Dual citizenship applicants to be interviewed by Gota

By Chris Kamalendran-Sunday, January 06, 2013
The Government is set to resume the dual citizenship system this month, but applicants will face a tough screening procedure including a face-to-face interview with a panel headed by Defence Secretary Gotabaya Rajapaksa.
The other members in the panel will be Foreign Ministry Secretary Karunatillake Amunugama and Public Administration Secretary P.B. Abeykoon.

“The panel will look into criteria such as the applicant’s professional qualifications, investment capacity and the need to obtain dual citizenship”, Mr Amunugama said.“Many of the people who are seeking dual citizenship have left the country in their youth and therefore we will be closely looking at the reason for their decision,” he added. Immigration official said some 2,000 applications for dual citizenship scheme were pending.

The dual citizenship scheme was introduced in 1987 and more than 4,000 people have been granted this facility.
Sarath Kumara, Immigration Controller in charge of visas, said amendments to the Immigration Act would be introduced based on proposals sent to the Legal Draftsman Department.

Persons applying for dual citizenship will first have to face an interview with a panel from the Immigration Department before facing the panel of the three ministry secretaries, he said adding that applications from people with criminal records would not be entertained.

Opposition PSC members defiant

• TNA, DNA reject D. Speaker’s threats about Court appearance
• Vijitha Herath says only President is immune for legal proceedings
• MPs from both parties to appear before Court again on Monday
• Lawyers say Parliamentary Privilege Act only governs evidence before Court
• Sumanthiran says according to Article 125 Supreme Court ruling is law, despite Govt. interpretations

By Dharisha Bastians-January 5, 2013 

The crisis between the Judiciary and the Legislature deepened yesterday, with TNA and DNA MPs vowing to answer Court notice again next week despite Deputy Speaker Chandimal Weerakody’s claim on Thursday that action could be taken against MPs who appeared before the Court of Appeal with reference to the writ application filed by Chief Justice Shirani Bandaranayake.

All 11 members of the Parliamentary Select Committee that probed the impeachment motion against Bandaranayake were issued notice by the Court of Appeal after the Chief Justice filed a writ application seeking to quash the findings of the PSC.
In light of the Supreme Court ruling that the PSC could not exercise judicial power, the Court of Appeal issued notice on the respondents again, to appear before the Court on 7 January.

The UNP leadership has taken the position that its MPs on the PSC would not appear in court, while the Government MPs have also rejected the notice.
Attorney-at-Law for TNA MP R. Sampanthan, one of the four Opposition members of the Parliamentary Select Committee, M.A. Sumanthiran told the Daily FT that the Deputy Speaker appeared to be making a reference to Section 17 of the Parliamentary Powers and Privileges Act that stipulates that any stenographer, shorthand writer, clerk or MP giving evidence before a Court about Parliamentary proceedings must obtain the permission of the Speaker.
“In this case it is wholly irrelevant because there is no evidence being given. When I marked appearance for Sampanthan in Court on Thursday I stated that we were appearing in deference to notice issued by the Court and that we would not be making any pleadings but both MPs appearing would assist the proceedings through counsel,” Sumanthiran said. He added that Attorney-at-Law J.C. Weliamuna appearing for DNA MP Vijitha Herath had informed the Court of the same.
According to Attorney Sumanthiran, the Deputy Speaker had asserted yesterday that the Speaker must be informed even before MPs submit an affidavit to Court.
Meanwhile, DNA MP and PSC member Vijitha Herath said that he would be appearing before the Court of Appeal on Monday (7) when the Chief Justice’s writ application is taken up for hearing.
“If the Government seeks to use its pseudo majority in Parliament to harass and take action against us, we are ready to face the consequences of that. As far as we are concerned, we abided by the law of the land,” Herath told the Daily FT.
Herath said that the only person who has immunity from legal proceedings is the Executive President, whereas every other citizen must adhere to Court notice and orders. “We will be in Court again on Monday,” the DNA MP asserted.
Responding to statements by the Deputy Speaker and other Government members who provided different interpretations to Article 107 following the Supreme Court ruling, Sumanthiran said that the legal position on the determination by the country’s highest court is very clear.
According to the lawyer and TNA MP, the Supreme Court made its ruling based on Article 125 of the Constitution, which vests with the Supreme Court, the sole and exclusive power to interpret the Constitution.
“The Constitution gives no one else that power – not the Parliament, not even any other Court,” Sumanthiran said, adding that Speaker Chamal Rajapaksa in a ruling on 9 October 2012 said that only the Supreme Court had the right to interpret the Constitution and said everyone must respect the Court’s decisions.
“We don’t know how the Government is going to react to this ruling, but there is no ambiguity about it. The Supreme Court ruling is the law. And if they choose to ignore or violate it, it is a violation of law,” he explained.

