Constitution-Making Process & The Pressure From The Buddhist Clergy

By V. Thirunavukkarasu –JULY 18, 2017

Vallipuram Thirunavukkarasu

The Venerable Mahanayake Theros of the Buddhist Chapters suddenly met in Kandy on 4.7.2017 under the leadership of the Mahanayake Thero of the Asgiriya Chapter, Most Venerable Warakagoda Gnanaratna Thero. The purpose is to stall the ongoing Constitution-making process which is already more or less half way through. First of all, the million dollar question is as to why such a concern on their part arose after nearly one and a half years, and not at the beginning of the process.

As is well known, the National Unity Government, with the two traditional arch rivals, happily joining hands for the first time in the country’s long term interest, secured the people’s mandate to form the National Unity Government, inter alia, to enact and operate a new Constitution. Hence, it is irrevocably incumbent on the Government to carry out the sovereign people’s mandate, and there shouldn’t be any let or hindrance from any quarter in this respect. Of course, all sections of the people of all races and religions have had the opportunity to present their views and ideas from the time the Public Representations Committee headed by a political leader and Attorney-at-law, Lal Wijenayake started functioning at the inception. What has to be borne in mind by one and all is that the people’s mandate cannot be jettisoned.

Now, it is common knowledge that the former President, Mahinda Rajapaksa who had pledged in 2005 to abolish the Executive Presidency, reneged on that pledge. On the contrary, having gone half way through his second term, he got the infamous 18th amendment passed in Parliament to remove the mandatory 2-term limit to seek election to the Presidency, insatiably aspiring to become the first 3rd term President, but of course it misfired, thanks to the will of he people which is the most paramount factor. Presently, of course, he is a Member of Parliament as well as the foremost leader of the Joint Opposition (JO) representing the dissident wing of the UPFA, including the Mahajana Eksath Peramuna (MEP), the National Freedom Front (NFF) and the Pivithuru Hela Urumaya (PHU) led by Parliamentarians Dinesh Gunawardena, Wimal Weerawansa and Udaya Gammanpila respectively. The notorious propaganda of the JO is that (a) Federalism has all but been conceded, putting paid to the Unitary State system, and (b) that the foremost place given to Buddhism is being compromised. Such a bizarre, misleading propaganda is nothing but an insult to their own intelligence, besides taking the sovereign people for fools.

Well, the National Unity Government appeared somewhat taken aback by the sudden moves of the Buddhist Chapters which might well erode the Government’s 2015 mandate to take the country along the path of peace and reconciliation, to fast-track economic development for democracy to thrive, so that people of all races and religions could live in peace and amity.

Meantime, President Maithripala Sirisena has met with the Mahanayake Theros in Kandy and assured them that that there will be due consultations with them once the final draft Constitution is ready. Of course, the Mahanayake Theros can have their say even at this stage of the Constitution-making processes, but at the end of the day, the National Unity Government should boldly act in accordance with the people’s mandate handed down at the two elections in 2015. What is of most paramount importance is that there should be no question of pandering to the whims and fancies of any segment, apparently driven by a hidden hand. It is quite appropriate in this connection quote a journalist of yore of no mean repute, Tarzie Vitachchi, from his book titled “Emergency ‘58”. Here is what he said on the question of the price paid for pandering:

“When a Government, however popular, begins to pander to racial or religious emotionalism, merely because it is the loudest of the raucous demands made on it, and then meddles in the administration and enforcement of law and order for the benefits of its favorites, or win the plaudits of a crowd, however hysterical it may be, catastrophe is certain”

Read More

No reason to be afraid of draft Constitution– Lal Wijenayaka

By Rasika Hemamali-2017-07-19

Lal Wijenayaka, Chairman of Public Consultation Committee on Constitutional Reforms says people voted against the past regime on 8 January 2015 to abolish the Executive Presidency and reinstate democracy. "That was the promise endorsed by the people of both the North and the South," he said in an interview.

Excerpts:

?Some say the country does not need a new Constitution. How do you see the necessity for a new Constitution at this moment?

A: The incidents that took place in the recent past highlight the need for a new Constitution. Soon after the 1978 Constitution was passed, there was a huge outcry to amend it. No one can deny that fact. President Chandrika Bandaranaike Kumaratunga promised to amend the Constitution, but she did not do so even though she was elected to power twice. The basis of the demand was against authoritarianism.

