terms of office, and not for just two as had limited the incumbency of previous Presidents.

The process of centralization of power is set to continue.  The government has now presented the Divineguma bill to Parliament that is meant to concentrate economic power in the hands of the Economic Development Ministry.  The democratic world long ago decided to put limits on the concentration of powers in the hands of a few individuals.  But in Sri Lanka this logic is turned around on its head, and its greatest triumph of modern times that saw the demise of the LTTE is now sought to be emulated in other spheres on the same basis of unmitigated concentration of power.  The proposed new law will consolidate economic resources that have been decentralized to statutory government authorities and to elected Provincial Councils and give the overriding decision making power to the Economics Ministry.

LEGAL CHALLENGE                       Read More

President’s Counsels now similar to Public Notaries

Monday, 15 October 2012 

The qualifications of some of the lawyers who were appointed as President’s Counsels have sparked a discussion in Aluthkade about the need to differentiate between a President’s Counsel and a Public Notary.

Although the President had tried to show that the appointment of President’s Counsels was done without making any differentiation based on political affiliations, there have been some political favourations in some appointments. The lawyer who appeared for Sarath Fonseka in the White Flag case, Nalin Ladduwahetty and lawyers affiliated to the UNP Dulinda Weerasuriya, Lakshman Perera and Ronald Perera were appointed as President’s Counsels.

The Presidential Media Unit has said that Ladduwahetty’s name had been proposed to the President by DNA MP Tirna Alles while Opposition Leader Ranil Wickremesinghe had proposed the names of Weerasuriya, Lakshman Perera and Ronald Perera.

However, the President had cut the name of lawyer Saliya Peiris, who had appeared for many controversial and landmark cases. A lawyer who was appointed as a President’s Counsel had told the President a few weeks earlier that Saliya Peiris was engaged in a conspiracy against the government.

President of the Bar Association of Sri Lanka (BASL), President’s Counsel and parliamentarian Wijedasa Rajapakse said there was no proper mechanism or criteria in choosing President’s Counsel appointees.

He noted that the lack of a mechanism and criteria had resulted in unsuitable persons being appointed to the posts.

He explained that Sri Lanka did not follow proper guidelines in allocating posts of President’s Counsel unlike countries like Great Britain.

He pointed out that earlier the appointments were made in consultation with the Attorney General and the Chief Justice, but it has now become a political process.

The President initially decided on appointing 17 new President’s Counsel, but later decided to increase the number to 21.

The number had increased to 21 with the sudden addition of four opposition lawyers to the list.

Media questions fate of missing report on UN inaction during Vanni war

[TamilNet, Sunday, 14 October 2012, 18:25 GMT]
Nearly a year has passed since a heavily criticized UN Secretary General, had asked the former Executive Director of the UN Population Fund, Thoraya Obaid, to submit a review within 4 months on UN inaction during the 2009 Vanni massacre. However, in an un-announced change in the committee leadership, UK's Charles Petrie replaced Thoraya Obaid. Even Petrie, is now engaged in Norway's Myanmar Peace Support Initiative (MPSI). But, the report on the UN in Sri Lanka is yet to come out. Where is the report, asked the Inner City Press, on Friday. Answering the question, the UN spokesperson, Martin Nesirky, confirmed the incompletion and non-availability of the report. 

Thoraya Obaid, Under-Secretary General of the United Nations from 2000 to 2010. Obaid is from Saudi Arabia.

Charles Petrie, UN's Deputy Humanitarian Coordinator in Rwanda at the time of the 1994 genocide

The task of submitting a report within four months on UN performance during Vanni war was set by the UNSG on 12 September 2011, following the UNSG panel, in its report, recommending such a procedure. 

“The Secretary-General should conduct a comprehensive review of actions by the United Nations system during the war in Sri Lanka and the aftermath, regarding the implementation of its humanitarian and protection mandates,” the three member panel of UN Experts recommended. 

The Panel of Experts observed that during the final stages of the war, the United Nations political bodies failed to take actions that might have protected civilians. 

When asked by the ICP why there has not been any report issued, Ban's spokesman Martin Nesirky responded that "Obaid had not been able to do the report, but that Charles Petrie was not on the case and would issue a report shortly."

ICP reported that even "[t]hat hasn't happened either, and ICP has since learned that Petrie has another job, with the Norway government funded Myanmar Peace Support Initiative (MPSI), which is also controversial," as involvement in two different UN actions is against Article 100, according to ICP. 

