Wednesday, November 14, 2012

UN 'failed Sri Lanka civilians', says internal probe

Chief International Correspondent, BBC NewsBy Lyse Doucet

Hundreds of thousands of Tamils ended up trapped in a tiny strip of land BBC

Displaced Sri Lankans in the Vanni area as a result of fighting between government forces and the LTTE

The United Nations failed in its mandate to protect civilians in the last months of Sri Lanka's bloody civil war, a leaked draft of a highly critical internal UN report says.

"Events in Sri Lanka mark a grave failure of the UN," it concludes.

The government and Tamil rebels are accused of war crimes in the brutal conflict which ended in May 2009.

The UN's former humanitarian chief, John Holmes, has criticised the report.

Mr Holmes said the UN faced "some very difficult dilemmas" at the time and could be criticised for the decisions it had taken.

"But the idea that if we behaved differently, the Sri Lankan government would have behaved differently I think is not one that is easy to reconcile with the reality at the time," he told the BBC's Newshour programme.

The UN does not comment on leaked reports and says it will publish the final version.

The 26-year war left at least 100,000 people dead. There are still no confirmed figures for tens of thousands of civilian deaths in the last months of battle. An earlier UN investigation said it was possible up to 40,000 people had been killed in the final five months alone. Others suggest the number of deaths could be even higher.

UN spokesman Martin Nesirky told the BBC the UN does not comment on leaked reports. He said a final version would be published once the secretary general had received and read it.

Senior UN sources say Ban Ki-moon is determined to act on its wide-ranging recommendations in order to "learn lessons" and respond more effectively to major new crises, such as Syria, now confronting the international community.

'Systemic failure'

The UN's investigation into its own conduct during the last months of the conflict says the organisation should in future "be able to meet a much higher standard in fulfilling its protection and humanitarian responsibilities".

The report does highlight the positive role played by some UN staff on the ground and the secretary general, but it points to a "systemic failure".

The panel questions decisions such as the withdrawal of UN staff from the war zone in September 2008 after the Sri Lankan government warned it could no longer guarantee their safety.

Benjamin Dix, who was part of the UN team that left, says he disagreed with the pullout.

"I believe we should have gone further north, not evacuate south, and basically abandon the civilian population with no protection or witness," Mr Dix told the BBC.

"As a humanitarian worker, questions were running through my mind 'what is this all about? Isn't this what we signed up to do?'"

Hundreds of thousands of Tamil civilians remained in the war zone, exploited by both sides: forcibly recruited by Tamil Tigers or used as human shields; or under indiscriminate government fire.

"We begged them, we pleaded with them not to leave the area. They did not listen to us," said a Tamil school teacher now seeking asylum in Britain, who did not want to be named. "If they had stayed there, and listened to us, many more people would be alive today."

The 26-year war left at least 100,000 people dead (This report was first broadcast in May 2009)

Despite a "catastrophic" situation on the ground, this report bluntly points out that in the capital Colombo "many senior UN staff did not perceive the prevention of killing of civilians as their responsibility - and agency and department heads at UNHQ were not instructing them otherwise".

It says there was "a sustained and institutionalised reluctance" among UN personnel in Sri Lanka "to stand up for the rights of people they were mandated to assist".

'Culture of trade-offs'

Citing detailed records of meetings and reports, the review highlights how the UN did not publish mounting civilian casualty figures even though a detailed annex makes clear there was a "rigorous methodology."

Under intense pressure from the Sri Lankan government, it also did not make public that "a large majority" of deaths were caused by government shelling. The government repeatedly denied it shelled civilian areas.

How did the UN failure happen? The report explores at length how senior staff in Colombo "had insufficient political expertise and experience in armed conflicts and in human rights... to deal with the challenge that Sri Lanka presented", and were not given "sufficient policy and political support" from headquarters.

It also points to the Sri Lankan government's "stratagem of intimidation", including "control of visas to sanction staff critical of the state".

