Recalling those old and very same failures of justice

Sunday, January 29, 2017

 

British poet and laureate Alfred, Lord Tennyson’s mournful call that “the old order changeth yielding place to the new…‘ is an ageless reminder of the loss of once cherished values in these uncertain times.

Deprivation of voices of reason

The world now steps perilously into a future in which ancient demons of racial profiling, ultra-nationalism and rampant sexism are encouraged by a boastful and self-obsessed leader of the United States, whose penchant for pummeling state policy and abusing opponents (including the media) through the unruly medium of twitter has overstepped the bounds of propriety.

It is wondrous therefore that the first triumphant opposition rallies to the new US President were by women. Thronging major cities, they had apparently ‘disturbed’ his enjoyment of brazenly won power. This defiance can only intensify as civil rights, once taken for granted, are relentlessly rolled back.

Regardless, the deprivation of voices of reason precisely at these flashpoints of severe global crisis adds to this darkness. This week, the untimely passing away of Nigel Rodley, Professor of Law at the University of Essex, United Nations Special Rapporteur on Torture (1993-2001) and Chairperson of the UN Human Rights Committee (2013 to 2014) marked one of those critical moments.

Singular interest in Sri Lanka

Knighted for his services to international law, he rarely used honorary salutations, brushing them off with unceremonious and brusque haste. His contributions to shaping the contours of international human rights instruments were momentous, ranging from legal input into the drafting of the precedent setting UN Convention Against Torture (CAT), the Istanbul Protocol and the UN Standard Minimum Rules on the Treatment of Prisoners (the Nelson Mandela Rules).

However, lost among these accolades was his singular interest in this country. Early on, Sri Lankan advocates knew of Professor Rodley by reason of the fact that a progressive habeas corpus judgment of the Court of Appeal had relied on an academic text authored by him on the treatment of prisoners.

In that precedent (Leeda Violet Case, 1994), then President of the Court, Justice Sarath Silva rightly ruled that the Rule of Law would be completely nullified if a state officer can cause the disappearance of an individual and then blandly deny any knowledge of his or her whereabouts.

A caustic denunciation of Singarasa

This judicial citation became a matter of some hilarity fourteen years later when Professor Rodley felt sufficiently moved to write a scathing denunciation of the Singarasa Case (2006). This was also by Justice Sarath Silva, whose responses to rights protections as Chief Justice was in abrupt contrast to his record on the appellate court Bench. I remember Professor Rodley at the time expressing surprise that this was the very same Justice who had (earlier) blithely quoted international law rights protections to support the Court’s findings.

The Singarasa case concerned the conviction of a prisoner solely by reason of a confession under Sri Lanka’s Prevention of Terrorism Act (PTA). Following the Supreme Court affirming the conviction, Singarasa went before the UN Committee under the International Covenant on Civil and Political Rights (ICCPR) pleading that his confession had been compelled by torture.

The Committee was sympathetic to his plea and recommended that Sri Lanka amend the PTA so as not to put the burden of proof on detainees to establish that they had been tortured. A review application was then filed in the Supreme Court to reconsider Singarasa’s conviction. In response, the Court ruled that the act of Presidential accession to the ICCPR Protocol was a conferment of judicial power on the Committee and was therefore unconstitutional.

Vicious arguments depriving citizens of rights

In a lucid and critical assessment, (41(3) Israel Law Review 500-521, 2008), Professor Rodley caustically remarked that it was inconceivable that Sri Lanka’s Attorney General could have engaged in ‘Alice in Wonderland (or perhaps Alice Through the Looking Glass) reasoning’ to urge that even filing such a review amounted to “an interference with the independence of the judiciary’

Nonetheless (as he said), it was even more inconceivable that the Court itself would go on to state that judicial power is invoked by the UN Committee. He went on to explain that the Committee was unquestionably ‘not a court of law.’ No legal consequences flowed from its recommendations. The Court had therefore misread the international legal significance of accession to the Protocol. This merely allowed the Committee to make recommendations, similar to many such recommendations issued against states. No enforcement or binding powers came into play.

The Singarasa case ran moreover directly counter to impeccably reasoned judgments of Sri Lanka’s Supreme Court under the hand of Justices (the late) ARB Amerasinghe and (the late) MDH Fernando which had brought in reasoning of the UN Committee to benefit Sri Lankan citizens. Regardless, that powerful and vicious argument of using national sovereignty against rational legal arguments to the contrary prevails even now.

Remembering an astute mind

But Professor Nigel Rodley’s interest in Sri Lanka went further than an occasional article. He readily agreed to the invite by the Government to be one of several international legal experts to observe the sittings of the Udalagama Commission of Inquiry which was inquiring into, inter alia, the killings of students in Trincomalee and the executions of aid workers in Mutur in 2006.

Here again, he was one of the more astute minds to recognize very early on, the grave and systemic failings in the justice system in respect of all citizens. I recall him commenting with dismay on the profound inability of Sri Lanka’s legal minds to come to grips with the severity of the crisis and the silence of many to speak out at the time, despite their local and international credentials. In fact, one of the last conversations that I had with him some months ago included a suggestion that he write a ‘no holds barred’ reflection on his experiences at the time.