In February 2009, during the height of war, ICP asked Ban Ki-moon's spokesperson Michele Montas for the UN's estimate of civilian deaths, and whether it is higher or lower that the 1200 figure used in the Gaza conflict earlier in 2009. Ms Montas replied that "we are trying to save people, not count bodies."

Ms. Montas was asked, and denied, that the withholding of the UN estimate is politically motivated. 

• Report on UN complicity in Sri Lanka HR violations

In a recent report based on eye-witness accounts by UN staffers present during the last months of Sri Lanka's war, Dr. Julian Vigo, an American academic, exposed United Nation's officials' inaction, failure to speak out and the UN's willingness to acquiesce with the Rajapakse government's rights violations and state sanctioned killings of tens of thousands of unarmed civilians. 

• UN chief appalled by Tamil death toll

• ICP: UN leaked documents show casualty figures

• ICP: UN's Holmes wont comment

• UN: Clock ticking for Tamil civilians

• ICP: UN Notes on starvation

• ICP: UN will not release casualty figures

Vigo further said, anyone with a modicum of ethics should not be furious about her report or any other but rather these individuals should be concerned about the serious actions that led to the death of 40,000 humans. Obfuscating nutrition reports, allowing certain UN agencies to send chalkboards to a starving population, the creation of a concentration camp to house people, to remain silent about the illegal actions of the Sri Lanka government. These are all reasons to be furious.

In February 2009, when asked by ICP on casualty figures, and how the numbers compared to those in Gaza, the UN humanitarian chief John Holmes who has been traveling in Sri Lanka with the Government of Sri Lanka, replied that "there is not enough access to estimate casualties, and that it is not productive to make comparisons like that."

UN organs in Sri Lanka was widely believed to be withholding casualty figures of civilians. Tamils Against Genocide (TAG), a US-based activist group, also said that UNOSAT, the United Nations Institute for Training and Research (UNITAR) Operational Satellite Applications Programme in New York that researches into conflicts worldwide, first made public satellite images that pointed to widespread shelling in civilian enclaves, but removed the images within a day of making them public.

In March 2009, ICP reported that after claiming of Sri Lanka that "we don't count bodies," the UN has now involuntarily admitted that the "minimum number of documented civilian casualties since 20 January 2009, as of 7 March 2009 in the conflict area of Mullaitivu Region [is] 9,924 casualties including 2,683 deaths and 7,241 injuries," in a leaked document of the Office for the Coordination of Humanitarian Affairs obtained by the Inner City Press.

WikiLeaks: US Was Following Lt. Col. Keppetiwalana Case Involving The Disappearance Of 25 Villagers From Jaffna

By Colombo Telegraph -October 15, 2012

“There are, however, similar cases from the mid-1990s now working their way through the courts involving officials who have since been promoted and are now in key positions in MoD. We are following a case dating from 1996 involving the disappearance of 25 villagers from the Jaffna peninsula in which Lt. Col. Duminda Keppetiwalana, now the executive assistant of Army Commander Fonseka, is implicated. (Keppetiwalana has been denied U.S.-funded training under the Leahy Amendment because of pending charges against him, ref o.) The magistrate who was handling the case has since been transferred from Jaffna to Colombo and demoted to juvenile court. If the 1996 case is quashed, it will be an indication that Sri Lanka is making little headway on accountability. ” US Embassy Colombo informed Washington. The cable is  classified as “Confidential” and written by the Ambassador Robert O. Blake on September 6, 2007.

Judge Srinithy Nandasekaran

In another cable dated October 19, 2007 Robert O. Blake wrote “Ms. Nandasekaran served in Jaffna as an Additional Magistrate from late 2003 until September 2006. While in that position, Ms. Nandasekaran allowed a case against several officers, including Lt. Col. Duminda Chanaka Keppetiwalana, to proceed. Keppetiwalana was then commanding officer of Nawathkuly Army Camp and is the current executive assistant to the Sri Lankan army commander. Keppetiwalana was accused of overseeing the abduction and assassination of more than 30 persons in 1996-97. Because of the high profile nature of the defendant, Ms. Nandasekaran was strongly advised by colleagues on the bench to dismiss the charges and received threats from government and military leaders when she refused. She did not bow to the pressure. Ms. Nandasekaran also played a key role in the controversial case involving the abduction and murder of Jaffna human right activist Father Jim Brown, a Catholic priest who disappeared near a military checkpoint in mid-2006. Ms. Nandasekaran had ordered the police to begin investigating the Sri Lankan Navy’s alleged involvement in Father Brown’s disappearance. Because of her involvement in the Keppetiwalana and Father Brown cases, she was removed from her assignments and restricted to hearing only civil cases. No progress has been made in the Keppetiwalana or Brown investigations since her removal from the cases. Ms. Nandasekaran was transferred from Jaffna in January 2007, shortly after sharing information with Ambassador Blake about human rights abuses in Jaffna”

“When she was transferred from Jaffna to Colombo in January 2007, Ms. Nandasekaran was demoted to the Juvenile Court.” he further wrote.

