Sri Lanka: Is Transitional Justice in Trouble?

Taylor Dibbert -09/15/2016 

The UN Human Rights Council’s (HRC) 33rd session began on Tuesday and Sri Lanka is on the agenda. The UN Working Group on Enforced or Involuntary Disappearances (WGEID) is set to officially release a report on the island nation. The report is already in the public domain, although this is the first time the document will be presented to the Geneva-based HRC.

Disappearances in Sri Lanka have been a longstanding problem. Appropriately, an Office of Missing Persons (OMP) is one of the four main pillars of the government’s transitional justice process.

More broadly, parliament’s recent passage of a bill to create the OMP should not go unnoticed, but the way in which the OMP was established should have domestic and international observers worried about forthcoming transitional justice mechanisms, especially the accountability mechanism to address alleged wartime abuses. Shortly after the legislation to create the OMP was passed, the Consultation Task Force on Reconciliation Mechanisms (CTF) issued a thoughtful statement.

Here’s part of that statement:

The CTF recognizes the significance of the decision by the Government to ascertain public views on the reconciliation mechanisms it has proposed. The CTF however notes the lack of information about the proposed mechanisms, the lack of awareness about the consultation process, and the persistence of fear in parts of the country of speaking out — all of which, hinder this process.

Here’s another paragraph:

The lack of information and awareness about the process by which the Office [of Missing Persons] was established, its role and functions has contributed to the fear and suspicion, including amongst the families of the Missing in Action (MIA), that the OMP will exclude them. Therefore whilst the government’s commitment to expedite the establishment of these mechanisms is appreciated, the lack of information, awareness, and attention to incorporating public views, particularly of those families affected by disappearances, reveals a troubling lack of sensitivity to the widespread nature of the crime of disappearances in Sri Lanka, the manner in which it continues to haunt families across the country, and the failure on the part of the state to address its horrific complicity in this crime over several decades.

Over at Lawfare, I recently published an essay that looks at the plight of Tamil political prisoners and what that might tell us about the government’s broader transitional justice agenda. One of the major takeaways is that, by failing to move on some of the smaller, less controversial reforms on its list, the government is sending the wrong message entirely. Relatedly, this reality should compel international observers to question how serious Colombo is about some of the more robust prescriptions outlined in the (co-sponsored) October 2015 HRC resolution on Sri Lanka, which deals broadly with transitional justice. (Importantly, Colombo’s compliance with the resolution will be reviewed during the HRC’s 34th session in March 2017.)

The concluding paragraph of the Lawfare article is as follows:

Releasing political prisoners would be a strong early step toward this goal [of building trust between the Sinhalese-dominated government and the Tamil community]. Though politically controversial, providing a complete list of Tamil political prisoners (including the location where each individual is being held) and immediately releasing most of them is precisely the type of confidence-building measure that the government could use to establish its transitional justice bona fides. The longer Colombo prevaricates on this issue, the easier it is to believe that war-related reform in Sri Lanka may be on the rocks.

For Sri Lanka’s transitional justice process, the coming months are crucial.

*This piece first appeared in The Diplomat.

Follow Taylor Dibbert on Twitter: www.twitter.com/taylordibbert

BASL’s attempt to undermine the Supreme Court and Parliament

By C. A. Chandraprema-September 13, 2016

It has been reported in the press that the Bar Association of Sri Lanka (BASL) will be filing papers in the Supreme Court, seeking a revision of the apex court’s judgment in the landmark 2006 case Nallaratnam Singarasa v. The Attorney General, popularly known as the Singarasa case. The Secretary of the Bar Association Amal Randeniya confirmed this when contacted by this writer. The BASL’s proposed action will have far reaching implications for Sri Lanka and the public should be made aware of what exactly the Bar Association intends to do. The importance of the Singarasa case is that it was a landmark judgment which defined the limits of executive power.

Singarasa was convicted by the High Court on five charges that he, between 1 May 1990 and 31 December 1991 together with LTTE leaders like Sornam and Pottu Amman, conspired to overthrow the lawfully elected government and attacked Army camps in Jaffna Fort, Palaly and Kankesanthurai. The charges against him had been brought under the Emergency Regulations and the Prevention of Terrorism Act. He was sentenced to 50 years RI. Singarasa appealed against his conviction to the Court of Appeal, which dismissed his case on 6 July 1999, but they reduced his sentence to 35 years RI. Singarasa then sought special leave to appeal from the judgment of the Court of Appeal and a Bench of the Supreme Court comprising of Justices Mark Fernando, Wadugodapitiya, and Wijetunga refused special leave to appeal on 28 January 2000.

On 19 June 2001 Singarasa petitioned the Human Rights Committee in Geneva. The Human Rights Committee should not be confused with the Human Rights Council which is a body made up of states representatives. The Human Rights Committee on the other hand is an international tribunal set up under the provisions of the International Covenant on Civil and Political Rights (ICCPR) to hear petitions from citizens of member states about the violations of rights guaranteed under the ICCPR. Sri Lanka had acceded to the International Covenant on Civil and Political Rights on 11 June 1980 and to the Optional Protocol of the ICCPR on 3 October 1997. It is under the provisions of the Optional Protocol that states recognize the competence of the Human Rights Committee in Geneva to receive petitions from individuals in member states.