Will a Customs officer compromise his 40 million reward for Rs. 10 lakhs bribe ? -PC for suspect asks -Honest officers disgusted
(Lanka-e-News -06.Jan.2013, 5.00PM) President’s counsel (PC) C R De Silva 
addressing court on behalf of his client , K .Ranjan , the Director of the customs appraisal division who was arrested and produced in court , said, questioned why should his client seek a bribe of Rs. 10 lakhs when he is having a prospect of getting Rs. 40 million as reward from the Govt. by discharging his duty duly by conducting a raid ? The PC raised this question when the bribery conspiracy case was taken up. When the duties are performed duly , naturally there is a proliferation of enemies, and this bribery charge is a conspiracy hatched by his client’s enemies , he pointed out. PC Silva also informed court that the cash involved was found on the ground near the table of his client . There is a witness , whose name is Subasinghe prepared to give evidence and he is in court now. 

However , the Bribery Commission official, P Chandrasiri alleged that the cash was retrieved from the suspect’s third drawer , and investigations into that is not over yet. After hearing both sides , the additional Magistrate, Ms. Praharsha Ranasinghe remanded the Director until the 17th.

At all events , this arrest made allegedly while the Customs appraisal division chief was receiving a bribe of Rs. 10 lakhs , according to reports reaching Lanka e news is part of a calculated conspiratorial plan of the Rajapakse regime in pursuance of a vindictive agenda directed against Govt. officers not to their liking.

A member of the Customs officers association , speaking to Lanka e news stated , this officer who was arrested had been in the customs service for a long period and is one who had carefully maintained a good record and reputation, not likely to be lured by bribes. Because the MaRa regime is bearing a grudge and is smarting over the recent confiscation of a quantity of formalin spirit worth Rs. 2000 million ! which was imported for the Island wide kasippu business of the MaRa regime via forged documents and putting Leksika Peiris , a daughter in law of the Rajapakse brother in the forefront , this Director was victimized based on this conspiracy. It is significant to note that this confiscated contraband worth Rs. 2000 million was released on a fine of Rs. 20 million on the orders of the MaRa as the Finance Minister under whom the Customs Dept. is. 

It is in connection with this same contraband , formalin spirit that was seized by the Customs Director General Dr. Neville Gunawardena recently , the latter was removed from his post. It is a motor spares dealer from Negombo , Harsha Prabath De Silva who has been enlisted to execute the Rajapakses’ conspiracy of bribery .
It is lamentable that because of the MaRa conspiracies , honest customs officers are disillusioned and disgusted. Though the customs Dept. was transferred to a new Building , it is the same old furniture and tables that are being used , whereby the drawers cannot be securely locked. Consequently anybody can introduce anything surreptitiously into the drawers and plot to incriminate and arrest officers in this manner.

If a corrupt customs officer is wishing to take bribes , he does not resort to this method , he arranges for the payments to be deposited in Banks in Singapore , Bangkok and Dubai . Hence those who orchestrate this type of conspiracies to trap honest officers will certainly incur the wrath that will curse their families and their generations , a Customs officer told with concern. It is revealed that this honest officer who fell victim to the MaRa conspiracy had earned for Customs dept . and the Govt. many billions of rupees via levies during his period of office. In other words he had been an asset to the country and the people bringing in revenue unlike the loud mouthed political leaders who are a bane to all including themselves.

Sri Lanka: An Open Letter from the ALRC to Hon. Ms. N. Pillay, UN High Commissioner for Human Rights Requesting Immediate Action

We wish to  bring to your notice this extraordinary situation, which will be a decisive moment,
that if not prevented at all costs, will result in the collapse of the rule of law in Sri Lanka

'Ms. Navanethem Pillay -Bijo Francis
'The ALRC expects that the United Nations human rights mechanisms and the Office of the High Commissioner for Human Rights to have within their means and the capacity for immediate intervention, when a situation arises in a country where irreparable loss will be caused to all previous work done to promote and protect human rights due to political actions a government has launched against independent institutions in that country. If no actions were taken now, no amount of condemnations later would help repair the damage. ''

An Open Letter from the Asian Legal Resource Centre to Honourable Ms. Navanethem Pillay, United Nations High Commissioner for Human Rights

Honourable Ms. Navanethem Pillay
United Nations High Commissioner for Human Rights
Office of the United Nations High Commissioner for Human Rights (OHCHR)
Palais Wilson
52 rue des Pâquis
CH-1201 Geneva
SWITZERLAND

Fax: +41 22 917 9022

Honourable High Commissioner

SRI LANKA: The plan to impeach the Chief Justice of Sri Lanka and the imminent danger to the rule of law and democracy

Greetings from the Asian Legal Resource Centre (ALRC)

Perhaps it might be a rare moment during your term in office, where a country is faced with the possibility of losing its tradition in the rule of law and democracy, entirely through a parliamentary process, and the transformation thus made, is for the worse. In Sri Lanka, this is what might happen within the next five days.

