HR vetting for Lankan military to undergo US training

by Lynn Ockersz-January 29, 2013

All security forces personnel opting for military training programmes in the US are expected to undergo ‘human rights vetting’ by the US defense authorities. Those against whom ‘credible reports of human rights violations’ have been filed would not be in a position to obtain such training, the local media were told on Monday, at a ‘round table’ discussion with a group of visiting top US government officials.

The officials were responding to a query by the media as to what the factual position was with regard to allegations in top local defense circles, quoted in some sections of the media, that some Lankan security personnel, who had applied for military training in the US, were not being granted this facility by the US authorities. US Deputy Assistant Secretary of Defense for South and Southeast Asia Vikram Singh said that in all training programmes of a military or educational nature, provided by the US for applicants for these programmes from around the world, a human rights component is present and that the relevant applicants are not expected to be found wanting in the upholding of human rights norms.

Singh underlined the need for the application of human rights accountability mechanisms for those opting for US military training. He clarified that his government was not being judgmental by insisting on the maintenance of human rights standards by security personnel but, in Sri Lanka’s case, was seeking to promote ‘a forward-looking engagement, in all relevant aspects.’ Rather than the US telling Sri Lanka to do this or that what the US was keen on finding out was, ‘what we could do together.’

He added that it was only a minuscule number of personnel who failed to meet the standards in question and that ongoing training and educational programmes involving Lankan personnel, in the main, were ‘very good.’ Singh explained that the visiting US delegation’s talks with Defense Secretary Gotabhaya Rajapaksa were very cordial and that greater military cooperation between the US and Sri Lanka depended on progress being made by Sri Lanka in the implementation of the LLRC recommendations.

When asked whether the US delegation sees any substantial progress in the implementation of the LLRC recommendations by the Lankan state, Deputy Assistant Secretary of State in the Bureau of Democracy, Human Rights and Labour Jane Zimmerman said that they ‘certainly see some progress, particularly in the areas of infrastructure development and the rehabilitation of former LTTE combatants, for instance’, but that ‘a lot more work ‘remains to be done. For example, ‘there are families still waiting for missing loved ones’ and ‘disappeared persons’ to be accounted for. ‘We would very much like to see accelerated implementation of the LLRC’, Zimmerman said.

‘Some elements of the LLRC are excellent. Some elements may be harder to implement than other, such as, those pertaining to accountability on human rights violations, but reconciliation and accountability must go together and we would like to see progress on the commitments made by the state in relation to accountability and other vital issues ‘, she explained.

‘The US cares very much about Sri Lanka, ours is a longstanding tie. We will still be here after March’, Zimmerman quipped.

Deputy Assistant Secretary James R. Moore said, among other things, that in all the delegation’s meetings with Lankan state personnel they discussed Sri Lanka’s efforts to implement its Lessons Learnt and Reconciliation Commission recommendations and National Action Plan and the ‘importance of accelerated progress to achieving lasting reconciliation and a durable peace.’ He said that the "Key to this will be transparent governance, as well as following through with a process of accountability for events at the end of the war, including civilian casualties and credible allegations of human rights violations." He said that the delegation had also discussed the importance of a vibrant civil society, an independent judiciary, a free and independent media and full respect for human rights.

Moore went on to say that the delegation ‘welcomes the government’s intent to have Northern Provincial Council elections in September and we encourage a resumption of talks between the TNA and the government.’