Since Sri Lanka had acceded to the Optional Protocol of the ICCPR, Nallaratnam Singarasa appealed to the Human Rights Committee in Geneva claiming that Article 14(1) of the ICCPR which guarantees the right of persons facing criminal charges to ‘a fair and public hearing by a competent, independent and impartial tribunal’ had been infringed by the Sri Lankan state in his case because he had been convicted on the sole basis of his alleged confession, which had not been made voluntarily. Singarasa argued that reliance on his confession, in a situation in which (under the PTA) the burden was on him to prove that the confession was not made voluntarily, rather than on the prosecution to prove that it was made voluntarily, amounts to a violation of his rights under Article 14(3)(g) of the ICCPR which guaranteed the rights of the accused ‘not to be compelled to testify against himself or to confess guilt’.

On 30 July 2004 the Human Rights Committee in Geneva held in favour of the petitioner and recommended that the Sri Lankan state should provide Singarasa with ‘an effective and appropriate remedy, including release or retrial and compensation’. Armed with this ruling, Singarasa’s lawyers filed an application in the Supreme Court on 16 August 2005 for revision of the SC judgment of 28 January 2000 which refused Singarasa leave to appeal, and to set aside the conviction and sentence imposed on him. This case was heard before a five-member bench with Chief Justice Sarath N Silva and Justices Nihal Jayasinghe, N.K. Udalagama, N.E. Dissanayake and Gamini Amaratuga. In its judgment, the SC made the following observations.

1. Our constitution is based on the dualist theory where there are two separate and independent legal systems, one national and the other international.

2. In our constitution, there is a functional separation in the exercise of power by the three organs of government, the executive, legislature and the judiciary.

3. International treaties entered into by the President and the Government of Sri Lanka which are consistent with the Constitution and written law would bind the Republic but still has to be legislated for by the Sri Lankan parliament to have internal effect.

4. The limitation on the power of the executive to bind the Republic is contained in Article 33(f) which states that the president has the power ‘to do all such acts and things which are not inconsistent with the provisions of the Constitution or written law’.

5. If the President enters into a treaty or accedes to a Covenant the content of which is inconsistent with the provisions of the Constitution or written law it would be a transgression of the limitation in Article 33(f) cited above and ultra vires. Such act of the President would not bind the state.

6. Thus, the President is empowered to represent Sri Lanka and enter into a treaty or accede to a Covenant, the contents of which are not inconsistent with the Constitution or written law.

7. Judicial power forms part of the sovereignty of the people and could be exercised in terms of Article 4 (c) of the Constitution only by courts, tribunals or institutions established or recognized by the constitution or by law.

8. The Petitioner cannot seek to ‘vindicate and enforce’ his rights through the Human Rights Committee in Geneva, which is not reposed with judicial power under our constitution.

9. The President is not the repository of the legislative power of the people which in terms of Article 4(a) is exercised by Parliament and by the people at a referendum.

10. The Supreme Court quoting Article 2(2) of the ICCPR observed that the Covenant itself is based on the premise that legislative measures would be taken by each state party to give effect to the rights recognized in the covenant. Under Article 2(2) of the ICCPR each state party undertakes to take the necessary steps to adopt ‘such laws as may be necessary’ to give effect to the rights recognized in the Covenant.

11. No legislative measures were taken to give effect to the Optional Protocol of the ICCPR and therefore it does not have internal effect in Sri Lanka.

12. A recognition of the power of the Human Rights Committee to receive and consider petitions from Sri Lanka is an exercise of legislative power which comes within the realm of Parliament and the people at a referendum.

13. According to Article 76(1) of the Constitution, Parliament shall not abdicate or in any manner alienate its legislative power and shall not set up any authority with any legislative power.

14. Under Article of the constitution,76(2) the only instance in which Parliament could even by law empower the President to exercise legislative power is restricted to the making of regulations under the law relating to public security.

15. Therefore the accession to the Optional Protocol of the ICCPR in 1997 by the then President is in excess of the power of the President as contained in Article 33(f) of the Constitution and does not bind the state.

The foregoing would show that what the Supreme Court said in the Singarasa case was very simple. There are certain limits on the power of the executive arm of the state headed by the President. The executive arm can enter into treaties and international conventions that are not inconsistent with the constitution of Sri Lanka. If the executive arm enters into treaties or accedes to conventions that are inconsistent with the constitution, such acts are ultra vires. Even when the international treaties and conventions entered into by the executive arm are consistent with the constitution, they still have to be legislated into law so as to have effect in Sri Lanka. Article 2(2) of the ICCPR itself expects all member states to pass laws to give effect to the convention within those states. However Sri Lanka had not passed laws to give effect to the Optional Protocol of the ICCPR which allows for petitions to be addressed from Sri Lanka to the Human Rights Committee in Geneva which means that rulings of the Human Rights Committee have no legal effect in Sri Lanka.