The Colombo Telegraph found the related leaked cable from the WikiLeaks database. Read the relevant parts of the cables below;

MaRa Regime orders rubber bullets, tear gas cans in millions to attack its own people

(Lanka-e-News -15.Oct.2012, 2.00PM) Even as the Opposition leaders announced that they are getting ready to take to the streets in protests, the beleaguered MaRa regime which has no solutions to the burning country’s problems is readying to place orders to import many lakhs worth of tear gas and rubber bullets to combat the growing opposition protests and demonstrations in the country, according to reports reaching Lanka e news.

Though these orders should be placed by the Police, this massive order however is being made by Gotabaya Rajapakse by obtaining the signatures of the IGP and the chief of the police force Headquarters arms division in preparation for this import . The letters to the IGP and the controller of the arms division for their signatures had been sent on 10th , Wednesday.

Based on information from sources within the defense Ministry , even during the 30 year period of the war , this huge quantity of rubber bullets and tear gas were not got down.

Hereunder are details of the order :

1) 9 mm rubber bullets – 10 lakhs
( currently the rubber bullets used to quell riotous situations are about 50% less in strength than the 9 mm rubber bullets. Hence , these powerful bullets can cause greater harm when used , according to weapon specialists. They warn these bullets can cause fatal injuries.)

2) Tear gas Cans – 22 lakhs
These gas cans contain gas of inferior quality . This category of tear gas contains a poison and is similar to that used usually for killing dogs, weapon experts say. They add that this is lethal to mankind.

3) Hand bombs(air) – 7 lakhs
4) Batons – 60,000
5) Bullet holding Sacks - one lakh
6) Night Parra with different colors - 6 lakhs

7) 3000 gallons of liquid containing poison and color in some formula for mixing with the water for use in the hose to control unrest.
Interestingly , while these inordinately large quantities of arms to attack its own people are being imported with great gusto , the uniforms , socks, shoes etc , to be supplied to the police officers are neglected. A disillusioned police officer lamented that out of their paltry salaries they have to buy them too in the present situation.

It is a pity that the Rajapakse regime is plagued by three fear psychoses – fear for websites; Geneva fear; and fear for processions . Going by these massive imports of arms to quell rebellions while ignoring every burning issue of the people , it is very obvious that the Rajapakse regime is anticipating a people’s rebellion akin to those in the Arab regions.

Even during 30 year war such large quantities were not imported

Space jump: Felix Baumgartner descscribes his record-breaking skydive

 Felix Baumgartner reacts to becoming the first skydiver to go faster than the speed of sound, after freefalling from 24 miles above the earth. Report by Sophie Foster.

BODHI SAPLING TO BE RELOCATED

The Mahabodhi plant brought from Sri Lanka and planted at Sanchi by Sri Lankan President Mahinda Rajapaksa during inauguration of International University of Buddhist and Indic Studies will now be shifted from the university site after collector of Raisen expressed his inability to ensure security of the plant. 

As of now, the university site is being looked after by Raisen administration. The plant at Amkheda, 8 kms away from Sanchi, is protected by iron fencing.

This Bodhi tree is symbolically significant as it is an offshoot of the same tree that was carried by Sanghamitra, daughter of king Ashoka, to Sri Lanka around 2,300 years ago.

“The Mahabodhi sapling planted at Sanchi has great significance for the proposed university as well as the Buddhist community. It needs to be protected well. Collector Raisen has written a letter to culture department to take the plant in its care. The department is mulling over the decision to shift the sapling to some other place till construction at the university site begins,” said Rajesh Gupta, Officer on special duty, for Sanchi University.

Confirming the news, director of culture department, Sriram Tiwari said, “It would be difficult to deploy someone from an already under-staffed culture department at Sanchi to look after the plant. The sapling might be shifted to some other place for the time being,”

“A police picket consisting of 5 cops and two kotwars is deployed at the university site round-the-clock. Besides, staff of horticulture department is taking care of the plant,” said Mohanlal Meena, collector Raisen. He said that he had written to the culture department requesting them to take possession of the land. He hasn’t received any reply yet. The Mahabodhi sapling was planted on September 21 during the inauguration of Sanchi University.

