Gotabhaya The Prophet And The State Of His Dreams

By Tisaranee Gunasekara -December 30, 2012 

“The Solution was to establish terror as a normal condition of life.” Roberto Calasso (The Marriage of Cadmus and Harmony)

A fortnight after the UPFA won the 2010 parliamentary election Defence Secretary Gotabhaya Rajapaksa gave an interview delineating his dream-state. His ideal Sri Lanka would be a state locked in a permanent political war with its many and varied ‘enemies’; a state in which every institution must function as a weapon-of-war and concepts such as judicial independence and human rights are considered inimically alien.

That was April 2010, a time when Rajapaksa excesses were seen by most people as conjunctural rather than structural. Consequently, Mr. Rajapaksa’s interview, despite its foreboding content, went largely unnoticed. In April 2010, the 18^thAmendment existed only in the minds of Gotabhaya Rajapaksa and his brothers. With the term-limit provision very much in place, there was every reason to believe that the Rajapaksa grip on power would be over in seven years. After all,JR Jayewardene’s term-limit provision had effectively terminated the Bandaranaike reign in the SLFP;Chandrika Bandaranaike Kumaratunga did not want to retire from presidency or bow out of politics, but eventually the constitution compelled her to do both. In April 2010, there was no reason to believe that the same desirable fate would not befall Mahinda Rajapaksa.

Just two and a half years later, we know better. The term-limit provision is gone and, barring a miracle, Rajapaksa rule will last quite a long while. Currently we are living in a period of transition; Sri Lankais being transformed from an imperfect democracy into a patrimonial oligarchy, from within. Many recent developments, from the impeachment of the CJ and the multi-pronged attack on the judiciary to the destabilising repression unleashed on Jaffna university students, are the inevitable birth pangs of the Rajapaksa security state Gotabhaya Rajapaksa drew a word-picture of in his April 2010 interview.

In April 2010, Gotabhaya Rajapaksa identified the main challenge before post-war Sri Lankaas thwarting “a fresh attempt by separatists operating abroad to throw a lifeline to the LTTE (backed by) a section of the international community” (The Island – 17.4.2010). He advocated the launching of a total political war to defeat this ‘challenge’: “Suppressing the separatist movement and tackling its propaganda apparatus should be a major part of Sri Lanka’s strategy against the LTTE….. The new government should go all out against any local element promoting separatist sentiments regardless of political consequences” (ibid –emphasis mine).

Last week Mr. Rajapaksa identified the latest ‘local element’ which is ‘promoting separatist sentiments’ – the judiciary.

At a public function he spoke at length about “…..a conspiracy…..hatched by foreign elements to topple the Rajapaksa regime” and stated that “….the country was facing challenges similar to those that existed during the military conflict (Daily Mirror – 29.12.2012). He then animadverted on the ‘local agents’ of these ‘foreign conspirators’: “Everyone knows that school children, university students, university lecturers and trade unions were used to create trouble…. Today they are attempting to do it through the judiciary. They want to destabilise the country” (ibid; emphasis mine).

In April 2010, Mr. Rajapaksa said that his brother’s government “should go all out” against such ‘destabilising elements’ “regardless of political consequences”. Today the Rajapaksas are doing precisely that, with their inane impeachment, their efforts to fracture the Bar Association, their attempts to sabotage the annual gathering of judges and their attacks on the judiciary/legal fraternity. These moves are bound to have a shattering effect on public confidence in the Lankan state itself (the executive and the legislature at war with the judiciary is not the most inspiring sight), but the Rajapaksas do not care. Like Vellupillai Pirapaharan, they will not hesitate to kill in order to cure.

A Transition Foretold

Many of the anti-democratic moves made by the Rajapaksa administration since the parliamentary election of 2010 were foretold in Gotabhaya Rajapaksa’s April 2010 interview – not because Mr. Rajapaksa is a seer but because he was articulating some of the plans being hatched by he and his brothers to create a state within a state, a ‘deep-state’ and to defend it by any means necessary.

So what would this new state, eternally at war with unending enemies, require to survive and thrive, according to Mr. Rajapaksa?

1. “New laws to meet security requirements” (ibid).
2. Knowing that “a section of officialdom could help the separatist cause by trying to appease foreign governments and some funding agencies” (ibid).
3. Ensuring that the “the judiciary, particularly the Attorney General’s Department, support…the government’s efforts to suppress terrorism” (ibid).
4. Ensuring that “Opposition political parties or constituent partners of the ruling coalition (are) not…allowed to engage in divisive politics” (ibid).