Avenues for action: the UNHRC and beyond

Editorial Tamil Guardian 29 January 2013

As the March session of the United Nations Human Rights Council approaches, and nearly a year after the resolution at the 19th session called on Sri Lanka to take credible action to ‘ensure justice, equity, accountability and reconciliation’, it is clear that the island’s ethnic crisis has only deepened. The 2012 resolution relied on Sri Lanka acting responsibly and was therefore, arguably, bound to fail. Sri Lanka’s hostile reaction to the resolution and subsequent insincerity in addressing the issues it raised are not surprising. It is time for the international community to take decisive action. This week the United States announced it will sponsor another resolution on Sri Lanka. This is a welcome development, although it very much remains to be seen if the resolution passes, and with what consequence. In short, the members of the UNHRC must now spell out in clear and concrete terms the consequences that President Mahinda Rajapaksa’s regime will face if it continues to defy international demands. And then decisively follow through with action. Last year Sri Lanka made the argument that it needed ‘more time and space’. This disingenuous ploy is now laid bare: in the past year Sri Lanka has only intensified its various forms of repression. The international community has historically been well behind the curve on Sri Lanka’s escalating crisis. Prof Stephen Ratner, a member of the UN’s Panel of Experts that studied the horrific end to Sri Lanka war, argued recently that international institutions tasked with addressing problems like those then unfolding in Sri Lanka, were hindered by politics and unpreparedness, thus delaying prospects for accountability. These past failures must serve as a lesson and spur for action now. Over the past year Sri Lankan diplomats have been on a hectic schedule, lobbying developing countries – particularly in Africa – in an effort to gather support against another resolution in Geneva. As usual the government will rely on supposedly representative Tamils to make its case; last March, human rights activists from diaspora and international organisations were startled to come face-to-face with paramilitary leader Douglas Devananda, responsible for murder, kidnap, rape and trafficking of women, who was being presented as a symbol of reconciliation. Sri Lanka will also again attempt to portray itself as subject to ‘western’ harassment and deflect attention on its critics, rather than what is being criticised. But last year’s resolution, also sponsored by the US, was supported by a range of countries including Mexico, Nigeria and, at the last minute, India. Moreover, the UNHRC is but one route the international community can take towards ensuring accountability. If UN institutions remain deadlocked, those genuinely committed to the universality of human rights protection are obliged to take up other options. A number of states have enacted legislation recognising the principle of universal jurisdiction for grievous violations of human rights and crimes against humanity. Many also have in place legislation to prosecute individuals responsible for genocide. These laws are already being used routinely in relation to violations in many other parts of the world. Sri Lanka should be no exception. It is also time for the long overdue step of imposing tangible sanctions. It is no longer acceptable to blame Sri Lanka’s allies when effective pressure can be applied by regional bodies or individual states. The EU, for example, suspended Sri Lanka’s entitlement to GSP+ trade concessions in 2010. With the consequences now being much felt, the regime is under growing pressure at home to approach the EU again. The Commonwealth holds substantial influence over Sri Lanka - its membership is amongst the most valued by Colombo. Countries like the US, Britain and Australia have considerable leverage by virtue of their continuing trade, sporting and military links with Sri Lanka. Without decisive international action, Sri Lanka’s crisis will deepen and intensify. The present growth in asylum flight is but one reflection of the coming disorder. The March session of the UNHRC has the potential – if it adopts a resolution with sufficient force and follows through with concrete action – to be a significant step, not only in advancing accountability but also in restoring much worn faith that international mechanisms can ensure a just and peaceful future for the Tamil people. However, whatever the outcome in Geneva next, members of the international community must now work separately towards this end.

Constitutional Irresponsibility,The UNP And The Parliamentary Council

By Rajiva Wijesinha -January 30, 2013 

Prof Rajiva Wijesinha MP

Reconciliation: Looking Forward Xiii – Constitutional Irresponsibility

I have noted previously that I think the 18^th amendment is a vast improvement on the 17^th. Interestingly, when I first began explaining my views on the 17^thamendment, there was little comprehension amongst Sri Lankans about my fundamental objection, that it was inappropriate for an elected Head of Government who was also head of State to simply rubber stamp appointments recommended by another body, let alone a nominated one.

This was understood immediately however by the Canadian Senator who visited us in I think 2007 on behalf of the IPU. I suppose it could be argued that attention to process and constitutional consistency is unnecessary, and whatever works is acceptable, but I fear that such an approach leads to problems – as with our confusion of an Executive Presidency with a Westminster style Cabinet – and it is tragic that we continue to suffer the consequences without understanding the reasons.

I should add though that the 18^th amendment has its flaws, just as the Local Government Elections Bill had. In both cases however there was such an improvement on what we had had before, that I did not think we should have allowed the perfect to be the enemy of the good.

What I did not anticipate was the sheer contempt with which the opposition would treat the Constitution as amended. I suppose this is not surprising from a party that voted so consistently to subvert the Constitution it had introduced, through the first and second and abortive third amendments, but it is surprising that no one has drawn attention to the irresponsibility with which the UNP has treated the provisions that provide some sort of check on the absolute power of the President to make appointments to important positions.

I have expressed regrets about Mr Sumanthiran’s refusal to accept appointment to the Parliamentary Council created by the 18^th Amendment because I believe he could contribute a lot in a small and serious Committee – as I saw when he and I served on the Committee to amend Standing Orders. He would have been both forthright and polite in comments he would have made in the Council on nominees put forward, and if government had reciprocated, there could have been rethinking in cases of obvious unsuitability.

The purpose of such a Council is not, I should add, to select persons to appoint, but to advise on the suitability of those selected by the Executive. Experienced Parliamentarians such as the government representatives on the Council would surely have understood this and worked in a positive way to avoid embarrassment to the government from unsuitable persons. Indeed it is conceivable that, had Mr Sumanthiran served on the Council along with the Leader of the Opposition, Mrs Bandaranayake would never have been appointed Chief Justice.

Mr Sumanthiran at least refused appointment. The Leader of the Opposition and Mr Swaminathan, having accepted, have completely abandoned the responsibilities they are committed to fulfil. Had they commented conscientiously on any nominees – as government representatives too are bound to do – the President would then have an obligation to reconsider.

When there is no system of review, the President would usually go ahead with appointment of those who first come to mind. It is also more difficult for him to refuse requests, whereas if he could say that those importuning him might be adversely commented upon by the Council, and that would cause embarrassment, he could tactfully turn down those to whom he might otherwise feel obliged.