President Mahinda Rajapaksa promised that he would bring sweeping reforms to the Constitution, but he did not do so even though he was elected to power twice. He not only went back on his word, but went a step further by enhancing the powers of the Executive President through the 18th Amendment to the Constitution. He took over the powers of the independent commissions. The Attorney General's Department was also taken over by the President. The limit on the number of terms a candidate can contest for President also removed. The 18th Amendment created a President with all powers. The voice against that power was broad based.

?Do we need constitutional reforms only to abolish the Executive Presidency?

A: Law and order collapsed drastically over the past decade. Public employees were tied to trees. About 100 suspects died in Police custody. No case was taken to Courts. The media was attacked. They did not criticize the government out of fear. At least 20 unarmed prisoners were killed. None of these issues were looked into.

The Constitution is the tool that safeguards people from State powers. It denotes how the Executive and Legislature can use powers and sets limits to the powers. That safeguards people's rights.
We cannot violate the Constitution. We saw that the Constitution was not helping people. That is why people voted against the past regime on 8 January 2015. They were confident that the Executive Presidency would be abolished and that democracy would be reinstated. That was the promise endorsed by the people of both the North and the South alike. We must understand it. People voted for national reconciliation.

?Can't we achieve that aim by amending the existing Constitution?

A: No, we can't. Everything has collapsed under this Constitution. The manner in which the Chief Justice was impeached shows that there was no law and order in the country. The verdicts of the Supreme Court and the Court of Appeal were ignored by the government. The likes of Wimal Weerawansa were the judges who heard the case against the Chief Justice. We need a new Constitution to change that context. We cannot democratize this country and bring reconciliation by simply amending the Constitution.

We have failed to build a Sri Lankan identity even after 69 years of independence. We need a new Constitution for that. The Constitutions drafted in 1948, 1972, and 1978 were not endorsed by the people. We must consult the public and carry out an opinion survey prior to drafting a new Constitution.

?Some argue that the government does not have two-thirds majority in order to draft a new Constitution.

A: The Constitution is drafted in public and we will have to go for a referendum eventually. People will reject it if they do not want it. We have diverse views and they must be considered. Finally, the Constitution must be passed in Parliament with two-thirds majority. After that, it must be passed by a referendum. We must not be afraid of people's sovereignty with regard to this issue.

On 16 March 2015, Parliament unanimously decided to convert the House of 225 MPs into a Constitutional Council. Although some say they are against it now, all of them gave consent to it then. The Constitutional Council appointed an all-party Operational Committee with 20 MPs to draft the Constitution. It is chaired by the Prime Minister.

Joint Opposition members Bandula Gunawardana, Dinesh Gunawardana, the Muslim Congress's Rauff Hakeem, and the Tamil National Alliance's Rajavarothiam Sampanthan were also in it.

The Operational Committee decided to study the subjects and six committees were appointed for that. The Chairman of the Financial Committee is Bandula Gunawardana. Although they express strange views outside, all parties have joined this process. The six committees have submitted six very good reports. At the present time, these are being debated.

There are certain consensuses, but they are not perfect. All parties are being consulted.
?It is alleged that the committee headed by Lal Wijenayaka is of the opinion that Sri Lanka is a secular State.

A: No one has taken a decision on a secular State, but the President and the Prime Minister promised not to amend the Article 9 which gives prominence to Buddhism. Some say the State must be secular. Such opinions must also be considered, but expressing such an idea does not necessarily mean that it has already been implemented.

?The Buddhist monks of the three Nikayas held a congress and ruled the country would not need a new Constitution.

A: The view of the Mahanayaka Theras must also be considered. They have the freedom to say what they wish, but people have the sovereignty and the rule is based on it. That is not individual or group based. The statement is important because it was made by the chief prelates, but they could have discussed it with the President and the Prime Minister.

Their statement was based on media reports. Many of the politicians are opportunists. All said the Article 8 should be intact.

The Constitution will be drafted after consulting the general public. The first draft is done by the Operational Committee and it will be made available to the public. There is no reason to be afraid of it.

?As you are part of the Public Consultation Committee, haven't you cited revolutionary proposals like the State must be secular?

A: The task of the Public Consultation Committee was to meet people and obtain their views on the constitutional reforms. They will be informed to the Operational Committee with the recommendations of the Public Consultation Committee. We have sought public opinion on 20 subjects. We set forth the public views together with our recommendations. All the committee members have not agreed yet. The recommendations are cited with the name of the committee member who has endorsed it. A few people are of the opinion that the State must be secular, but the view of the majority was that the present situation should be maintained. All these views are included in this report. The Constitutional Council may take a decision on it.