If the necessary legislation had been passed, the Supreme Court would of course have given effect to the law. Now by petitioning the Supreme Court to have the judgment in the Singarasa case overturned, the Bar Association of Sri Lanka is in effect asking the Supreme Court to submit itself to the Human Rights Committee in Geneva without parliament having passed laws to give effect to the Optional Protocol of the ICCPR. This will have a direct impact on the judicial structure in this country and the authority of the Supreme Court as the highest court in the land. Any attempt to get the Supreme Court to accept the ruling of the Human Rights Committee in Geneva without the necessary legislation being passed by Parliament smacks of an attempt to get the Supreme Court to circumvent the legislative power of the parliament and the people.

Any attempt on the part of the BASL to move the Supreme Court to accept the ruling of the Human Rights Committee in Geneva will undermine the legislative authority of parliament and also the authority of the Supreme Court as the highest court in the land. In recent times, the Supreme Court has upheld the authority of parliament as in the VAT case where the SC held that parliament has to pass legislation to enable VAT to be increased and that taxes could not be imposed or increased simply through executive fiat. Then when it came to the Coal tender case, the Supreme Court once again very clearly pointed out the limits of executive power. That is one of the factors that made Noble Resources International Pte Limited v Minister of Power and Renewable Energy et al, a landmark case in its own right. (See: http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=151110 )

Nallaratnam Singarasa v The Attorney General was an earlier case which dealt with similar issues. The question that arises here is, instead of asking the government to pass the necessary laws to give legal effect to the Optional Protocol of the ICCPR why is the BASL trying to get the Supreme Court circumvent the legislative power of parliament while at the same time undermining its own authority by overturning the judgment given in the Singarasa case? This is not merely an appeal to the Supreme Court in a criminal case. Singarasa initiated this particular case in the Supreme Court on 16 August 2005 and asked for a revision of the earlier decision of the court regarding his case entirely on the basis of the findings of the Human Rights Committee in Geneva and it is not possible to overturn the judgment in Nallaratnam Singarasa v the Attorney General delivered on 15 September 2006 without very serious and far reaching constitutional implications.

The issue here is not about Singarasa as an individual. If anybody feels that he has been denied a fair trial because he was charged under the provisions of the PTA, they can always ask the President to give the person concerned a pardon. Given the kind of former LTTE functionaries who have been released, it would make no difference if Singarasa himself was given a full pardon and let out of jail. The reason why the President has been given sweeping powers to pardon just about anybody regardless of the crimes he may have committed is to be able to fine tune the relationship between the criminal justice system and wider society. However, we don’t hear anybody talking about Singarasa as an individual. Everybody seems to be interested only in the constitutional implications of the Singarasa case. That is precisely what worries us as well.

A Discussion on UN Involvement, Human Rights Violations and Terrorism

by Laksiri Fernando

( September 15, 2016, Sydney, Sri Lanka Guardian) When Sanja De Silva Jayatilleka wrote about “This September in Geneva: Sri Lanka at the UNHRC,” I expressed my agreement on two main points, having realised that the government inaction or ‘meek submission’ (like the other extreme of the previous government’s ‘aggressive denial’) not only might harm the national interest, but also would derail the reconciliation process that the present government is keen in promoting in the country. My proposal was ‘constructive and active engagement’ with the UN Human Rights Council (UNHRC) and not outright rejection or denial of the UN concerns. The two points I highlighted were the following in respect of the Report of the Working Group on Enforced or Involuntary Disappearances on its mission to Sri Lanka.

Two Points

(1) Sri Lanka should have and should even now record (strong) reservations on the inclusion of an unsubstantiated sentence from a HR High Commissioner’s speech which would prejudice the Council. Otherwise it would create future repercussions. (2) Sri Lanka should have and should at least now request clarification or modification of the wording in Para 6 which claims ‘deliberate massive and systematic’ war crimes for many decades. An undiplomatic question here is what the hell the UNHRC or the Working Group was doing all these decades? The sentence on which the suggested reservation to be placed was the following.

“In its report on its investigation on Sri Lanka, the Office of the United Nations High Commissioner for Human Rights stated that “there are reasonable grounds to believe that a number of military cadres, who had laid down arms and were thus hors de combat, were unlawfully killed after having surrendered unarmed to the security forces” and that “a number of LTTE cadres, such as those belonging to the political wing, and other individuals not or no longer taking direct part in hostilities, including children, were also extra judicially executed.”

The reasons are clear. (1) UNHR Commissioner’s statement has no direct relevance to the Working Group’s Mission to Sri Lanka. (2) The Commissioner’s statement says “there are reasonable grounds to believe” without any evidence. (3) It is a pre-judgement which could again prejudice the Council. This is already done once. (4) It has the appearance of building up of a case for ‘genocide’ perhaps with political motives. (5) What was suggested is placing of a ‘reservation’ and not a rejection of the whole report.

Second, I suggested a request of ‘clarification on or modification’ of Paragraph 6 which Jayatilleka also has highlighted. The paragraph reads as follows.