I am certain that your office is aware of the issue of the impeachment of the Chief Justice of Sri Lanka, Mrs. Shirani Bandaranayake. The UN Special Rapporteur on the Independence of Judges and Lawyers has condemned that the process adopted for the impeachment, as one that contravenes the principles of separation of powers and the independence of the judiciary. The Rapporteur has further said that the attack on the independence of the judiciary appears to be the culmination of a series of earlier attacks upon the judiciary by the executive. The letter written by the ALRC to the Rapporteur calling for an intervention is annexed herewith for your information.

The ALRC expects that the United Nations human rights mechanisms and the Office of the High Commissioner for Human Rights to have within their means and the capacity for immediate intervention, when a situation arises in a country where irreparable loss will be caused to all previous work done to promote and protect human rights due to political actions a government has launched against independent institutions in that country. If no actions were taken now, no amount of condemnations later would help repair the damage.

Despite the interpretation by the Supreme Court of Sri Lanka that has clearly declared the absence of legality in the current process adopted to impeach judges in Sri Lanka, the ALRC wishes to bring to your notice that the Government of Sri Lanka is proceeding with the impeachment on the basis of a report filed by seven members of the Parliament, out of the 11-member Parliamentary Select Committee. It is this very process that the UN Special Rapporteur on the Independence of Judges and Lawyers has condemned to be violating the principles of separation of powers and the independence of the judiciary. It is no surprise that the Supreme Court of Sri Lanka also holds the same opinion about the process adopted by the government.

The ALRC wishes to bring to your attention that the government is extensively using the state media to defy the Supreme Court's interpretation of the Constitution and is believed to be proceeding to remove the Chief Justice from office.

The address by the President, as required by the Constitution is to be made on the 8 January. The debate in the parliament is to take place for two days and the voting will take place on the 11 January. The ruling political parties have the required majority in the house to see that the motion to remove the Chief Justice succeeds. In consequence, the ALRC fears that the Chief Justice will be removed from the office by force and a new Chief Justice appointed. The legal and constitutional consequences of such a change is extremely dangerous to the rule of law and the possibilities of protection of human rights in Sri Lanka.

This coming week therefore is crucial. The government's proposal for removal of the Chief Justice, if proceeded with will essentially lead to a direct confrontation of the Executive and the Parliament with the Supreme Court.

The appointment of a new Chief Justice who will be under the thumb of the government will mark the point of a serious threat to the rule of law, the concept of separation of powers as well as the independence of judiciary in Sri Lanka. Should such an environment prevail, where the questions of legality and constitutionality are no more relevant, it is obvious that the government will take steps to arrest and otherwise illegally deal with anyone of their choice in the country, including the judges and lawyers.

In our view, the result of all this will be the reduction of Sri Lanka's judiciary to become a mere administrative body without judicial authority or independence that is required to uphold the rule of law or to protect the rights of the individuals. The judiciaries in Cambodia and Burma in the region are examples to this situation.

There is open opposition to this move by the lawyers, by the members of the judicial services association and by the civil society organisations. The ALRC is concerned that to silence this opposition, the government will resort to serious abuses of human rights. Illegal arrest, arbitrary detentions and fabrication of charges of innocent individuals are likely. The ALRC is certain that your office is aware about Sri Lanka's historic background involving forced disappearances, which the ALRC fears would be repeated under the present circumstances.

We therefore wishes to bring to your notice this extraordinary situation, which will be a decisive moment, that if not prevented at all costs, will result in the collapse of the rule of law in Sri Lanka. We urge you therefore to intervene with the Government of Sri Lanka and make use of all the powers that your mandate warrants and could exercise to prevent this impending catastrophe.

Sincerely

Bijo Francis
Executive Director
ALRC

Annexe:
1. Judgment of the Supreme Court of Sri Lanka;
2. Letter written by the ALRC to the UN Special Rapporteur on independence of judges and lawyers

For a complete dossier concerning the impeachment kindly see: www.humanrights.asia/resources/books/the-impeachment-motion-against-shirani-bandaranayake

SRI LANKA: The Comments of S.N Silva - the archenemy of rule of law

January 6, 2013

Sarath Nanda Silva is heavily quoted in SLBC programmes trying to criticize the Supreme Court judgment relating to the question on the interpretation of law referred to it by Court of Appeal. He says that the Supreme Court has not properly interpreted the words “or standing orders” as found in Article 107(3) of the constitution. As usual, the great trickster, who misinterpreted law to shroud the government he supported, is trying once again to come to the rescue of this government - which he was not long ago condemning vehemently.

Silva ignores the following paragraph of the judgment:

“In a State ruled by a Constitution based on the rule of Law, no court, tribunal or other body (by whatever name it is called) has authority to make a finding or a decision affecting the rights of a person unless such court, tribunal or body has the power conferred on it by law to make such finding or decision. Such legal power can be conferred on such court, tribunal or body only by an Act of Parliament with is “Law” and not by Standing Orders which are not law but are rules made for the regulation of the orderly conduct and the affairs of the Parliament. The Standing Orders are not law within the meaning of Article 170 of the Constitution which defines what is meant by "law"”.