Given the Rajapaksa habit of equating themselves with the nation and their opponents with terrorists, ‘new laws to meet security requirements’ can be anything which promotes Rajapaksa rule, satiates Rajapaksa needs/desires and hounds Rajapaksa opponents. The 18^th Amendment and the Expropriation Bill, though tailor-made to promote Rajapaksa interests, were presented as national security necessities; the same is being done with the equally Rajapaksa oriented Divineguma Bill. Future constitutional reforms, including downgrading/abolishing the 13^th Amendment too will be presented in this disarming guise.

Preventing ‘a section of officialdom’ from helping ‘the separatist cause’ is a euphemism to destroying every last vestige of bureaucratic autonomy and making civil and military institutions of the state totally subservient to the Rajapaksas. The replacement of the democratising 17^th Amendment with the despotic 18^th Amendment was a pivotal great leap in this direction, as is the ‘Leadership Training Programme’. The Rajapaksas abhor and fear institutions which are not in thrall to them. Moving relentlessly to subvert/destroy those spaces which still retain a modicum of autonomy (such as the judiciary) is an important component of the Siblings’ state-building plan.

The third condition identified by Gotabhaya Rajapaksa in his April 2010 interview explains the impeachment and other measures taken to replace the rule of law with the law of the rulers. The Rajapaksas need to transform the judiciary and the AG’s department into weapons in the Rajapaksa political war against Rajapaksa enemies. Within a month of Gotabhaya Rajapaksa’s April 2010 interview, his Presidential brother placed the AG’s Department – and the Legal Draughtsman’s Department – under his control. These two deadly moves barely caused a ripple even within the legal fraternity. This subjugation of two essential cogs of judicial independence enabled the Rajapaksas to use the AG’s Department as a rampart to protect their kith and kin and as a battering ram to hammer their enemies. It is thanks to this move that Duminda Silva remains a free man, despite repeated judicial orders for his arrest, while General Fonseka’s aged mother-in-law is being prosecuted by the state for not ratting on her fugitive grandson.

Once the Rajapaksas defeat the ‘Hulftsdorf coup’ and the judiciary becomes as much of a Rajapaksa tool as the AG’s Department, the Siblings will turn their attention to remaining democratic/anti-Rajapaksa holdouts, from those constituent parties of the UPFA which they deem insufficiently loyal/cowed to the opposition. Total control of everyone and everything is the foundation of Gotabhaya Rajapaksa’s dream state. And that dystopia is within reach.

Disenchantment against the Govt. growing, reveals BT-RCB Poll

Sunday, December 23, 2012

With the impeachment of the chief justice wheeling out of state control, a Business Times (BT)-Research Consultancy Bureau (RCB) poll conducted on the eve of Christmas and the New Year shows that disenchantment against the government is growing.

“At the current rate progress is a dream only,” noted one respondent during street interviews by the RCB, while another added: “Many in parliament are allegedly involved in all kinds of anti-social activities and should be jailed. Only good men must govern.”
The poll, a joint initiative by the BT and RCB over the past 18 months to test the pulse of the nation over many issues of national importance, saw unanimity on all the responses from email respondents and street respondents, representing different classes in society – except one.

To the question ‘will there be prosperity in Sri Lanka (next year)’, only 26.5 per cent of email respondents said YES while that percentage (YES vote) was much higher at 45 per cent among street respondents.
Details of the polls are contained in the graphics.

Given below is a synopsis of comments received in the poll.

Email comments

-How is prosperity measured in the country? If the country is prosperous, we (as many as possible) need to be able to
live the life we choose, within reasonable parameters. If that is the case, here are the reasons why I say country will not enjoy true prosperity: (1) The development that is taking place is making ‘putting food on the table’ increasingly difficult for the majority; it does not allow a middle class human being to raise his/her living standards (COL is high; can’t aspire to have his/her own car anytime soon; the gap between middle/poor class earnings and COL is widening dramatically, etc), (3) It would seem that the rich are getting richer, fully supported by Government – transferably/sale of vehicle permits; racing cars; cuisine in Parliament at Rs.80 a plate; etc, etc.

-The prospect of prosperity for Sri Lanka in all probability will recede far into the future, faster and faster with divisive politics,centralization of ruling power in a dynasty, corruption and lawlessness taking its place.

-Proceedings against the chief justice are based on some puerile charges. The Government is unwilling to hear this in an unbiased independent court�Why?