Nothing will change if people do not approve this in a referendum. Certain people are misquoting our report with the aim of misleading the general public.

Basic Guide to the International Convention for the Protection of All Persons from Enforced Disappearance

 CENTRE FOR POLICY ALTERNATIVES on 27 June, 2017

The issue of enforced disappearances has impacted Sri Lankan’s across the ethnic divide for decades. The use of enforced disappearances during the “youth insurrections” of the 1970’s and 80’s and during the protracted armed conflict by both state and non-state actors is well documented. Despite several commissions of inquiry appointed by successive governments to investigate these incidents, the fate of thousands remains unknown. Several such commissions of inquiry have recommended legal reforms to address the issue of enforced or involuntary disappearances and to eliminate this phenomenon in the future. An overwhelming majority of these detailed recommendations remained unimplemented for decades. “….In order to address this issue comprehensively and to eliminate this phenomenon in the future as well as to fill an existing lacuna, the Commission strongly recommends that domestic legislation be framed to specifically criminalize enforced or involuntary disappearances.”- Report of the Commission OF Inquiry On Lessons Learnt And Reconciliation, 2011, 5.46

Sri Lanka signed the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) in December 2015 and ratified it in May 2016. In order to give legal validity to the ICPPED in Sri Lanka, the Government of Sri Lanka introduced the International Convention for the Protection of All Persons from Enforced Disappearance Bill (Bill) which was gazetted on the 09th of February 2017 and subsequently tabled in Parliament.

CPA produces this basic guide to raise awareness on the proposed legislation. The next phase of the law-making process entails that the Bill is open to amendment at the committee stage debate. This basic guide is meant to inform those involved in the process and other stakeholders as to what is presently proposed. Subsequent to enactment, CPA will update this guide to ensure that stakeholders are aware of the new legislation.

Download the guide in English, Sinhala and Tamil.

Guide-to-Enforced-Disappearances-Bill-Final-1.pdf by Thavam on Scribd

A chronically chaotic government and its far worse foes

Sunday, July 16, 2017

When disreputable elements engage in fear-mongering, one can only react with disdain. That said, this is a time where the line between the reputable and the disreputable runs very thin on the ground. Therefore it may be conceded that these are distinctions veritably without a difference.

 

Sensible rationale not reflected

Nonetheless, it is hard to remain quiet when former Minister of External Affairs and surely one of our most eagerly ambitious politicians, GL Peiris expounds with great gusto on the ill-wisdom of the Enforced Disappearances Bill. Listed for debate this week, the Bill was postponed by a wavering Government caught between the rock of its own swashbuckling commitments and the hard place of ultra-nationalistic sentiment before which it now wails, much like a petulant child.

 

This predicament is, of course, due in large part to its own failure in not engaging in a national effort to soberly explain to the people in this country why this legislation is needed in the first place. Enforced disappearances do not have sole application to the North or to citizens of Tamil ethnicity. On the contrary, the South was the primary target of this tactic of state terror in the eighties. The Sinhala South therefore does not need to be taught as to why such a law is needed or why the State must legislate to ensure accountability to prevent future occurrences.

 

But this sensible rationale is overridden by sound and fury signifying precisely nothing. On the one hand, the draft law is advocated as a palliative for the people of the North. On the other hand, we have politicians of the ilk of GL Peris explaining that it will prosecute the Southern ‘patriots.’ The contesting dynamic is firmly entrenched.

 

Wringing of hands to be expected

This bifurcation between the North and the South is unwise in the extreme. It is akin to claiming that Sri Lanka’s Right to Information (RTI) law is meant for the South and has little application to the North, as idiotically put forward by some politicians representing the Northern constituency a while ago.This has, of course,been disproved by the practical use of the law since it came into force.

 

Regardless, the effort to enact a law on Enforced Disappearances for Sri Lanka should have been led by a local multi-ethnic and multi-religious constituency. Instead the perception was more that it was a Colombo led effort with external donor-funded support. At each and every turn, this is what destabilizes each effort to genuinely improve the lot of citizens.

 

It is the same bogey that has clung to the constitutional reform process. Inevitably nationalistic demons raise their heads and rail while the majority of ordinary Sri Lankans remained uninterested or uninvolved. So the procrastination midst the wringing of hands that we see on the postponement of the Enforced Disappearances Bill is entirely to be expected.

 

Engaging in reprehensible objections

But let us revert to the interview in the Daily Mirror a few days ago where the erstwhile law professor, from whom many once learnt the law with the intent to honour the ideals of justice, expounded on the ill-wisdom of the Bill.To someone unacquainted with the disagreeable hypocrisy of our politicians, it would seem that the Bill posed untold risks to Sri Lanka and exposed the country to the wrath of insidious influences hell-bent on tarnishing its name.