It is no surprise that Silva is excited because he is fully aware of the manner in which he fooled Sri Lanka in order to safeguard JR Jayawardane’s tomfoolery with the constitution, to serve his political bosses Chandrika Kumaranatunga and Mahinda Rajapaksha. He was shameless enough to admit this himself when he was publicly stating his regrets regarding his misinterpretation of law in the case now known as the Helping Hambantota Case.

Silva understood JR’s tomfoolery with the constitution, done to safeguard his power. Having understood this, he proceeded to use the same warped logic to serve his own political masters. The great damage he did to the rule of law in Sri Lanka has not yet been fully exposed to the Sri Lankan public. That he managed to survive without a severe assault from Sri Lanka’s legal community is also a matter that still remains to be fully discussed. However, in order to have his way, the manner in which he bullied lawyers and clients is quite well recorded in the memory of lawyers.

Silva’s record as a bully is well borne out by the case relating to Tony Michel Antony (Tony) Fernando. That case will remain to challenge any claim by S N Silva to be an expert in law. It is only a coward who uses his official position to take his revenge; he wrongly convicted and sentenced a layman who requested that he should not hear a case, for contempt of court, sending him to jail for one year, and even refused his appeal by hearing the appeal himself.

Such souls are destined to be reborn again and again to repeat their follies. His reappearance in television shows that are blatantly used to attack and undermine the judiciary is no surprise. The same man who twice sentenced two persons (Tony Fernando and SB Dissanayake) for contempt of court is now taking part in media shows which are deliberately staged in contempt of courts for political purposes.

Madawala who exposed Mervyn the vermin murdered- epitomizes SL lawless climate

(Lanka-e-News -06.Jan.2013, 5.00PM) Kelaniya local body member Hasitha Madawala who led a campaign against notorious murderous Minister Mervyn (vermin) Silva was most brutally killed falling victim to a gunman on yesterday evening. Mind you this murder cold blooded occurred in the vicinity of his own house underlining the prevailing utterly lawless climate in the country where murder and mayhem are seemingly the order of the day. Hasitha Madawala is a member of the ruling UPFA of the local body who exposed Mervyn’s corruption and sinister activities fearlessly and fully when a conflict erupted openly between the UPFA group of the Kelaniya local body and corrupt Minister Mervyn Silva.  Based on reports received by Lanka e news inside information division : Madawala had been leaning against his vehicle after arriving at his residence at about 7.30 p.m. Two individuals in a motor cycle who were following him had shot at him several times when he had fallen down at the very spot he was standing. Since he had received four gunshots to his body he had died instantly , reports say. It is noteworthy that earlier , Mervyn’s son Malaka Silva , another notorious character ; Mervyn’s lackeys Roope and extortionist Vasantha had openly threatened to murder Madawala. When Madawala lodged complaints with the Kelaniya and Peliyagoda police that he has received murder threats , the police refused to record his complaints. Thereafter Madawala was compelled to make a written complaint to the IGP. Madawala as a member representing the present ruling party at the local body had even complained to the despotism prone President of the country Mahinda Rajapakse when he met him that he is receiving murder threats from Mervyn . Mahinda had told Malaka ‘don’t worry , I will tell Mervyn’ . Since it is widely known that both M s – Mervyn and Mahinda are bosom pals and are of the same ilk , it is not sure what Mahinda had told Mervyn despite the assurance given to Malaka. The friends of Malaka strongly believe that this cruel murder was committed at Mervyn’s behest by his underlings , Kappam Vasantha and Roope.  The Vice President of the Kelaniya local body , Chamila expressing his views to Lanka e news said, the murderer with helmet fully covering his face appeared in a motor cycle and shot Madawala in the head. He added that positively it is political enmity which is behind this murder . He also frowned bitterly on the indifferent and insouciant attitude of the police pertaining to this murder investigation. The police did not appear on the scene until an hour had passed following this ghastly murder , and even then the police arrived only after complainants went to the police and fetched them , he pointed out. Interestingly , there occurred another incident earlier on when a murder attempt was made on the Kolonnawa mayor ,again a member of the ruling party UPFA whom the ruling regime abhorred , by sending the infamous murderous white Van with its criminals after him. When the attempt was foiled , and the four criminals of the white Van were arrested , senior DIG most noted for doing the sordid biddings of the regime intervened , got them released by personally arriving at the police station and taking them away along with him . Whither SL and its laws?  It is the consensus that this Madawala murder might well be the first in the series of political murders the ruling regime is expecting to commit after the war was over. *******************************************************Motorcycle gunmen kill Kelaniya PS member

Sunday, January 06, 2013

Gunmen who came on a motorcycle shot dead a Kelaniya Pradeshiya Sabha UPFA member just outside his house at Waragoda in Kelaniya last evening, heightening the tension in the area that has seen a hostile political battle between two ruling party factions.