-A sop to the masses; a stop gap measure to divert attention from critical issues; a ‘hint of promise of renewed effort on behalf of the people’ – will have no basis in reality – the same rogues will be circulated! We don’t feel represented by these so called representatives of the people! It’s a tough job to please all the people all the time�BUT that’s why we have representatives�to balance in a fair manner, the ‘goodies’ given to rich, middle class and poor!

-Some believe that the Mayans predicted a paradigm shift (end of the world as we know it) and not necessarily the end of the world as such.

-Bigger natural disasters will occur because of climate change

-Prosperity is not possible due to the unrelenting mismanagement of the economy.

Street comments

-At the present rate, the year will be one of hunger with cost of living rising and jobs lacking in spite of the state claim of progress.

-The chief justice cannot be removed thought Mr. R (President) seems bent on to pursuing with this mission.

-The budget has forgotten the private sector and failed the public servant.

-If the President appoints a new Prime Minister who is a family member or one faithful to him, there will still be problems within the family circle. That explains why he is keeping the ailing D.M. Jayaratne in this position.

-There is no use of an old man as PM as sickness prevents him from work, so the President will invariably have to appoint a new man.

-Changes in the cabinet are not extraordinary.

-If provincial councils are abolished issues with Tamils and Muslims will arise again. Thus it is imperative that we find solutions to avoid further ethnic tensions and bloodshed.

-Do you need to have 9 PCs in a small country? It will only increase expenditure for Chief Ministers and other expenses. PCs must go.

-People’s crimes have given vent to natural disasters.

-The COL will never come down. It will increase instead. The Government is taking the public for a ride with false statistics.

-If PCs are not abolished their power will decrease before the Northern PC is established.

-If changes in cabinet take place it should not be limited to just one or two but all need to change and wise men must replace them. Men like Bandula and SB are useless.

-If the COL comes down and people are able to manage with what they earn, then the New Year will be a bright one.

On The National Plan Of Action To Implement The Recommendations Of The LLRC

By Friday Forum -December 30, 2012

Prof. Savitri Goonesekere and Dr. Jayantha Dhanapala

The Friday Forum

2,Greenlands Avenue,Colombo 5,Sri Lanka

E-Mail; chandraj111@gmail.com

Telephone; 0773634444   Fax; 2504181

29^th December 2012

Lalith Weeratunge Esq.

Chairman,

Committee to Prepare and Progress the National

Action Plan to Implement the Recommendations of the

Lessons Learnt & Reconciliation Commission,

Presidential Secretariat,

Janadhipathi Mawatha,

Colombo1.

Dear Mr. Weeratunge,

THE FRIDAY FORUM COMMENTS ON THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LLRC

The Friday Forum is a group of citizens committed to the advancement of democracy, social justice and pluralism inSri Lanka.  The Forum has regularly issued public statements on issues of common concern in the spirit of democratic engagement with a view to stimulating public debate and encouraging action from state authorities and other relevant parties.

Over the last two years, the Friday Forum has been engaged with the Lessons Learnt and Reconciliation Commission (LLRC) by making submissions to it, commenting on its progress, following up on its interim recommendations and welcoming and making our observations on its final report. In that spirit, and particularly given the openings for reconciliation created by the LLRC Report, the Friday Forum would like to offer constructive criticisms regarding the recently announced National Action Plan to Implement the Recommendations of the LLRC to contribute towards public engagement with the State on meaningful reconciliation.

We focus firstly on whether the Action Plan with a select few priority issues captures the spirit of the LLRC Report which takes a systemic view of post-war reconciliation. The Action Plan consists of 82 points of actions following some of the chapter headings of the LLRC Report as follows:

• International Humanitarian Law Issues
• Human Rights
• Land Return and Resettlement
• Restitution and Compensatory Relief
• Reconciliation

While the above categories are important, the Friday Forum believes that both the spirit of the LLRC Report and a salutary response by the State should consider the following priorities with respect to post-war reconciliation and sustainable peace:

• Governance, Rule of Law, Development and Reconstruction
• Demilitarization
• Focused political dialogue on Devolution
• Land Issues
• Ongoing Human Rights Concerns and remaining Humanitarian issues
• Accountability for Past Abuses
• Role of Civil Society in Reconciliation

It is now over three and a half years since the end of the war and any further time lost in implementing policies towards reconciliation will contribute towards squandering the great opportunity for national unity, tolerance and pluralism that came with the end of the war. In this context, we are concerned about the length of time for implementation, where many action items are claimed to require twenty four months or more for implementation while others are consigned to a proposed Parliamentary Select Committee whose time frame and prospects for consensus are vague There is an urgency, particularly with respect to ongoing human rights abuses, as it can undermine the sense of security and end to violence that was supposed to have dawned in the post-war era.