In a Preface that he later wrote to my book (Still Seeking Justice, International Commission of Jurists, 2010), he prophetically warned about the imperative need to understand ‘how a once respected legal and institutional system that upheld the Rule of Law has, over some three decades, been degraded into one characterized by pervasive impunity.’

This is a warning that holds true to us, even now as we despairingly struggle with those very same failures of justice.

Kokkaddicholai massacre remembered 30 years on

The massacre by Sri Lankan special task forces, in which workers of a shrimp farm were hacked and shot to death, is described as one of the worst atrocities perpetrated in the early years of the armed struggle.

Tribute was paid on Saturday to the 86 Tamils killed in the Kokkaddicholai massacre which took place 30 years ago.

29 Jan  2017

The remembrance event took place at the memorial commemorating the victims in Mahiladitheevu, a village 25 km southwest of Batticaloa town.

The massacre by Sri Lankan special task forces, in which workers of a shrimp farm were hacked and shot to death, is described as one of the worst atrocities perpetrated in the early years of the armed struggle.

கொக்கட்டிச்சோலை படுகொலை சம்பவத்தின் 30 ஆம் ஆண்டு நினைவுதினம் அனுஷ்டிப்பு

JAN 28, 2017
கொக்கட்டிச்சோலை படுகொலை சம்பவத்தின் 30 ஆம் ஆண்டு நினைவுதினம் கொக்கட்டிச்சேலை மகிழடித்தீவு சந்தியில் அமைக்கப்பட்டுள்ள நினைவுத் தூபி வளாகத்தில் இன்று (சனிக்கிழமை) உணர்வுபூர்வமாக அனுஷ்டிக்கப்படது.

குறித்த நிகழ்வு, இலங்கை தமிழரசுக் கட்சியின் மண்முனை தென்மேற்கு பட்டிப்பளை கிளையின் ஏற்பாட்டில் முன்னாள் நாடாளுமன்ற உறுப்பினர் பா. அரியநேத்திரன் தலைமையில் நடைபெற்றது.

இதன் போது, படுகொலை செய்யப்பட்டவர்களின் நினைவுத் தூபிக்கு மலர் அஞ்சலி செலுத்தி சுடர் ஏற்றி, உயிரிழந்தவர்களின் ஆத்ம சாந்திக்காக இரு நிமிட மௌன அஞ்சலியும் செலுத்தப்பட்டது.

குறித்த நினைவு தினத்தை முன்னிட்டு, மகிழடித்தீவு கண்ணகையம்மன் ஆலய முன்றல் நினைவு அரங்கில் படுகொலை தொடர்பான கலை நிகழ்சிகள் மற்றும் கடுரைப்போட்டியில் வெற்றி பெற்ற மாணவர்களுக்கு பணப்பரிசுகள் வழங்கிவைக்கப்பட்டன.

இந்த நிகழ்வில் தமிழ்த் தேசியக் கூட்டமைப்பின் மட்டக்களப்பு நாடாளுமன்ற உறுப்பினர்களான வியாழேந்திரன், சீ.யோகேஸ்வரன், வன்னிமாவட்ட நாடாளுமன்ற உறுப்பினர் சார்ல்ஸ் நிர்மலநாதன், கிழக்கு மாகாண விவசாய அமைச்சர் கே.துரைராஜசிங்கம், கிழக்கு மாகாண சபை உறுப்பினர்களான எம்.நடராசா, கே.கிருஷ்னபிள்ளை, ஆர்.துரைரத்திரனம், கோ.கருனாகரன், கிழக்கு மாகாணசபை பிரதி தவிசாளர் இந்திரகுமார் பிரசன்னா, மற்றும் படுகொலைக்குள்ளானவர்களின் உறவினர்கள் மதம் தலைவர்கள் என பலர் கலந்து கொண்டனர்.

Plot to assassinate TNA legislator uncovered

 

Meera Srinivasan


- JANUARY 28, 2017

Sri Lankan authorities have uncovered a plot to assassinate Tamil legislator M.A. Sumanthiran, The Hindu has learnt. Earlier this month, the Prime Minister’s office sent a message to the Tamil National Alliance (TNA) parliamentarian from Jaffna district about a “serious security threat” to his life that Mr. Sumanthiran needed to be aware of.

A well-placed source in the government, on condition of anonymity, told The Hindu that “such a message was delivered to Mr. Sumanthiran”.

The message, said to have been based on high-level intelligence reports, was passed on around the time when four men, who are former LTTE cadres, were arrested in Sri Lanka’s Tamil-majority Northern Province earlier this month.

When contacted, the police officer in charge of the police station in Kilinochchi — the northern town that was formerly the de-facto capital of the LTTE-controlled area — where two of the arrests were made, said the Terrorism Investigation Division (TID) was handling the case. The TID was not available for comment. A lawyer appearing for the arrested persons, who also did not want to be named, said the police told a magistrate court that the arrested men were in possession of claymore mines and detonators.
Security threat

Confirming that he received a security threat, Mr. Sumanthiran said the government informed him about it, sharing some specific details. On January 13, the parliamentarian, who was to be in Jaffna to participate in an event, cancelled his trip at the last minute.