 

The truth, of course, is far less dramatic. Certainly there is neither the time nor the inclination to refute all the reprehensible objections in this interview.Suffice it to be said that the Bill comes as a response of sustained advocacy against a most heinous crime of this century. The tactic of enforced disappearances had been used as a deliberate mechanism to frighten and intimidate dissenters, political activists, journalists and ordinary citizens by all Governments for decades. The need for such legislation is without a doubt.

 

However, one aspect in particular in this interview merits a response, given its singularly disingenuousreasoning. This is in regard to the doctrine of command responsibility in the Bill. This is responded to with horror by the former Minister, calling the clause ‘incredibly wide.’

 

Concept no stranger to our law

This is, of course, a palpable misrepresentation. A core element of this offence is that a commander must unlawfully disregard and fail to discharge duties to control the acts of subordinates by permitting them to commit war crimes. This thinking is not unfamiliar to our law.

 

Indeed, constitutional jurisprudence by enlightened judges in the mid nineteen nineties held superior officers responsible on the basis of vicarious liability when they failed to act as subordinates committed torture of detainees. Sri Lanka’s Convention Against Torture (CAT) Act in force for more than a decade embodies this very rationale.

 

True, in situations of conflict, the judicial response has been more tempered in holding those in command responsible. Even so, judges have used the crime of omission, historically very much a part of our penal law, to hold superior officers accountable during the second southern insurrection, for instance. Judicial opinion may be divided on the issue but to react with such feigned horror to the very idea is absurd.

 

Not even the minimum is possible

From one perspective, the scenario unfolding before us is ironic. In bringing such laws before Parliament, probably the intention was to placate those calling for law reform with the consolation that nothing much would happen anyway. After all, the CAT Act has utterly failed to deter torture despite being one of our better drafted laws. The perennial failure of justice is not because of the inadequacy of law but because of politicised investigations and prosecutions. Which,as must be said, this Government has done nothing to address,

 

But due to its chronically chaotic character, it appears that the Government has been checkmated even in this minimum effort by the so-called joint opposition now smelling blood in the water and baying for its revenge.

For that, it has only itself and its equally ill-advised allies to blame.

Sri Lanka struggles to adapt as disasters become a new "normal"

Amantha Perera-JULY 18, 2017

COLOMBO (Thomson Reuters Foundation) - During Sri Lanka’s May floods, rescue crews in Kiriella, a small town in Rathnapura District, spotted a remarkable sight.

A middle-aged woman, trudging through waist-deep floodwater, clutched a rooster carefully above the torrent, while a small girl struggled to hold onto the woman’s waist, at times barely able to keep her head above water.

“Not just the public, but even policy makers are the same: They look at natural disasters as isolated events and the main aim is to save movable and immovable property, not lives,” charged Ranjith Punyawardena, the head of climatology in the agricultural department of Sri Lanka’s University of Peradeniya.

Disasters – from deadly floods to worsening droughts – are happening more frequently in Sri Lanka. 

But efforts to begin treating the crises as a new “normal” – which requires fundamental changes to how the country’s systems work, rather than one-time responses – is struggling, some officials say.

In May, floods and landslides killed 216 people, left 76 missing and affected over 600,000 - just a year after similar floods killed more than 100 people.

A 10- month drought, meanwhile, is lingering in the northern part of the island – despite some recent rain – and is likely to result in the 2017 rice harvest being the lowest in a decade, according to the U.N. Food and Agriculture Organization.

One of the main problems, Punyawardena said, is the difficulty of sustaining changes put in place in the wake of disasters.

Real Change?

In each of the last three years floods have killed at least a hundred people in Sri Lanka, and in each case disaster officials have initiated inquiries afterward to identify what went wrong, Punyawardena said.

After this year’s flooding, Sri Lanka’s Disaster Management Centre and Department of Meteorology were widely criticized for failing to provide sufficient early warnings of the approaching floods. 

Officials at the Department of Meteorology said a lack of sophisticated radar technology prevented it from issuing detailed-enough warnings.

The disaster center has since revamped its procedures for issuing early warnings and the government has signed a $ 22 million agreement with Japan to set up new weather radar stations.

The government also has said it will set up 100 disaster evacuation centers across the island nation.

But Punyawardena said it remained to be seen whether such action would cut the death toll from floods in coming years.