That is one reason why we need checks and balances, but unfortunately the Parliamentary Council, boycotted by the Opposition, does not serve any purpose. The responsibility for that lies totally with the UNP, but on that matter too they have escaped scrutiny, let alone criticism.

Mahinda scores a century!

By Dharisha Bastians- January 29, 2013 
Undeterred by mounting pressure on a bloated Cabinet, criticism over poor governance, rising costs and inefficiencies, President Mahinda Rajapaksa yesterday figuratively scored a century making it a team of 102 Ministers following a fresh round of appointments.

The much anticipated reshuffle which analysts described largely as an act of rewarding those who played a key role in the impeachment of Shirani Bandarnayake as the Chief Justice, saw change of portfolios for several in addition to the appointment of five new Ministers, two Project Ministers and six Deputies.
The overall tally of 102 includes 67 Cabinet Ministers, 30 Deputies, two project Ministers and three Monitoring MPs. Monitoring MPs are also granted ministerial rank.
The new appointees took oaths before President Rajapaksa at Temple Trees yesterday.
The key Ministries to change hands in the reshuffle were Power and Energy, which was transferred from JHU strongman Champika Ranawaka to former Technology and Research Minister Pavithra Wanniarachichi and Petroleum Resources held by Susil Premajayantha went to former Environment Minister Anura Priyadarshana Yapa with the former appointed as the new Minister of Environment and Renewable Energy.
      
Five new ministries were created in the reshuffle bringing the total number of Ministers in the UPFA Government to 67. The Ministries of Sugar Industries, Investment Promotion, Botanical Gardens and Public Recreation, Education Services and Wildlife Conservation are the new portfolios created in yesterday’s rearrangement.
Four of the new Ministries have been divided amongst four former deputy ministers, with Lakshman Yapa Abeywardane appointed Minister for Investment Promotion, Jayaratne Herath appointed Minister of Botanical Gardens and Public Recreation, Duminda Dissanayake as Minister of Educational Services and Gamini Vijith Vijayamuni Zoysa as minister of Wildlife Conservation.

The subject of Investment Promotion was previously assigned to the Ministry of Economic Development headed by Basil Rajapaksa.

Former Minister of Productivity Promotion Lakshman Seneviratne claimed the newly created Sugar Industries portfolio.
Former Deputy Minister of Cooperatives and Internal Trade Basir Segu Dawwod was appointed as Minister of Productivity Promotion in the reshuffle.
The main opposition UNP hit out at the numbers as being a further burden on the tax-payer and a body blow to the separation of powers concept. UNP National List MP Eran Wickremaratne said that with 102 UPFA Members now holding ministerial portfolios, the Government was a few Ministers short of a parliamentary majority made up entirely of ministers and deputy ministers. “The separation of powers becomes meaningless, when a majority of the legislature are of ministerial (or executive) rank,” Wickremaratne told Daily FT following the reshuffle.
Analysts said the main thrust of the reshuffle appeared to be the reassignment of the Power and Energy portfolio while at least two Government members who were instrumental in the impeachment were granted obvious promotions. Ravaya Editor and political commentator, Victor Ivan told Daily FT that the target of President Rajapaksa’s reshuffle appeared to have been Minister Ranawaka. “The President badly wanted to make a change in that sector,” Ivan said. He said it also appeared to be a system of rewarding certain UPFA members who had played a role in the impeachment process.

Minister Anura Priyadarshana Yapa was the Chairman of the Parliamentary Select Committee that probed the impeachment against Bandaranayake while Wanniaarachchi led the team of five UPFA MPs that handed the motion of impeachment over to Speaker Chamal Rajapaksa on 1 November 2012. Several ministers and deputy ministers who received “promotions” were among the 117 signatories to the impeachment motion against Bandaranayake.

Under the restructure, the Economic Development Ministry will have four deputy ministers, with S.M. Chandrasena, Susantha Punchinilame and M.A.L.M Hisbullah sworn in to the positions yesterday. Muthu Sivalingam is also currently holds the position of Deputy Minister of Economic Development. Chandrasena previously resigned from his ministerial portfolio of Agrarian Services and Wildlife in September last year to pave the way for his brother to be appointed Chief Minister of the North Central Provincial Council.

Calling In The Marines

By Kath Noble -January 29, 2013 

Kath Noble

As I said last week, it is easy to become disheartened with the way that things are moving in Sri Lanka. One disappointment follows another, and each is more extraordinary than the last.

The impeachment of the Chief Justice was particularly disturbing. It demonstrated just how little space there is for dissent. Even the mild disturbance created by Shirani Bandaranayake when she ruled that the Divi Neguma bill had to be referred to the provincial councils or passed with a two thirds majority was intolerable to the administration. She had to go. It didn’t matter that there was no evidence of actual wrongdoing on her part. She was removed on the grounds that she might try to cover up the corruption of herhusband, which is what Mahinda Rajapaksa claims to have done himself!

