TNA’s Sumanthiran says didn’t consult victims on OMP Bill

BY ATHULA VITHANAGE-21 SEPTEMBER 2016

Tamil National Alliance Parliamentarian M. A. Sumanthiran refused to account for his conduct to the Tamil people of the North when confronted by outraged families of the disappeared who accused him of betraying their interests when the law to establish the Office of Missing Persons (OMP) was passed in parliament recently.

A meeting was held on 17 September at Veerakatthi Pillaiyar Kovil hall in Karaikudiyiruppu, Mullaithivu, which was a follow-up to an event on 1 July at the same venue. At the earlier event families of the disappeared demanded an explanation from the TNA for expressing its satisfaction with the OMP Bill although victims were not consulted about their wishes. In reply to the people’s agitated calls for clarification, TNA’s Wanni District MP Mrs. Shanthi Sriskandraja said she as a party member was neither consulted or was aware of what the party had agreed to before the OMP Bill was tabled in parliament. She promised to bring along Mr. Sumanthiran, who had publicly expressed satisfaction for the Bill, to answer their questions.

Repeated protests

The Sri Lanka Government pledged to introduce four transitional justice mechanisms at the September 2015 UN Human Rights Commission (UNHRC) meeting in Geneva, which included the OMP, a judicial mechanism, an Office of Reparations and a Commission for Truth, Justice and Reconciliation. These pledges were incorporated in UNHRC Resolution 30/1 which Colombo agreed to implement. Despite repeated protests by families of the disappeared and civil society organisations that they had not been consulted, the Government tabled the OMP Bill on 27 May and passed it into law on 11 August.   

At Saturday’s event, in response to a question on why he expressed satisfaction with the OMP without consulting the victims, Mr. Sumanthiran replied, “I did not speak about the people’s views only my own. It was based on my understanding of international law and legal mechanisms. I can’t consult 100 people where one person says it (OMP) is useful and another person says it’s not. We are not machines who merely convey the opinions of others. We were elected as representatives because people believed we have competence and the ability to think for ourselves. I have never said anything wrong. If I were to reject something good, I would be a liar.”

TNA 'pleased'

Although Mr. Sumanthiran said his views were personal, the TNA issued a statement on 1 July expressing its satisfaction with the OMP Bill: “We are pleased that several of the extensive revisions we urged have been included in the gazetted text.”

The TNA’s disingenuousness on consulting victims on the OMP Bill was reflected in an article that appeared in the Sunday Timeson the 18 September.  There highly-regarded legal commentator Kishali Pinto-Jayewardene said, “Deflating rising public anger regarding the non-consultative process followed in finalising this law, the TNA quickly intervened saying that they had examined the OMP Bill as it was at the time and that their ‘concerns’ had been incorporated.”

At the meeting however, Mr. Sumanthiran elaborated why neither he nor the TNA had consulted the families of the disappeared: “We did not speak with the people regarding the OMP law till it was passed because it would be misinterpreted. Now that it has been passed we will go from district to district and explain it to the people. You can tell us shortcoming and we will try to remedy them.”

Shortcomings in the OMP

He however stopped short of telling participants how it is going to be remedied since the OMP is now law and he also said, “Do not expect to amend the law. We have no intention of doing so. There will be problems if we attempt it.”

Although the TNA stated earlier it would move amendments during the committee stage of the debate it refrained from doing so.

Despite Mr. Sumanthiran not elaborating on the process by which their needs could be incorporated, participants voiced their concerns about shortcomings in the OMP law. One was the prosecutions of perpetrators.

“If the (OMP) mechanism does not prosecute the perpetrator, will there be (other) laws to prosecute them?” asked a member of the audience.

“We can only go step by step. We cannot jump to step 20. First of all, enforced disappearance has to be made a crime in Sri Lanka. Many crimes in international law are not crimes in Sri Lanka. It is only after enforced disappearances are made a crime in Sri Lanka can we go into it.”

Identifying perpetrators

Later another participant queried, “Perpetrators will be identified when there is an investigation into enforced disappearances. Is there any provision in the OMP law to punish them?”

“That what I told you before; weren’t you listening? That’s the four (transitional justice) mechanisms I spoke about, including the judicial mechanism. In accountability there is something known as judicial accountability, where not only (disappearances) but even other violations such as cluster bombs can be examined. There is a way to link (disappearances) with the judicial mechanism.”

Despite repeated questioning, Mr. Sumanthiran did not explain how linking disappearances to judicial mechanisms was possible. Experts and practitioners say that although Article 12 (1) of the OMP states “where it appears to the OMP that an offence … has been committed … the OMP may …report the same to the relevant law enforcement or prosecuting authority” there is no possibility for prosecutions.

'Missing findings'

M. C. M. Iqbal, secretary to three former commissions on disappearances, writing to the Sunday Times says, “[t]hat is exactly what happened to the findings of the [commissions of inquiry] which provided a list of more than 2,000 persons against whom they found credible evidence of being responsible for disappearances. The files were passed on by the President’s Office to the then Missing Persons Unit of the Attorney General’s Department and to the Disappearances Investigation Unit of the CID. What happened to those cases is history.”