The LLRC Report meticulously addressed the grave issue of unlawful arrest and detentions:

“The Commission heard a number of allegations concerning persons taken into custody without any official record. The Commission therefore recommends that applicable legal provisions should be adhered to by the law enforcement authorities when taking persons into their custody, such as issuing of a formal receipt regarding the arrest and providing details of the place of detention etc. Such persons should be detained only at formal places of detention declared under the law. Adequate publicity should be given to such authorized places of detention, with access to next of kin.” (LLRC Report Recommendation 9.53)

However, the LLRC Action Plan has glossed over such concerns central to addressing the importance and urgency of human rights abuses. There is no mention of the specific recommendations for a Special Commissioner on Disappearances or the deadline for the disarming of illegal armed groups both of which are vital to the sense of security of the people.

The spirit of the LLRC Report of addressing systemic concerns of governance and historical grievances is lost in the selective interpretations of recommendations, piece-meal actions and some-what defensive posture of a state-centred implementation program. The overall framing of the Action Plan does not see a major role for civil society, nor are the state processes seen to be enabling civil society, which were important features of the LLRC Report. Furthermore, the implementation of LLRC Recommendations is an opportunity to engage international organisations by soliciting their support after many years of a confrontational approach. That emphasis in the LLRC Report is also lost in the Action Plan. For example, on the issue of disappearances, the LLRC Report stated:

“All efforts should be made by the law enforcement authorities, in cooperation with relevant agencies, especially the ICRC, to trace the whereabouts of the missing persons and ensure reunification with their families. The families should be kept informed of the progress being made in that regard.” (LLRC Report Recommendation 9.50)

However, in the LLRC Action Plan there is no mention of the ICRC – an organization whose expertise and discretion in this field is well-known. The assistance of international organizations and civil society is especially important in tackling the multi-faceted needs of the families of the missing and the other war-affected people, including not only meaningful action to ascertain  the fate of missing persons, but also the provision of livelihood support and of comprehensive health facilities embracing medical, nutritional and psychological elements.

Next, governance, rule of law and militarization are not recognised as central and systemic issues that have to be addressed. The LLRC Report was forthright on the role of the military:

“It is important that theNorthern Provincereverts to civilian administration in matters relating to the day-to-day life of the people, and in particular with regard to matters pertaining to economic activities such as agriculture, fisheries land etc. The military presence must progressively recede to the background to enable the people to return to normal civilian life and enjoy the benefits of peace.” (LLRC Report Recommendation 9.227)

While the military continues to have a role in demining and other post-conflict activities, the Action Plan does not recognise that the military lacks independence, nor does it recognise the conflict of interest involved, when it is asked to investigate itself. There needs to be a clear vision of civilian control of the military and its conduct. Related is the lack of attention given to the importance of independent bodies, whether it be independent mechanisms or commissions, particularly the Police Commission and Human Rights Commission, which relate to the Friday Forum’s earlier positions on the undemocratic character of the 18th Amendment. The need for language and communication training, including through modern Information Communications Technology, of military and police personnel and state officials is a priority in the announced policy of trilingualism of the Government. Likewise recommendations for the people of so-called “border villages”, the need for a Right to Information Act and Recommendation 9.285 to hold a special event expressing empathy with all the victims of the conflict need to be addressed.

Finally, the Parliamentary Select Committee (PSC), in particular, is claimed as the process to address many of the recommendations. The LLRC Report has the following to say about judicial review:

“The Commission notes the representations made regarding the absence of constitutional provisions for judicial review of legislation. There should be adequate legal provisions for the members of public and other organizations to effectively canvass before the Supreme Court the constitutionality of any proposed legislation. The time frame provided in the Constitution for canvassing constitutionality of proposed legislation before the Supreme Court, in particular of urgent bills, is grossly inadequate. The Supreme Court is called upon to make a determination in respect of urgent bills within a period of 24 hours or on a date not later than three days as specified by His Excellency the President (Article 122(1) of the Constitution). Public intervention regarding proposed legislation is an integral part of a vibrant democracy. Therefore, the Commission recommends, that the Government and the Opposition make all endeavours to reach a consensus on an appropriate constitutional amendment, to provide for an adequate timeframe to challenge proposed legislation.” (LLRC Report Recommendation 9.228)