Since very few of us are willing to agree with everything that the Government says all of the time, it was appalling to see the lengths to which it is ready to go to impose its will.

No doubt that was the objective of the exercise.

Our distress was compounded by the failure of the Opposition under Ranil Wickremesinghe, who appeared to be far too busy plotting his next move against Sajith Premadasa to bother with something as mundane as the independence of the judiciary. Having successfully ousted his rival from the deputy leadership of the party – whether temporarily or permanently remains to be seen – he finally managed to pen an article on the impeachment for the Sunday Times this week, but readers may not have had the stamina to get past the rather laborious exposition of his knowledge of the history of English country houses and meetings of the Commonwealth to locate his point.

Once again, the widespread information campaign that was so badly needed to counter the propaganda put about by the Government has been left to others.

Worse, by focusing our attention on the Commonwealth and the sanctions that it may impose on Sri Lanka as a result of the impeachment, the UNP leader is pushing us into the same old trap of ‘internationalising’ what must be a national struggle.

Honestly, who cares about the Commonwealth?

If Ranil Wickremesinghe tries very hard, it may decide to move the 2013 Commonwealth Heads of Government Meeting away from Sri Lanka. But what use is that? I don’t believe that Mahinda Rajapaksa would be in the slightest bit upset.

Quite the reverse, he is at his most comfortable when under fire from abroad.

No doubt the Government is totally hypocritical when it calls people traitors for taking their problems to international fora. We all know that Mahinda Rajapaksa did the same thing in the late 1980s, when the UNP administration was butchering Sinhalese youth.

It is also wrong. There is nothing traitorous in informing the world about what is happening in Sri Lanka.

It can even be useful in some circumstances.

I don’t believe that it had any impact on the anti-JVP campaign. The architects were either convinced that Sri Lankans would never prosecute them for their excesses or too desperate to care about what might happen once it was all over. On the whole, they were right – not morally but factually. If they were punished, it was almost exclusively by extra-judicial means.

Even today, as the JVP calls for an inquiry into the discovery of a mass grave from that era in Matale, there is little chance of it being granted and no chance whatsoever of that resulting in jail time for the politicians who ordered such activities.

The JVP will not push on the issue, for to do so would be to remind people of its own role in the slaughter.

But imagine what would happen if it did. Imagine it calling on the international community to investigate, as many people are doing today with regard to the deaths of Tamils in the Government’s war against the LTTE. Would justice be done?

No!

Even after the passage of more than twenty years, and with an SLFP-led coalition in power, there is nothing the international community could do about it. Why? Because the international community doesn’t get to vote in elections in Sri Lanka!

It is the opinions of Sri Lankans that matter to Mahinda Rajapaksa. So long as they aren’t bothered about the mass grave in Matale, he won’t be either. Likewise, so long as they don’t want an investigation into the anti-LTTE campaign, even Ranil Wickremesinghe wouldn’t do it.

The international community has zero moral authority, as everybody in Sri Lanka is very well aware.

We know that other countries have dirty wars of their own. Indeed, if we needed reminding that some things remain the same even after the replacement of George Bush by Nobel Peace Prize winning Barack Obama at the top of the world’s greatest democracy, ‘Dirty Wars’ is the name of a documentary that premièred at the Sundance Festival in Utah last week.

Sri Lankans love to blame the Western media for focusing on abuses in this country while remaining silent about what their own governments get up to, but this is rather myopic. Everything we know about the crimes of Western nations has been brought to our attention by Western journalists.

According to an interview with the producers, the documentary looks at how the War on Terror, which started overtly in Afghanistan and Iraq, has now become covert. We know everything there is to know about the night raid that killed Osama bin Laden, which has even been made into a rather captivating Hollywood film, but there were 30,000 other night raids in Afghanistan that year. Nobody talks about them. The documentary recounts the story of one in which an elite squad of American soldiers killed a senior policeman and his family while they were in the middle of a birthday party, and tried to cover it up. While the survivors watched, they dug the bullets out of the bodies, then announced to the world that they had stumbled onto the aftermath of an honour killing.

How very honourable!

The American ‘kill list’, which had only seven names on it after 9/11, now includes thousands. That is thousands of people that Barack Obama has said that it is perfectly acceptable to murder, never mind whether they are holding up white flags.

It also talks of the American drone programme, which allows them to do so without getting close enough to see a white flag. Indeed, George Bush established a policy, which Barack Obama has endorsed, of dropping bombs on people even when they aren’t on the ‘kill list’. In certain areas of Pakistan and Yemen – countries with which the United States is not at war – all young men are assumed to be terrorists and can be killed as and when convenient.

This is also top secret. Barack Obama personally intervened to stop the Yemeni government releasing a local journalist who photographed the remnants of American cruise missiles that he says regularly kill civilians.

American funded warlords in Somalia are shown on camera saying in a completely matter-of-fact manner that they execute foreign prisoners on the battlefield.

The War on Terror goes on in another equally repugnant form.