The OMP compounds these barriers to justice with Article 13 (2) that reads “findings shall not give rise to any criminal or civil liability.” Mr. Iqbal in his article asks “Can they be told after exhaustive investigations that the OMP could not find the missing person and stop at that? Will a complainant who alleges that a particular person was personally handed over to a particular military officer or taken away by known police officers or other persons be satisfied if the OMP says they cannot now be found?”

At the meeting in Mullaitivu, Mr. Sumanthiran was also asked about political prisoners. He said, “We continue to complain that the Government is deceiving us about political prisoners. But they are releasing them in small groups. They said another 16 are to be released. What were 217 is now reduced to 80. I understand the pace is not fast enough, but we are putting pressure on the government to do so.”

'No good governance'

However, the numbers are disputed. On 8 August Convenor of the National Movement for the Release of Political Prisoners and Anglican clergyman Rev. M. Sathivel said, “There are 150 political prisoners behind bars.” There are no public records of any releases of political prisoners in August and September.

At different times during the meeting asked by irate participants for explanations, Mr. Sumanthiran insisted that they to sit down and listen to him. An instance was when a participant queried why there was no progress in finding the disappeared although seven years had passed since fighting ended. Pointing to a member of the audience he asked, “This lady is the head of a district association of the disappeared. Can you ask her seven years are over and where are our children? [The TNA] is the same…” When the participant, clearly unhappy with the explanation interjected with another question, Mr. Sumanthiran curtly told her to sit down and listen to him.

A participant chastised Mr. Sumanthiran that he was going to Geneva and other international forums claiming that good governance had emerged in Sri Lanka. “What is the good governance that is happening here? There is no good governance happening here sir!”

Mr. Sumanthiran cut her short saying, “We’re did not come here to debate whether there is good governance or bad governance. We came here to explain the OMP and clear your doubts about it…”

After the meeting a participant who wished to remain anonymous said, “By using concepts and words the people found difficult to understand and shutting up people whose questions he found unpalatable Mr. Sumanthiran was neither able explain the OMP or clear our doubts.”

The State Of Reconciliation

By S. I. Keethaponcalan –September 22, 2016

Dr. S. I. Keethaponcalan

Despite the intensity of the ethnic conflict, reconciliation always remained an attractive scheme or slogan for many civil society actors and political figures in Sri Lanka. With the end of the war in 2009, reconciliation transformed into an integral part of the political discourse. Many believed that the termination of the LTTE, bestowed an opportunity to bring the hitherto divided communities together through political means. The government headed by President Rajapaksa, who defeated the LTTE, was keen on bringing the land together rather than the people. Leaders of the former government chose to intensify security measures and the restrictions on the Tamil people to achieve the goal of territorial integration. The Rajapaksa government also ignored the international call for accountability as a means to reconciliation. This approach obviously dissatisfied the Tamil community, thus leading to further ethnic polarization.

Government and the Tamils

Consequently, the Tamil people collaborated with the predominantly Sinhala South, to bring the Rajapaksa government down in 2015. The main Tamil party, the Tamil National Alliance (TNA), extended unconditional support to the coalition that opposed Rajapaksa and facilitated the election of President Maithripala Sirisena. Despite being the main opposition party, the TNA tacitly works with the present government. Therefore, the government and President Sirisena are viewed as sympathetic to the Tamil issues and are expected to address Tamil political concerns.
The government also co-sponsored the United Nations Human Rights Council (UNHRC) resolution on Sri Lanka, adopting the international view that alleged human rights violations should be investigated with international assistance. During and after the presidential election, Sirisena promised constitutional reform as a means to promote good governance and reconciliation. In other words, constitutional reform was conceived partly as a reconciliation project. On the other hand, the government to date has not done anything to investigate the alleged human rights violations, as promised. The investigative mechanism the government promised has been stagnated at the point of discussion whether international assistance is needed for an investigative mechanism.

Reconciliation through Reform

What is clear from the government attitude is that it believes more on constitutional reform to address minority concerns rather than the investigation. If this is true then there has been a philosophical similarity between the Rajapaksa government and the Sirisena government on this issue. Senior members of the Rajapaksa government, such as Gotabaya Rajapaksa, have constantly emphasized the importance of forgetting the past, i.e., the last phase of the war, and moving forward. They relied on national security to move forward and did not have a plan to structurally accommodate the minority communities. The former government promoted selective public amnesia as atrocities of the LTTE were remembered and the war victory was celebrated with the patronage of the state.

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Putrajaya told to drop activist’s criminal case on showing Sri Lanka documentary

The Star reported that the High Court reversed yesterday the acquittal of Lena Hendry (centre), who was charged under the Film Censorship Act 2002 for screening ‘No Fire Zone’ without approval from the Censorship Board, and ordered her to enter her defence. — Picture by Sulok Tawie


KUALA LUMPUR, Sept 22 ― The Human Rights Watch (HRW) urged Malaysia today to end the prosecution of activist Lena Hendry for illegally screening a documentary on war crimes in Sri Lanka.

The global human rights group said criminalising the screening of films without government approval imposed a “disproportionate” burden on the right to freedom of expression.

“Prosecuting Lena Hendry for the private showing of an award-winning film is all part of the Malaysia government’s intensified intimidation, harassment, and criminalisation of human rights defenders,” Phil Robertson, deputy Asia director at HRW, said in a statement.