It is not clear why such a constitutional amendment on judicial review has to await the PSC as per the Action Plan. Government officials claim the PSC will address a political settlement to the ethnic conflict. Indeed, many of the recommendations attributed to the PSC that is yet to begin its work could in fact be addressed by existing state bodies and other legislations. For example the LLRC Report called for delinking of the police from the military:

The Police Department is a civilian institution which is entrusted with the maintenance of law and order. Therefore, it is desirable that the Police Department be de-linked from the institutions dealing with the armed forces which are responsible for the security of the State. (LLRC Report Recommendation 9.214)

However, the Action Plan claims this will be addressed by the PSC. Furthermore, as opposed to the LLRC Report which is clear on the role for a body such as the PSC, that a political settlement should be “based on a proposal containing the Government’s own thinking on the form and content of the dialogue process envisaged” (LLRC Report Recommendation 9.237), the vision for the PSC in the Action Plan is not clear. Therefore, the PSC could further delay many of the recommendations or, worse, become regressive on the issue of devolution which the LLRC Report advocated.

We have made our observations on the Action Plan in a spirit of democratic engagement. Its contents and substance does not convince us that the Government is serious about substantial implementation of the LLRC’s recommendations which will rectify the lapses of the past and promote justice and dignity for the victims of war and the minorities leading to reconciliation and national integration. If this attitude continues any longer both Sri Lankans and the world will be justified in interpreting the stance of the Government as a deliberate and totally unacceptable act of resistance to justice and reconciliation for its own citizens.

Jayantha Dhanapala                                            Manouri Muttetuwegama

On behalf of Friday Forum, the Group of Concerned Citizens

Mr. Jayantha Dhanapala, Ms. Manouri Muttetuwegama, Rt. Rev. Duleep de Chickera, Dr. Jayampathy Wickramaratne, Mr. Danesh Casie Chetty, Mr. Ahilan Kadirgamar,  Dr. A.C.Visvalingam, Dr. Selvy Thiruchandran, Mr. J. C. Weliamuna, Mr. Faiz-ur Rahman, Dr. U. Pethiyagoda, Professor Ranjini Obeyesekere, Professor Savitri Goonesekere, Mr. Lanka Nesiah, Professor Arjuna Aluwihare, Dr. Devanesan Nesiah, Ms. Anne Abayasekara, Mr. Tissa Jayatilaka, Rev. Dr. Jayasiri Peiris, Mr. Javid Yusuf,        Ms. Sithie Tiruchelvam, Dr. Deepika Udagama, Ms. Suriya Wickremasinghe, Dr. Camena Guneratne, Ms. Radhika Coomaraswamy, Mr. D Wijayanandana, Ms. Damaris Wickremesekera                Mr. Chandra Jayaratne

Copies To;

Mrs. Dhara Wijayatilake, Member of the Committee

Mr. Jeevan Thiagarajah, Member of the Committee

Both Media Secretary and Director General of Government Information are in an agreement for corruptions

(Lanka-e-News-30.Dec.2012, 5.00PM) The Media Secretary Mr. Charitha Herath granted the approval illegally to repay the Twenty Millions of delay charges that deducted already on the delaying of constructions the newly opened “Media Centre” at the Department of Government Information. 

The construction of “the Media Centre” five store building was to be completed by 30th of September 2009 and the contractor, K.D. Ebert and Sons Holding (Pvt) Ltd repeatedly requested to extend the completion period because they understood that they were not in a position to complete the constructions in due period. The consultant of the project, State Engineering Corporation of Sri Lanka recommended these requests and therefore the approvals was granted by the then Media Secretary, W.D. Ganegala at several times . Accordingly the completion due date was fixed as 30th of October 2010. 

The contractor again failed to complete the project by the newly fixed due date and the consultant also didn’t recommend the contractor’s extension request furthermore. The Director General of Government Information, Prof. Ariyarathna Athugala called the several meetings with the both of consultant and contractor to speed up the constructions and sent the lots of letters to the contractor informing the poor construction progress by the March of 2011. Unfortunately the Contractor failed to achieve the client’s goal in due period and later the project was named as delay project. 

