Historic battle begins: Lawless Rajapakse Parliament overrides judiciary
(Lanka-e-News -24.Nov.2012, 8.00PM) It was decided yesterday(23) by the lawless MaRa Govt. most obnoxiously unprecedented in SL’s history to hear the impeachment motion against the Chief justice (CJ) ignoring the instructions of the Supreme court (SC) given to Parliament , thereby creating a most grave and direct conflict between the independent Judiciary and the legislature . It is to be noted that the MaRa regime took this action despite fierce objections raised by the opposition.

The CJ was to appear before the Parliamentary select Committee at 10.30 a.m. yesterday and the Committee met before that . The UNP , JVP and the TNA pointed out , without creating conflicts between the judiciary and the legislature , to present only what were prescribed sans order by the Supreme court (SC) and with their discretionary power , the Parliament ought to be flexible , and put on hold this inquiry until the clarification from the SC is received. The MaRa’s demonic representatives on the other hand began protesting furiously against this with specious arguments and alleged that the SC decision had still not been received by the Parliament. Taking refuge in technical issues , they refused to postpone the Committee sittings and decided to go ahead disregarding the Supreme court . The Select Committee which has a representation of 7: 4 in MaRa Govt. favor did what it wanted unhindered . 

Later , the CJ rejected in toto the proposal of the literally and metaphorically sick Chairman Priyadharshana Yapa who was running a temperature, that she should appear alone and give evidence. She pointed out she has the right to enlist the assistance of Lawyers , and she is not bound to appear alone. The opposition representatives stood by the CJ on this issue. Finally the sick and sickened chairman had to withdraw his objection.

Thereafter , the CJ Dr. Shiranee Bandaranayake and her Lawyers including PC Romesh De Silva, PC Nalin Ladduwahetty and senior Lawyer Saliya Peiris appeared before the Committee.

Then began the issue revolving around the swearing on oath . The Govt. representatives led by Yapa insisted that the CJ like in a court must swear on oath that she is telling the truth and nothing but the truth. Romesh De Silva countered this by pointing out that there is nothing like that in the standing order .As the Govt. representatives could not overrule this objection , the sessions began without the swearing on oath. The main thrust of the argument of the lawyers of the CJ was , the Committee should have postponed the sessions complying with the SC request.

The Govt. representatives who are mere puppets of the Rajapakses ( a byword for lawlessness) argued strongly that Parliament need not obey court instructions . As the sessions was progressing , an officer brought a letter and handed it over to Yapa. In that it was stated that , earlier on when former CJ , Neville Samarakoon was summoned before the Parliament select Committee he had sworn on oath. Based on this , Yapa again began insisting that swearing on oath is necessary. Over this , a dispute erupted again between the Govt. puppets on the one side and the opposition representatives and CJ ‘s Lawyers on the other . Subsequently the CJ swore on oath.

When the CJ’s Lawyers asked for time , the Chairman stated that no time can be granted , and evidence will be called again tomorrow, and in case if that is not possible it shall be day after tomorrow. At last it was decided that the CJ shall be summoned again to appear on the 4th of December. It was ordered that written submissions be made before the 30th.
The inquiry into the impeachment against the CJ concluded yesterday at 12.40 p.m. But prior to that a strange incident took place. When the CJ’s company of Lawyers were answering the media and issued a communiqué, the grade nine qualified moron Wimal Weerawansa who is also in the select committee tried to fart around questioning the answers given to the media by the CJ’s Lawyers in order to make a characteristic vain hollow display of himself stemming from his uneducated nature and his incapacity to understand the basics of the law. Poor Weerawansa was cut down to size then and there by the PC Romesh De Silva with a short answer . Anyway that is not relevant here. Later , all those who are conversant in the law said , those are unnecessary when dealing with Lilliputians and farts like Weerawansa. Finally poor Weerawansa had to keep his gaping mouth forcibly shut.