“Hopefully these new changes will not end like sudden bursts. We need sustained emphasis. The policies have been there in the past as well. It is the implementation that has been lacking,” he said.

The problem, said Punyawardena and Sarath Premalal, director general of the Department of Meteorology, is that disasters usually lead to a flurry of government activity that then peters out as the disaster situation eases. The cycle then begins again with the next disaster, they said.

“The policies are clearly there in documents and plans. I don’t think we need newer ones. What we need is to properly implement these for the long haul,” Punyawardena said.

Disaster officials say one big problem for them is lack of access to top-level decision makers as they try to bring change. Normally such access comes only during major disasters, Premalal said.

“We need support at the very top level to make sure we are prepared. Sometimes it is very difficult to gain access to decision makers. That slows down a lot of the work,” he said.

Working Together

Lack of coordination can also be a problem. During May’s floods, for instance, both the country’s president and its prime minister chaired separate committees aimed at addressing the disaster, leading to confusion in the early stages of the crisis, according to Disaster Management Centre officials and officials of United Nations relief organizations.

Getting officials from across agencies – such as agriculture, water, disaster and meteorology – together to coordinate plans also is a challenge, Premalal said.

“We tend to still work in silos. There is a need for practical, real-time data and information sharing,” he said.

Since 2010, government agencies have come together to hold a pre-monsoon meeting each March to share and discuss information on expected rainfall. The problem is that very little activity then takes place to head off problems that might be anticipated from the data, said the head of the meteorological department.

For example, data provided by the Department of Meteorology before the May floods suggested very heavy rainfall was possible, and should have led to the country’s Department of Irrigation running computer models on what flooding might be expected, Punyawardena said.

Currently the irrigation department relies primarily on water gauges in rivers to assess water levels and determine when flood alerts should be issued, he said.

M. Thuraisingham, director general of the irrigation department, said that his team did not have the technical capacity or human resources to accurately run computer models of possible flooding.

Anura Priyadarshana Yapa, Sri Lanka’s minister of disaster management, said efforts to better spur and coordinate action are underway, however.

“At ministry level we are now having regular meetings with all connected departments and if the need arises we will seek (a) meeting with the President,” he said.

He noted that the government had also renewed its pioneering national natural disaster insurance policy, which last year earned the country a $2 million payout amid floods just six weeks after being purchased.

The country also is seeking help to improve its weather radar network, he said.

Reporting by Amantha Perera; editing by Laurie Goering :; Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, climate change, resilience, women's rights, trafficking and property rights. Visit news.trust.org/climate

Invoking Nuremberg in Colombo

By SANJA DE SILVA JAYATILLEKA-July 18, 2017, 12:00 pm

"They are commitments that Sri Lanka voluntarily undertook in the light of 70 years of experience of Transitional Justice since the Nuremberg trials…"-Ben Emmerson QC, UN Special Rapporteur

One of the two resolutions adopted at the 5th regular session of the UN Human Rights Council on the 18th of June 2007 is Resolution A/HRC/RES/5/2 namely, the "Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council".This resolution was adopted without a vote. Article 12 of the text says that Special Procedure should "In implementing their mandate, therefore, show restraint, moderation and discretion…"

In invoking the loaded "N" word –Nuremberg--to ascribe a motivation to the GoSL in co-signing the last two resolutions, I hardly think that UN Special Rapporteur Ben Emmerson QC was exercising any of those recommended qualities. The danger is that when pronounced from the position of authority he holds as a Special Rapporteur of UNHRC, it won’t be long before Sri Lanka will, at least in global public opinion, be associated with the heinous crimes against humanity committed by the Nazis in 1939-1945. It was irresponsible on Emmerson’s part, to say the least. Making careless and extravagant statements also discredits the dignity of the UN Human Rights Council itself and brings into question the impartiality of the Report and its recommendations to be presented to the Council.

In addition, Emmerson’s remarks contain false information. Transitional Justice, according to the relevant UN Background Note, emerged in the 1980s and 1990s "mainly in response to political transitions that took place in Latin America and Eastern Europe…" and has nothing whatsoever to do with the Nuremberg Trials! Nuremberg tried the leaders of a war of aggression in which the crime of genocide was committed, better known as the "Holocaust".

Sri Lanka’s war against the LTTE couldn’t be more different since it was waged to secure for the people, the sovereignty and territorial integrity of the legitimate state, two aspects affirmed by the UN Charter, as well as to liberate, in the final phase,over two hundred thousand ethnic Tamils held as human shields.One can be forgiven for suspecting that the reference to Nuremberg was a deliberate attempt to conflate in the minds of the world’s public opinion, Sri Lanka’s war of self-defence and liberation waged by a legitimate democratic state, and the invasive war of territorial conquest and extermination waged by Nazi Germany.