Given this well known background, if the international community tried to use its economic or other power to force prosecutions in Sri Lanka, the public would rally behind the Government, and Mahinda Rajapaksa is very good at encouraging such a response.

There really is no short cut.

To succeed in the pursuit of justice, it is the minds of Sri Lankans that have to be changed. If they start to want prosecutions, it will happen.

It is a national struggle, and trying to involve the international community can only make it harder.

Likewise, ‘internationalising’ the effort to restore the independence of the judiciary is also going to create more problems than it solves.

Mahinda Rajapaksa showed how uninterested he is in the opinion of the international community by announcing the impeachment of the Chief Justice just days before Sri Lanka faced its Universal Periodic Review at the United Nations Human Rights Council in Geneva.

Deceiving ourselves may make us feel better, at least for a while, but it isn’t going to result in any actual change.

* Kath Noble’s column may be accessed online at http://kathnoble.wordpress.com/. She may be contacted at kathnoble99@gmail.com.

Counsel claims threat to life

By Stanley Samarasinghe-Wednesday, 30 Jan 2013 A Counsel for a petitioner, who has filed a Fundamental Rights case where newly-appointed Chief Justice, Mohan Pieris is a respondent, said in courts yesterday that he is under tremendous pressure to withdraw from the case. Naganada Kodituwakku, Counsel for the petitioner of the Fundamental Rights Petition No. 536/2010, in which the former Attorney General and present Chief Justice, as well as Treasury Secretary, P.B. Jayasundera, are cited as respondents, filed a motion before Supreme Court claiming that his life is under threat. The petition was filed by T.R. Ratnasiri, Assistant Superintendent of Customs. The Petitioner claims the Colombo Dockyard Company had sold marine crafts without obtaining prior approval from the Board of Investment or paying fiscal levies to the Department of Customs. It also alleged the company had collected the entire fiscal duty of Rs 619 million from the buyers, Sri Lanka Navy and the Ports Authority, without paying a single cent to the Customs. The Petitioner sought direction to quash and annul an unlawful decision that the Secretary to the Treasury and the then Attorney General had taken to recover the Customs Duty defrauded by the said Company, in terms of Section 18A of the Customs Ordinance, and instead to proceed under Section 50A and 129 of the Customs Ordinance. The Petitioner in this case alleged there are serious allegations levelled against the then Attorney General Mohan Peiris, who is now CJ, and Secretary to the Treasury P.B. Jayasundera, for their alleged dishonourable conduct in defrauding public funds. Counsel Kodituwakku alleged the case has been fixed for support more than 15 times and yet it was never allowed to be supported over a period of two years, due to various delaying tactics adopted by the Respondents, particularly the former AG, whose official duty was to uphold the rule of law and not to protect the interest of fraudsters and criminals. In his motion, the Counsel stated he had arrived from Britain to Sri Lanka on 21 January 2013, to discharge his petitioner, after having reported the threat to his life to the Commonwealth Secretariat in the UK. After arriving in Sri Lanka, he had been warned by email that he had returned to Sri Lanka at his own risk and any further steps taken by him to support the application would end up with fatal results. The Counsel had reported to the Mirihana Police on 23 January, that under prevailing circumstances, he fears he may not be in a position to support this matter on 31 January 2013, but he would make every endeavour to appear in Court to support the application. The Counsel moved that in the event of his being prevented from presenting the case on 31 January 2012, he be given another date. 2013, he be given a another date.

Abandoning The Rule Of Law In Sri Lanka

By Andrew Rizzardi -January 30, 2013 

Chief Justice Dr Shirani Bandaranayake

Earlier this month, Sri Lankan president Mahinda Rajapaksa replaced Chief Justice Shirani Bandaranayake with a political ally following a parliamentary impeachment process that was deemed unconstitutional. While the government claimed that Bandaranayake had abused her position for personal gain, her ouster was widely regarded as a Rajapaksa vendetta and yet another blow to judicial independence in the country. In the wake of this showdown between the branches of government, the judiciary has been reduced to little more than an appendage of the ruling party. According to the latest edition of Freedom in the World, Sri Lanka experienced declines in political rights and civil liberties indicators in 2012, adding to a multiyear deterioration. If January is any indication, the coming year promises more of the same.

Bandaranayake is an unlikely symbol of judicial independence. In May 2011, she became the first chief justice appointed by President Rajapaksa following the enactment of the divisive 18th Amendment to the constitution, which abolished the short-lived Constitutional Council and granted the president increased appointment powers over the judiciary and a range of other previously independent state entities. Human rights lawyers opposed Bandaranayake’s nomination, and the U.S. ambassador in Colombo called her a “Rajapaksa loyalist.” Nevertheless, she eventually found herself at the center of a constitutional crisis.