According to the ICTAD’s rules and regulations (Institute for Construction Training and Development) the contractor can be claimed on delaying the constructions. The total amount of delay charges was the sum of Rs. Twenty Millions according to the contract agreement and the Director General of Government Information took the steps to deduct the delay charges on being made of payments on the constructions. The sum of Rs. Twenty Millions debited to the treasury as government revenue by the end of year 2011. 
Amid of delay constructions, the contractor wished to get the full payment without deducting delay charges and then Media Secretary Mr. W.D. Ganegala and the contractor were in an agreement to get released the claims. But Mr. Ganagala was not in a position to extend the completion period and accordingly to get released the claim because the constructions of Media Centre were black listed already as delay project.

The contractor did not wash his hand although Mr. W.D. Ganagala retired from the post of Media Secretary and later contacted the newly appointed Media Secretary Mr. Charitha Herath. After the series of the discussions, Media Secretary agreed to grant the approval illegally for the extension of construction period on the Director General of Government Information’s recommendation. The treasury also did not hesitate to release the imprest immediately that debited to the government revenue once although it’s a rare practice. Ultimately the sum of delay charges on the constructions of Media Centre, Rs. Twenty Millions is to repay soon illegally.

Can Anti-Corruption Campaigners Justify Impeachment Of CJ?

By JC Weliamuna -December 30, 2012 

JC Weliamuna

There was much publicity given in state media, run by a group of well-known hate campaigners, that the impeachment of the Chief Justice is the right thing  in the anti-corruption discourse and that that Sri Lanka can be proud of such an impeachment. We are not at all surprised with this line of crusades, particularly at a crucial time in our history when the government will do anything possible under the sun to use its hidden investments and human resources.

Firstly, no sensible person will disagree that any allegations against a judge must be investigated.  Such allegations must be investigated by an impartial and independent body and within a framework of the Rule of Law. The objections from the lawyers and others against the current impeachment on the Chief Justice is that the entire impeachment process is politically motivated  and has been done without following the basic principles of natural justice or Rule of Law.

Secondly, there is evidence on how the seven members of the Government conducted the impeachment inquiry; no sensible person would disagree that the inquiry was a sham and no reasonable opportunity was given to the Chief Justice to defend herself.  She was humiliated and no disclosed procedure was adopted for the inquiry. Let us forget for the moment the constitutionality of the impugned Standing Order 78A. In and outside Parliament, the Government and its propaganda tool s- print & electronic state media – carried out an extensive hate campaign against the Chief Justice and the lawyers. The Chief Justice was forced to leave the inquiry and the four Opposition Members were also compelled to leave. Finally, in a one day inquiry, the seven Government MPs found the CJ guilty of some charges! We now know that the other four Members were not even given the draft report for their consideration. Instead, two Members out of the seven have come out openly in a shameless attack on the Chief Justice on state media.

Thirdly, all basic norms, nationally and internationally,   requires the Governments to follow the basic principles of Rule of Law in any inquiry, even in relation to corruption investigations. For example, the United Nations Convention against Corruption (UNCAC), ratified by Sri Lanka, recognized the need to follow basic rules of law in relation to corruption investigations and trails etc.  UNCAC is not introduced to replace the concept of  Rule of Law and hence it is not possible to hang a convict or cut the hands  of a convict, when a person is convicted of corruption. Why? Anti-corruption movement, like the human rights movement, are there to promote Rule of Law, and not to entomb the Rule of Law. What is expected in the anti-corruption movement is to establish a cherished society that respects the Rule of Law, instead of the rule of the jungle. UNCAC is not about prosecutions and investigations; rather a broad framework to prevent corruption and much more. The anti-corruption movement is a progressive movement. The United Nations Office of Drugs and Crimes (UNODC), responsible for many aspects of UNCAC, and the Rule of Law Unit of the UN, chaired by Deputy Secretary General have no different views on the rule of law and anti -corruption. It states:

 “Fostering respect for and adherence to the rule of law is at the centre of the international community’s efforts to address crime, drugs and terrorism. Governance and anti-corruption, strengthening justice systems and improving safety and security are key aspects of UNODC’s work in promoting the rule of law world-wide.”

There are examples the world over on anti-corruption investigations by independent bodies; probably the Hong Kong Anti-corruption Commission is the most effective and has won the respect of all. It gives all opportunities for any suspect  to face a fair inquiry, whilst the legal system in Hong Kong ensures full and impartial trial for the suspect.  No rights have been taken away from the suspect. Why?  A country respecting a social stability cannot forget basic values of a civilized nation.