“The government should end Hendry’s three-year ordeal by dropping the charges and then promptly amending the Film Censorship Act so no other activists face prison just for showing a movie,” he added.

Local daily The Star reported that the High Court here reversed yesterday the acquittal of Hendry, who was charged under the Film Censorship Act 2002 for screening “No Fire Zone” without approval from the Censorship Board, and ordered her to enter her defence.

Magistrate Mohd Rehab Mohd Aris, in his decision to acquit Lena last March, said then that the prosecution had failed to establish a “prima facie” case against Hendry.

According to Robertson, “No Fire Zone” is a documentary about the war crimes committed in 2009 during Sri Lanka’s civil war, including extrajudicial executions of fighters and supporters of the Liberation Tigers of Tamil Eelam and the shelling by the Sri Lankan army that indiscriminately led to the deaths of thousands of civilians.

“The Film Censorship Act is a law from the pre-internet age that government officials can easily abuse and should immediately be scrapped.

“The real rationale behind its sweeping powers is to permit the government to arbitrarily suppress films it doesn’t want Malaysians to see, and to prosecute anyone who dares show them,” he said.

US Secretary of State calls for ‘meaningful reconciliation and justice’ in Sri Lanka

22 Sep  2016

US Secretary of State John Kerry met with Sri Lankan President Maithripala Sirisena in New York on Wednesday and called for “meaningful reconciliation and justice in Sri Lanka”.

State department spokesperson John Kirby said Mr Kerry and Mr Sirisena discussed their “our strong, bilateral partnership and to build upon the first U.S.-Sri Lanka Partnership Dialogue”.

“The Secretary commended President Sirisena’s leadership in guiding his government in pursuing meaningful reconciliation and justice in Sri Lanka, and expressed confidence that the Government of Sri Lanka will fulfill its international commitments,” he added. 

“The United States stands with Sri Lanka on strengthening its economy, advancing good governance, and ensuring human rights and democratic participation for all of its citizens.”

All steps taken to prevent another war – President tells UNGA

September 22, 2016

President Maithripala Sirisena says that the government is totally committed to reconciliation process to establish lasting peace that would definitely prevent occurrence of another war in Sri Lanka. 

 “Terrorism lasting three decades has ended and now we have undertaken the process of reconciliation among the different communities.” 

 “We require the support of the international community to successfully face these challenges,” he said, delivering a speech at the 71st Session of the United Nations General Assembly in New York.

 He said that the government has taken many important steps for socio-economic transformation. “Before I came to power, people in my country were living in fear and I ended that period and made the people free of fear, established rule of law and restored democratic rights.” 

The President said that his intention is to make people of Sri Lanka one of the happiest among the world communities by establishing a knowledge-based society. 

 He also said that he is determined to alleviate poverty in the country.


 “The world today is full of hate, violence and fear. We must free our people from such hatred and fear and establish a society with moral values.”

 Full Speech: 

I am extremely happy to take part in this 71st Session of the United Nations General Assembly. I wish to bring to the notice of Your Excellencies the current situation in my country.

 I have been in power for the last 15 months. There are many problems in my country. We have, in recent months, taken many important steps for socio-economic transformation. Before I came to power, people in my country were living in fear and I ended that period and made the people free of fear, established rule of law and restored democratic rights.

 My intention is to make people of Sri Lanka one of the happiest among the world communities by establishing a knowledge-based society. I am determined to alleviate poverty in my country. For that purpose I have declared 2017 as the Year of Alleviation of Poverty.

In order to improve the living standards of our people, we have to provide better facilities for economic development. I have given the topmost priority to take my country forward by working in cooperation with the United Nations and its agencies and other institutions. We have to make necessary changes to achieve sustainable development. The priority areas of the government include establishment of a knowledge-based economy with new initiatives and creation of a green economy.

 As an Island-Nation, Sri Lanka wishes to make maximum utility of sea resources, fisheries and marine resources. All these require new technology and we seek the support of the international community for these purposes. Sri Lanka is a country with free education and free health services and the country has all the basic infrastructure requirements for speedy development.

 The world today is full of hate, violence and fear. We must free our people from such hatred and fear and establish a society with moral values. The government is totally committed to reconciliation process to establish lasting peace. That would definitely prevent occurrence of another war in our country. Terrorism lasting three decades has ended and now we have undertaken the process of reconciliation among the different communities. We require the support of the international community to successfully face these challenges.

 Sri Lanka is a Buddhist country, where Theravada Buddhism is practiced. There are solutions in Buddhist teachings to most of the problems faced by the people in this world. Similarly, those who follow other religions like Hinduism, Islam and Christianity too can find answers to these problems by these great religious philosophies.

 I am totally committed to eradicate drugs. As the President of Brazil said this morning, illicit drugs have become the most serious challenge faced by our societies today. Unless we take early steps to stop the menace of drugs we will be faced with a catastrophe of unprecedented magnitude. The harm caused to the people, especially the young students by illicit drugs is very serious. We have to eradicate drugs and ensure that illicit drugs would not reach our countries.

 We have taken effective steps to strengthen democracy, rule of law and good governance in our country. We want to create a better country for our people. To achieve these, I need the assistance of the international community.