The result was a UN system dominated by "a culture of trade-offs" - UN staff chose not to speak out against the government in an effort to try to improve humanitarian access.

A general view of the abandoned conflict zone in north-east Sri Lanka where Tamil Tiger separatists made their last stand before their defeat by the army, May 23, 2009.

Hundreds of thousands of Tamil civilians were caught in the war zone

The UN spokesman in Colombo at the time says the organisation's staff felt bullied by the Sri Lankan government, and that there was a "genuine fear" for their safety.

The decision to withhold casualty figures was a result of the difficulties of operating in the country, added the spokesman, Gordon Weiss.

"It was an institutional decision not to use those [casualty lists] on the basis that those could not be verified and of course they couldn't be verified because the government of Sri Lanka wasn't letting us get anywhere near the war zone," Mr Weiss told BBC's Newshour programme.

Edward Mortimer, a former senior UN official who now chairs the Sri Lanka Campaign for Peace and Justice, says UN staff left when the population needed them more than ever.

"I fear this report will show the UN has not lived up to the standards we expect of it and has not behaved as the moral conscience of the world," Mr Mortimer said.

"There was a responsibility to protect in Sri Lanka but unfortunately it didn't get publicity like in Libya. The north of Sri Lanka was destroyed field by field, street by street, hospital by hospital but we didn't get that kind of reaction - Sri Lanka doesn't have much oil and isn't situated on the Mediterranean."

The executive summary of the draft highlights how "the UN struggled to exert influence on the government which, with the effective acquiescence of a post 9/11 world order, was determined to defeat militarily an organisation designated as terrorist".

The separatist Tamil Tigers, or LTTE, are a proscribed terrorist organisation in many capitals.

UN 'chose silence'

There were no UN peacekeepers in Sri Lanka but this report says the UN should have told the world what was happening, and done more to try to stop it.

In New York, "engagement with member states regarding Sri Lanka was heavily influenced by what it perceived member states wanted to hear, rather than by what member states needed to know if they were to respond".

During the last months of war, there was not a single formal meeting of the Security Council or other top UN bodies.

Frances Harrison, author of the book Still Counting the Dead on the last months of the war, told the BBC "the only way now for Ban Ki-moon to restore the UN's tattered credibility on Sri Lanka is to call an independent international investigation into the slaughter of tens of thousands of civilians in 2009".

"The UN chose to remain silent about potential war crimes," says the former BBC Sri Lanka correspondent.

A former UN official said the establishment of a panel, headed by Mr Petrie who is known for his outspoken views, is a sign "at least part of the UN is very serious about dealing with its failure in Sri Lanka".

In Dealing With The Impeachment Motion

By Laksiri Fernando -November 13, 2012

Dr Laksiri Fernando

In dealing with the impeachment motion against the Chief Justice, it is correct for the opposition not to stoop into dishonourable politics as the government conducts its affairs inside and outside Parliament, on the subject, especially through the government controlled media. There are charges, unfounded or not, that need to be carefully investigated. If theParliamentary Select Committee Investigation (PSC) becomes purely a political battle, between the government and the opposition, that is not what the constitution or the remaining democracy in this country would expect. Otherwise, the political culture of the country and the present sorry state of our many institutions would become completely irreparable.

But at the same time, there is no need for the opposition parliamentarians and others to keep completely silent on the subject, other than those who are nominated to the PSC. There are political dangers looming behind the impeachment initiative to completely scuttle the independence of the judiciary and make it an instrument of the executive. This is an extension of the 18^th Amendment and the Executive Presidential System. The people in the country should be educated and we ourselves should get educated through the process. The indications so far are alarming.

According to CA Chandraprema, who perhaps reads the current ‘Mahinda Chinthana’ correctly, the “government means business.” He also adds “in Sri Lanka – every battle, whether it be with terrorists, the Supreme Court or with foreign powers have to be fought to the finish.” What is expected with the Supreme Court is apparently a Nanthikadal! These words should not be taken lightly considering what happened last Friday at the Wellikada remand prison; 27 dead. His suggestions on Supreme Court reforms are more dramatic than his political rhetoric.