Yesterday proceedings summaries as follows:

1. CJ was asked to come to the Committee Room (where the proceedings are held) without the lawyers but she has refused to go in without the lawyers. Then the lawyers were permitted. 2. Romesh de Silva recorded that CJ participates at PSC reserving the right to challenge the jurisdiction of the PSC 2. Day before Yesterdays Court decision of the SC was considered and the discussion was on whether they should wait pending the SC ruling. It appears that the 4 Opposition Members have done great work to hold the proceedings but failed due to the majority. Vote was taken the and divided on party lines 7-4. 3. Six weeks time was sought to reply but time was granted only till 30th (one week) and re fix the inquiry for 4th December. 4. CJ was asked to take an oath but she has only taken a limited oath that if she gives evidence it will be true. 5. Committee tries to get the Lawyers to give an undertaking that proceedings will not be discussed elsewhere but Romesh has only given an undertaking to abide by the Standing Orders. 6. CJ was asked to take an unusual oath before even proceedings started. Wimal Weerawansa MP is the key person who has insisted on it saying that any one who appears before a PSC must do it. However there is no such standing order. In court of law, only a witness takes oaths. 7. All objections were overruled without even considering. The Government MPs looks at each other and say "over-ruled". They are acting under dictations and instructions from somewhere else. 8. When Mr. Romesh de Silva raised the issue of SC order (made requesting the PSC to consider not to proceed with the proceedings pending the final determination of the SC cases), the Chairman has said that we have already decided not to abide by it. This is even without hearing the CJ or her Counsel. 9. The indications are that the Government MPs in the PSC are in a hurry to finish this inquiry by 8th December and they are not keen to follow any principles of law or practices. Though the CJ is the third in the hierarchy in the country , the police that salutes even the local body members did not salute her . A large number of journalists were present to cover her arrival . She calmly greeted them with ‘good morning’ smilingly . Similarly when she left after the proceedings , she went with a graceful smile on her face. CJ’s written submission can read click the button in LeN homepage

Demographic genocide aimed in SL military surveying of Batticaloa border villages

The location of Kudumpimalai (Barren's Cap) from Batticaloa and Vaazhaich-cheanai

[TamilNet, Saturday, 24 November 2012, 08:59 GMT]
The occupying Sinhala military of Colombo, stationed in more than 10 military bases along the villages in Batticaloa district in the area bordering Polannaruwa district, has enforced Eezham Tamils to register their households and their lands. The enforced registration is carried out in a military operation style, is claimed to be under the so-called ‘Eastern Province Development Plan’ of the Mahaweli Development Ministry. The intention is to appropriate excess lands to be distributed among ‘landless’ people, a SL military intelligence officer involved in the project said when confronted by the villagers. The enforced registration is being carried out without involving the SL Government Agent of Batticaloa district and the divisional officers under him.

The residents, who were entirely uprooted in 2007 and resettled in their lands after 2009, now fear that the registration of their names by the SL military intelligence unit is to appropriate their lands, claim these as ‘no man lands’ and to distribute the appropriated lands to Sinhala farmers from the South.

The ‘operation’ began ten days ago and is being carried out in Kudumpimalai, Pa'l'laththuch-cheanai, Ilumichchaik-kudaa, Thadaa'nai, Eachchaiyadi, and Katkulaach-choalai in Koa'ralaip-pattu South DS division by a team of two Sinhala military intelligence officers, seven Sinhala male and a female official.

Names of residents, extent of high lands, paddy lands, their annual income and expenditure, number of trees, wells and cattle found in each plot of land are also being registered.

The military team is using five different forms to register all the details.

Farmers' societies have condemned the move and have urged Tamil politicians to safeguard their region from Sinhalicisation.

The move is taking place without involving the local officials of the agrarian department.

Villagers who have resettled in their lands after displacement have already been neglected by the SL authorities that have not provided them with any basic facility. The families have therefore opted to do cultivation in high lands during Maha season. Once it is over they leave and stay in urban areas until next Maha season, except a few members of the families who take care of the properties.

But, Colombo is scheming an infrastructure to provide all the necessary facilities to the Sinhalese who will be occupying the lands permanently, the Tamil villagers complained.

To facilitate the Sinhalicisation, the occupying SL military has changed the names of junctions into Sinhala and has completed construction of Buddhist temples.

Tamils say their free movement in their villages is restricted by the presence of these camps of the occupying Sri Lanka Army.

SL military camps at Periyavedduvaan, Pa'l'laththuch-cheanai, 5th Mile Post, Tharavai, Miyangku'lam, 9th Mile Post, Kudumpimalai, Ampumalai junction, Aththik-kalveddai (intelligence unit camp), Kumarakalveddai, Mazhama'ndi (training camp) have encircled the entire border region of Tamil villages.