The practical and theoretical arguments against the impeachment of the Chief Justice are based on one fundamental issue; she was not given a fair hearing and she was thereby deprived of basic protections under Rule of Law.  Merely referring to a bank account details (obviously obtained unlawfully) or unproved charges (made by some MPs) do not establish the guilt of a person (in this case the Chief Justice), unless the trial was conducted by a competent body,  in accordance with accepted norms.   If we do not accept the presumption of innocence, we do not need a trial. The world has seen similar mock trials and those who respect Rule of Law and democracy do not consider those trials as fair. We do not consider those who are convicted in such a trial as guilty; rather we consider it a trial against the very tribunal for lacking integrity.  Personal bias had first infected some of the members of the Parliamentary Select Committee but now we see personal bias has also infected others as well. This is the test case to prove whether we are civilized – individually and as a nation.

At a time false propaganda is a matter of national policy, there is a duty on the part of honorable individuals to stand up to it, rather than becoming a part of the propaganda machinery.  As Mr. Kanag Iswaran PC opened his submissions in Courts on the reference cases on impeachment, “We are at a critical juncture of our nation. The barbarians are at the gate of the Temple of Justice. You let them in, they will destroy all that is sacred to us and install in the altar of justice false prophets”.  The   propaganda of the government, now joined by a chosen few, tells the nation that false prophets  are already being installed. The barbarians are at your door step!!!

Small is beautiful led to country's down fall - minister

Saturday, 29 December 2012

The Maha Sangha have always come forward to save and protect the country during crisis situations, Agriculture Minister Mahinda Yapa Abeywardena said.

He was addressing a meeting at the Sri Gangarama Viharaya, Pitabeddara to mark the handing over of the act of appointment bearing the Dharmakeerthi Sri Pannananda Honorary title to Ven Hewowita Indaratana Thera who was appointed the Chief Sanghanayake Thera of Matara Palatha by the Malwatte Chapter of the Shyamoplai Maha Nikaya.

Minister Abyewardena said certain programmes launched with catch phrases like 'small is beautiful' during a certain period led to the country's down fall.

"This had made it difficult to find children to be ordained as samanera bhikkhus for the perpetration of the Buddhasasana at a time when a healthy and dedicated child generation was needed for the country to move forward in development and progress," he said.

The minister said various parties come forward in different guises to destroy our nation.

"Some others try to betray the country for the sake of personal gain. People should be vigilant and act with caution to prevent the destruction of the country, nation and religion by these sinister forces," he said.

Abyewardena said the deterioration of certain institutions would lead to social deterioration.

"When we look at the manner certain guardians of the law behaved in society, we should be thankful that the country had been able to survive from total destruction," the minister said.

Deputy Speaker Chandima Weerakkody was also present.

Sri Lanka A Freedomless Level Field -2012

By Basil Fernando -December 30, 2012

Basil Fernando

Tamils living in the North and East have a complained of the loss of all their rights. Most people in the South ignored these complaints. Some even said that such deprivations are punishments for what the LTTE was. The assumption was that such treatment would not be extended to the South.

However this has proved to be an illusion. The government, through its spokesmen, now clearly declares that people in the South have no claim for greater protection of their rights.

In fact, the claim is that there is no scheme for the protection of citizens in Sri Lanka.  It is quite openly claimed that under the Sri Lankan constitution of 1978 the judiciary has only the role of hearing cases and the judiciary do not have the “special” status of being a branch of government that has the obligation to defend the rights and the freedoms of the people.

Sri Lanka has thus has become a level field, where no one has any rights and there is no branch of government that has the specific duty to ensure the protection of the people.

The constitution is held against the people. It is said that, right or wrong, things must be done according to the book. The book gives one hundred per cent of the power to the executive president and thus the people have zero status.

Justice Wigneshwaran in his speech to the Judicial Service Association identified the problem thus:

The role of the President appears to be fashioned in the image of a King

It was said that the President of the United States was a dictator for four years. In the case of Sri Lanka not only is this dictatorship extended by two more years, but it applies with far greater force here! The Cabinet is the President’s creature. Most importantly, by allowing Members of Parliament to become members of the Cabinet, Parliament as an institution has became emasculated.  Members of the Cabinet are beholden to the President, as they hold office at the President’s will and pleasure. (Vide Article 44(3) –ibid).   They serve their Master and do not hold any allegiance to the institution of Parliament.  In the US, the House of Representatives and the Senate are completely divorced from the Executive.  The Legislature is not an appendage to the Executive, but actually acts as a check on the Executive.  With the evisceration of this separation, the Executive in Sri Lanka becomes even more powerful.  It is no surprise then that much respected stalwarts of Parliamentary Supremacy and Democracy in Sri Lanka have become starlets kept by the Executive today.