Asked if it was related to the security threat, Mr. Sumanthiran said: “I cancelled my trip not on account of a security threat, but for some other reason. But I learnt later that four persons were arrested on suspicion that they had been ready with an assassination attempt for the 13th [of January] when I was supposed to be there as per the original plan.”

On the alleged link of the former LTTE cadre to the assassination plot, Mr. Sumanthiran said that most rehabilitated cadres were struggling to make a living. “We too have asked the government to initiate a programme for livelihood assistance to them. In the absence of such support, they are easy targets for exploitation by people with political motives.”

Following the arrests of the two former LTTE members in Kilinochchi, TNA MP S. Shritharan, from Kilinochchi, recently told Parliament that the government continued targeting former LTTE cadres who had been rehabilitated. Speaking to The Hindu on Friday, he said: “They are still viewed with suspicion. With no jobs, they struggle to make ends meet.”

Unity-government in disarray, no thanks to divided opposition

by Rajan Philips-January 29, 2017, 12:03 pm 

It is really difficult to understate the difficulties that the government seems so apt in getting into time after time. The government’s difficulties are all self-inflicted.The Joint Opposition is all for toppling the government but sees no obligation to demonstrate how it would do things differently if it were to get a chance to govern again. For now, the JO has started doing what it does best – staging rallies. Nugegoda is its favourite point of departure, and this time it’s about Peraliyaka Arambuma. The JVP has issued a soft ultimatum – to topple the government before 2020 if it doesn’t get its act together on corruption. The JVP is onto a more constructive vehicle – Diriya Samithi. The TNA is struggling to be silent in the face of almost hopeless stalemate over the constitution and the government’s ridiculous run-arounds on reconciliation. The TNA’s silence is small mercy for the government as mothers of children missing and unaccounted after the war are starting protest fasts looking for answers from the government. How things can go awry quickly was brought home by yesterday’s shocking news about the foiled attempt on TNA parliamentarian MA Sumanthiran’s life.

The government is facing several other questions as well and many more will arise as the country seamlessly slides into fighting floods while it is still weathering the ill effects of a damning drought. The government’s response to the worst drought in decades has been lukewarm at best, and despite years of experience with recurrent floods the country has no infrastructure for preventing or minimizing flood disruptions and damages. The drought took a toll on rice production last year not only in Sri Lanka but also in the major rice exporting countries. A direct consequence is the devastation of farming families who will be left with neither income nor food. Most of last year, they didn’t have even water. Those active in the food and agriculture sectors have been warning the government of impending shortage of rice and destitution of farmers, but the government has pro-actively done nothing except for a reported recent meeting the President belatedly had with relevant Ministers and their Secretaries.

The Prime Minister has no time for agriculture. When he is not flying he is scouring for land for building factories, apparently by their thousands. Rice cultivation has no place in the new economy that the UNP-side of the government is busy unrolling. It is all about building Singapore-style urban showpieces in Colombo, sowing Chinese factories on every available piece of land elsewhere, and reaping Indian houses including steel houses earmarked for, of all places, Jaffna. When the rice shortage hits importers and hoarders will be given the green light to step forward and prosper. Just like it was done with electricity: talk solar, stop coal and do nothing for years. Then turn to your buddies to turn on their private generators. Every one gains except the consumers.

No fault of Mathri-Ranil!

To say that the government is in disarray is not an exaggeration. As JVP leader Anura Kumara Dissanayake has said the Sirisena-Wickremesinghe government has broken all records in clocking the shortest time to become unpopular after winning not one but two elections within eight months in 2015. Once a forceful partner in the ‘Common Opposition’, the JVP is now prepared to topple the yahapalanaya government before 2020. The last straw for the JVP is the government’s pussyfooting over Rajapaksa-regime corruption and pigheadedness about its own corruption. "This is not an issue with Maithri or Ranil," Mr. Dissanayake insisted, but the manifestation of broader systemic problems, social as well as political. People are more impatient than before and are also unforgiving about corruption in government. The JVP leader warned that if the government fails to act against corruption, the people will overthrow the government in 2020. But the JVP would do it sooner if an opportunity were to arise.

Also dismayed with the government, for different reasons, is the Tamil National Alliance (TNA). Like the JVP, the TNA too will not blame "Maithri or Ranil", but unlike the JVP the TNA has no motivation to topple the government. Insofar as the TNA leaders are concerned, it is fair to say that they have in Maithripala Sirisena and Ranil Wickremesinghe the most accommodating and flexible Sri Lankan President or Prime Minister ever in regard to addressing the ‘Tamil Question.’ And unlike their predecessors, neither the President nor the Prime Minister has repudiated their commitments. Only, they are avoiding talking about it in public and might confess to being helpless in private. The TNA leaders will have nothing to gain by issuing ultimatums to the government, soft or hard. They are constrained, in my view, to maintain friendly silence, hoping for a better turn of events soon or late.