“Enforced disappearances have been used in a massive and systematic way in Sri Lanka for many decades to suppress political dissent, counter-terrorist activities or in the internal armed conflict. Given the context in which they occurred, many enforced disappearances could be considered as war crimes or crimes against humanity if addressed in a court of law.”  

The reasons are again clear. (1) The claim is farfetched saying ‘used in a massive and systematic way’ for an unspecified ‘many decades.’ (2) The claim or rather rhetoric can be build up for a ‘genocide’ claim already in circulation. (3) Although ‘counter-terrorism’ is mentioned, there is no mentioning of the LTTE Terrorism that the country and all communities were inflicted with. (4) There is a clear accusation of the government only.

Constructive Engagement

If a government does not at least place ‘reservations’ and ask for ‘clarifications and modifications’ on what is placed before the UNHRC, that is not constructive engagement but meek submission. The past regime’s ‘zero-casualty’ claim or denial should not be an inhibition, if the present government is straight forward and genuine in its efforts to find the truth and move for reconciliation. It has to be underlined that the incidents referred to in the quoted statement in the report pertains to the period in which the present President was the Acting Commander in Chief. Therefore, inaction would be suicidal.

The present government and the Ministry of External Affairs should take an active and a positive role in the UNHR Council proceedings particularly because there is a clear imbalance in its present approach where ‘genocide’ or ‘near genocide’ is highlighted in dubious ways while ‘terrorism’ is not at all recognized or discussed as an ‘international crime,’ ‘war crime’ or at least as a threat and a ‘catalyst for massive human rights violations.’ It is not clear whether this lacunae or neglect merely stems from (1) the non-recognition of terrorism as an international crime in the Rome Statutes or (2) whether this is part of a political scheme where Sri Lanka could be kept submissive or under continuous suspense. In the case of the Working Group, it is possible that the first is the reason, but in the case of the UN Secretary General or even the UNHR Commissioner, the second also might be possible. The SG’s ‘off the cuff’ rhetoric in his recent visit to Sri Lanka is one example.

Even if terrorism is not directly recognized as an international crime in the Rome Statutes, there are so much of customary as well as codified law where it should be considered as an international crime. There were codified law under the League of Nations. Therefore the UNHRC should be persuaded to recognize the problem and its role in the war and events in Sri Lanka. In my opinion, that is also the reality, however un-excusable some of the actions and behaviour of the military during the war and the last stages of the war. Those should be investigated impartially including the alleged incidents of the killing of the surrendered political wing leaders and some LTTE cadres. Even overseas judges could have been involved if not for the present appalling imbalance in the UN approach to the human rights violations and possible war crimes in Sri Lanka not recognizing ‘terrorism’ as a crime. The danger of this imbalance or the soft corner for ‘terrorism’ is the possibility of its resurrection in the country in the same or in a different form.

A Discussion

When I made my brief comments in the Colombo Telegraph, as quoted previously, a person named Ajith, who used to previously engage in many conversations, raised the following questions, which might linger among many people in the country. He was particularly referring to my reservations on the UNHR Commissioner’s statement.

“If you [don’t] agree with the statement, can you deny with substantial evidence that it is not deliberate, it is not massive and it is not systematic war crimes for many decades. You can start with colonization to change demography, Sinhala only Act, language based standardization, and 1958, 1962, 1977, 1981, 1983 and 1983-2015. How do you want to rephrase the sentence?”

I didn’t rephrase the sentence, as it is not up to me, but gave the following answer (now slightly edited) which might be useful for any frank and open discussion on the subject.

“I suggested to place a reservation because (1) it is not a finding of the mission which came to Sri Lanka and (2) the Commissioner made the statement based on the Darusman Report of which many of the sweeping accusations were not substantiated. In addition, I must say that if the UN produces reports of the Darusman type, whether on Sri Lanka or elsewhere, then the credibility of the UN and the accusations would be highly suspect. I have been the chief representative of the World University Service (Geneva) to the Human Rights Commission during 1985-1991, and I have never seen that type of an unprofessional report.

Now you have given some events of discrimination and violence against the Tamils from colonization to 2015. I can agree that when taken together, the discriminations, violations and violence are massive. But I doubt whether all those were systematic. If it is systematic then who was behind? Of course, one can accuse the State or the Sinhalese. First, I don’t think a ‘collective guilt’ could be placed on a whole community, whether the Sinhalese or the Tamils for any violation. Second, when we refer to the State, it was governed by the elected representatives. Whether colonization, Sinhala only or standardization, those were policies however discriminatory. The correction of those have to be done through the democratic process, while I agree that majoritarianism is an obstacle.

But the most important question is whether they are war crimes? Let us forget about layman’s understanding of the International Criminal Law. But how can the UN appointed professionals indulge in such interpretations? In respect of 1958, 1977, 1981 or 1983, I agree that there were organized elements behind the violations and all perpetrators should have been punished. But what the hell the UN was doing all these days? What about 1971 and 1987-91? We have to agree that Sri Lanka has been and still a violent society. Many of the human rights violations in Sri Lanka or other countries occur because of conflicts. In these conflicts there are of course perpetrators and victims, but not in a black and white manner.

What about Terrorism?