Vehicles entering the region have to be registered with the SLA camps.

Tamil NGOs are not allowed to enter the area.

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Impeachment: Power Corrupts, God Forbid The Achievement Of That Objective

By MA Sumanthiran -November 24, 2012 

M. A. Sumanthiran MP

Last week we saw an unprecedented action by the Supreme Court. I wonder whether any court, let alone the Supreme Court, has ever before made a ‘request’, without making a coercive order. This perhaps was dictated to by the experience gained on two previous instances. Both involved the former Chief Justice Sarath Silva.

In 2001 when a Motion for his impeachment was presented to the then Speaker Anura Bandaranaike, the Supreme Court issued a stay order restraining him from appointing a Parliamentary Select Committee (PSC) in terms of Standing Order 78A of the Parliament. On that occasion the Speaker ruled that he was not bound by the order of the Supreme Court.

The second was when the Supreme Court presided over by Sarath Silva ordered the lowering of fuel prices. On this occasion the Executive refused to abide by the court order. On both occasions the judiciary was unable to enforce its orders. The reason for this lies in the way the concept of separation of powers ought to work.

The theory of separation of powers obligates each institution of government to respect and work harmoniously with the other two institutions. If not there will be clashes and confrontations between each other and democracy will not be able to function. Therefore it is a sine qua non that each organ leaves the function of the other two organs to themselves without transgressing into the areas, which are the exclusive preserves of those. In such a set up the question as to which organ is supreme does not arise. Each is supreme within its own area of competence, as laid down by the Constitution, which alone is actually supreme.

The Constitution recognizes that the people are sovereign and that their powers of governance shall be exercised by three separate organs: legislative power of the people by the Parliament, executive power of the people by the President and the judicial power of the people by the Parliament through courts, tribunals and other institutions established by law, subject to one exception where in respect to their own privilege the Parliament can exercise judicial power directly. It is this principle of separation of powers that s being breached when Parliament tries to exercise judicial power of the people in matters other than privilege. Standing Orders 78A and 78B were hastily introduced when the UNP government tried to impeach the then Chief Justice Neville Samarakoon QC, which unconstitutionally vested in a Parliamentary Select Committee, certain judicial functions.

This issue as to the constitutionality or otherwise of Standing Orders 78A and 78B has loomed large again in the context of the present efforts to impeach the incumbent Chief Justice. The matter was referred to the Supreme Court by the Court of Appeal for interpretation, since it is the Supreme Court that has been vested with the sole and exclusive jurisdiction of interpret the Constitution. No other institution, not even another court, has been conferred with such power. The Supreme Court, having been properly taken cognizance of the matter, will make a pronouncement within a period of two months as prescribed by the Constitution. In the meantime it is the duty of all others to await that determination and not seek to present the country with a fait acompli.

In other words, when the PSC became aware that the Supreme Court was in the process of considering this matter, it ought to have held its hand without even a prompting by anyone. That is what is expected of a responsible institution. In this case, the Supreme Court acted in an unprecedented manner and made an overt request. It certainly was obligatory on the part of the PSC, in the interest of comity, to immediately stay its proceedings and await the Supreme Court’s determination.

After all it is only the Supreme Court that has the power to interpret the Constitution. Neither the Parliament nor the Executive can do that. If the Executive or the Parliament usurps that function, or effectively prevents the Judiciary from doing that, the whole system of democratic governance will collapse. Perhaps that is precisely what the government wants. They do not want any other institution to check their abuse of power. Therefore it has now become necessary to undermine the powers of the judiciary and take it over, so that it will then have absolute power.

Power corrupts – and we can see that very well. Now they want absolute power! God forbid the achievement of that objective.

PRESIDENT VISITS PM AT HOSPITAL IN US
President Mahinda Rajapaksa upon successfully completing his three day official visit to Kazakhstan has made a private visit to the United States, where the Premier is currently receiving treatment.

The President traveled to the United States to inquire into the well-being of Prime Minister D.M. Jayaratne who is receiving treatment at the Johns Hopkins Hospital in Baltimore and wished him a speedy recovery, President’s Media Division said.--Photo courtesy – President’s Media Division-November 23, 2012

How Many Deaths Will It Take For A Pradeshiya Sabhawa To Repair A Derelict Road?