The row began over the controversial Divi Neguma Bill, which proposed the creation of a centralized development authority combining all provincial agencies under Economic Development Minister Basil Rajapaksa, the president’s brother. The legislation would effectively transfer 80 billion rupees ($700 million) in development funds to the minister’s control without any provisions for oversight. The bill also included a “secrecy clause” that could block whistleblowers from reporting corruption. The Supreme Court, led by Bandaranayake, prevented passage of the bill on two separate occasions. In September, it ruled that all of the provincial councils had to approve the legislation, as it concerned issues that were normally handled at the provincial level. The bill successfully cleared the councils in all but one province; since Northern Province lacked an elected council, the appointed governor endorsed the legislation instead. A second legal challenge ensued, and on November 6 the Supreme Court ruled that certain clauses must be approved by a majority in Parliament and a public referendum. Almost immediately, the governing United People’s Freedom Alliance (UPFA) filed a motion for Bandaranayake’s impeachment. Fourteen charges were lodged against her, including failure to disclose income, disregarding the constitution, and harassment.

On November 23, the impeachment charade began in earnest. Requests for a public hearing were denied, and observers were barred. Full disclosure of the charges was refused, no witness list was provided, and cross-examinations were disallowed. Bandaranayake also faced verbal abuse from parliamentary hecklers. She and her legal team walked out on December 6, saying they would take no further part in the process. Bandaranayake was convicted by a parliamentary committee on three counts of misconduct, setting the stage for a vote on her removal by the full UPFA-dominated Parliament. The International Commission of Jurists condemned the entire process as a “relentless campaign” to weaken the judiciary.

Tensions escalated on January 3 when the Supreme Court found the impeachment proceedings to be unconstitutional. The government’s rhetoric then shifted from rescuing the Supreme Court from the menace of Bandaranayake to a direct assault on the judiciary. UPFA lawmakers denounced judicial attempts to “usurp” power from the legislature. State-owned newspapers championed the authority of Parliament, alleged foreign influence on jurists, accused dissenters of harboring separatist sympathies, and stepped up the smear campaign against Bandaranayake herself. On January 11, Parliament passed the impeachment motion, 155 to 49. The chief justice received a presidential letter of termination within 24 hours. Her replacement, Mohan Peiris, is a former attorney general and close Rajapaksa ally.

Bandaranayake quietly stepped aside, fearing for her life and the safety of her family. Opposition leader Sarath Fonseka urged her to join him in the creation of a new political party, but she has not issued a public response. Meanwhile, legal professionals are challenging the legitimacy of Bandaranayake’s successor and have threatened to boycott legal proceedings, potentially freezing the entire court system. Civic, religious, and professional groups have roundly condemned the impeachment process. There is also evidence of a rift within the ruling coalition. A number of normally loyal lawmakers abstained during the impeachment, including the leaders of the Communist Party and the Liberal Party. Internationally, Canada plans to challenge Sri Lanka’s bid to host the Commonwealth Heads of Government Meeting in November.

The crisis could also have economic repercussions. Sri Lanka has experienced robust economic growth since the end of the civil war, aided by dramatic increases in foreign direct investment. Erosion of the rule of law and related political turmoil could easily change investors’ calculations. The Ceylon Chamber of Commerce, aware of the danger, has called for harmony between state organs. Aid from foreign governments may also be in jeopardy. The U.S. State Department has said that the impeachment raises concerns about the Rajapaksa administration’s commitment to democracy. Sri Lanka received $27 million in bilateral assistance from the United States in 2012.

Nevertheless, the Sri Lankan leadership appears to be pressing its advantage. Having effectively confirmed the supremacy of the political branches over both the judiciary and the constitution, some government officials have threatened to regularly summondissenting judges before Parliament for censure. Meanwhile, the opposition is left with little recourse. Although the judiciary regularly enforced suppressive government actions, it remained one of the only venues for Rajapaksa’s opponents to challenge his hold on power.

It has long been bad politics in Sri Lanka to defy Rajapaksa and his allies. They typically get what they want, and the Divi Neguma Bill is no exception. It was easily passed on January 8. So why would the leadership risk economic and political damage over a bill that was all but assured to become law, one way or another? In an attempt to quickly quash any sign of judicial dissent, the government began a process that snowballed beyond expectations. As the stakes increased, it stubbornly refused to step back. The consequences of the constitutional crisis are still developing, and it could have serious deleterious effects on Sri Lanka’s future. For the time being, however, Sri Lanka has suffered a swift, harsh blow to the rule of law.

* Andrew Rizzardi is a political analyst with a focus on human rights, governance, and corruption. He is currently assisting Freedom House with the forthcoming report,Freedom of the Press 2013. This article is first published on freedomhouse.org

Those involved in impeachment rewarded - JVP

‘Ministerial staff now over 1,300 strong’

by Shamindra Ferdinando-January 29, 2013

 JVP Propaganda Secretary and parliamentarian Vijitha Herath yesterday alleged that Ratnapura District MP Pavitra Wanniarachchi had been rewarded for her role in the high-profile campaign to impeach Chief Justice Dr. Shirani Bandaranayake.