It is my concerned view that those who accuse Sri Lanka of ‘massive and systematic war crimes’ particularly genocide have to confront two challenges, if they are sincere and genuine. First is the democratic character of the state system, however lopsided and defective. Second is the non-recognition of ‘Terrorism’ as a war crime in the present international criminal law. I really don’t know your view on ‘terrorism.’ Can you kindly explain?

Of course there are all indications that there were human rights violations which would tantamount to war crimes particularly between 1983 and 2009 on both sides. (You cannot consider the previous events war crimes, because there was no War! (I think people like you should refrain from mere rhetoric.) The events between 1983 and 2009 should be investigated. I have written about some of the clear cases. I think because of the accusers’ political rhetoric, some of the perpetrators can easily escape in the political melee. On my part, I consider terrorism as a war crime. It was considered when the Rome Statutes were drafted, but dropped for convenience because of the lack of an agreement. That is how the UN works! Don’t trust too much.

CBK CALLS FOR A FEDERAL SEMI-SECULAR CONSTITUTION

15/09/2016

Former President Chandrika Kumaratunga called for a joint effort of all parties to compile a federal semi-secular constitution in order to bring about a proper reconciliation in the country.

Ms Kumaratunga, who was speaking at a seminar organized by the national secretariat for national reconciliation in Colombo, said Sri Lanka should learn a lesson from number of countries which have resolved their issues by formulating federal and secular constitutions.

“South Africa resolved its conflict through a federal constitution. Nigeria resolved its conflict by the same means. In India there are 36 languages and dialects, and number of religions such as Jain Buddhism, Sheikism. It was a country which never had unitary status as there were several kingdoms within that country in the past. However the British brought them all together. Leaders like Nehru and Gandhi drew up a federal constitution for India as a means of gaining independence. The Indian Constitution treats that country as a Secular State. India has become a stable nation as a result of its federal and secular constitution,” Ms Kumaratunga said.

“I strongly believe that India had become a stable country as a result of devolution of power and by safeguarding the rights of all ethnic groups in that country. Nepal also faced grave issues with the fall of the monarchy and now with the help of several countries a secular constitution has been introduced” she added.

“Buddha said that everyone is equal. So why are we against giving equal rights to everyone in the nation?. Our effort is to compile a constitution which gives priority to Buddhism and gives equal rights to all other religions and at least try to convert Sri Lanka into a semi-secular state even if we are unable to convert it into a totally secular state,” she said.

Daily Mirror

Accountability remains an international priority

By Jehan Perera-September 12, 2016

The speech by UN Secretary General Ban Ki-moon when he was in Sri Lanka that referred to Sri Lanka along with Rwanda and Srebrenica has created political controversy. In remarks that deviated from the prepared text of his speech, the UNSG said "… something more terrible, serious happened in the past. In 1994 in Rwanda there was a massacre. More than one million people were massacred. The UN felt responsible for that…We said repeatedly ‘Never again, Never again’…It happened just one year after in Srebrenica… We did it again in Sri Lanka..." The opposition has made this into one of their key issues against the government. They have alleged that the references to Rwanda and Srebrenica are indicators that the UN system is pushing ahead with its agenda of labeling Sri Lanka as guilty of the international crime of genocide and punishing those who ensured the military victory over the LTTE.

Section in the Tamil polity and Diaspora also make the same argument. The Northern Provincial Council which is headed by Chief Minister C V Wigneswaran, a former judge of the Supreme Court, passed a resolution calling for an international investigation into genocide in Sri Lanka. It accused successive Sri Lankan governments of committing acts of genocide against the Tamil people just before the UN Human Rights Council meeting in Geneva in March last year. It asked the UN to set up an investigation into genocide in various forms alleged to have been perpetrated on the Tamil people from the time of Independence. The resolution also called upon the UN to set up an international process to ensure accountability for those crimes.

Even at the height of the war, Tamil people were able to live with reasonable safety in government held areas. It was in the war zones that were controlled by the LTTE that civilians died in large numbers as the military sought to wrest control of the territory from the LTTE and to defeat them in battle. Unless there is an intention to destroy an entire population, the claim of genocide cannot be sustained. However, the deliberate killing of civilians or those who are no longer involved in combat or have surrendered is a war crime. What has been noted by human rights groups and activists is the lack of remorse manifested within Sri Lanka of the large scale deaths of the civilian population and the preference to sweep them under the carpet and move ahead. The previous government’s rhetoric of "zero civilian casualties" epitomized this attitude.

CREDIBLE MILITARY

There is much that is positive that is happening in Sri Lanka today. Tom Malinowski, Assistant Secretary for the office of democracy, human rights and Labour in the United States who visited Sri Lanka at the time of the genocide resolution by the Northern Provincial Council went out of his way to show support for the course of action being followed by the new government. He wrote an article to the Sri Lankan press stating that "All around the world, there are countries that are going through, in their own ways, what Sri Lankans went through here. Read the headlines from Yemen to Iraq to Afghanistan to Burma, and you will see why the international community wants Sri Lanka to succeed. Not just for the country’s sake, but for all our sakes: The world needs Sri Lanka to keep showing that a society divided by ethnicity and faith can find peace through democracy and dialogue."