By Emil van der Poorten -

Emil van der Poorten

Dear Honorable Members:-November 24, 2012

I have on several previous occasions, in the newspaper columns which I contribute to The Sunday Leader and other publications, made passing reference to incidents of political victimization which could have had serious repercussion on me and my spouse and which appear to be continuing unabated.

The brother of the Senior Cabinet Minister who happens to be our Member of Parliament, a retired army officer, who serves as his “aiyya’s”“Point man” in this area and appears to have a “hands-on” relationship with men and matters in this constituency, will, I am sure, vouch for the fact that I have, times without number, brought the very serious situation that prevails in our neighbourhood in the matter of road access, to his attention.  However, it seems that all of our complaints and entreaties have been of no avail and he has not been able to exert any influence on the local Pradeshiya Sabhawa to have anything done about a very grave situation.  I am, therefore, reduced to doing something I am very loath to do: make a public appeal to all those who control our lives in this neck of the woods, about a situation that is well on its way to achieving life or death importance.  It seems that we have reached this point simply because a Pradeshiya Sabhawa, controlled by supporters and members of the governing party, has taken upon itself the chore of making an example of someone whom they view as a “political enemy.”

Very recently, the road I refer to was closed to all vehicular traffic for a period of five days and it was only my refusing to be fobbed off with an assortment of excuses and lies by the Pradeshiya Sabhawa and its Chairman that prevented it from being closed for even longer!  In case there is any doubt about the importance of this public thoroughfare, it is the SOLE means of access and egress for several hundred people living in this area, men, women and children who do not have ready access to helicopter travel!

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Act before the next Geneva sessions

Editorial

Sunday, November 25, 2012

It was a year ago that the Lessons Learnt and Reconciliation Commission (LLRC) report was submitted to President Mahinda Rajapaksa. The Commission was not without its share of ‘Doubting Thomases’, especially in the West who felt that it was merely going to ‘whitewash’ the Government of Sri Lanka of accountability, especially in regard to the allegations of violations of International Humanitarian Law (IHL) during the final military offensive against the LTTE in 2009.

To ward off international pressure for an impartial war crimes tribunal, the Government announced in 2009 that it would appoint its own inquiry. At the United Nations, Sri Lanka’s diplomats were successful in preventing the Sri Lanka situation getting on to the Security Council agenda. This permitted President Rajapaksa to stand firm against Western powers who wanted a stop to the fighting; it paved the way for the Security Forces to liquidate the LTTE and end the menace of terrorism that had bathed this country in blood and tears for nearly three decades.

But the Government prevaricated in appointing the LLRC for more than a year, giving ammunition for the seething Tamil Diaspora lobby to muster the slighted Western powers to gang up on Sri Lanka. At the UN, the diplomatic victory in ensuring the Sri Lanka situation escaped a Security Council watch was lost in the post-conflict situation of reconciliation and a UN Report commissioned by the Secretary General (the Darusman Report), highly critical of Sri Lanka’s war effort came to be published. In March this year, the US spearheaded a resolution against Sri Lanka at the UNHRC (Human Rights Council) sessions in Geneva. To the credit of the LLRC, its report won credibility in the eyes of the international community, especially the suspicious Western powers thereby easing the pressure on the demand for war crimes investigations. Without however grasping the opportunity, the LLRC afforded as an escape route from international interference, the Government pussy-footed on its implementation.

Three and a half years since the final battle was fought and won at Nandikadal, and a year after the LLRC report was submitted, the Government continues to prevaricate. The result, a new report by the UN critical of the UN Secretary General for not bringing the Sri Lanka situation before the Security Council in 2009 and a fresh call for an international probe on what happened on the battlefield.

Whether the UN SG will want to atone for his so-called ‘inaction’ by appointing a panel to inquire into civilian deaths in 2009 is left to be seen. That he will consult the Western powers that run the UN, and India is certain. He will only have to contend with Russia and China which are Sri Lanka’s international safety net in these matters.