(Hindustan Times)

The President And Sri Lanka’s Judiciary

By Kishali Pinto-Jayawardena -October 14, 2012 

Kishali Pinto-Jayawardena

The attack on the Secretary of the Judicial Service Commission (JSC) last Sunday, which some have read justifiably as an attempted abduction, is certainly quite unprecedented in the history of this country. We may have had tensions between the judiciary and the executive before. But the level of impunity with which this attack was carried out is both shocking and shameless in its audacity. Public confidence that due and proper investigations into the attack and the punishing of the perpetrators is abysmally low.

The fact that such attacks directly target Sri Lanka’s judiciary is a development that should propel each one of us into even a belated awareness as to the nature of the enormous crisis that confronts us.

President not bound by the Constitution

Attempts by government ministers to impliedly threaten to impeach the Chief Justice and then magnanimously as it were, declare that the government does not want the tug of war between the executive and the judiciary to continue, is part of this charade. The outrage displayed by the Speaker in regard to the Supreme Court Determination not being handed to him but to a parliamentary official is similarly disingenuous. Who does the government think that it is fooling? Or is it simply that the government really does not care any more?  We suspect that this is indeed the case. The government’s modus operandi in regard to the Divineguma Bill makes that self evident.

So it is now quite clear. Article 111C of the Constitution which stipulates grave punishment (including deprivation of civic rights) for anyone who, “without legal authority” interferes or attempts to interfere with the judicial powers and functions of any judge, is not applicable to Sri Lanka’s Executive President for that matter, his Secretary purporting to act on his behalf.

And when such interference is manifest by the President as directed towards the JSC, we are now supposed to infer that the President has ‘legal authority’ to engage in such actions and get away with it. This appears to the only logical conclusion that we can arrive at.

Duty of judges to speak out to protect the institution

Article 111C is no stranger to Sri Lanka’s constitutional scheme and was contained in the 1972 Constitution as well.  Up until the Presidency of Mahinda Rajapaksa, executive interference with the ‘powers and functions’ of judges had not been so blunt as to directly invoke this prohibitive clause. The creeping subtlety with which basic structures of the country’s judicial system have been undermined has only been paralleled by its exceedingly dangerous coercive character. In later years, this executive interference became far more direct, accompanied as it was by the political ambitions of some who sat on the Bench.

A few judges have been bold enough to speak out publicly as to the fate that has befallen the independence of Sri Lanka’s judiciary such as former judge of Sri Lanka’s Supreme Court, Justice CV Wigneswaran some years ago in relation to the degeneration that prevailed during former Chief Justice Sarath N. Silva’s period. More recently, we had retired High Court judge W.T.M.P.B. Waravewa speaking in the wake of his delivering the dissenting order in the conviction of former Army Commander Sarath Fonseka. But these occasions of outspoken and forthright condemnation of the status quo by courageous judicial officers are regrettably few and far inbetween.

Certain basic principles are very clear. The first principle is that it is the first duty of the Bench and the Bar to oppose executive interference with the judiciary.  Towards that end, strike action resorted to by judicial officers is perfectly legitimate though there are those who may profess to think otherwise on grounds that this is to thrust judicial officers into the political arena. This is to engage in pure casuistry (ie specious or excessively subtle reasoning intended to mislead). One would have wished for more honesty in acknowledging the gravity of the threat faced by Sri Lanka’s judiciary but perhaps that is to ask for too much indeed.

Harking back to the history

Certainly, the vicissitudes affecting the functioning of the JSC are well known to constitutional analysts. External threats to its independence by politicians are extensively documented. The 1972 Constitution’s replacement of the old independent Judicial Service Commission under the Independence Constitution by a twin Judicial Services Advisory Board (JSAB) and Judicial Services Disciplinary Board (JSDB) is one good example.

The second Republican Constitution of 1978 did contain many features that were a definite improvement on what had prevailed. The old JSAB and the JSDB, which had proved to be notoriously incapable of preventing political interference in the minor judiciary, were replaced by an independent JSC whose considerable authority was enhanced thereafter by the 17^th Amendment to the Constitution. The interventions of the Constitutional Council in being empowered to approve the nominations of members to the JSC, (other than its Chairman which by tradition is the Chief Justice), was also laudable. But this was only a short summer. The18^th Amendment put paid to all those ambitions.

Are we to consign Sri Lanka to the ranks of failed states?