“Shirani Bandaranayake made history by being the first woman Supreme Court judge and the first woman chief justice. She is about to make history again and how! What this shows is that no one should be appointed to a body like the Supreme Court and holds that position for more than five years. Shirani Bandaranayake has already been on the Supreme Court bench for far too long. Furthermore a position on the SC should be offered only to those with long years of experience at the bar or the bench and should not remain either as a Supreme Court judge or the chief justice for anything more than five years.”

Apart from the obvious contradiction between “long years of experience” for appointment and not “more than five years” to hold office in the Supreme Court, the suggestion is a clear prescription for complete politicisation of the Supreme Court, let alone the judiciary in general. It is almost a universally accepted democratic principle today that what is of paramount importance is the independence of the judiciary. That is why a life tenure or tenure until retirement is prescribed. Impeachment is a device to correct any adverse consequence in the process due to ‘misbehaviour or incapacity.’ In some countries ‘crimes’ or ‘treason’ are the terms used and in fact requires a two-thirds majority to pass an impeachment motion after independent judicial inquiry.

There is no question that the present Chief Justice had compromised her position by allowing her husband to accept and hold government appointments in the past, not one but several. But the main culprit in this predicament is the government itself. That kind of an appointment for a spouse of a Chief Justice or a Supreme Court Judge could be made only by a government which doesn’t believe in the independence of the judiciary. ‘Real politic’ is not an excuse. There should be proper rules for government appointments, without making them merely political. Perhaps the appointment of the husband was done purposely as bait and to keep her position compromised as much as possible. In my opinion, at least now the Chief Justice should admit this mistake openly. Or her husband can make a public statement without implicating of course the ongoing bribery inquiries against him.

When the bribery charges were raised against her husband, whether he is innocent or not, the Chief Justice could have gracefully resigned, because the first mistake was already committed. That was unfortunately not done. These and related matters were raised impartially by Uvindu Kurukulasuriya before. Holding onto positions some way or the other whether politicians, government officials, academics or judicial officers is not a good practice for democracy and transparency or as a personal principle. It is my personal impression that the bribery charges are vindictively framed up. I may be wrong. The courts have no option but inquire. Only the Chairman of the NSB cannot be responsible when there is a Board of Management collectively responsible. And my experience as a Director at the Colombo Stock Exchange (CSE), reminds me that these kinds of large scale share transactions cannot happen without the government approval or prompting. All these are closely monitored and even manipulated. However, if something goes wrong, then they find scapegoats and in this case it is more than a scapegoat. This is a punishment mainly for the spouse going out of line of the government policy.

This is a good lesson for those who ask, accept and hold government appointed positions. Some are my friends. I have luckily escaped the predicament. Under normal circumstances, these are perfectly normal appointments and a way of contributing to the national development. But we don’t seem to live under normal circumstances. The government is suffering from the Nanthikadal mentality. The government appears to keep a close tab on every important and vulnerable person in the public service and the judiciary. Foreign Service is not spared. The government or actually the ruling circle would give enough rope to deviate from normal practices. Their instructions over the phone would not be reliable. Then they will hound behind you if you fall out of line. Financial embezzlement is the most effective charge to destroy a person’s credibility, whether proven or not.

Luckily for the Chief Justice, she can go before a Parliamentary Select Committee and the best strategy would be to place everything openly and frankly before the Committee, including any mistake in the past. The public would particularly like to know the political pressures coming from high offices on the functions of the Judicial Services Commission.

The charges against her, in my opinion, are not carefully formulated: some are frivolous and some are simply vindictive. There so many inaccuracies. She has already answered through her lawyers the charges against her bank accounts and financial matters. Many have commented on other charges and the political motives behind the impeachment are too naked. However, the impeachment procedure in Sri Lanka is flawed. It is simply incorrect for a simple majority of Parliament to impeach a higher judicial officer, while this is not particularly the case for the President. The composition of the PSC is lopsided and the procedure unclear. It would be a struggle for the opposition to try and rectify these matters.