Fortunately, the official Sri Lankan position on this report has been to contest it and not to bury its head in the sand, ostrich-like, claiming it is merely an internal document. That was exactly the approach it took initially with the Darusman Report, only to later go secretively and try and sort matters out, to no avail. The Government has challenged the contents of the report, but not the credibility and the chequered record of the report’s author, Charles Petrie, now involved with the Norwegians in Myanmar.

The report is already being quoted in an effort to bring about a resolution in the Canadian Parliament to boycott the Commonwealth Heads of Government Meeting (CHOGM) in Sri Lanka next year. The earlier prevarication by the Government to set in motion a post-conflict action plan saw the Darusman Report and then the UNHRC resolution against Sri Lanka. Now comes this Petrie Report which is further fodder for the anti-Lanka lobby worldwide.

The Government’s overall reaction to such international pressures has been wayward. Instead of doing what it should, i.e. agree upon and implement at least some of the least controversial recommendations of the LLRC, and thereby do what is best by the citizens of Sri Lanka, it decided to woo the voting member-states of the UNHRC. Thus began a new and skewered foreign policy campaign to open missions in Peru, Burkina Farso, Nauru with whom Sri Lanka has very little business– and a ‘Focus on Africa’ drive that has seen tin-pot monarchs and dictators who keep their people in abject poverty visit this country as our guests. The effort and emphasis is to win the next round in Geneva rather than give to the people of Sri Lanka what is their right.

The Government can still remedy the situation:

• �Insofar as the alleged disappearances are concerned, it can appoint a Special Commissioner under the Attorney General to handle some 4,000 pending cases. It can assign a DIG of Police in each province to announce deadlines for surrendering of arms held by illegal armed groups, or deploy the Police STF to enforce it if that does not happen. The rising instances of crime in general have been placed squarely at the increased number of illegal weaponry in the hands of unauthorised persons and the Government’s Nelsonian eye towards this problem.
• �Set up a Citizens Grievance redress mechanism to look into many situations of despair arising from citizens’ encounters with those in authority. Already, the AG has examined 200 cases of detainees and it is necessary to act on these, by either prosecuting them, or releasing them if there is no evidence.
• �In the case of the 13th Amendment, if the Government has shown an interest in dismantling this law, use the devolution language of the LLRC to get rid of the 13A label and discuss meaningful devolution alternatives at a lower level, plus for good measure, a Senate as a second chamber to Parliament.
• �Have a well-publicised programme of Land Kachcheris in the North and East on the lines recommended by the LLRC so that IDPs (internally Displaced People) will feel that their most precious asset — land — is being cared for by the Government without allowing land grabs by politicians and influential businessmen in Colombo. The LLRC outlined a detailed programme of land settlement issues and land policy formulation. The Land Commissioner’s Department is quite capable of handling this provided it is given the resources. A draft bill is ready to implement a National Land Commission along with a national land policy statement which will settle the ‘homeland theory’ once and for all and ensure that land policy will not be an instrument of demographic change exploited by either Sinhala or Tamil politicians.

There are many other recommendations of the LLRC report that the Government needs to urgently take up. To its credit goes the fact that the IDPs have been more or less resettled and the refugee camps closed down. The Government must know that the next round of Geneva is only a few months away and knives are being sharpened meanwhile on the sidelines. There are miles to go before it can sleep.

A Surge Of Public Empathy For A Court Under Siege

By Kishali Pinto-Jayawardena -November 24, 2012

Kishali Pinto-Jayawardena

The Government’s brushing aside of the Supreme Court’s entirely appropriate order this week requesting Parliament to desist from continuing with the impeachment of the Chief Justice until a final determination was handed down in petitions being heard filed before it, was arrogant but unsurprising.

The Bench spoke to the comity that must exist between the judiciary and the legislature for the greater good of the country. It cautioned that this would be prudent as well as ‘essential for the safeguarding of the rule of law and the interest of all persons concerned.’

But its words were in vain and at the close of the week, Sri Lanka’s Chief Justice was compelled to appear in person before the Parliamentary Select Committee (PSC) in the formal commencement of a politically driven impeachment process.

Neither purse nor sword but only judgment

American founding father and political philosopher Alexander Hamilton’s potent and powerful warning that ‘the judiciary has no influence over either the sword or the purse, it may truly be said to have neither force nor will but merely judgment’ ((Federalist Papers, No 78) is therefore singularly apt for the dilemma in which Sri Lanka finds itself today.