Herath was referring to Wanniarachchi receiving the power and energy portfolio at the expense of Patali Champika Ranawaka, at Monday’s mini-cabinet reshuffle. JHU nominee Ranawaka was given the Technology, Research and Atomic Energy portfolio, which Ms Wanniarachchi held earlier.

Addressing the media at JVP headquarters in Pelawatte, Battaramulla, Herath pointed out that Wanniarachchi had led those who handed over the impeachment motion against Dr. Bandaranayake to Speaker Chamal Rajapaksa.

The JVPer said that Anura Priyadarshana Yapa, Chairman of the Parliamentary Select Committee (PSC),

which found Dr. Bandaranayake guilty on some of the allegations made by 117 UPFA members, too, had been rewarded at the expense of UPFA General Secretary Susil Premjayantha, who lost the Petroleum Industries portfolio to Yapa. Premjayanth ended up with the environment portfolio, previously held by Yapa. He was also given the renewable energy portfolio, which was earlier handled by the Power and Energy Minister.

Herath alleged that President Rajapaksa reshuffled the cabinet as he wanted to give a boost to those who spearheaded the operation against Dr. Bandaranayake. He emphasized that the situation at the Petroleum and Power ministries didn’t warrant changes at the top. The JVP propaganda chief dismissed the assertion that ministers Premjayantha and Ranawaka weren’t efficient hence changes necessary.

The JVP said that Education Minister Bandula Gunawardena, too, had his wings clipped with Duminda Dissanayake being appointed Educational Services Minister in the wake of a dispute at a recent meeting over the distribution of school uniform material. The JVP alleged that Minister Gunawardena got into trouble due to him taking a position contrary to that of the powers that be.

Herath said that with the appointment given to Dissanayake, there were two ministers, two deputy ministers and a monitoring MP though the education sector was in chaos. The JVPer said that the government had caused irreparable damage to education.

He said that the UPFA’s 69-member jumbo sized cabinet had a 1,035 strong staff, whereas deputy ministers’ staff comprised 280 workers. Of the 69 ministers, two were not in the cabinet, though they enjoyed all perks and privileges given to their cabinet colleagues. The MP said that vast majority of 1,315 staffers were family members of politicians and relatives maintained at taxpayers’ expense.

Herath said that there were 28 Deputy Ministers, though some of them exercised ministerial powers. According to him, those struggling to make ends meet had been forced to undergo further burdens due to a top heavy government squandering public funds.

Herath ridiculed the creation of a new portfolio in the name of Botanical Gardens and Public Recreation when ordinary people were finding it extremely difficult to survive due to the spiraling cost of living. The MP said that Kurunegala District MP Jayaratne Herath, in his new capacity as the minister in charge of Botanical Gardens and Public Recreation, could provide entertainment to the suffering masses.

Could anything be as ridiculous as appointing a sugar industries minister, he said. The day the UPFA appointed ministers for dhal, coconut and rice wouldn’t be far away, the MP said.

FR Case To Reflect How Much Of Sri Lanka’s Judicial Independence Has Survived – Motion For Full Bench Filed By CPA

By Colombo Telegraph -January 30, 2013 

In SC (FR) 23/2013, filed by the Centre for Policy Alternatives (CPA) and its Executive Director, Dr.Paikiasothy Saravanamuttu to prevent Mohan Pieris, PC (named the 6th Respondent in the case) from being allowed to exercise and discharge the functions of the office of the Chief Justice, a Motion has been filed, in view of the fact that it is not possible for the 6th Respondent to properly exercise any discretion to nominate a bench to hear the case. The petitioners state that in the present state of affairs, all judges ought to be called upon to exercise their constitutional duty of hearing and deciding the case without the 6th Respondent deciding on who should hear the case.

The case has been filed, on the basis that steps to exclude Dr. Shirani Bandaranayake, Chief Justice of Sri Lanka was taken on the illegal strength of unconstitutional and illegal Parliament Standing Order 78A, which was pronounced to be null and void and ultra vires in terms of the Constitution, and could not have been legally used to impeach a judge of the Supreme Court or Court of Appeal. Any valid, proper steps could only have been taken, by providing for an inquiry of judicially accepted standards through the enactment of laws by Parliament. Such valid laws would have ensured Natural Justice and a fair inquiry to Dr. Bandaranayake in conformity with international standards required for preservation of judicial independence, including the Latimer House Principles to which Sri Lanka as a Commonwealth State has pledged itself. Therefore, the application seeks that the Supreme Court makes a declaration that any steps by the 6th Respondent Pieris to exercise the functions or powers of the Chief Justice is illegal and a contravention of the fundamental rights of the Petitioners and the citizens of Sri Lanka by depriving them of their right to independence of the judiciary which is vital for the Rule of Law.