There is no reason for her to resign now, however. Her integrity in respect of the Supreme Court decisions remains intact and those have never been unilateral decisions. While it is her responsibility to defend herself in respect of the specific charges with courage and confidence, it is up to the Opposition to defend the Independence of the Judiciary. What is at stake most is the independence of the judiciary. This is also the task of the Sri Lanka Bar Association and the civil society. The politicization of the judiciary should be prevented from all sides. The integrity of the position is already damaged by the last two chief justices, one becoming an advisor to the President and the other becoming an associate of an opposition politician. Compared to those two, the present CJ appears to belong to a rare species. The judicial officers should refrain from politics, in office and even after.

The putrid psychotic antecedence of Sylvester who triggered the genocide in prison...

(Lanka-e-News -13.Nov.2012, 7.30PM) STF ASP Sylvester Jagath Wijesinghe , the ruthless murderer and criminal who after swooping on the Welikade jail even assaulted the jailors there, is prone to psychotic fits was demonstrated when he had earlier on killed two of his comrades too, according to police inside sources. It is this same trigger happy psychotic who raided the Vavuniya prison in June , shot at and killed the unarmed prisoners who were on a protest fast. The Lanka e news police inside information service reports reveal the following murderous record of the mentally imbalanced Sylvester who is possessed of a murderous and lunatic streak :

Murdering his own comrades
-------------------------------------
Sylvester joined the STF in the latter half of 1980s , was a sub Inspector. During his early period , when he was serving in the Batticaloa, Morakottenchena STF camp , he had occasion to go on an operation out with two colleagues of his. Following an argument , Sylvester with his firearm killed the two comrades aforementioned in cold blood ruthlessly.

Later , he returned to the camp and related a lie that when they were in an ambush operation , these two victims had gone to pluck king coconuts on the sly. Mistaking they were LTTE cadres they were shot at and killed .But the other officers who went along on the operation refuted this story confirming that as a lie, and revealed the truth. These officers who were enraged at the blood thirst of Sylvester tried to kill him by surrounding the Morakottenchena camp . Sylvester had to go into hiding. Subsequently , Nimal Lewke intervened and fetched him by helicopter to Colombo. Only if Lewke has not saved Sylvester ,the soldiers would have killed him on that day. Finally all of them united to suppress this incident
Full story >>

CPA On Charge 10 In CJ’s Impeachment And The Proceedings

By Colombo Telegraph -November 13, 2012

“We have observed that one of the charges reported in the press appears to refer to CPA. The charge as reported reads, “Whereas, the Supreme Court special rulings petition No. 02/2012 filed by the institution called Centre for Policy Alternatives to which the Media Publication Section ‘Groundview’ that had published an article of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, while she was a lecturer of the Law Faculty of the University of Colombo prior to becoming a Supreme Court judge, has been heard and a ruling given.” We note in this respect that the case filed by CPA was in fact SC (SD) 3/2012, that CPA came into existence in June 1996, that our online publication Groundviews was only established in 2006 which was ten years after Dr. Bandaranayake took oaths as a Justice of the Supreme Court, and that Groundviews has to date not received nor published a single contribution by Dr. Bandaranayake. While other charges are also of concern, we desist from publicising our comments at this stage.” says the Centre for Policy Alternatives.

CPA Executive Director Dr. Paikiasothy Saravanamuttu

Issuing a statement CPA says “CPA is also concerned that the procedure laid down in Standing Order 78A of Parliament for impeachment proceedings are incompatible with the principles of natural justice.”

We publish CPA statement in full;

The Centre for Policy Alternatives (CPA) expresses grave concern over the initiation of impeachment proceedings against Chief Justice Dr. Shirani Bandaranayake. A number of reports in the press reveal that several charges against her have now been placed before Parliament in the form of a Resolution presented to the Speaker. The context within which these proceedings have been instituted, the procedure established by Parliament for impeachment hearings in Standing Order 78A, and the content of a number of charges against the Chief Justice are deeply troubling.