The executive holds the sword of the community while the legislature commands the purse. In contrast, the judiciary is dependent solely on its judgment and integrity. If the integrity of the judicial branch of the State is destroyed through executive action or its own complicity, then all is lost. The executive is free to trample as it wishes on the judiciary, the law is then unseated and justice is thrown proverbially to the wolves.

In the present impeachment of Sri Lanka’s Chief Justice, it does not require remarkable wisdom to determine as to who will be the winner and who the loser in a head-on clash. This is possibly why Thursday’s order by the Supreme Court wisely sought to avert an open confrontation with the legislature at the outset itself.

Commendable restraint was shown, transcending a most particular anger that must naturally be felt by judicial officers when the head of the judiciary is impeached in this way. Now that this request has been abruptly brushed aside by the Government, the consequential judicial response remains suspenseful though it is not difficult to imagine a plea of futility being put forward by the Attorney General in later hearings.

Significant differences with recent precedent

Notwithstanding, this week’s measured ruling contrasts sharply with an earlier order of the Court delivered in 2001 when an impeachment motion lodged by the opposition was due to be taken up by a Select Committee against a former Chief Justice, Sarath Silva. In that 2001 order, interim relief was granted staying the appointment of a Select Committee with the judges opining that a stay was warranted due to a purported exercise of judicial power by the legislature.

This view was peremptorily dismissed by the late Anura Bandaranaike, the then Speaker, who reasoned in copious detail that the judiciary had no business interfering with the constitutionally mandated parliamentary process of judicial impeachments. Fortuitously, (for that former Chief Justice), Parliament was thereafter dissolved by former President Chandrika Kumaratunga, preventing any further action.

However, there were significant differences between that impeachment motion and the current unseemly fracas. Charges against that former Chief Justice relating to abuse of judicial power had been ventilated long before 2001, causing a veritable public scandal as it were. That motion for impeachment was brought by the opposition and not by the government. That Presidency’s entire effort was, in fact, to prevent the impeachment being brought against that former Chief Justice for reasons that are well in the public domain.

Comity must exist between the judiciary and executive

In contrast, what we have now is a hastily drafted impeachment motion, replete with mistakes but driven by the formidable might of this government with accompanying full scale abuse of the judiciary by the state media.

A greater contrast therefore cannot be evidenced. Rather than the executive safeguarding a Chief Justice against whom allegations of judicial misconduct had been leveled, what drives this present process is executive pique if not outright anger at a series of adverse Determinations by the Supreme Court on key Bills.

The move is against the entirety of the Court for a Determination is not an opinion of an individual judge but a binding decision of the entire Court. The Court’s response this Thursday illustrates its recognition of the danger that it faces collectively. Indeed, given the peculiar context in which its intervention was sought, this was a far more appropriate ruling than the stay order handed down by a previous Court in 2001.

Whatever this may be, this judicial stand must be unequivocally supported by the Bar and by the citizenry. The Bar has bestirred itself recently in passing a resolution requesting that the President reconsider the impeachment of the Chief Justice. Contempt of court applications may be filed against an abusive state media. But its leaders need to question themselves in good conscience as to whether merely passing resolutions and engaging in private meetings with politicians and parliamentary officials fulfils the heavy responsibility vested in them given the extraordinary threats that face the country’s justice institutions?

An enchanted complicity in the executive’s attacks on the judiciary

Half-hearted responses to the instant crisis only expose the credibility of the leadership of the Bar. Surely have we not learnt enough from the past? After all, the very omissions and commissions of the Bar were crucial factors that led to this crisis in the first place.

As appreciated by the inveterate satirists among us, some of these legal worthies jostling to prove their bona fides against the impeachment were themselves thoroughly implicated in the ravages of justice that occurred during the previous decade, after which, it became unarguably much easier for any politician to call up a judge and exert inappropriate pressure.

We also saw lawyers vehemently arguing not so long ago in defence of presidential immunity in order to shield the President and his minions from the reach of the law. It is only now that these worthies appear to have woken up to realities. One is tempted to ask whether they were cast under a spell, like the enchantment of old which helplessly bound Rapunzel, into conscienceless complicity with the executive all this while.