Despite a determination by the Supreme Court as the sole body vested with the power and authority to interpret the Constitution, and a writ of Certiorari issued by the Appeal Court quashing purported findings against Dr. Bandaranayake under the so-called procedure contained in Parliament Standing Order 78A, the Rajapakse regime purported to exclude Dr. Bandaranayake from office on the basis of a vote in Parliament, despite there not being even a Resolution for impeachment on the Order Paper of Parliament. All that was on the Order Paper was a Resolution for the appointment of a Parliamentary Select Committee to go further into the matter.

However, despite this serious point of order being raised by the Opposition in Parliament, the Speaker of Parliament Chamal Rajapaksa allowed a vote to be taken and the vote was carried in the Rajapaksa regime controlled legislature. A senior political analyst pointed out that the reason this serious issue of order was overlooked and Parliament procedure flouted, was the fact that by then, the Rajapaksa regime had already organised and detailed paid thugs to camp outside the Chief Justice’s official residence to intimidate and vilify Dr. Bandaranayake as soon as the Rajapaksa controlled legislature rubber-stamped the regime’s decision to remove Dr. Bandaranayake from holding office. Businessmen who had obtained favours from the Government had been instructed to provide milk rice (‘Kiri Bath’) in their respective areas, to give the impression of public jubilation at the steps of the Regime to remove Bandaranayake. If the serious point of order was not summarily shrugged off, the ‘public show’ organised by the government would have been an utter failure as the milk rice and paid thugs were already in place. So, the requirements of political expediency was allowed by the Speaker to trump the propriety of parliamentary due process.

The Speaker of Parliament is the brother of President Mahinda Rajapaksa. Dr. Bandaranayake issued a ruling holding certain aspects of the controversial “Divineguma Bill” sponsored by one of the President’s brothersBasil Rajapaksa, Minister of Economic Development, after which steps were taken to hastily impeach Dr. Bandaranayake and remove her from the office of Chief Justice, in a manner that has drawn strong widespread international criticism, including from the United Nations, the ICJ, the Commonwealth, the European Union, United States, United Kingdom, Australia, Canada. The move was also denounced by Sri Lanka’s Opposition, the judges’ association (Judicial Services Association – JSA), Bar Association (BASL) and civil society through strong statements and actions.

The Rajapaksa regime thereafter proceeded to appoint Mohan Pieris to function as Chief Justice. Pieris is a controversial character, who is very close to the Rajapaksa Regime, and especially Gotabhaya Rajapaksa, a brother of the President who is the Secretary of Defence. Pieris is dogged by very serious allegations (backed by documentary evidence) of corruption related to his tenure as Attorney General, which were revealed and published by the media including The Colombo Telegraph well before his appointment as Chief Justice. There is also a fundamental rights case pending in the Supreme  Court against Pieris. Notwithstanding all this, Pieris was appointed and installed in the office of the Chief Justice under heavy security on a day Hulftsdorp was packed with handpicked police and security personnel to prevent Dr. Bandaranayake from entering the Supreme Court Complex or attending her office to perform her duties. Dr. Bandaranayake thereafter issued a statement affirming that she remains the legal Chief Justice, though she is prevented by the Regime from functioning as such.

The opposition party Janatha Vimukthi Peramuna has lodged a complaint alleging corruption against Pieris at the Human Rights Commission.

After the enactment of the 18th Amendment, appointments and promotions to the Supreme Court, Appeal Court and the Human Rights Commission are made at the exclusive discretion of the President, after the ascertainment of the views of a toothless Parliamentary Council. The FR filed by CPA on the day Pieris was installed in Hulftsdorp also sought to prevent members of this toothless Council members from seeking to recommend Pieris, given that there is no vacancy for the position of Chief Justice. However, despite urgency being expressed in the Motion with which the case was filed and the judges being informed of the urgency of the matter, the case was not listed for support until after 6th Respondent Pieris was supposedly sworn into office. This was in the context of Hulftsdorp being overrun by Police and Security personnel, after the regime purportedly impeached Dr. Bandaranayake in Parliament.

A senior political analyst contacted by The Colombo Telegraph spoke on condition of anonymity (citing security concerns) and expressed the following view:

“This case and how it is decided is a litmus test of the degree to which the seriously undermined besieged judicial independence of the Supreme Court has been extinguished by the high handed actions of the ruling regime. Sri Lankans and the international community are following this case with grave concern. It is now up to any judges who care for judicial independence to make an impartial ruling, even if it means facing the same unjust fate as Dr. Bandaranayake without due process. It is difficult I know, but a sacred duty cast on the judges by the Constitution itself to uphold the Constitution and thereby the Sovereignty of the People by ensuring the Rule of Law. Judicial office is not for the faint-hearted, those afraid of repercussions or enticed by the carrots of executive favour on themselves or their family members. Surely, the Supreme Court may have at least a few judges of the right caliber, at least from among those appointed before the 18th Amendment. If not, the flame of judicial independence stands snuffed out at the very top of the judicial system.”

The case is due to be supported on 06.02.2013.

Here is the text of the Motion to the Supreme Court dated 28.01.2013 that has been sent by registered post to all respondents, including the Attorney General and 6th Respondent Mohan Pieris.