Context

The context and timing of the institution of impeachment proceedings strongly point to a deliberate effort by the government to extinguish any embers of resistance to the executive from the judiciary. In the Town and Country Planning (Amendment) Bill and the Divineguma Bill Determinations, the Supreme Court held that the Bills in question required prior reference to all Provincial Councils before being placed on the Order Paper of Parliament. The Chief Justice presided over the nominated bench in both cases. These judgments halted the government’s attempt to weaken the meagre extent of devolution provided by the Thirteenth Amendment to the Constitution by attempting to pass laws that were in respect of Provincial Council subjects. A brief narration describing the events following the communication of the Court’s decision in respect of the Divineguma Bill is telling.

Information’s on individual’s maintained relationship with prisoners

[ Wednesday, 14 November 2012, 03:38.12 AM GMT +05:30 ]

Information’s released on individual’s maintained close relationship with prisoners detained at the Welikda prison.

While checking the CIM cards recovered during the time of raid provide information’s’ on politicians, traders and other individuals maintained relationship with prisoners, police sources said.
Prisoners have obtained CIM cards by submitting fake Identity cards.

During the time of investigations security personals recovered mobile phones from the position of Indian prisoners.
These prisoners have provided information’s on Lankan situation towards Tamil Nadu Chief Minister Jayalalitha Jayaram and also to some Indian media organisations.
It was also revealed prison officials have maintained close relationship with these prisoners. Police hold further investigations this regard.

World Failed Sri Lanka. And Continues to Do So.

November 13, 2012

Mark Leon Goldberg

The top story buzzing around the UN today the soon-to-be-released report on the failure to protect civilians caught in the final days of the Sri Lankan civil war. Parts of the report were already leaked to the BBC, and Ban Ki Moon is expected to make it public tomorrow. The short story is that there was a massive and system wide failure to prevent the slaughter of an estimated 40,000 ethnic Tamils in five short months in the winter and spring of 2009. (To put that in perspective, there has been an estimated 30,000 Syrians killed in over a year of violence.)

What we know about those final days is stunningly awful. ThisInternational Crisis Group report and this UN Commission of Inquiry reportdescribe a months-long massacre of innocent civilians caught between Tamil Tiger insurgents on one side and government forces on the other. The insurgents used civilians as human shields, and the government decided to shoot through those shields to get to the Tigers. Hundreds of thousands of people were trapped in an area the size of Central Park, subjected to daily mortar fire and indiscriminate killing. The Sri Lankan government said they were going after terrorists. That may be true, but they did so by killing tens of thousands of civilians in the process.

The world’s response to this unfolding horror was muted — and continues to be. The report tomorrow should describe the UN’s response in detail–the early headline reads “system-wide failure.” But it is worth pointing out that the Sri Lankan military blocked access to the combat zone and made every effort to intimidate harass and threaten UN officials. There is a limit to what humanitarian aid workers can do to stop a government committed to committing atrocities, particularly when key governments around the world are not paying much attention. When Ban Ki Moon raised the prospect that war crimes had been committed and there should be some accountability, a government minister lead a riot that burned him in effigy.

Failure to respond to this crisis happened in Washington, DC, too. Anti-genocide groups that formed in the wake of the Darfur genocide did not rouse their constituencies around the mass atrocity in Sri Lanka. You barely heard from these groups, let alone see the kind of public awareness raising campaign that has made organizations like the Enough Project so effective in moving public opinion and shaping policy. At the time, the Enough Project was barely engaged, owing to its overriding focus on Africa. The institutional standard bearers of the anti-genocide movement failed to respond to the singly worst atrocity since Darfur.