Supporters of the slain politician demand justice and blame police. Pic by Indika Handuwela

The victim, Hasitha Madawala, was a close associate of PS Chairman Prassana Ranaweera and stood by him during the ongoing tussle between the PS Chief and Minister Mervyn Silva.Menaka Jayamaha, the victim’s neighbour, told the Sunday Times the killers who were wearing helmets shot Mr. Madawala at close range while he was standing outside his house.

“They fired five shots at the victim and then fired into the air before they sped away on their bike,” he said. “Mr. Madawala fell on the ground and was bleeding heavily. I shouted for help, but nobody came forward. It was only after a while that the neighbours took him to hospital.”

The victim died on admission to the National Hospital in Colombo.Inspector N. Wickremanayake, Officer in Charge of the Kelaniya police station said detectives were carrying out investigations, but no arrests had been made.Angry supporters of Mr. Madawala gathered at the scene of the shooting and demanded that the killers be brought to justice. Some blamed the police and rival politicians. PS Chairman Ranaweera was also at the scene.

In January last year, a gang surrounded Mr. Madawala’s residence, but he managed to escape.

OPA’s Possition On Elmore’s Claim

By Benedict Ulluwishewa -January 6, 2013 

Benedict Ulluwishewa

The Editor,

Colombo Telegraph, Opinion.

Dear Editor,

Correction to the  Article appeared on 3^rd January 2013 under Caption  Siripala, Wickremasinghe  and the Validity of Parliament’s Interpretation of the Constitution

I refer to the e-article appearing in the Colombo Telegraph of 3^rd January 2013 under the caption “Siripala, Wickremasinghe and the Validity of Parliament’s Interpretation of the Constitution” by Elmore Perera.

In the last paragraph of the said article the writer has stated, among other matters, that “OPA earnestly urges the President,..” The reference to the OPA is wrong and incorrect as the OPA has not made such a request or ‘urged in earnest’ on the subject referred to. I wish to add further that the views expressed by the writer are his personal views and not the views of the OPA. Views of the OPA can be expressed to the media only by the President of the OPA after obtaining approval from the Executive Council and no other person, whether such person is a past president or a person who ceased to be the holder of the post of president due to a no-confidence motion been passed against him can express the views of the OPA.

I shall thank you to correct the reference made to the OPA.

Thank you,

Benedict Ulluwishewa,

President.

Organisation of Professional Associations of Sri Lanka

275/75,Prof.Stanley Wijesundara Mawatha

Colombo 07

Sri Lanka

Tel No :011- 2580268/011- 5844901

Fax : 011- 2559770

mail to : opasrilanka@gmail.com

Web Site : http:/ www.opasrilanka.org

***********************************************************************

Book Review: KM De Silva’s Sri Lanka And The Defeat Of The LTTE

By R Hariharan -January 6, 2013

Col. (retd) R.Hariharan

Sri Lanka and the defeat of the LTTE

Author : KM de Silva

Publisher : Penguin, Rs299

The book looks at the rise and fall of LTTE in the context of South Asia and the India-Sri Lanka relationship, says R Hariharan

The story of Velupillai Prabhakaran’s rise from the backwoods of Jaffna to build the Liberation Tigers of Tamil Eelam (LTTE), one of the most dreaded terrorist organisations, and his fall in the battlefield can be told in many ways. Sri Lanka historian KM de Silva in his latest book looks at the rise and fall of the LTTE in the larger context of South Asia and the India-Sri Lanka relationship.

The book is a sequel to his earlier work, Reaping the Whirlwind: Ethnic Politics, Ethnic Conflict in Sri Lanka. It is made up of four monographs dealing with different aspects of the common theme of ethnic conflict. Although the lengthy introduction has tried to link up the four monographs, some issues are featured in more than one narrative. For instance, reference to India’s assertive intervention, which prevented Gen Cyril Ranatunge’s rout of the LTTE in 1987 in Jaffna, figures in three different parts of the book. (Would the rout of LTTE have eliminated the ethnic conflict is a moot question?) Deft editing to provide linkups could have improved the reading of the book.

The first narrative — the travails of Sri Lanka as a south Asian democracy — provides insights on the failure of political negotiations in the island nation. An interesting case study comparing the conflicts in Jammu & Kashmir and Sri Lanka brings out the role of external powers in influencing internal situations. The author’s point on the failure of Jaffna Tamils to forge a pan-Tamil political front with Plantation Tamils due to caste and class differences is a valid one. In fact, Jaffna Tamils’ ‘superiority’ mindset was reflected within the LTTE leadership as well. This led to Batticaloa LTTE leader Vinayagamoorthy Muralitharan alias Karuna Amman to break away from Prabhakaran with detrimental effect on LTTE’s performance in the Eelam War.

This part also analyses the failure of the Tamil United Liberation Front (TULF) leadership to understand the true nature of LTTE and Prabhakaran’s ambition to be the sole leader of Tamils. In fact, when I broached the subject with the late TULF leader Amirthalingam, he rued the day he helped Prabhakaran in the early days. Later the TULF leader paid the price for his grievous error when LTTE cadre who ostensibly came to ‘meet’ him gunned him down.