While the TNA can constrain itself in Colombo, it cannot contain the growing frustration among its people. Frustration leads to resentment and there is no shortage of provocative agents to take advantage of public resentment to further their own stupid schemes. The foiled attempt at Mr. Sumanthiran’s life is a stark reminder of how quickly matters got out of hand in Tamil politics after 1972. If there is any lesson from that era for this government, it is that the government must not keep running from its own initiatives and promises. Before the Sumanthiran scare, the government was already jolted by the fast-unto-death direct action launched in Vavuniya by 13 women looking for official information about their family members who have not been accounted for after the war. After four days of fasting by the women taking neither food nor water, and their conditions deteriorating, the government panicked and flew, last Thursday, the State Minister for Defence, Ruwan Wijewardene, to meet with the fasting women in Vavuniya. The Minister managed to persuade them to withdraw from the fast with the written promise to arrange for "a proper response on February 9 through a meeting between the families of the disappeared and a delegation of government ministers and officials at the office of the Prime Minister" in Colombo.

A day or two earlier, Chief Minister Wigneswaran had written a remarkably restrained letter to President Sirisena precisely inviting ministerial intervention. The letter included a polite reminder to the President of the expectations among the Tamils when they voted massively for his victory in January 2015. They were not expecting Eelam or federalism, but simple measures to restore normalcy after the war, such as the withdrawal of the PTA, amnesty for political prisoners, official information on the status of missing persons, and giving back to displaced people their land taken away by the army. While there have been improvements after 2015, they have not been nearly enough to match the scale on which humanitarian improvements need to be undertaken. As the Chief Minister’s letter noted: "The Office of Missing Persons is presently only in name. It has no teeth."

All of this could have been easily avoided if the government, after the January and August 2015 elections, picked its priorities and focussed on them purposefully. Given their experience in politics and in government, President Sirisena and Prime Minister Wickremesinghe could have jointly run a tight administration avoiding corruption and achieving results. Instead, they have ended up imitating many of the Rajapaksa initiatives and examples with new corruption and added chaos. They cannot solve the problem of Missing Persons in a single meeting on February 9. The least the government can do is for the President and the Prime Minister to give a joint assurance about definitive next steps and to keep taking each step one after the other. There is no other way.

Before February 9, the government has a busy week ahead as it prepares to draw a bigger crowd for the Independence Day celebrations next Saturday to answer the Joint Opposition’s Nugegoda rally on Friday. There will be plenty written in today’s papers comparing Friday’s rally size to that of the 2015 (February 17) rally. Sri Lankan pundits are not alone in being preoccupied with crowd sizes. It is now a presidential obsession in the US, in the wake of the largest turnout of women in Washington and across the world the day after President Trump’s inauguration. The message was loud and clear: Women’s rights are human rights, human rights are women’s rights, and all rights do matter. Sri Lanka should be no exception.

Kayts protest demanding justice for woman's murder

28 Jan  2017

Kayts locals protested on Friday, calling for justice for the murdered pregnant woman and an end to the violence that has plagued the Tamil people since the end of the war.

Civil society, students and the business community all participated in the demonstrations, which included a human chain made on the main road and shops and businesses shutting down in solidarity

.

'Government! Ensure women's safety!'

Related Articles: 

24 January 2017 : Pregnant young mother violently murdered in Kayts

CTFRM Recommendations: Opportunity to come together to heal and prosper

 

Jan 28, 2017

The Consultation Task Force on Reconciliation Mechanisms (CTFRM) was appointed by the current government in January last year. After extensive consultations with all affected communities across the country, a comprehensive and unanimous set of recommendations were made public on 3 January 2017.

Since the release of their report, necessitated by the absence of a credible national process of accountability, the government has demonstrated a lukewarm attitude and callous disregard towards implementing their considered recommendations.

Sri Lanka’s judicial system has long been a contentious subject with many dispassionate legal experts from local and international bodies calling for significant reforms – particularly upon the assumption of power by the ‘Good Governance’. Recognising the need to build confidence in the people of all communities of Sri Lanka in the local justice system to deal with wartime human rights abuses committed by both sides of the conflict, Prime Minister Wickremesinghe sought the advice and guidance of the CTFRM, which concluded that the existing local mechanisms lacked the trust of the people and competency.

It is in this context that the Justice Minister’s hasty and outright rejection of the CTFRM’s Report has drawn widespread condemnation. His statement that “… This report, at this juncture, is totally unwarranted. Therefore, we don’t have to follow these recommendations by the CTF” fly in the face of not only international opinion, but also what the Government of Sri Lanka claims to be trying to achieve – Reconciliation. The Minister’s assertion that – ‘even the UN could not force the government to include foreign judges, as it was against the UN charter to force or to pressure member states’ – begs the question how honest and serious is the State that co-sponsored a unanimous resolution at the UNHRC in 2015, which affirmed ‘the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators’.