In addition, the Sri Lankan military continues to be taken on international peace keeping missions. The UN Secretary-General welcomed the commitment made by Sri Lanka, among other countries, to the UN Peacekeeping at the United Nations Peacekeeping Defence Ministerial in London last week. He said he was particularly encouraged by the pledges related to rapid deployment, including commitments by Sri Lanka to maintain units at a high level of readiness. It was reported recently that Sri Lankan troops are on peacekeeping missions in seven countries and that a battalion of officers and men from the Sri Lanka Army have been invited to join the United Nations Peacekeeping Force for operations in the northern areas of the West African nation of Mali. A military that is charged for genocide would not be invited to be UN peacekeepers.

There have also been steps taken by both the UN Secretary General’s office and the government to engage in damage control about the references to Rwanda, Srebrenica while he was in Sri Lanka. At the annual convention of the ruling party, the UNP, there was the passage of a resolution not to allow any foreign force to threaten the country’s independence, undermine or ridicule it or exert pressure on the country’s sovereignty. This was also echoed by President Maithripala Sirisena in his speech at the UNP convention as well as earlier at the SLFP convention.

In addition, the UN clarified the remarks by saying that Mr Ban Ki-moon was only engaging in self-criticism of the UN in protecting vulnerable people and saying that the UN as a whole had failed to protect those who it was meant to protect. The UN’s official spokesperson also said that the UN Secretary General "was not making a direct comparison between those situations."

ACCOUNTABILITY IMPORTANT

Apart from the Office of Missing Persons that the government has legislated into law, there are three other specific mechanisms that the government has promised, which are the Truth and Reconciliation Commission, Office of Reparations and the Judicial Accountability mechanism. It is reported that the government has proceeded far with these also. The real challenge will come at the next stage—that of implementation. When it comes to implementation there will be a need for campaigning to create empathy amongst the general population to deal with the hard issues of the past. Addressing the Annual Convention of the UNP last week, Prime Minister Wickremesinghe apologised for any mistakes the party may have made during its many years of rule. This acknowledgement and apology on behalf of the party is an important step on the road to accountability, the lack of which has been a hallmark of Sri Lankan politics for many decades.

In October 2015, the government co-sponsored the UN Human Rights Council resolution in Geneva that called for promoting reconciliation, accountability and human rights. The UN Secretary General’s references to the war in Sri Lanka in the same speech that he referred to the UN failures in Rwanda and Srebrenica are indicative that the UN system is keen to see that Sri Lanka fulfils the promises it has made to the international community. It is necessary that the government should fulfill the commitments it made in that resolution. These are for the release of civilian land held by the military, release of prisoners held without charge for years, demilitarization, removal of the Prevention of Terrorism Act and establishing a truth seeking and accountability mechanism to investigate and prosecute violations and abuses of human rights and violations of international humanitarian law.

There is also awareness that those from the former government who denied that large numbers of civilians died in the war, and who even claimed initially that there were "zero civilians casualties" are waiting in the wings to take over the reins of governance if the opportunity presents itself. In which case, many of the gains achieved by the post-2015 government will be put into jeopardy. The comments of the UN Secretary General during his visit and his observations about the improvements he saw are indications that the international community will be prepared to give Sri Lanka the time and space to grapple with the politically difficult issues of truth and accountability with regard to the war, and devolution and sharing of power with regard to a lasting political solution. But it will also continue to insist that Sri Lanka accounts for the past, both to its own people and to the international community.

UN WGIFD ON SRI LANKA: CONCLUSIONS AND RECOMMENDATIONS

( Family members of the disappeared march in Colombo on 30 Aug 2016 photo ©s.deshapriya)
Conclusions.

14/09/2016

70. The Government’s invitation to the Working Group and its increasing openness to international engagement are very positive and encouraging steps. Today, the challenge facing the Government of Sri Lanka is to transform its promises into a concrete, comprehensive, legitimate and participatory framework aimed at securing the rights to truth, justice, reparation and memory, and guarantees of non-repetition for the families of the disappeared and Sri Lankan society as a whole, in the context of a reconciliation process.

71. It is encouraging that the Government is proposing a comprehensive public policy to deal with prevention, investigations, sanctions and reparation for the victims of enforced disappearances.

Report-of-the-WGEID-on-SriLanka.pdf by Thavam Ratna on Scribd

After Ban Ki-moon Evicts Critical Press, Team Ban Enlists Sri Lanka War Criminal To Lash Out

By Matthew Russell Lee, Follow Up on Exclusives

UNdisclosed Location, September 14 -- UN Secretary General Ban Ki-moon in late August awarded the top UN job in Kenya to his own son in law, Siddharth Chatterjee, and did not even recuse himself.

 Ban's spokesman Stephane Dujarric has refused to provide basic information about the promotion, and about Chatterjee's military activities in Sri Lanka. Instead, Team Ban arranged for Chatterjee's military commander Dalvir Singh to slam in Huffington Post Inner City Press' “accusations of human rights violations against Chatterjee. Major Chatterjee was a star member of my battalion, the 10th Para Special Forces, and at no time was my battalion or any member of my unit ever involved in any form of human rights violation.” 