As for Transitional Justice itself, repeated like a mantra by INGOs, NGOs and UN officials alike, it was a response not to transitions within electoral democracies, but"transitions to democracy" in Latin America. Today, everything and the kitchen sink is thrown into the concept, and used in every conceivable situation whether it is relevant, appropriate or not. The UN note says that "As transitional contexts have shifted geographically from Latin America and Eastern Europe to Africa and Asia, transitional justice practitioners have also engaged with local –sometimes called ‘traditional’ –justice measures, which can offer an important complement to transitional justice." What on earth is it exactly, now that Asian and African ‘traditional measures’ have also been added on, and why is it applied to Sri Lanka? It seems to be a handy cure-all for all the world’s ills.

It is said in the UN Background Note that for Transitional Justice to work, it has to be done holistically, with criminal prosecutions, truth commissions, reparation programs, security sector reform and memorialization efforts. Sounds familiar? Naturally. These are the efforts that are being funded in Sri Lanka. It’s a formula. Let’s not forget the "gender-mainstreaming" approach. This is also a part of the growing body of Transitional Justice initiatives. It is open any other suggestions one might have.

Certainly these reforms,taken individually, make sense for a country like Sri Lanka or any country, especially reforms to do with gender. But as part of a body of law taken together, a package as it were, applied as a whole to Sri Lanka’s post conflict situation, it distorts beyond recognition the problems that Sri Lanka needs to address. It makes us look like a failed state, where massive abuses of a minority took place, the reason for the war was aggression against an ethnic minority, and women were abused routinely, perhaps with genocide --in Nuremberg terms –committed by an undisciplined military. It is ridiculous.

And yet, as Special Rapporteur Emmerson says, the commitment to Transitional Justice was not externally imposed. We committed to this ourselves in co-sponsoring the twin UNHRC resolutions of 2015 and 2017. And this seems to give him the excuse to say that "those members of the armed forces who committed gross human rights violations…" rather than "alleged violations" or "allegedly committed". Does Transitional Justice allow indictment before the facts have been established beyond a reasonable doubt? I wouldn’t be at all surprised! The first thing a self-respecting nation would do is to ask for a debate on this concept at the UN Human Rights Council so that its scope and its limits can be established clearly and applied more effectively, preventing it bloating like a balloon just before it bursts.

Mr. Emmerson also said he will not speculate as to what could happen to Sri Lanka if it didn’t abide by its commitments, right after he speculated that it could result in revocation of Sri Lanka’s EU status (by which he means GSP Plus), censure by the Human Rights Council and "indeed reference to the Security Council". I wish he hadn’t said that. The Security Council is a serious place that deals with on-going situations threatening peace and security in the world. It shouldn’t be used to scare errant governments into compliance with Transitional Justice. As for the EU status, as a UN Special Rapporteur, he has no right to speak for the EU. The Human Rights Council has no authority to change "Sri Lanka’s EU status".

Censure at the UNHRC is also decided on by sovereign memberstates of the Council. The Special Rapporteur can only present his report and recommendations. He exceeds his mandate, (a violation of the Code of Conduct) when he ventures beyond that. All this undermines the credibility and faith in the independence of the Special Procedures and that is why, together with the Institution Building Package, the Council adopted the Code of Conduct, to safeguard the credibility of the Council,

the successor to the discredited Human Rights Commission.

Having said that, Mr. Emmerson revealed something shocking. He said that torture is endemic and routine in Sri Lanka. He said that no one from the government, police, or any other sector denied that this. He also said that it is built in to the Criminal Justice structure. He said torture was systematic in Sri Lanka and that it was one of the worst in the world. This is an intolerable situation for any country. Why has it gone on, even under the new regime of ‘good governance’? Why has it been allowed to go on? It is shameful. According to Mr. Emmerson, it goes on even today, when there is peace in the island. (Although Mr. Emmerson thinks that unless we accept accountability and Transitional Justice we will have no peace.After a 30 year war was fought to a finish, it sure looks to me like we have peace and have had it since the war ended in 2009.)

Justice Minister Wijeyadasa Rajapakshe PC, was the only person who was alert enough to challenge at least some of the assumptions of the UN Special Rapporteur. Mr. Mangala Samaraweera was not interested or was incapable of it, during his time as Foreign Minister. Wijeyadasa Rajapakshe obviously didn’t see himself sleep-walking into endorsement like Minister Samaraweera.