The Australian Advocacy for Good Governance in Sri Lanka (AAGGSL) is of the view that the members of the CTFRM have done an admirable job in identifying the deep rooted suspicions of the victims and the many confidence-building measures, including the repeal of the Prevention of Terrorism Act (PTA) and the immediate release of persons held under the PTA without charges, which can set the course of genuine reconciliation in motion, albeit belatedly.

We also welcome the Foreign Minister Mangala Samaraweera’s pledge, made once again on 11 January at the Chatham House, London, to “deal with the past honestly and truthfully, accept that past, put it behind us, and then move forward to build our Sri Lankan nation anew.” 
But the proof of the pudding is in the eating. The candid recommendations of the CTFRM should be taken seriously to establish not only a Truth Seeking Commission and a Reparations Office, but also deliver transitional justice for all affected parties, with international participation, honestly and sincerely. 
AAGGSL

If Columbia – a country that was not long ago on the brink of becoming a failed state could be named The Economist’s Country of the Year 2016 – even though its negotiated peace deal with FARC is ‘incomplete and involves ugly compromises’, Sri Lanka can certainly do better.

AAGGSL calls upon all arms of the Sri Lankan Government and Opposition groups, not to take confrontational positions, but to work together to build a nation of peace and justice to all its peoples, with a prudent and probing concern for the future. We urge the Sri Lankan leadership of all political and religious persuasions to help implement the recommendations of the CTFRM fully and expeditiously.

It is worth recalling the words of wisdom of Mümtaz Soysal, Deputy Chair – Amnesty International (1977). “Where there is injustice, there is the seed of conflict. Where human rights are violated, there are threats to peace.”

Sri Lanka: Task Force’s Recommendations — Opportunity to heal & prosper

The following statement issued by the Australian Advocacy for Good Governance in Sri Lanka Inc.

( January 28, 2017, Melbourne, Sri Lanka Guardian) The Consultation Task Force on Reconciliation Mechanisms (CTFRM) was appointed by the current government in January last year. After extensive consultations with all affected communities across the country, a comprehensive and unanimous set of recommendations were made public on 3 January 2017. Since the release of their report, necessitated by the absence of a credible national process of accountability, the government has demonstrated a lukewarm attitude and callous disregard towards implementing their considered recommendations.

Sri Lanka’s judicial system has long been a contentious subject with many dispassionate legal experts from local and international bodies calling for significant reforms – particularly upon the assumption of power by the ‘Good Governance’. Recognising the need to build confidence in the people of all communities of Sri Lanka in the local justice system to deal with wartime human rights abuses committed by both sides of the conflict, Prime Minister Wickremesinghe sought the advice and guidance of the CTFRM, which concluded that the existing local mechanisms lacked the trust of the people and competency.

It is in this context that the Justice Minister’s hasty and outright rejection of the CTFRM’s Report has drawn widespread condemnation. His statement that “… This report, at this juncture, is totally unwarranted. Therefore, we don’t have to follow these recommendations by the CTF” fly in the face of not only international opinion, but also what the Government of Sri Lanka claims to be trying to achieve – Reconciliation.  The Minister’s assertion that – ‘even the UN could not force the government to include foreign judges, as it was against the UN charter to force or to pressure member states’ – begs the question how honest and serious is the State that co-sponsored a unanimous resolution at the UNHRC in 2015, which affirmed ‘the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators’.

The Australian Advocacy for Good Governance in Sri Lanka (AAGGSL) is of the view that the members of the CTFRM have done an admirable job in identifying the deep rooted suspicions of the victims and the many confidence-building measures, including the repeal of the Prevention of Terrorism Act (PTA) and the immediate release of persons held under the PTA without charges, which can set the course of genuine reconciliation in motion, albeit belatedly.

We also welcome the Foreign Minister Mangala Samaraweera’s pledge, made once again on 11 January at the Chatham House, London, to “deal with the past honestly and truthfully, accept that past, put it behind us, and then move forward to build our Sri Lankan nation anew.”

But the proof of the pudding is in the eating. The candid recommendations of the CTFRM should be taken seriously to establish not only a Truth Seeking Commission and a Reparations Office, but also deliver transitional justice for all affected parties, with international participation, honestly and sincerely.

If Columbia – a country that was not long ago on the brink of becoming a failed state could be named The Economist’s Country of the Year 2016 – even though its negotiated peace deal with FARC is ‘incomplete and involves ugly compromises’, Sri Lanka can certainly do better.

AAGGSL calls upon all arms of the Sri Lankan Government and Opposition groups, not to take confrontational positions, but to work together to build a nation of peace and justice to all its peoples, with a prudent and probing concern for the future. We urge the Sri Lankan leadership of all political and religious persuasions to help implement the recommendations of the CTFRM fully and expeditiously.

It is worth recalling the words of wisdom of Mümtaz Soysal, Deputy Chair – Amnesty International (1977). “Where there is injustice, there is the seed of conflict. Where human rights are violated, there are threats to peace.”

Rajasundaram: Legitimate Detention Or Prelude To Murder, Even Judicial Murder?