While the critics of the constitution point to the constitutional tomfoolery or the constitutional aberration that is found in the constitution, the government’s view, as expressed through its spokesmen, is that, rightly or wrongly, this is our book and therefore it has to be followed. Ironically, the government came into power promising to abolish the executive presidential system.

The impeachment move turned out to be the final test.  Among the critics of the government’s move, the United Nations Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, stated on the government’s move for impeachment :

“The misuse of disciplinary proceedings as a reprisals mechanism against independent judges is unacceptable.”

In her view, the procedure for the removal of judges of the Supreme Court set out in Article 107 of the Constitution of Sri Lanka allows the Parliament to exercise considerable control over the judiciary, and is therefore incompatible with both the principle of the separation of powers and Article 14 of the International Covenant on Civil and Political Rights.

The Commonwealth Secretary-General as well as the Commonwealth Lawyers Association (CLA), the Commonwealth Legal Education Association (CLEA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) also expressed similar positions. International experts from several countries, including Australia and some European countries, also explained in detail the position in their countries regarding the protection of judges from unfair removal. Sri Lanka’s senior-most judge C G Weeramantry also expressed his serious concern and stressed on the link between the rule of law and the independence of judges.

To all such expressions of concern, the government’s response, expressed through its spokesmen, is that the 1978 constitution is our book and this book does not recognize the guarantees that these experts are talking about.

Regarding the local critics, the government’s position is that for 35 years this constitution has been practiced, that judges were dismissed by mere change of constitution, the doors of the Supreme Court premises was closed till judges took oaths under the new constitution and judges were even stoned for giving adverse judgments. Since all these things did not provoke a protest as the present impeachment move has done, there is no legitimacy of protest and the government will do what has been done for the last 35 years.

Regarding the denial of a fair inquiry by an impartial and competent tribunal, the government takes the same view regarding the way things were done during this period. Besides, the government’s spokesmen vehemently argue, since the allegations are of a very serious nature, no such inquiry is necessary.

The methodology that has been proposed and followed is to give utmost publicity to the charges by the use of state media and thereby to suppress any protest. The proposed method therefore is trial by propaganda. And the propaganda is carried out day in and day out without giving any chance to express an opposing point of view.

Cultural Revolution Approach

What is being done now in this regard has resemblances to the method adopted during the Chinese Cultural Revolution. During this time, all those who had dissenting views against the close associates of Chairman Mao – who were later named the gang of four – were paraded in the streets with boards hung on them stating that they were traitors. Maximum propaganda was the mode in which the public trial was conducted and the victims punished. While there are vast ideological differences between the two situations, as far as the methodology of making accusations and ‘trials’ is concerned, there are glaring similarities.

It is not only in the case of impeachment that the practices of fair trial have been abandoned. There are allegations of thousands of forced disappearances, extrajudicial killings, illegal arrests and detentions, as well as all kinds of political reprisals, but following the legal process regarding such allegations has been abandoned on a large scale.

On the other hand, accusations are made against citizens in the public media whenever they are considered to be critics of government.

Thus, the year 2012 has seen a broad leveling throughout the country. Ironically, everyone is treated equally in that no one has any rights, including the Chief Justice herself.

'CJ impeachment to be used to move anti-Lanka resolution'

Saturday, December 29, 2012,
Colombo: A top Sri Lankan minister on Saturday claimed the dispute over the impeachment of the nation's first woman chief justice is likely to be used to move an adverse resolution against the country at the next UN rights session.

"There will be a resolution at the UN Human Rights Council in March against Sri Lanka. They will say that independence of the judiciary is in the breach," Housing Minister Wimal Weerawansa told a political gathering here.

"They (international community) will then say that because there in no independence of the judiciary, Sri Lanka is unable on their own to investigate war crimes allegations. Then the UN would start its own investigation against Sri Lanka," he said, adding the "public must stay awake to defeat these conspiracies".
Weerawansa is one of the seven government members in a parliamentary panel which investigated the impeachment against Chief Justice Shirani Bandaranayake. Bandaranayake, 54, now awaits removal from the top position.

She called the process unfair and mounted a legal challenge against it. The government denies accusations of political witch hunt as the reason for seeking the ouster of the chief justice.

In March this year, a resolution moved by US and backed by India was adopted against the island nation at the UN rights sessions.

It called for speedier action for reconciliation with the Tamil minority.

PTI