The second narrative, analysing the militarisation of Sri Lanka, provides insights on political changes that impacted security services during Sirimavo Bandaranayak’s regime. According to the author, this affected the national character of the security forces making it a largely Sinhala Buddhist force. Security forces became a victim of political meddling for a long time; this affected their operations against the LTTE in the later years.

In examining the seeds of separatism in this part, Prof de Silva builds a well-argued case against Tamil’s three basic grievances — university admissions policy, language policy and state sector employment — to conclude they are based on false premises. But the analysis of ‘false premises’ misses the history’s glaring footnote — the kernel of truth in the Tamil argument — that enabled Tamil insurgency to hold out against Sri Lanka’s might for over 25 years. The growth of LTTE was the logical consequence of Sinhala polity’s failure to convince the Tamils of the rationale of its actions. Though his analysis is from a Sinhala rather than Sri Lankan perspective, it gives the majority Sinhala’s reasoning that influenced the country’s political responses to the ethnic question.

The demoralising defeats of the Sri Lankan Army and the rise of the LTTE between 1990 and 2000 are dealt with in the third part. This was a period of political drift with the United National Party (UNP) and Sri Lanka Freedom Party (SLFP) rivalry neutralising each other’s efforts to achieve ethnic reconciliation. The failure of the draft constitution painstakingly formulated in 2000 is a case in point. In this period LTTE had also hobbled the Tamil polity from undertaking creative initiatives. The failure of the peace process in 2002 was a consequence of the disastrous UNP-SLFP cohabitation and Prabhakaran’s faith in the power of the gun than in peace talks. Prabhakaran failed to recognise a powerful President in Mahinda Rajapaksa and a skilful army commander in Gen Sarath Fonseka, determined to wipe out LTTE. One cannot but agree with the author’s comment on the dubious way in which President Rajapaksa deprived Gen Fonseka of the credit for the victory against the LTTE.

The most valuable chapter in this part is the one dealing with the challenges of militarisation from 1986 to 2011. The author emphasises the need to recruit Tamils and other minorities in armed forces as part of the national integration process. His concern on retaining the oversized army even after the war and sidelining of Parliament in national security affairs reflects the mood of civil society. In tandem with the control of the armed forces in the hands of the President and his brother and Defence Secretary Gotabaya Rajapaksa, militarisation appears to have come to stay.

The last part on reconstruction and rehabilitation in war-torn north is rather sketchy, probably because it is a developing story. It has been written with a lot of sympathy for the people of the war-torn region. His stress on the need to return the land occupied by security forces to the rightful owners reflects this concern.

Overall, this is a well-researched and thought-provoking book, though chronology of events and topics moving forward and backward does not make for easy reading. The maps are useful to understand the military operations.

*The reviewer, a retired Military Intelligence specialist on South Asia, served with the Indian Peace Keeping Force in Sri Lanka as Head of Intelligence

Plan to forcibly remove the Chief Justice from her Chamber

Sunday, 06 January 2013 

A plan is reportedly underway to forcibly remove the Chief Justice from her official Chamber in the same manner that former Army Commander Sarath Fonseka was forcibly removed from his office on February 8, 2010.

The government has assigned the Special Task Force to forcibly remove the Chief Justice from her official Chamber after the 12th. The order is to be carried out after the impeachment motion is debated and passed in parliament on the 10th and 11th.

The plan would be carried out if the Chief Justice tries to continue working at the Supreme Court from her official Chamber after the impeachment motion is passed in parliament. The Attorney General’s Department is already making arrangements to file criminal charges against the Chief Justice after she is forcibly removed.

Minister Basil Rajapaksa is issuing the orders on a Presidential directive and the common line used is, “Put the husband and wife inside.” The government is trying to indict the Chief Justice and to remove her civic rights.

Will The Constitutional Logjam Be Shattered With A Political Cudgel?

By Tisaranee Gunasekara -January 6, 2013 

“The arbitrary and apparently irrational, antiutilitarian nature of life under such regimes….disarms all attempts by reasonable men to understand and explain the course of events”. Tony Judt (Reappraisals)

Hasitha Madawala was shot dead on the night of January 5^th, outside his house. His murderers rode a motorcycle, wore hoods, and got away.

Mr. Madawala was not a member of the opposition or a Rajapaksa-opponent. Like Bharatha Lakshman Premachandra he was a loyal SLFPer; and a UPFA member of the Kelaniya Pradesheeya Sabha. His grisly fate is a reminder that under Rajapaksa rule, life can be short and death brutish to all but the Rajapaksas and their kin.

One year ago, on the night of January 7^th 2012, another attempt was made to kill Mr. Madawala: “He claimed that Minister Mervyn Silva has ordered to kill him as well as the Chairman, the Deputy Chairman and another member of the Kelaniya PS. A murder contract has been given to notorious underworld operatives Roshantha of Hikkaduwa and Majeed of Maligawatte, Mr. Madawala alleged” (Sri Lanka Mirror – 8.1.2012).