So too did official Washington. This was the first mass atrocity event of the Obama era. At the time, the big response from the Washington was to temporarily block a World Bank loan package for Sri Lanka. Needless to say, that did not dissuade the Sri Lankan government from its killing spree. Three years later the White House launched a promising new Atrocities Prevention Board to streamline the US government’s response to genocide-like events, presumably like Sri Lanka. But in an indication of just how off-the-radar this tragedy is, three hours worth of panel discussions to mark the launch of the Atrocities Prevention Board neglected to even mention Sri Lanka.

The world failed Sri Lankan citizens caught in conflict four years ago. We should not compound this error by ignoring the tragedy today. In the coming days, we will learn in detail from a report commissioned by the Secretary General that takes a sharply critical look at the UN’s response to the Sri Lanka tragedy. That is a step forward, and progress toward avoiding repeating this failure. Anti-genocide constituencies around the world ought to also undertake the same hard-hitting self examination. You cannot profess to be anti-atrocity and ignore Sri Lanka.

Commonwealth criticised for holding Sri Lanka meeting

Wednesday, 14 November 2012

The Commonwealth’s decision to hold a heads of government meeting in the Sri Lankan city of Colombo was wrong, according to a new report.

A foreign affairs committee report today looked at evidence of serious human rights abuses in the country, whose capital is to hold the 2013 Commonwealth heads of government meeting.

The committee urged the prime minister to publically refuse to attend the meeting unless he receives “convincing and independently-verified evidence of substantial and sustainable improvements in human and political rights in Sri Lanka”.

The country's 26-year-long civil war ended in 2011, but hundreds of people remain detained.

Arbitrary and illegal detention and enforced disappearances are routine in Sri Lanka.

The report said the moral authority of the Commonwealth has "too often been undermined by the repressive actions of member governments”.

Not surprise even if Gota provides arms to LTTE in the future to fight

(Lanka-e-News -13.Nov.2012, 11.50PM) The present Sri Lankan High Commission in South Africa is Shehan Ratnavale, a political appointee. He was the former Sri Lankan High Commissioner in Singapore. It is interesting note how he could become High Commissioner of South Africa without any special reason or abilities. Ratnavale has not done anything significant to the country while he was in Singapore except helping the LTTE. He has even met KP in Singapore. His wife has been working for a pro-LTTE NGO. During the time of war she traveled to Bangkok very frequently using the Diplomatic passport. Ratnavale got his post to Singapore during the period of President Chandrika as his mother was in-charge of party table arrangements for Sirimavo Bandaranaike. Revealing his links to the LTTE, State Intelligence Service has once advised former President Chandrika to recall him from Singapore. Interestingly, he was able to secure another post in Rajapakse regime. He became good friend of Sajin de Vas Gunawardena providing “exclusive treatments” to Sajin while he was visiting Singapore using the LTTE money. As a reward Sajin helped him to get the post of High Commissioner in Singapore. Now, he is the boss in South African Mission when Shavendra Silva is going to be the deputy. It is believed that Ratnavale was appointed knowing his LTTE links.

Also, present Ambassador in the UAE, Sarath Wijesinghe, a lawyer friend of MARA is going to be the next Ambassador of Sri Lanka in Israel. He is appointed because of his links to the regime and support giving to Gota to release his weapon shipment. We should not surprise even if Gota provides arms to LTTE in the future to fight a non Rajapakse regime.

Ado Chief Justice Hoooo: Sarath N. Silva Is No Respecter Of Principles And Rules

By Basil Fernando -November 13, 2012

Basil Fernando

Mr. Sarath N. Silva has taken three different positions in regard to the impeachment of the Chief Justice within a quite a short time.

Initially, he said that, under the provisions of the 1978 constitution, even a Chief Justice who gives justice to others has no way to get justice.

Then, while attending a funeral he met his old friend and master, the President. Soon he declared that the charges against Chief Justice were very serious and that she should think of resigning.

Then, after the Chief Justice’s letter was published, in which she clearly and firmly denied the charges, Silva’s reflections on the seriousness of the charges lost ground. His new argument was that the President has the power to appoint an Acting Chief Justice and the Chief Justice should take that seriously. He did not ask any questions as to whether any action by the president to that effect would be right and just, and what impact it might have on independence of the judiciary.