By Rajan Hoole –January 28, 2017

Dr. Rajan Hoole

State & Media Repression Against Tamil Political Activists – Part II

At the end of Chapter 3, we made reference to the press report of 28th May which announced a non-jury trial shortly for Gandhiyam leaders Arulanantham David and Somasundaram Rajasundaram. The CID had then accused Rajasundaram of trying to make peace between Uma Maheswaran of the PLOTE and Prabhakaran of the LTTE, and having requested the French authorities to provide training to Tamil youth. These charges were not backed by tangible evidence and after a further 56 days of sleeping over them, the case was brought to Court on 22nd July. Evidently, neither the judge nor the senior state counsel believed that there was a case.

Senior State Counsel C.R. de Silva told the Court that charges had [at last!] been framed against the accused and requested the Court to serve them on the accused. David and Rajasundaram were charged with ‘having failed to disclose the whereabouts of terrorist leader Uma Maheswaran and Thambapillai Santhathiyar, and interfering with the arrest of terrorist suspects under the PTA.’

The two accused were respected leaders among the Tamil community and it was three and a half months since their arrest. It was well-known that Dr. Rajasundaram had suffered injuries as a result of torture and moreover the case had created much international interest and concern. In the meantime, there being no viable charges, the two had been basely maligned in Parliament under parliamentary privilege by leading ministers. A self-respecting judge should have made a point by fixing the trial at the earliest opportunity and having the case dismissed.

But this was not how Judge Tissa Bandaranayake of the Colombo High Court chose to proceed. He said that he was not in a position to fix a trial date as another trial was then on, in his court! Asked about their counsel, the accused said that they would retain their own counsel from the next date. Judge Bandaranayake fixed a calling date for 5th September (5 months from arrest!) and said that he would then fix a trial date. One concession the Judge made to the detainees was to issue an order transferring them to fis- cal custody at the remand section of Welikade Prison, from their maximum security prison conditions.

Again the rationale seemed to be to prolong detention through an extended trial over hopelessly inadequate charges. Nearly all the judges who valued their career had got the message. The accused were not transferred to remand custody. Perhaps they themselves did not want to be separated from their companions. Five days after the court appearance Rajasundaram was killed in the second prison massacre, and Senior State Counsel de Silva’s role changed to one of leading evidence at an inquest that was held solely for the purpose of covering up the State’s culpability. In view of the role of the Judiciary in implementing bad laws without protest, the intentions of the State as revealed in a press item on 12th June (Sect. 8.7), and the circumstances of the Welikade prison massacre (Chapter 11); whether Rajasundaram was a victim in part of judicial murder remains a moot question.

The Priests, Dons and Doctor Case

The accused in the case were Rev. Singarayar, Rev. Sinnarasa, Rev. Jeyathilakarajah, Dr. Jeyakularajah and Mr. Nithyananthan, a Jaffna University don and his wife Mrs. Nirmala Nithiyananthan. The charges against them were under the PTA. The first two were accused in con- nection with helping to dispose of money from the Neervely Bank robbery, and the others were accused of helping to treat medically an injured LTTE member (Seelan) without informing the Police of his whereabouts. The arrests took place in November 1982 and the charges were served on 7th February. But the trial was called in the Colombo High Court only on 23rd June 1983.

This time Deputy Solicitor General Tilak Marapone and C.R. de Silva wanted the trial postponed for a novel reason. They said that Judge Robert Silva was to retire in 6 weeks and since the trial cannot be finished before then, the changing of judges would cause discontinuity. Marapone further said that the Court must first adjudicate on the voluntariness of 5 confessions and must also establish the fact of the attack on the Chavakacheri Police Station (where Seelan is said to have been injured). The defence held that the accused had been harassed for a long time and wanted the trial argued to a close without delay under Robert Silva.

Mr. M. Sivasithamparam MP, who was senior counsel for some of the accused protested at the unduly harsh and humiliating treatment of the accused who were brought from prison in a caged truck at 8:30 AM and were made to remain in the truck until the trial opened at 10:00AM. He pointed out that such a show of security was unwarranted given that the accused were not charged with anything remotely approaching murder. Bala Tampoe, another senior counsel, made a spirited response to the prosecution saying that it was inappropriate to bring up the issue of the judge’s retirement now given that the charges were served four and a half months earlier. He said that the accused had not committed any crime under normal law and had since November been denied a chance to say what they had to say. Robert Silva decided that the trial would commence on 27th June and asked the prosecution to open the hearing.

This was not the end of novelties. On 27th June, the prosecution comprising Tilak Marapone, C.R. de Silva, Kanthilal Kumarasiri and Mohan Peiris arrived in Court and asked for a postponement. Their reason: ASP Punya de Silva had suffered a heart attack and was in the intensive care unit, as supported by a medical certificate produced by them. Bala Tampoe objected, pointing out that there were 20 witnesses and Punya de Silva’s presence was not crucial. He pointed out that of the 5 confessions, two can be spoken for by ASP Chandra Jayawardena. The retiring judge postponed the case by two months to 24th August. Just over a month later four of the accused survived the second prison massacre by a hair’s breadth.
We may add here that Punya de Silva made an almost miraculous recovery from his debilitating heart condition and, more than 16 years later, saw the new millennium as DIG, CID.