 Different countries have their own unique authentic thinking. We too have such authentic thinkings and visions. I want to create a country, in which our people can live as better humans and I need your support for this endeavour.

 I wish to take this opportunity to express appreciation about the services rendered by the outgoing UN Secretary General Ban Ki-moon. He provided and excellent service to the entire world. 

I would like to mention that my desire is to arm the new generation with knowledge and modern technology. I will do my duties and fulfill my responsibilities towards my people and I seek your assistance and blessings of you all for this task. 

Thank you

Mother Power of Minorities

by Gajalakshmi Paramasivam

( September 22, 2016, Colombo, Sri Lanka Guardian) I was at the Computer and suddenly noticed the burning smell from Rani’s kitchen. I am staying at Rani’s home in Colombo even though Rani is away in London. That is Rani – the caring hostess. I do not cook but eat out most of the time – which I am very happy about. After lunch yesterday – I thought of some tea and put the water to boil. I then forgot about it and did the unusual – of walking out of the kitchen while the kettle was on the gas-stove. I forgot about the tea and hence that the stove was still on. My habitual mind-order that the kettle would automatically switch off must have taken over due to my failure to pay particular attention to the different mode of boiling water. I kept kicking myself many times for this disorderly conduct. Using the electric kettle to boil water is program based for me while using the gas-stove is project. The two would not merge naturally. I therefore needed greater focus on boiling the water in Rani’s kitchen which is Rani’s home kitchen but not mine. To my mind, there were two reasons as to why the burning happened. One is that I walked out to do something more interesting and the second is that I did not really need the tea. Hence my mind also was not in the kitchen. The mind of heritage value would have called me back on time. I keep kicking myself mentally so the preventive forces in Rani’s loving home would be made stronger. If I ‘excused’ myself I would add ‘carelessness’ to the mind of Rani’s home in addition to taking such carelessness with me. I believe that such self-discipline through internal kicking – is a main reason why I was protected even in war areas whilst many others got exposed to the dangerous mind orders of those environments. No home environment is dangerous. If war is a program to Sri Lankans then that becomes their home-environment.

The Sri Lankan war happened due to various reasons. It was not due to a single force that manifested on project basis. We give it our own reasons and all those reasons to the extent they are belief based – would naturally merge to form the true picture. The problem is not with those who express their belief but rather those who express policy as if war is a program through which benefits are allocated.

As per the Daily News article ‘NEW CONSTITUTION :SOLUTION TO NATIONAL QUESTION: 

Sampanthan Sees viable political resolution through Constitutional reforms’: 

[Sampanthan was addressing the representatives of the organisation “Women in Good Governance” in Trincomalee.

Continuing on the same issue Sampanthan said “the new Constitution should guarantee justice, peace and prosperity for all citizens of the country regardless of their ethnic, religious or social differences.”

He observed that the Tamil National Alliance was supporting the process with the main aim of finding a lasting solution to the issues faced by the Tamil people.

Sampanthan also stressed that Tamils will not take up arms in the future to win their rights but added that if the current process fails then it may deal a massive blow to achieving lasting reconciliation.]

Tamil youth  who did take up arms did not seek the permission of Political leaders to do so; nor were the Political leaders able to bring them back to the ‘program’ of Equal Opportunity in a Multicultural society. It’s interesting that the above was stated in a Women’s forum. How many women has TNA identified as being Good Governors – not only through Politics but various aspects of Tamil life? It’s only when TNA kicks itself for not being more focused on women leadership that it would have the natural mind-order needed as Equal Opposition at National level.

The lesson is within Thesawalamai itself. The Dowry system is Equal Opportunity Policy due to specialization. The dowry system was abused by lesser minds driven by desire but to the extent we wronged the policy to uphold Truth – we contribute to new Policy for the next generation/s. Until then the existing policy must remain – even if it does not make sense. The mind order happens through regular living. One needs special focus through intellectual discrimination to override this by elimination or restructure. In  Democracy – majority vote-takers decide on policy. The duty of the minority is to share its Truth in that issue and not add to policy as if it were alternate policy-maker. Man and Woman are each other’s opposition in a democratic family. When one talks policy the other must express Truth experienced by practicing  previous policy.

In an autocratic system – the two side functions need to be special – so one would not think s/he could do the other’s job. Hence they needed the separation from each other. Dowry was part of that system that recognized the work of women that was less visible than man’s work. Dowry was given to show the Equal valuation of the daughter – so that the daughter who would soon be mother would not lack self-confidence due to others’ lower estimate of her family value. That dowry confirms the less visible contribution that the daughter made to the family to strengthen it from within. When it becomes invisible – it is of heritage value. Likewise, minorities  – using their Truth to show the other side of Policy. When this is done – the system of Democracy itself would join forces with those minorities. TNA needs to seek and find women who have demonstrated this heritage value. That’s when they would fill their place as Leading Opposition in National Parliament.

Every completed experience / relationship – naturally restructures our mind-order. Truth helps us complete the experience as if we are both sides of the policy. Once completed that mind is of heritage value. Tamil areas of Sri Lanka where minorities – including due to gender and caste – experienced pain and loss due to majority force in their home areas – carry this mind of minorities as heritage. Mothers who could not stop their sons from joining their armed forces – and/or prevent other mothers’ sons from enforced recruitment, but were always there for their sons to come home to carry this value. Each time mothers and sisters cry for their lost sons – they curse also those who recruited their children through influence and/or by force.