The Lord of the Flies is a great novel by William Golding. It is about a group of young British boys who land on an isolated island due to an accident. Hoping that some ship may notice them and come to their rescue, they initially organize themselves and abide by rules. As the days pass by and there seems to be no hope of rescue their discipline wanes and they forget about those rules. Gradually, once well behaved boys become savages.

The British are a rule abiding people and their idea of being civilized is abiding by well tested rules. Their legal system is based on that premise. That is the legal system they introduced to Sri Lanka. It can survive only while the principles on which the rules are based are respected.

Early generations of judges and lawyers understood this and they were quite capable of being good guardians of the legal system. That is no longer the case. This is told quite eloquently by S.L. Gunsekara, himself a well tested lawyer, in his book titled Lore of the Law and other Memories. He talks of the “good old days” when good judges and lawyers, some of whom he speaks of as giants, ran the system; where good cases almost always succeeded and bad ones were lost. He describes the present situation through a quote from a senior lawyer, D.S. Wijesinghe, President’s Council, “We now have a new Parliament and with it democracy vanished. We are now about to get a new Superior Courts Complex and with that justice will vanish”.

It is in that bad period that S.L. Gunsekara places Sarath N. Silva: He writes: “…our former Chief Justice Sarath Nanda Silva PC (whom to my mind did more to undermine the independence and quality of judiciary and hence the administration of justice, and to destroy the confidence the people had in the judiciary, than any other person or persons both living and dead)…”

ADO Chief Justice Hoooo—

S.L. Gunsekara devotes one small chapter about an incident that happened when his father, who had been appointed as Acting CJ, visiting him at his school, St. Thomas College. One boy, having noticed him shouted,ADO Chief Justice Hoooo. This is of course quite a boyish prank.

But, on hearing about former CJ, there are many who would want quite earnestly to say, Sarath N. Silva, Hoooo, Hoooo, Hoooo. I believe that is quite an appropriate salutation to him.

I have that feeling every time I remember the case of Tony Fernando (Anthony Emmanual Fernando). I did not know Tony at the time of the case but had lot to do with him later. Tony had an idea of justice for himself as well as for others. He belongs to that category of citizens to whom the justice system owes a lot. I have met and worked with many of them who fought cases knowing quite well that at the end nothing will really happen. Fighting for justice is itself the cause and the outcome was of little concern to them.

Tony went before Sarath N. Siva and two other judges to request the relisting of a case which had been dismissed twice already. He appeared for himself and made a simple request to refix the case before some other judge and not Chief Justice Silva. However, the case was called before the same three judges and Chief Justice Silva asked Tony on which basis he came to court. Tony replied that he appeared under article 12(1), equality before law. Chief Justice Silva may not have expected that reply from a mere layman. His reply was to ask him to shut up or face the consequence of having one month each added to each word Tony would speak. Tony was sentenced to one year’s imprisonment and taken from the court to jail immediately. That was the type of justice prevailing then. When I heard this, as I could not say, Ado Chief Justice Hoooo, Hooo, Hooo, I nominated Tony to a Human Rights Defenders Award, the first ever award by the Asian Human Rights Commission. Tony did not consider offering an apology to the Chief Justice in order to get his sentence reduced. He appealed and the same three judges, with Chief Justice Silva, presiding refused the appeal. Undaunted, Tony then filed papers with UN Human Rights Commission, which held that the imprisonment amounted to illegal detention committed by the Supreme Court of Sri Lanka.

Tony now lives with his family in Canada, still a very just man working for justice for others.

Whenever I think of him, in my mind I salute him the same way I do to hundreds of others, who I know have spent years in courts knowing well that they will not get justice. But they continue to do so to make a point. Such great litigants are still there and they deserve a better system and better judges.

When I think of former Chief Justice Silva, what comes to my mind is the other salutation.