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No Easy Walk to the Constitution

Many irons in the fire; President Sirisena is the enigma

Some people’s dream ticket

 “The laws delays, the insolence of office”

by Kumar David-January 29, 2017, 12:06 pm 

There is clarity on what the Steering Committee and six subcommittees would like to see in subsidiary aspects of the constitution; however there is a black-hole in the middle regarding the apex. Subsidiary means Fundamental Rights, Judiciary, Law and Order (police and national security), Public Service, Finance, and believe it or not, there has been unanimity in the Centre-Periphery subcommittee. Hooray, but there is a hole in the hub, a lacuna at the central apex. By apex I mean; will the presidency be executive (if yes, what powers?) or ceremonial as in parliamentary systems; what will be the balance between president, cabinet-PM, parliament and provincial governance, and what about a second chamber? The contentious issue underscoring political machinations and cloak and dagger intrigue is: "Will the president be directly elected and retain executive powers, or will the presidency be ceremonial?"

Lankan political opportunism being what it is, the debate has less to do with principles or what is best nationally, but dictated by crass opportunism. The Joint Opposition’s (JO) and to an extent the UNP’s stance is determined by calculations of power play, power grabs and how to undermine the other side. The JO is oblivious to constitutional principles or national problem solving; its concern is how to trash the government. Remember, when Obama said white the Republican controlled Congress said black, and when he said black they said white. I know enough people in the JO to say that this is how it thinks. Few are bothered by rational concerns about executive and ceremonial, the relative merits of degrees of devolution, better budget making procedures, or police reforms– DEW perhaps is the only JO person who may be thinking along fundamental and not opportunist lines. For others, especially SLFP Ministerial detritus hanging on to Sirisena’s chemise, it is all opportunism: Will it be Sirisena - Will it be Ranil – How to pull off a Sirisena-Gota ticket - How to pull down the government, and such like motives.

President Sirisena has been careful. He has not contradicted his election pledge - repeated over Ven. Sobitha’s coffin - that he will preside over the dismantling of an all-powerful executive. The worry is that he has not told these braying asses to shut up, nor declared he is no fool to commit suicide in a trap honeyed with Gota bait. If Sirisena were to unequivocally reiterate his commitment to abolish the executive presidency, uncertainty around constitution making will vanish. Come on Mr President, what’s holding you back?

So much for skulduggery; let’s move to substantive issues. From people of many political hues and from the media I have come to appreciate what agitates genuine (not opportunistic) minds:-

a) Will a strong centralised system (say an Executive Presidency with substantial powers) provide a favourable environment for rapid economic growth?

b) If not, in what ways can the nation’s basic law be tweaked to promote growth?

c) How much devolution is too much in the sense of being a threat to the territorial integrity?

d) Haven’t Provincial Councils been a failure for 30 years? What then is the point of devolution?

e) What are the pros and cons of a second chamber?

f) What can be done about the deplorable mess in the dispensation of justice where Hamlet’s quip about "the laws delays" has become Lanka’s way of life?

g) What about social and economic equity? (Inserting social and economic rights in the fundamental rights chapter is only decoration).

I know this is biting off more than can be chewed inside 1,500 words, the limit to minimise mutilation by typesetters. I will employ a tight style and make packed comments for the reader to mull over and unpack. On (a), the answer is No! A muscular executive president is no guarantee, nor necessary for economic speed. The last 30 years in Lanka is counter-example and refutation of that hypothesis. Of course, strong government, of whatever constitutional design, and clear policy are a sine qua non. There are many and diverse examples. Deng Xiaoping (no post), Lee Kwan Yew (PM), Bill Clinton (executive president) and Mahathir (PM) on whose watch nations prospered. The jury is out on Modi, heir to a Westminster tradition, and candidate for membership of this club. Furthermore, argument (a) can be discarded as spurious in the light of our egregious experiences of authoritarianism and executive presidents.

There are provisions that can be incorporated in a constitution to push the economy and give it direction. Since domestic capital in Lanka is weak in promoting growth, purposeful steps are needed (our capitalism has been seeni bola all its life). Yes, a constitution is not a set of policy measures nor is it to be confused with enabling legislation, but it can provide supportive structures. One step is greater devolution of responsibility for regional development to Provincial Councils. Another is constitutional recognition of planning bodies including those envisaged in the Development (Special Provisions) Bill of 26 November 2016. A third essential is dirigisme clauses, making it incumbent on the state to intervene, direct and take responsibility for the economy. That’s enough for (b); actually there is a lot of meat here to think over.

Item (c) on my list seems to be a tricky but is not. The panic is in the febrile imagination of folks who see a Tiger behind every shrub. To begin with the seven provinces outside the North and East are not candidates for the remotest secessionist suspicion. There is no mood among Tamils for war, for Eelam, or for Greater Eelam with Tamil Nadu or some other godforsaken hole in the Far East, a nightmare giving racists palpitations. This is true, recent scattered incidents notwithstanding. The security and intelligence systems and structures now in place are overwhelming; it is their excesses, not devolution that is a problem. Devolution of administration and subsidiary legislative authority is possible without worry about territorial integrity. But there is no rationality under the sun that will sooth a paranoid mind; so forget about winning dyed in the wool chauvinists to the cause of devolution.