As for the blows to ‘lasting reconciliation’ – the question is whether the TNA is proposing the same policy as the Government or whether it is talking about Reconciliation between the values of Tamil side through its own policies and the values allocated by the Government or whether it is expressing its Truth which needs no reconciliation.

Those to whom LTTE are Terrorists – even after ‘declaration of victory/closure of war’ –  the Lankan war is a program in their mind. Those to whom the war was a ‘project’ would add the net value to their ongoing programs – such as Equal Opportunity & Education for Life.  Recently a young guy of Vaddukoddai origin said that they learnt in the training session at their workplace that when something goes wrong one could conclude that it was because of the visible part that got damaged and replace it or go further and inquire into why that part got damaged and keep going deeper and deeper to know the Truth of that part until one  becomes that part. I acknowledged that that was the pathway to finding the root-cause. The root-cause is the combined Truth of all contributors to that place or to that time. Where there is Equal opposition – it is place based and where the powers present are unequal and relative – with a big gap between the highest and the lowest – it is time based by the higher side. With LTTE – the war was place based. Without LTTE any manifestation is the sole responsibility of Sinhalese who have the power to form government through majority vote. That was pre-LTTE civil riots which current governments seem to have eliminated from their minds.

TNA becoming the leading Opposition in Parliament confirms the heritage value of Tamils which are beyond the control of current custodians of power. Every Tamil who fought for independence by remaining within the boundaries of minority position – and did so genuinely – accumulated this heritage power which comes to the aid of those who value their elders. When current occupants of a position fail to receive our contributions – God / Nature /  Truth – receives them and keeps the Energy invisible but developing naturally – to manifest at the right time at the right place.

Those of us of Sri Lankan origin – who uphold the Sovereignty of  Sri Lanka, genuinely paying tribute to our Sri Lankan elders – including those of British, Dutch and Portuguese origins – would invoke those powers in support of our contribution. This may not be acknowledged by the current custodians of power but it would work the system from within – as Shakthi/Energy – commonly known as Mother Power.

The question Tamils need to ask is whether they really need Tea / Equal status at a time when Jaffna is challenged  by reverse autocracy – often mistaken as democracy. TNA has the responsibility to write its own discoveries about itself in the ledgers of Sri Lanka – whose real powers combined to promote Tamils to Equal position at National level. This happened when Sinhalese kicked themselves. The more we write our Truth – the stronger the root of Equal Opportunity for Tamils in Sri Lanka. There is no greater call on us than to write our own Truth. Tamil women of older generation have to first kick themselves for failing to exercise their powers as seniors over their children. Daughters who chose to earn a living by going outside – need to kick themselves for failing to denounce LTTE which did not reflect Equal leadership at the top. This was my discovery through my direct experience at Vanni in 2003 by being part of Vanni. Until we demonstrate gender based equality in our leadership structure – we need to preserve and stay within the boundaries of minority including at National level when presenting policy. Now that we know that Natural forces of Democracy are with us – we must manifest our Truth – that we failed  to practice gender-based Equality but used women to suit our own selfish purposes – often due to the women failing to take their internal positions of responsibility as per the common family Truth.

Incorporating International Crimes into Sri Lankan Law: The Need for Legislative Reform

Featured image courtesy Al Jazeera

ISABELLE LASSEE on 09/22/2016

In a paper published recently, Eleanor Vermunt and I argued that international crimes must be incorporated into Sri Lankan law with retroactive effect in order to enable meaningful prosecutions of atrocity crimes allegedly committed in Sri Lanka.

Since the end of the armed conflict, allegations of violations of international humanitarian law and international human rights law have been reported by various official and unofficial sources. According to several UN reports, these allegations—if proven—would amount to crimes against humanity and war crimes.

The term ‘international crimes’ is generally used to refer to offences that have been included under the jurisdiction of the international and hybrid tribunals, and the International Criminal Court. They comprise genocide, crimes against humanity and war crimes. These crimes are labeled as the ‘most serious crimes of concern to the international community’ and as those that ‘deeply shock the conscience of humanity’. They constitute acts which damage vital international interests, impair the peace and security of the international community, and violate universal moral values and humanitarian principles.

Sri Lankan domestic law does not specifically criminalise genocide, crimes against humanity and war crimes committed in the context of a non-international armed conflict. This is problematic for a number of reasons. First, domestic crimes are fundamentally ill-suited to deal with wartime abuses and violations that occurred as a result of the conduct of hostilities. In fact, if ordinary crimes were to be applied, some conduct may be deemed criminal under Sri Lankan law even if it was in compliance with international humanitarian law. For instance, as explained in our paper, the targeting and killing of persons directly participating in hostilities could constitute murder under Sri Lankan law while being lawful under International Humanitarian Law (IHL). On the other hand, some egregious violations of IHL that evidenced an absolute disregard for civilian lives—such as the use of human shields or the denial of humanitarian relief—cannot be prosecuted as such because there are no corresponding offences under Sri Lankan law. Further, as pointed out by several domestic and international courts, the prosecution of international crimes as ordinary crimes is deeply inadequate as it does not reflect the gravity of the criminal conduct, and risks trivialising atrocity crimes. Therefore, even if such conduct were to be prosecuted as domestic offences, such prosecutions would not serve a deterrent purpose or establish a narrative about the gravity of the crimes that were perpetrated.