Furthermore, seniors of the Bar accepted unconstitutional appointments by the President in defiance of the 17th Amendment and steadfastly looked the other way when the 18th Amendment was passed. The grave historical responsibility of the Bar in this regard can only be mitigated by unconditionally courageous actions now. That much must be emphasized.

This Presidency should take heed

This impeachment is destined to leave us with a hollow shell where the authority of the law once proudly possessed centre stage. Black coated members of the legal fraternity will prance before courts in a bitter mockery of the legal process.

This is what is desired perhaps by those in the seats of authority. But the best laid plans of mice, men and authoritarian political leaders drunk with insatiable power may still go awry. The steady gathering of public empathy for a Court under siege is now noticeably under way. Undoubtedly this Presidency should take heed of bitterly dissenting voices, at times coming from the very support base that brought this administration to power.

To ignore these voices would be to imperil its ultimate political survival. Make no mistake about that.

'People's dynasty' dampens Sri Lanka's boom

It's not all rosy. Sri Lanka's stock market has gone up 200 per cent, but overseas investment is lacking. Photo: Getty Images

November 19, 2012

From foreign hotel towers sprouting on Colombo's seafront to the new motorbikes and mobile phones buzzing in war-ravaged Jaffna, at first glance, Sri Lanka seems to be living up to its claim as Asia's latest frontier market.

But private businesses are not investing enough, threatening the boom that has swept the island since the end of a long ethnic conflict, while President Mahinda Rajapaksa and his family are tightening their grip on the economy and institutions with what critics see as an unusually personalised system of government.

The global economy may be in poor shape, but with 17 per cent growth since the war ended in 2009 and an eye-popping 200 per cent rise in the stock market, investors should be flocking to Sri Lanka's palm-fringed shores.

Instead, even home-grown businesses are shy.

The government reported $1 billion of foreign direct investment (FDI) last year, a record, but even officials accept that is not enough. More worrying, because it raises questions about the reliability of official data, the United Nations put FDI at just $300 million last year, its lowest level since 2005.

There are several possible explanations, but critics say that by making Sri Lanka something of a personal fiefdom and dragging his feet on reconciliation between the Tamil-dominated north and the majority Sinhalese Buddhist population, Rajapaksa shoulders some of the blame.

The president and his brothers control ministries and departments accounting for about 70 per cent of the budget, including finance and defence. His elder son is an elected legislator and his eldest brother is the speaker of parliament, where the president holds a more-than two-thirds majority.

"A handful of people seems to have captured both political authority and the economy," said Harsha de Silva, spokesman on economic affairs for the main opposition United National Party.

"Almost four years after the end of the war, we are yet to see any established investors setting up businesses, apart for some big hotel chains." One Rajapaksa brother, Economic Affairs Minister Basil Rajapaksa, justified the system, saying that politics was a family affair everywhere from the United States to India and pointing out that he and his relatives were elected parliamentarians.

"It is a dynasty, but by people's choice, a people's dynasty," he said in an interview, and suggested that more, rather than less, concentration of decision-making would help investment in a country where multiple permits slow start-ups.

"In other countries who are successful, they were successful because immediately one person he takes the decisions. In Sri Lanka, the main problem is that that is not there, more decisions have to be centralised." Opponents say the extensive control of commerce by the president and his family is at the root of the country's problems.

"Half of all the ministries which are engaged in businesses are controlled by Rajapaksa family under his ruling. That is the main problem we are facing today," said Sunil Handunnetti, an opposition parliamentarian with the Marxist Janatha Vimukthi Peramuna, which used to support the president.

Indians and Chinese

Whatever the rights or wrongs of the argument, the investment shortfall is a problem for President Rajapaksa, whose goal of 8 per cent annual economic growth largely rests on foreign inflows in the form of debt from multilateral lenders and friends such as China.

Economists say this is not sustainable in the long run.

The president's model of rapid infrastructure development has helped Sri Lanka bounce back more successfully than most post-war countries, but economists and businesses are wary.

With Sri Lanka tipped as the top destination of 2013 by the Lonely Planet travel publisher and visitors up 30 per cent last year, global hotel brands are lining up. But few are investing heavily, preferring to tie up with local players, some of which have links with the government.

Central Bank governor Ajith Nivard Cabraal said negative reports about human rights violations during and after the war had a chilling affect on foreign direct investment, particularly from the West. The United Nations has urged the government to investigate reports of serious abuses during the war.