The experience of 30 years of Provincial Council administration is negative. Much less has been achieved to improve provinces than expected. PCs have been repositories of self-serving sleaze and graft. True, this is a generalisation, but readers can think over whether it is fair. The biggest flop has been Wigneswaran and the NPC. I hailed the arrival of W and NPC as an example others could follow of how a proactive and motivated administration could use devolution to achieve great things. Now I have egg on my face. Little of significance has been achieved; the budget is unspent; hardly any statutes enacted; all the while the Chief Minister in engaged in political kavadi dancing to the tune of some who lead him by the nose. Differences on ethnic issues aside, has not the NPC failed to use available powers to materially benefit the denizens of the province?

Still, I urge more not less devolution as there is no alternative. It is impossible to claw back power to the centre; it goes against the spirit of the times globally and locally. And it is true that there are real constraints inhibiting PCs; restraints on raising money, excessive gubernatorial power, a concurrent list whereby the centre usurps control, and low public esteem of PCs. We should go the whole hog, expand scope and finances of provincial and local bodies, put responsibility on their heads in the eyes of the people, and tell the public to lynch the blighters if they don’t measure up.

This "anduwa didn’t do this and anduwa didn’t do that" game is passé. Old top-down state configurations have corroded. People are fed up with governments of all hues leading to Trump like flare-ups. The old style format doesn’t work anymore. The option is to pass the buck to the people and let them to look after themselves; more has to be done lower down the devolution spiral. Grass-roots leaders can be hanged if things go awry while they had funds and power. The Centre-Periphery subcommittee report is half-way along these lines. That’s all the space I can spare for item (d).

I am giving (e) and (g) a miss to focus on something (f) avoids; the monstrous ‘laws delays" issue. Let me begin anecdotally. KK Gunewardene and I go back a long time, 65 years from Upper Third at St Thomas, through Engineering Faculty, into working life and abroad as students. He was the first Director General of Telecoms and also drafted the Telecoms Act. I was his best-man; our families were friends; now in retirement we are frequently in touch. However, I deserve a gold medal for putting up with his interminable grumbling and snivelling. The point this is leading to is that KK’s burning passion in recent times is an obsession with delays, hold-ups, obstructions and postponements in the court system. He is an expert; he whinges that a backlog of 700,000 cases has piled up in the courts island-wide, some for two and three decades. There are land cases where grandson is heir to grandfather’s plaint!

Vulpine lawyers "get a date", after that another date, and date after date. Each time they pocket a fee. Magistrates and judges yawn through files. The poorer the client, the more he is cheated. No amount of pleading with the profession has been of any use. PCs, QCs, LLBs and BLLs, waffle and shuffle. All society knows; though there is much rant and commotion about political crooks, this gross injustice is swept under the carpet. Don’t say this is not a constitutional matter; what blithering use is a constitution if it does not address pressing problems. So tell me, what is the citizenry to do?

Hendawitharana ordered grenade attack on Weliamuna’s home! 

Jan 28, 2017

The Army intelligence chief at the time Maj. Gen. Kapila Hendawitharana had ordered and supervised the grenade attack on the Pepeliyana road home of senior lawyer J.C. Weliamuna on 27 September 2008, it is coming to light now.

The grenade did not explode, and Weliamuna, his wife and two children were unharmed.

The related court case is pending at Gangodawila magistrate’s court, categorized as ‘C’, which means there are no suspects to the incident.

However, the CID investigation revealed that Hendawitharana was behind the attack. In order to establish that, the then Army chief, Sarath Fonseka and defence secretary at the time Gotabhaya Rajapaksa are to be summoned to the CID shortly. Kohuwala police will act on their statements.

Sri Lanka: Do we have a Foreign Policy?

A Comment on Regional Foreign Ministry Office In Jaffna

by Sarath Wijesinghe-Jan 28, 2017

Jan 28, 2017

Regional Office

( January 28, 2017 , Colombo, Sri Lanka Guardian) Establishing a Regional Office in Jaffna is a step in the right direction, though it is not understood the motive or need to such an step when there is no certainty on the foreign policy of the country with proud history in maintaining correct foreign policy by most successive governments. North has become controversial with hundreds of resolutions adopted by the Provincial Council with no permission and concurrence with the Central Government, outside the preview of the powers of Provincial Councils and a centre of controversy most of the time. North needs economic benefits to enjoy the benefits of the peace dawned and it is not clear how this will provide economic benefits to the people sandwiched by the Indian and Sri Lankan Army during the road to quest for peace and peaceful living. Foreign Policy is a matter left to the Centre and provinces can do little on the formulation and maintenance of the policy of the country.

Sri Lanka Do we have a Foreign Policy.docx by Thavam Ratna on Scribd