Just before he was killed Mr. Madawala was arrested by the police, allegedly for behaving in an ‘unruly manner’ at a meeting presided over by DIG Anura Senanayake. The police even opposed bail for him. That episode indicates that Mr. Madawala had fallen from favour, that he had ceased being a member of ‘protected species’ and become vulnerable to political-abuse like the rest of Lankans. Incidentally, DIG Senanayake was to retire this month, but was granted a one year extension just this week.

Welcome to Rajapaksa Sri Lanka, a land like no other, a paradise in which life, liberty, security and the pursuit of wealth and happiness is guaranteed only for the Ruling Siblings and their kin. For everyone else, it is – or can be – a jungle; including for loyal servitors.

The impeachment drama and the venom and the unreason with which the Rajapaksas are pursuing it become perfectly explicable within this context. Shirani Bandaranayake, as a Supreme Court justice and as Chief Justice, bent over backwards to satisfy Rajapaksa political demands. She headed the benches which rejected Gen. Fonseka’s petition for bail, approved the 18^th Amendment in just 24 hours, gave a free passage to the Expropriations Bill and rejected petitions against Leadership Training and the blocking of anti-government websites. In a classified cable (revealed by Wikileaks), the US Ambassador claimed that Dr. Bandaranayake was a ‘Rajapaksa loyalist’.

But all that loyalty counted for nothing in the end. She made one ruling against Rajapaksa needs (because the 13^th Amendment is crystal clear on the matter) and the Siblings launched volley after volley of Greek fire at her. The Supreme Court, had it approved the Town and Country Planning (Amendment) Bill or the Divineguma Bill, would have acted in barefaced violation of the constitution. But such logic matters nothing to the Rajapaksas who believe that their will, and not the constitution, is supreme.

This is a lesson which must be borne in mind by every top official, especially judges. The Rajapaksas do not want loyal supporters; they want mindless, supine serfs who do as they are told. And even a lifetime of loyalty counts for nothing against one act of ‘disloyalty’. The next CJ will have to agree to every Rajapaksa demand, including orders which are as illegal as hell. Only a man or a woman who is willing to abandon honour, dignity and conscience can become Sri Lanka’s next chief justice and avoid an impeachment a few months down the road.

The Fight for the Chief Justice is a fight for Justice

The impeachment of Chief Justice Shirani Bandaranayake was never meant to be a legal exercise. It was conceived of, planned and implemented as a political act. Its aim was never the uncovering of the truth or the dispensing of justice. Its aim was to punitively dislodge a retainer who dared to disobey the wishes of Sri Lanka’s ersatz royals. The Rajapaksas are utterly intolerant of disobedient tools. Shirani Bandaranayake had to be evicted in a way which would definitively discourage others from following in her footsteps. That was why the impeachment was conducted in the most unfair and unjust manner possible, from the very outset. It was never meant to convince; it was meant to threaten, frighten and warn.

When the impeachment travesty commenced, the million-dollar question was whether the CJ and the judiciary will have the capacity to withstand the Rajapaksa juggernaut. The Rajapaksas thought – and those of us who oppose the Rajapaksas feared – that the CJ could be hounded out of office and the judiciary could be rendered malleable via a combination of threats and favours.

That worse case scenario did not happen. The CJ is standing like rock-solid and the judiciary is putting up a valiant fight to defend the rule of law. Their spirited resistance has provided the democratic forces with the ideal platform to wage their own battle against the impeachment, for judicial independence and for basic rights.

The constitutional logjam will not be resolved on the basis of law; it will be shattered by the use of political power. The Siblings are not going to abide by the Supreme Court ruling, because doing so would create a precedent which will severely undermine their power project. The Speaker – who has become Sri Lanka’s pre-eminent constitutional expert, followed by the Deputy Speaker – will rule that the PSC is more supreme than the Supreme Court. The parliament will then ‘debate’ the impeachment and the charade will end with the UPFA voting against the CJ en bloc. The decision will then be sent to the President, who will immediately remove Shirani Bandaranayake and appoint a more proven stooge in her place. Once the new CJ is in, naked force can be used to deal with those judges, lawyers and other activists who refuse to accept the illegal and illegitimate status quo. The Siblings will equate any resistance with a legal coup and use the police, the army and the PTA to subjugate resisters.

The CJ and the judiciary have gone as far as they can. The task of impeding the regime from violating the Supreme Court ruling belongs to us, those elements of political and civil society who have not succumbed to the Rajapaksas. The opposition must boycott the impeachment debate, because participation will lend this illegal exercise some credibility. The rest of the battle will be more political than judicial; as such it will have to be waged in the media, in parliament, provincial councils and pradesheeya sabhas, within the UPFA and in the streets.