"Asian investors understand Asia better, as far as the ground situation is concerned, so you can see, the Indian investors are here, the Chinese investors are here," he said.

But de Silva said old problems worried people looking to do business.

"Investors will come only when they see stability. The stability will come with genuine peace. There is no cohesiveness. There is no position of the government for the devolution of power," de Silva said.

The Pathfinder Foundation economic think-tank warns that Sri Lanka is showing signs of "opportunistic state capitalism", with the government cherry-picking opportunities and creating confusion about the roles of the private and public sectors.

Luxman Siriwardena, Pathfinder's executive director, says Sri Lanka's investment rate of 30 per cent of gross domestic product leaves a shortfall of about $3 billion needed to attain the government's target of 8 per cent growth.

"There is also need for greater clarity regarding the respective roles of the private and state sectors, including the military, in economic activity," he said.

"Not confident"

Jaffna, in the north where Tamils dominate, was once the second city and a major industrial hub. It is just emerging from isolation as an epicentre of the war that began in 1983. Up to 40,000 civilians may have been killed in the government's remorseless final offensive, according to the United Nations.

Public works and an appetite for consumer goods fuelled by remittances from exiles have spurred growth in a town of bombed-out buildings, but businesses are gloomy about the future.

The seaside city was virtually cut off from the rest of the country during the war that pitted largely Hindu Tamils against mostly Buddhist Sinhalese. It could take months for people in the area to get permission from the army to travel south.

Now, buses run daily and two domestic airlines fly there with small prop aircraft.

The most successful is Helitours, which flies passengers for half the price of its rival, Expo Air. Helitours is able to do so because it is part of the air force and has lower overheads.

Helitours also flies tourists to a golf course at an armed forces resort in another former war zone in the east - part of a network of military businesses that extends from private security and farming to catering and whale-watching.

Some Jaffna residents complain the military controls too much land seized in the war. Others warn that government foot-dragging on local elections and easing ethnic tension has deterred both locals and wealthy overseas Tamils from investing.

Young Tamil businessman V. Kandappa came back from Britain at the end of the war to set up a business in his parent's bomb-damaged home - a rare returned exile. He builds homes for members of the diaspora who dream of coming back. Almost half the population left Jaffna during the war.

"The private sector is still not confident about what is going to happen on the ethnic front, people are scared to invest their money in the north and eastern provinces," Kandappa said.

Family ties

Back in Colombo, a striking feature of the Sri Lankan model is how heavily it depends on the president, his family and aides, who have ties to businesses such as hotels and aviation.

Take the Hyatt Regency, a 43-floor tower being built by developer Sinolanka Hotels and Spa (Pvt) Ltd. Sinolanka is partly owned by the state insurance company, which is the main funder of the project. The insurer and Sinolanka are both headed by senior presidential aide Gamini Senerath.

The land was expropriated last year by Basil Rajapaksa's ministry from a developer that ran out of cash. The land belongs to the Urban Development Authority which comes under the Defence Ministry, where the top civil servant is another brother, Gotabaya Rajapaksa, who runs the military.

Or the airlines. The government runs two more commercial carriers along with the air force's Helitours. One is loss-maker Mihin Lanka, named after the president. Defence Secretary Gotabaya Rajapaksa and the head of the air force helped set up Mihin five years ago as a budget airline.

National carrier Sri Lankan Airlines is also fully state owned, since partner Emirates was bought out following an argument over seats for the president.

The airline in now run by Rajapaksa's brother-in-law and last year lost $147 million because of high fuel costs and low ticket prices, the central bank said.

Officially, government investment only accounts for 6 per cent of total investment, but economists and diplomats privately say the number is higher because projects such as Mihin or the Hyatt get counted as private investment.

Basil Rajapaksa said the rapid development of power, telecoms and road networks since the war ended prove the success of the so-called Mahinda's Vision model. He said the government's role was partly to break private monopolies.

"In some sectors that are important to the people, the government has a responsibility to regulate, and if by regulating we can't control, we have to break the monopoly."

Read more: http://www.smh.com.au/business/peoples-dynasty-dampens--sri-lankas-boom-20121119-29kv3.html#ixzz2DAy5lUhF