 Really? What about the Jaffna Hospital Massacre? And see Amnesty Int'l.

Singh's / Team Ban's piece from its first version to its second picked up links to Team Ban's raid on Inner City Press' office, and material from the UN Censorship Alliance. These suggestions came from within Ban's UNHQ.

  Dalvir Singh wrote “To attack the UN Secretary-General Ban Ki-moon who happens to be Chatterjee’s father-in-law, using his service in Sri Lanka is not only absurd but deserves to be condemned in the strongest possible terms.” And then the threats began. This is a new low.

Ban's promotion of his son in law is contrary to the ICSC Standards of Conduct for the International Civil Service on "Familial dealings" --

In Ban's cases, these "familial dealing" include not only the son in law promoted without recusal or transparency, now lashing out at the Press by proxy, but also the nephew, "Dennis Bahn," with a company managing UN real estate, during the name of the UN and his uncle to drum up more business, see below. 

Now there is a scandal and conviction in South Korea with Ban's - and his nephew Bahn's -- fingerprints all over it. "South Gyeongsang Governor Hong Joon-pyo was found guilty Thursday of taking money from the late businessman and politician Sung Wan-jong and sentenced to 18 months in prison, ending his presidential ambitions. Hong, 62, stood trial on charges that he accepted 100 million won ($91,601) from the late Sung, former chairman of the Keangnam Enterprises."

  Ban's brother Ban Ki-sang was a consultant to Keangnam for seven years; Ban's nephew Dennis "Bahn Joo-hyun said to a contact at Keangnam that he would invite his high-profile uncle to a social gathering, where members of the Qatar Investment Authority would be present." 

Ban's UN scandals also include others close to Ban such as Han Seung-soo, allowed by UN to be a UN official and on the board of directors of South Korea's Doosan, and of UN bank Standard Chartered.

For alleged violation of of the ICSC Standards, UN system whistleblowers such as Moncef Kateb of WIPO have been fired. But Ban does it openly: something about a fish and from the head, see also below.

The response to Inner City Press' questioning has been, as happened in 2012, threats. To this has the UN descended under Ban. 

After Inner City Press asked about the textbook case of nepotism of Ban and his son in law, video here, Ban's spokesman Stephane Dujarricreplied that an inter-agency advisory panel had been involved, before Ban signed the letter appointing his own son in law to the post. But Dujarric has refused to say who was on the panel, or who the other candidates were. Nor has he provided any information about Chatterjee's activities in Sri Lanka. 

This is a new low for Ban Ki-moon's UN, widely viewed as having failed in Sri Lanka in 2009, and on Yemen and Burundi and elsewhere in 2016. 

In terms of answering basic questions, when Inner City Press last yearasked about the questionable real estate dealings of Ban's nephew Joo-hyun “Dennis” Bahn, with a company managing the 45th Street building of UNDP and who used the name of Ban and the UN to do dubious business, Ban's Spokespeople said they would not answer questions about Ban relatives who are not UN staff. (Then Ban and his USG Gallach evicted Inner City Press, NYT here, petition here.)

  Now they won't answer basic questions about Ban relatives who ARE officials of the UN, promoted by Ban without recusal.

   Now we note that a New York underwriter has put out an alert about “Joohyun Dennis Bahn” --

“Bulletin: NYSA000340
To:All New York State Agents, Office Counsel, and Managers

RE:Louis Cho, Joohyun Dennis Bahn, Dennis Bahn

Effective immediately, all policy-issuing offices are instructed not to accept any orders or close any transactions involving the people listed below without prior written approval of Stewart Title Insurance Company Agency Legal Services.

Full Story>>>

Whistleblowing At People’s Bank

By Jayasri Priyalal –September 14, 2016

Jayasri Priyalal

Issues get dramatized over facts often in news story lines. Insider information is valuable stuff similar to inside deals done in stock and bond exchanges for speculative gains through a commercial transaction. Many such stories were dominating in print and electronic media starting from theCentral Bank Bond scam to the recent unfolding of the tender irregularity inPeople’s Bank in Sri Lanka.

Such stories get twisted according to the power and influence of the actors involved to the issue and the case in connection. Freedom of expression underpinned in unbiased media freedom built on the principles of judicial independence is the ultimate dispute resolution framework available in any free and democratic societies to unearth truth.

Sri Lankans are generally good in finding problems in solutions, instead finding the right solutions for a problem. Peoples’ Bank’s advertisement that appeared in newspapers, explaining the banks position other than one newspaper group which unravelled scam is now debated in the parliament. Ideally, Peoples’ Bank should have clarified the position in a press release yet they opted to insert advertisements.

Banks are in trouble because they failed in their financial intermediation role badly, by not channelling credits to the areas that deserve investment to stimulate growth in the real economy. Instead banks opted to direct investments towards real estates, commodities to make quick gains in the low interest regimes.