Plus the international arena; this battle must be taken to the UN and the Commonwealth. The only real snag the Rajapaksas would see in taking a political cudgel to the constitutional logjam is the impact such naked and illegal use of force would have on the Hambantota Commonwealth Summit. Making a roaring success of the Hambantota Summit is a presidential passion. An illegal and violent resolution to the Impeachment drama would not advance the prospects of the Hambantota Commonwealth Summit – or the chances of obtaining the next IMF loan.

SRI LANKA : The last five days of Sri Lanka’s democracy

January 6, 2013

AHRC declares a week of concern for threats against the independence of the judiciary in Sri Lanka

The Asian Human Rights Commission alerts all concerned persons in and outside of Sri Lanka to the possibility that a five days from now there may not be a judiciary that can exercise judicial power with independence in Sri Lanka. In all likelihood, the judiciary will be brought under the direct control of the Executive President, in the same way that other institutions in Sri Lanka, including the Attorney General’s Department, have been brought under the direct control of the Executive President. This is no false alarm.

According to state media, the government will defy the interpretation of law given by the Supreme Court of Sri Lanka last week (1st January 2013) which declares that:

“It is mandatory under Article 107(3) of the Constitution for the Parliament to provide by the matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof and the standard of proof of any alleged misbehaviour or incapacity and the Judge's right to appear and to be heard in person or by representative in addition to matters relating to the investigation of the alleged misbehaviour or incapacity."

The Supreme Court also declared that,

“In a State ruled by a Constitution based on the rule of Law, no court, tribunal or other body (by whatever name it is called) has authority to make a finding or a decision affecting the rights of a person unless such court, tribunal or body has the power conferred on it by law to make such finding or decision. Such legal power can be conferred on such court, tribunal or body only by an Act of Parliament with is “Law” and not by Standing Orders which are not law but are rules made for the regulation of the orderly conduct and the affairs of the Parliament. The Standing Orders are not law within the meaning of Article 170 of the Constitution which defines what is meant by "law"”.

However, the government, according to the state media, will ignore this interpretation of the law by the Supreme Court and will proceed to impeach the Chief Justice on the basis of the report filed by the Parliamentary Select Committee. Thereafter, the incumbent Chief Justice will be forcibly removed from the position and a new Chief Justice, who is chosen by the government, will be appointed.

The government has now guaranteed impunity to the state media from contempt of court and a massive media campaign is being carried out, not only against the incumbent Chief Justice, but also against the very notion of the independence of the judiciary.

With the removal of the incumbent Chief Justice and the appointment of the new Chief Justice, the two-hundred-year-old tradition of the independence of the judiciary in Sri Lanka will come to an end. The courts will be directly brought under the control of the executive and any judge who acts independently will face the same consequences (removal) as the incumbent Chief Justice.

The Sri Lankan court system will be reduced to a mere administrative mechanism, deprived of the power to take any measure that is contrary to the wishes of the government. Thus, the capacity of the Supreme Court and the other courts to safeguard the dignity and the rights of the individual against the assaults by the state on individuals will come to an end. Deprived of the power to protect individuals from the assaults of the government, the fundamental rights provisions of the constitution and other legal provisions, such as the writ jurisdiction of the court, will lose all significance.

Once the judicial system lacks independence, the rule of law system cannot function anymore. Thus, Sri Lanka will walk out of the rule of law orbit. The people will be victims of whatever directives the executive prefers to make, irrespective of its impact on the basic human rights of the people.

This is even more dangerous in Sri Lanka as the Ministry of Defense has developed into a ‘shadow state’ and acts through paramilitary forces and the intelligence services to suppress the rights of citizens. Forced disappearances, illegal arrests, illegal detentions, the practice of torture and ill treatment, denial of fair trial, suppression freedom of expression and publication, suppression of the freedom of assembly and the denial of the right to free and fair elections are now very much part of the Sri Lankan experience. With the total eclipse of the independence of the judiciary, the people will be totally trapped within the schemes of the Ministry of Defense.

Thus, the coming five days are historically crucial for Sri Lanka. If the government’s declared intention to abide by the PSC report succeeds, Sri Lankan democracy will sink. The people will lose the protection of the rule of law and will be under a virtual dictatorship.

How long that will last will depend on when and how people learn to resist a dictatorship.

We therefore wish to bring to everyone’s notice the crucial importance of the coming five days and request them to open their eyes and to see the changes that are taking place, to use their judgment and act in every possible way to protect their democracy, the system of rule of law, separation of powers and the independence of judiciary, and their civil liberties.

There are countries where courts are mere administrative bodies and are obligated to facilitate the government’s schemes however contrary this may be to the rule of law and the rights of the individuals. In Asia, Myanmar, since the military coup of General Ne Win, and Cambodia, despite constitutional recognition of independence of judiciary since 1993, are two glaring examples.

Related documents;
1. The relevant judgment of the Supreme Court ( Click Here)
2. The speech to the Judicial Service Association by Justice C V Wignashwaran (Click Here)
3. The statement of the AHRC ( Click Here)