International law recognizes that those most responsible must be held accountable for atrocity crimes. The paper claims that unless international crimes and modes of liability are incorporated into Sri Lankan law, individuals most responsible for atrocity crimes cannot be effectively prosecuted. This is because Sri Lankan law does not specifically provide for modes of responsibility such as command and superior responsibility, joint criminal enterprise or even ordering. These modes of responsibility are essential to enable the prosecution of those who had the means to design, carry out or facilitate the commission of international crimes and therefore are, according to international law, those most responsible for atrocity crimes. Because Sri Lankan law does not provide for international modes of responsibility, any prosecutions—if conducted under existing Sri Lankan law—would likely focus on those lower down the chain of command and on ‘trigger pullers’ who carried out orders received from their superiors. Prosecuting these individuals rather than those in positions of leadership will fail to meet victims’ demands for justice, undermine public support for trials and breed resentment among the fighting cadre of the armed forces.

It is therefore critical that international crimes and modes of responsibility are incorporated into Sri Lankan law with retroactive effect. Such a retroactive incorporation of international crimes into Sri Lankan law would ensure that the new crimes and modes of liability cover conduct that took place prior to legislative change. It must be noted however that ‘retroactive’ is a misnomer in this context. In fact, although international crimes are not per se specifically criminal under Sri Lankan law, they have long constituted crimes under international law. Therefore, there is no doubt that the conduct in question was reprehensible and that the criminal nature of the conduct was foreseeable at the time of the commission. This explains why such a ‘retroactive’ incorporation of international crimes into domestic law would be permitted by article 13(6) of the Sri Lankan constitution. Interestingly, Sri Lanka’s Court of Appeal in the Sepala Ekanayakecase has relied on this article to justify the passing of retroactive sections of the Offences Against Aircraft Act of 1942.

Article 13(6) mirrors the provision of the International Covenant on Civil and Political Rights regarding the prosecution of acts that were criminal according to the general principles of law recognized by the community of nations at the time of their commission. This provision of the ICCPR was introduced as an exception to the non- retroactive application of criminal law precisely to cover crimes that shock the conscience of humanity and are accordingly criminal under international law. It is on this basis that, after the Second World War, a number of countries have introduced legislation criminalizing crimes such as war crimes and crimes against humanity in order to prosecute crimes committed in the past.

The Sri Lankan government explicitly committed to this course in October last year when it co-sponsored a resolution at the UN Human Rights Council (HRC) titled ‘Promoting reconciliation, accountability and human rights in Sri Lanka’. Paragraph 7 of the resolution reads that the HRC:

Encourages the Government of Sri Lanka to reform its domestic law to ensure that it can implement effectively its own commitments […] including by allowing for, in a manner consistent with its international obligations, the trial and punishment of those most responsible for the full range of crimes under the general principles of law recognized by the community of nations […] including during the period covered by the Lessons Learnt and Reconciliation Commission.

While an earlier version of the resolution referred to ‘international crimes including those committed in the past’, the final version of resolution 30/1 directly imports its language from article 13(6) of the Sri Lankan constitution to urge a reform of domestic law that would enable the prosecution of atrocity crimes that took place from 2002 to 2011, which was the period covered by the LLRC.

It is therefore essential that the Sri Lankan government fulfils its own commitment in a manner that would enable justice for victims, fair treatment of those accused, and the rule of law for all.

Travails of a war-torn people

STILL A LONG WAIT:“The desperate conditions are linked to falling incomes and crippling livelihoods, particularly in the predominantly agriculture and fisheries sectors.” Picture shows a polling station during the Northern Provincial Council election in Jaffna, Sri Lanka, in 2013.— FILE PHOTO: AP

The Northern Provincial Council, which came to power three years ago, has been an abysmal failure. And Colombo has descended to business as usual

• AHILAN KADIRGAMAR-September 22, 2016
• 
  

On September 21, 2013, tens of thousands of Tamils living in Sri Lanka’s heavily-militarised North decisively voted in the long-delayed provincial elections. They had waited for two and a half decades to make their voices heard and elect their own government.

Despite the promise of development and election handouts from then President Mahinda Rajapaksa, they gave the Tamil National Alliance (TNA) a massive mandate, with C.V. Wigneswaran becoming the Chief Minister.

Expectations and disappointments

It is three years since the Northern Provincial Council (NPC) came to power and it has been an abysmal failure. The NPC is yet to put forward a vision for economic development and has hardly legislated the statutes needed to move the wheels of its administration.

It has merely been a talk shop with resolutions and statements. Its notorious genocide resolution a month after regime change in Colombo last year, apparently passed to mobilise international actors, in effect polarised the country and undermined the new political space for reconciliation. The sad reality is that the NPC has lost its credibility with the local population.

The defeat of the Rajapaksa regime opened the space for public discussions and even widespread protests in the militarised North, but democratisation with progressive social engagement and meaningful political representation are not in sight. Even as polarising Tamil nationalist mobilisations dominate regional politics, the economic travails of the dispossessed people continue.