At a time when international relations, especially in the area of human rights, is closely linked to international law, and vies to supersede it amidst stiff resistance by a majority of states at the UN, it is only wise to allocate the responsibility of dealing with the UN Human Rights Council to someone who is thoroughly familiar with the subject of Law. If, as in the previous administration, a Ministry of Human Rights is created and brought under the Minister of Justice, the challenges involved would be more knowledgeably and ably undertaken, while safeguarding the sovereignty of our country. Mr. Rajapakshe will certainly be alert enough not to co-sponsor a resolution on Sri Lanka at the Human Rights Council that may start its Preamble with "Recalling the Nuremberg trials…"

IMF completes second review of the extended arrangement

Jul 18, 2017

On July 17, 2017, the Executive Board of the International Monetary Fund (IMF) completed the second review of Sri Lanka’s economic performance under the program supported by a three-year extended arrangement under the Extended Fund Facility (EFF) arrangement. Completion of the review enables the disbursement of the equivalent of SDR 119.894 million (about US$ 167.2 million), bringing total disbursements under the arrangement to the equivalent of SDR 359.682 million (about US$ 501.5 million).

In completing the review, the Executive Board granted a waiver of nonobservance of the continuous performance criterion on accumulation of external arrears which was missed due to continued difficulties of establishing a payment platform and waivers of applicability of the performance criteria for end-June 2017 on floor of the central government primary balance and the program net official international reserves of the Central Bank of Sri Lanka, given the unavailability of the information necessary to assess observance.
Sri Lanka’s three-year extended arrangement was approved on June 3, 2016 in the amount of about SDR 1.1 billion (US$1.45 billion, or 185 percent of quota in the IMF at that time of approval of the arrangement. See Press Release No. 16/262 ). The government’s reform program, supported by the IMF, aims to reduce the fiscal deficit, rebuild foreign exchange reserves, and introduce a simpler, more equitable tax system to restore macroeconomic stability and promote inclusive growth.

Following the Executive Board’s discussion of the review, Mr. Mitsuhiro Furusawa, Acting Chair and Deputy Managing Director, said:
“Sri Lanka’s performance under the Fund-supported program has been broadly satisfactory. Macroeconomic and financial conditions have been stable, despite severe weather events and global market volatility. The authorities launched fundamental income tax reform, undertook meaningful corrective actions to achieve program targets on international reserves, and remain committed to the reform program. Going forward, the reform momentum should strengthen further with greater ownership, building on the progress made so far.

“Fiscal performance has been strong. Targets for the fiscal balance and tax revenue have been met. The new Inland Revenue Act, which has been submitted to parliament, will support fiscal consolidation, make the tax system more efficient and equitable, and generate resources for social and development programs. Nevertheless, Sri Lanka’s high debt burden and gross financing needs require further revenue-based consolidation. Timely progress in structural reforms, including tax administration and energy pricing, will strengthen the platform for durable consolidation.

“Inflation and credit growth remain on the high side. While monetary policy was tightened in March, further tightening is desirable until clear signs emerge that inflation pressures and credit expansion have subsided. While financial soundness indicators remain stable, banks’ capital adequacy ratio has declined due to rapid credit growth. Financial sector supervision should be strengthened, and macro-prudential measures could be deployed to rein in credit growth if needed.
“Continued international reserves accumulation and enhanced exchange rate flexibility, to which the authorities are committed, would reduce Sri Lanka’s external vulnerabilities.”
IMF-

Sri Lanka: Why govt. must seek a fresh mandate?

The worry people have is whether they would have to put up with this kind of government in the future, too. This government was put together mainly to keep at bay their common enemy and there was no common basis on major issues such as economic policy, Tamil separatism, foreign policy, Constitution, security, education, health etc.

by N.A.de S. Amaratunga-Jul 18, 2017

( July 18, 2017, Colombo, Sri Lanka Guardian) This government has proved beyond doubt that a country like ours cannot be governed for the good of the people by a hybrid government of the kind we have at present. It has two heads and two tails and they pull in different directions, and trying to trip each other they fall to the ground. Even members of the government accept that it has failed to deliver on their promises. If we leave the vote catching promises aside, the government has failed miserably to maintain the economic growth that the previous government, whatever may be its faults, had achieved, and allowed it to collapse irreparably. The economy of a country is the most important single factor for the well being of its people. This is mainly due to the inability of the government to be consistent in taking decisions on major economic policies. For instance, there is no consensus among the top government leaders regarding the policy on Hambantota harbour and Trincomalee oil tanks. The two parties that have come together in a marriage of convenience to form this government, have inherent differences that could be traced back to their origins, and it is not easy if not impossible to resolve these differences and agree on major policies such as selling or leasing national assets and devolution of political power. The people who support these two parties are also divided on these issues, and due to this the two parties have a separate existence and cannot come together, without dissolving their identity, which is based on their policies and the people, would not want that to happen.