During the past decade, the JSC underwent considerable turmoil at several different levels. The resignations of (then) Justice Shiranee Bandaranayake, now Chief Justice and (now retired) Supreme Court Justice TB Weerasuriya from the JSC on ‘grounds of conscience” ( an euphemism for stark differences with the former Chief Justice) during the period of the Sarath Silva Court underscored the sharp tensions that were at play.  It was also during this time that the JSC, ruled by a mercurial and deeply authoritarian Chief Justice, drew a rebuke from the United Nations Human Rights Committee on the basis that its ruling processes as to the transfer, disciplinary control and dismissal of judges of the subordinate courts lacked transparency and appeared to be devoid of fairness.

At that time, the threats to the public respect accorded to Sri Lanka’s judicial institution emanated largely from within. Yet years later, the impact continued as much as an antique vase once broken can never be restored to its former glory even if the most careful restoration work is carried out.

Now we have a situation where disrespect for the courts and for the law is out in the open and where a targeted attack on judicial staff and officers is not only possible but quite inevitable if the slightest dissent is shown. The credible implication of a government Minister in the attacks on the Mannar courthouse as well as last week’s assault on the JSC Secretary makes that plain.

Is the silence on the part of those who have a duty to speak out, going to continue despite this grave turbulence? If so, then we may as well wash our hands and consign Sri Lanka to the ranks of failed states.

Repeal 13A without delay says Gotabhaya "Separatist sentiment still strong’

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Repeal 13A without delay says Gotabhaya

"Separatist sentiment still strong’’

October 13, 2012, 6:32 pm 

By Shamindra Ferdinando

Defence Secretary Gotabhaya Rajapaksa yesterday called for the abolition of the 13th Amendment to the Constitution without further delay.

The ongoing efforts by a political grouping led by one-time LTTE mouthpiece, Tamil National Alliance (TNA) to hinder the passage of the Divineguma Bill in parliament meant that in spite of Sri Lanka’s battlefield victory over terrorism separatist sentiments were strong, Rajapaksa told The Sunday Island yesterday.

Responding to a query, the outspoken official said that the SLFP-led UPFA should either do away with the 13th Amendment or amend it taking into considering ground realities.

The Gajaba Regiment veteran said that the 13th Amendment was nothing but an impediment to the post-war development process. The TNA and its supporters couldn’t be allowed to interfere with what the Defence Secretary called pro-people projects beneficial to all.

The 13th Amendment came into operation in line with the Indo-Lanka Agreement in July 1987.

The Defence Secretary’s statement comes in the wake of the TNA having high level talks in New Delhi to push for the full implementation of the 13th Amendment.

Asked whether he was speaking for the government, the Defence Secretary said that he recently had an opportunity to express his opinion to President Mahinda Rajapaksa and many cabinet ministers. It was important to examine internal and external threats posed on the Sri Lanka State and take tangible action to neutralize the threat, he said."I’m not talking about President Rajapaksa’s government or the UPFA. I’m not talking politics. People should realize the external interference will not be beneficial. Whatever the party in power, it must have the freedom to take decisions for the benefit of the majority of Sri Lankans," the Defence Secretary said.

He said that it was a joke that the TNA, which declared the LTTE as the sole representative of the Tamil speaking people in the run-up to Dec 2001 parliamentary polls, now tried to achieve what the LTTE failed with its conventional military power.

The TNA would never have received an opportunity to represent Tamil speaking people unless the Sri Lankan military eradicated the LTTE on the banks of the Nanthikadal lagoon in May three years ago. Had the military failed, the TNA wouldn’t have been in the limelight today.

The UPFA political leadership and Opposition political parties should realize the TNA represented the LTTE’s interests and that interests of the ordinary Tamil people were very much different from those propagated by the group. He urged political parties to see how the TNA behaved at the height of the war.

"I challenge anyone one to produce a single stament issued by the TNA urging the LTTE not to use children as cannon fodder. Did TNA oppose when the LTTE imposed restrictions on all political parties throughout its reign of terror?"

Rajapaksa likened the 13th Amendment to the Norway arranged Ceasefire Agreement (CFA) finalized in Feb 2002. "The 13th Amendment and the CFA didn’t serve the people of Sri Lanka. Instead, they facilitated interests of various other parties, including the LTTE. Interestingly both supported the separatist cause," he said.

Rajapaksa said that that unless the government acted swiftly and decisively the ongoing crisis could have an impact on national security as well. He pointed out that already the TNA and some of its overseas supporters had been pushing for SLA pullout from the Northern region. It would be a mistake on our part to view protests against Divineguma Bill in isolation, he said.