Legal reasoning is about applying the mind to legal principles and rules in terms of particular facts and circumstances. Perhaps the greatest example of such juridical thinking was exhibited by Sir Sydney Abraham when he gave his judgement in the famous Bracegirdle case. The Supreme Court quashed a decision made by the governor ordering the deportation of Bracegirdle within 48 hours. The Chief Justice said,“There can be no doubt that in British territory there is the fundamental principle of law enshrined in the Magna Carta that person can be deprived of his liberty except by judicial process”.

It is the total opposite of cunningness, of unscrupulously bending the reasoning to suit one’s own preconceived ideas and schemes. Chief Justice Silva failed to grasp the distinction between just reasoning and cunningness.

The legal edifice that existed in the ‘good old days’ that S.L. Gunsekara speaks about has now been pulled down. The cunning of politicians like Junius Jayewardene, who pulled down the very foundation of the legal edifice founded on rule of law through his “constitution”, combined with the cunning application of law to serve his political bosses by Chief Justice Silva, has brought the nation down to the situation of those boys who turned savage in the novel, The Lord of the Flies.

How we can rise out of that savage state is hard to predict. However, one can predict that so long as the cunningness of politicians and judges who serve savagery remain, we are doomed to stay where we are.

Report on UN’s own action in SL this week

WEDNESDAY, 14 NOVEMBER 2012

The United Nations said yesterday that the UN Chief would receive the report of his Internal Review Panel on United Nations Action in Sri Lanka later this week.

Addressing the daily press briefing in New York, Martin Nesirky, the spokesperson for the Secretary-General said “When he (UN Chief) has received it and read it, it will be made public.”

On the recommendation of the UN Chief’s Panel of Experts on accountability in Sri Lanka, the UN commenced a probe to review its own actions during the period in question in Sri Lanka.

Cartoon of the day

Lanka troops accused of prison 'massacre'

A soldier stands guard near prison in Sri Lanka following a weekend jail riot that killed 27 people. [AFP]11 Nov 2012

As government troops beef up security following a weekend jail riot, the country's main opposition has demanded an independent inquiry into the incident, which left 27 convicts dead.

The United National Party (UNP) on Sunday called for a parliamentary investigation into the riot that erupted on Friday evening and carried on into Saturday morning at the maximum-security Welikada prison in the capital Colombo.

"This is nothing but a massacre," UNP spokesman Mangala Samaraweera told the AFP news agency. "Most of the convicts appeared to have been killed in cold blood. We want a parliamentary select committee to go into this."

Meanwhile, security in the capital has been beefed up following the riot, which spilled onto the streets in fierce clashes between inmates and police.

During the riot, armed inmates climbed onto the roof and fired at troops and police. A handful escaped and hijacked a three-wheel rickshaw taxi, which was stopped by heavy gunfire from security personnel.

Prisons Minister Chandrasiri Gajadeera told parliament on Saturday that 27 inmates were killed and 43 others - including 13 police commandos, four soldiers and two civilians - were injured.

He said there would be an internal prisons department inquiry into the riot, which was sparked by a police commando raid for contraband inside the prison on Friday.

Ethnic violence
The violence continued until early on Saturday with some prisoners raiding a jail armoury and grabbing about 80 weapons, including automatic rifles.

Prisons chief P W Koddippili said guards were searching the site Sunday for a small number of guns which were still missing. Officials declined to say if any prisoners had escaped during the unrest.

Friday's violence was the worst prison riot in Sri Lanka since 1983, when more than 50 ethnic Tamil prisoners were massacred at the same jail by Sinhalese convicts during anti-Tamil riots that gripped the country.

There was similar violence at the same penitentiary in January when 25 inmates and four guards were injured.

The authorities have yet to release autopsy reports on the dead. Colombo police chief Anura Senanayake said most of those killed were hard-core criminals, some of them serving life terms.

The opposition UNP also demanded answers from the government on how the armed forces were deployed at the weekend, when emergency laws were no longer in operation after the end of the country's ethnic war in 2009.