In Colombo, the TNA voted with the Sirisena-Wickremesinghe government on the 2016 Budget. However, very little has been delivered to the war-torn regions, other than the meagre allocation of SLR14 billion (Rs.6.5 billion) to the Resettlement Ministry, a mere 0.5 per cent of total budget expenditure. A donor conference to be held in Tokyo in June this year for reconstruction of the North and East was quietly cancelled without comment.

A Cabinet decision a year ago to build 65,000 houses in the North and East was manoeuvred by the government to purchase prefabricated steel houses worth $1 billion from ArcelorMittal, a multinational company. The project is on hold.

The North presents a veneer of development. But in the by-lanes, deprivation and poverty are all too visible. There are increasing reports of suicide linked to heavy indebtedness, and of women caught in a web of exploitative microfinance schemes. These desperate conditions are linked to falling incomes and crippling livelihoods, particularly in the predominantly agriculture and fisheries sectors.

The political and societal malaise

In the war-torn regions, household incomes are by far the lowest in the country. In Mullaitivu district, which was razed to the ground in the last phase of the war, median per capita income is SLR4,683 (Rs.2,157) per month with half the district’s population living on less than $1 per day, according to the Household Income and Expenditure Survey 2012/2013. District-level data indicate 15 per cent unemployment in Jaffna, with close to 90 per cent of them comprising youth between the age of 16 and 36.

The economic crisis in the North is linked to the political malaise in the country; the political vision for substantive reconstruction is missing. Extreme Tamil nationalism and Sinhala Buddhist nationalism have the common goal of rejecting a political solution; one for its separatist goal and the other for its majoritarian agenda. After decades of engaging a polarised polity, neither Prime Minister Ranil Wickremesinghe’s United National Party nor the faction of President Maithripala Sirisena’s Sri Lanka Freedom Party seem to have the courage and imagination to provide the direction to substantively address the national question.

The politics of the Federal Party led by R. Sampanthan and, for that matter, the more extremist Tamil nationalism promoted recently by Mr. Wigneswaran, are unable to address the fascist legacy of the Liberation Tigers of Tamil Eelam (LTTE). Lack of critical reflection about the armed struggle and the LTTE’s suicidal politics is perhaps the single biggest impediment to rejuvenating Tamil politics. Indeed, rebuilding relations with the Muslim minority would require addressing the brutal attacks against them and their eviction from the North by the LTTE in the 1990s.

Contributing to the malaise is the taboo of discussing caste relations that are reconsolidating in the North after the war. In Jaffna district, for example, about 10 per cent of households do not even own the small plots of land necessary to qualify for post-war housing grants, and the bulk of them belong to oppressed caste communities. The government-initiated Public Representations Committee on Constitutional Reform created a glimmer of hope with submissions from broad sections of society. However, its report in May 2016 seems to be all but forgotten with the ongoing constitution-making process limited to a few parliamentarians and “experts” in Colombo. It has also become an exercise in political management in response to the Rajapaksa camp’s chauvinist majoritarian push.

A constitution drafted under such a shroud of fear is bound to fail as it does not challenge the very forces that have resulted in the need for a new constitution. And the liberals in Colombo are twisting their tongues to justify a unitary structure of the state, which inevitably centralises power in Colombo to the detriment of meaningful devolution of power.

Almost two years after the inspiring democratic change of regime, Sri Lanka has descended to politics as usual. The need of the hour is a movement for social justice combining calls to address the grievances of minorities with demands for decent economic life for the citizenry at large. It is such inter-ethnic movements that can also address the social and economic travails of the war-torn people.

Ahilan Kadirgamar is a political economist based in Jaffna and a member of the Collective for Economic Democratisation.

The economic crisis in the North is linked to the political malaise in the country; the political vision for substantive reconstruction is missing

APPOINTMENT OF YASANTHA KODAGODA TO TORTURE COMMITTEE OF HRC-SL INAPPROPRIATE – AHRC

(A Sri Lankan policeman keeps watch at a demonstration in the capital, Colombo, on August 14, 2014.  © 2014 Getty Images)

22/09/2016

Writing to the Ministers of Foreign Affairs and Justice the Asian Human Rights Commission says Appointment of Yasantha Kodagoda To Torture Committee of HRC-SL Inappropriate. In its letter AHRC says that ” Kodagoda’s role before the Udalagama Commission of Inquiry is well known given that Mr. Kodagoda was specifically and negatively named by members of the International Independent Group of Eminent Persons (IIGEP) monitoring that Commission. Mr. Kodagoda was the Lead Counsel for the Attorney General at the Commission even though the Commission was inquiring into actions of state officers in regard to failure to properly investigate and prosecute certain cases of gross human rights abuses in regard to which he had been himself involved at the preliminary stage of advising on the investigations. This represented a clear conflict of interest.”

We reproduce below the content of the letter written to the Ministers of Foreign Affairs and Justice by the AHRC.

13th September 2016.

Objection to the designation of Mr. Yasantha Kodagoda, Deputy Solicitor General (DSG) as the Chairperson of the Government’s Steering Committee on ‘Torture Prevention and the Law’ of the National Human Rights Action Plan

I am writing this on behalf of the Asian Human Rights Commission, a regional organization based in Hong Kong, and Janasansadaya, Panadura.