In Sri Lanka, in the recent past banks have being engaged in many other businesses other than banking. Some of them are conducting lotteries, pawning, leasing and travel agencies. Short term profit motives guided the banks direction and they completely neglected the customer needs. As the banks failed to “Stick to the Knitting” the other businesses such as supper markets, mobile telecommunication companies and other non-banking entities grabbed the business opportunities of banks. If one refers to famous Michael Porters competitive advantage theory, banks never imagine of a threat of substitute, and were too comfortable with high entry barriers. In the ever expanding on demand digital economy, traditional agents and principle’s business relationship does not hold tight.

Read More

Need immediate action to release Political Prisoners - TULF

TULF writes to the President Maithripala Sirisena and says 'immediate action should be taken in respect of the release of the Political Prisoners detained in our prisons, for lengthy periods without any trial, very many for untold reasons and hardly any for specific reasons'

The full text of the letter as follows
 
His Excellency   Maithiripala Srisena,                                                                                                                         
President of Sri Lanka                                                                                                                                                           
Your Excellency,

Political Prisoners and the agony they endure
Once again I reiterate that immediate action should be taken in respect of the release of the Political Prisoners detained in our prisons, for lengthy periods without any trial, very many for untold reasons and hardly any for specific reasons. Many of them had been taken to courts a good number of times regularly and taken back to their prisons without facing any trial, for unjustifiable reasons such as absence of witnesses, failure to receive any reports, case not filed etc. It is wrong for anyone to say that they are not political prisoners. In my view they are very much political prisoners. There is no doubt about it. If not, why should they be detained without trial for many years

I am frankly of the view that these prisoners are detained deliberately for some unknown reason, may be best known to the government.  The Leader of the Opposition, who was dealing in this matter, had said that they are kept in detention for political reasons. If it is so, what is the political reason they are detained for, when almost all political parties including the JVP, religious organizations, the retired Army Commander during whose period these people had been arrested, have demanded their unconditional release. Above all you as Head of the State had pardoned  the offender who came to harm you.  May I ask you,  Your Excellency, whether that act of yours will not amount to discrimination. Pardon me If I am wrong. What I mean is that the kith and kin of the other prisoners who were not given the option to go free will feel terribly sad. The only option they have is to weep in silence.  
Your Excellency,  I don’t see any justifiable reason for their prolonged detention when it is clear that if charged for any specific offence, may be even a serious one and sentenced to Jail or even given life imprisonment ,they could  have by this time served the full period of sentence and gone free. It is now seven years since the war came to an end. In any case I am only pleading for their release under a General Amnesty, when those kept in detention during the Indo Sri Lanka talks, were all released including the convicted persons. The same principle was applied in respect of those detained during the insurgency of the 1970s. I am wondering as to why this group alone should be singled out  for this treatment

I submit the following facts for you to consider not on individual basis but to take the entire lot as one group of persons misguided by sentiments
 
01.    It is not the individual concerned whom I am worried about. It is the family, not only wife and children but includes a big circle of relatives, comprised of elders, women and children
 
02.    The fundamental rights of one, demands speedy trial during normal times.
 
03.    The wife and children undergo immense hardships due to the failure of the chief bread winner to contribute his share for the maintenance of the family, which is now very much over burdened.
 
04.    When these breadwinners were wrongfully confined to their prison cells during the war, the wives and children were running from their respective villages to Mathalan their destination where their destiny was to be determined. While doing so some lost their limbs, some their eye sights, some others their dear ones as victims of shelling and bombing. Some of them are still carrying metal pieces all over their bodies.
 
05.    Your Excellency is aware that most of the cadre of the LTTE were recruited in different ways, some joined innocently as small children, some recruited under compulsion and some others would have joined voluntarily without knowing the seriousness of the issue. Therefore they should not,  under any circumstances,  be   tried for war crimes as foolishly demanded by some party. They should be treated as having not committed any war crimes.
 
06.    As a last resort Your Excellency, if our repeated appeals do not touch your heart, I plead with you to give them the option of taking their lives, which under the present circumstances is the best option available for them. This is nothing new, since this is the only way I believe, they can get over their misery.
 
07.    I understand that there is a move among the prisoners to restart the “Fast unto Death” within the next few days. I pray that their new move should not end up like the story “Wolf and the shepherd”.
With kind regards,

Yours Sincerely
V.Anandasangaree                                                                                                                                                          
Secretary General-TULF

SECURE SOCIO-ECONOMIC JUSTICE AND RIGHTS THROUGH THE NEW CONSTITUTION! -100 CSOS TELL GOVT

(Selling fish in Negambo fish market, Aug 2016 ©s.deshapriya)

15/09/2016

Open letter to the Constitutional Assembly on Securing Socio-Economic Justice and Rights through the new Constitution.

13 Sep. 2016

We, the undersigned organisations and individuals, call on all members of the Constitutional Assembly, and in particular the Steering Committee, to ensure that the new constitution of Sri Lanka is underpinned by a substantive recognition of the obligations of the state to further social and economic justice and rights.

SECURE SOCIO ECONOMIC JUSTICE AND RIGHTS THROUGH THE NEW CONSTITUTION 100 CSOS TELL GOVT.docx by Thavam Ratna on Scribd