We have learned that Mr. Yasantha Kodagoda, DSG has been designated as the Chairperson of the above-named committee dealing, in particular, with the issue of torture prevention. AHRc says that Appointment of Yasantha Kodagoda To Torture Committee of HRC-SL Inappropriate

Our objections are based on our experiences working on torture prevention for over 20 years in Sri Lanka. In fact, this network consists of the most active civil society groups that act specifically on the prevention of torture.

Due to this long involvement, we are fully aware of those in the government services and, in particular, the Attorney General’s Department, who have played a positive role with regard to the prevention of torture, and also those who have played quite a negative role relating to this matter. Mr. Yasantha Kodagoda’s role belongs to the second category and, despite our involvement in this work, we are not aware of a single instance in which he has played a positive role in the prevention of torture.

Our purpose in this letter is not to launch a personal attack against Mr. Kodagoda, but to prevent this committee, which has the immensely difficult task of contributing to the prevention of torture, from becoming seen negatively because its chairman is a person with no positive record of any active engagement in the prevention of torture. For this reason, we do not envisage going into details about the many incidents that we are aware of in terms of the negative role he has had played, though persons who have played a prominent role in many investigations in the past have provided us with such details.

However, a few such incidents need to be mentioned in this regard. His public role before the Udalagama Commission of Inquiry is well known given that Mr. Kodagoda was specifically and negatively named by members of the International Independent Group of Eminent Persons (IIGEP) monitoring that Commission. Mr. Kodagoda was the Lead Counsel for the Attorney General at the Commission even though the Commission was inquiring into actions of state officers in regard to failure to properly investigate and prosecute certain cases of gross human rights abuses in regard to which he had been himself involved at the preliminary stage of advising on the investigations. This represented a clear conflict of interest.

In addition, while the role of the Attorney General’s Department’s officers was to assist the Commission, Mr. Kodagoda aggressively cross examined the witnesses who came before the Commission, in a vigorous attempt to protect state agents against whom these witnesses were giving evidence.

We are also aware that, regarding the detention of Tamil prisoners at Boosa camp, he prevented discussions on the arrest and detention of Tamil prisoners without grounds for reasonable suspicion.

Sri Lanka’s Ministries of Foreign Affairs and Justice along with the National Human Rights Commission, we believe, would certainly agree that the prevention of torture in Sri Lanka is one of the most formidable challenges in the area of protecting and promoting human rights. The practice of torture is deeply embedded in the very criminal investigation system, and there has been official approval of the practice of torture for many generations. The police department itself accepts the grave challenge in preventing torture and ill treatment. Common reasons given for justifying this practice is that the department has not been able to provide adequate scientific training and other facilities to enable its officers to conduct criminal investigations without the use of torture and ill treatment. A further justification is that certain cultural habits entrenched in the population, often put pressure on police officers, encouraging them to use ‘third degree’ methods for the quick resolution of crimes.

The role of the Attorney General’s Department, on the whole, has been negative in relation to the prevention of torture. It was only when Mr. K C Kamalasabayson was the Attorney General that the Department took a more proactive approach to enforce Sri Lanka’s law against torture, contained in the CAT Act No. 22 of 1994. It was only during this period that a significant number of cases were investigated through a special unit of inquiry and nearly sixty prosecutions were launched. In contrast, Mr. CR De Silva, as Attorney General, gave categorical instructions to his officers not to institute cases under the CAT Act, famously saying that ‘the department is not going to listen to NGOs.’ What in fact happened was that the Department in fact gave into the pressures that were mounted against such prosecutions by a section of the police and also the armed forces. Since then, all the other Attorneys General have adhered to the same negative policy of not prosecuting under the CAT Act.

Regarding fundamental rights, at one time there was a policy of counsel from the Attorney General’s Department not representing officers against whom there were allegations of torture. However, also beginning with the time in which CR De Silva was Attorney General, this policy was changed and counsel from the AG’s Department began to represent such officers. Their role in fact needs to be recorded and analysed in detail in order to examine some of the most unacceptable practices pursued regarding this matter by the Department.

Therefore, if any member of this Department were to be nominated for the purpose of drafting a national policy in regard to the prevention of torture that should be done only if such an officer has taken the exceptional step of not following the wrongful practices that the Department pursued regarding the issue of prevention of torture.

We hope that the Ministries of Foreign Affairs and Justice in collaboration with the Human Rights Commission of Sri Lanka would consider the above concerns and review the decision to designate Mr. Yasantha Kodagoda as the Chairperson of this vital committee, which has the potential to contribute positively to the task of preventing torture, which the Human Rights Commission has declared as one of its major priorities.

We have also been informed that persons have been nominated /named to this committee without prior obtaining of consent, resulting in at least one such invited person declining to serve with others to possibly follow suit In any case, as far as we are aware, no public consultation has been conducted regarding the constitution of such committees. In particular, we wish to point out that the Human Rights Commission, by its very nature, is committed to a policy of transparency. The Commission has also declared in the past that it considers that civil society organizations engaged in the work relating to the protection and promotion of human rights are its partners. In these circumstances, it would benefit the Commission as well as the people of Sri Lanka if this policy of transparency is pursued in such matters and in regard to the Government’s aim to improve the protection of human rights which is the first priority of any reconciliation effort.