Therefore, the major problem that people could perceive in this arrangement is the impossibility of this union continuing any longer and the fact that there is no future in it. People, and the country, would continue to suffer due to this mismatch of the governing parties. Neither the two heads nor the two tails can get on. Instances of discord are too frequent and even the tail dares to insult, in public, the head of its partner. One of these worthies said in public that their partner had been in the opposition for too long and doesn’t know how to get the work done, and that it is their party which does all the work. When these matters are pointed out at media conferences, the higher-ups could only say that it is very difficult to manage a composite government. The question is, if it is so difficult to manage the affairs of the government and amity within its ranks, how such a government could solve the complex problems facing the country. This is the reason that the government has so far not solved a single problem, including minor problems like disposal of garbage. Could the people afford to have such a government?

The worry people have is whether they would have to put up with this kind of government in the future, too. This government was put together mainly to keep at bay their common enemy and there was no common basis on major issues such as economic policy, Tamil separatism, foreign policy, Constitution, security, education, health etc. The leaders of the previous government had earned the wrath of the western powers for defeating the LTTE going against their dictate, and these powers also helped in effecting a regime change. The common enemy of all these players, local and foreign, is still around and gaining in strength and the need to keep him at bay would be felt by these players in the future too. What kind of government they would plot and put together in the future remains a problem for the people. In desperation, they may conjure the most inimical combination, similar or even worse than the present. They may resort to the most unethical and unconstitutional measures like making ministers out of individuals rejected by the people, making leaders of the opposition out of worthies who have no majority support in the opposition, making everybody ministers, creating new unheard of subjects to accommodate new ministers, joining up ministries that are totally unrelated, gifting super luxury vehicles to ministers and MPs to prevent them crossing over, protecting the corrupt within while hounding the enemy without etc. In the future luxury vehicles may not be sufficient enticement, and private helicopters may have to be doled out despite the fact that victims of natural and manmade disasters are yet to be compensated and the poor cannot make ends meet.

The question that has to be raised is did the people give a mandate to these political parties to form this government and do as they like? The Presidential Election was won mainly with the UNP votes and the minorities chipping in. But at the General Election, which elected the parliament, the people did not give a mandate for the formation of a coalition of the present kind. Those who voted for the SLFP did so mainly because of the popularity of the leader who won the war against the LTTE. This is shown by the fact that those who opposed that leader in the election campaign lost the election.The candidates who were thus defeated were not small fry but stalwarts who had held high posts in the government and the SLFP. Therefore, the majority of people who voted for the SLFP did so in the hope that those whom they voted for would form a government, with their war hero at its head. But several of those who won the election riding the wagon driven by their war hero, were high jacked to prop up the hybrid government, thus betraying the people’s will. What was worse was the unconstitutional appointment of those who were defeated by the people for not supporting their war hero, as cabinet ministers.

In a democracy, it is said that the government is of the people, for the people and by the people. This ideal may not be always possible to achieve and sustain, but its total collapse and the apparent alienation of the government and its people must make the government think of the moral obligation, and the need to consult the people and seek a fresh mandate to rule the country. There is no other way to ensure and safeguard the sovereignty of the people, for the sovereignty of the people is bestowed in the franchise. Benjamin Franklin said “in a free government rulers elected by the people are the servants and people their superior and sovereign”. The present government has denied this right of the people by postponing the elections to local bodies on very flimsy pretexts. Yet, the government says it is not afraid to face elections. Obviously the government does not have a mandate to continue this unstable ramshackle of a government and it must seek a fresh mandate.

SRI LANKA: GOTABAYA READY TO GIVE EVIDENCE AGAINST FORMER ARMY COMMANDER!

Image: Good old days- Gotabhya Rajapaksa and former Army Commander Daya Ratnayake.(AsianTribune)

17/07/2017

In an affidavit submitted to the Presidential Commission Investigating Alleged Acts of Fraud or Corruption abuse of former State Resources and Privileges (PRECIFAC) former secretary of defense Gotabhya Rajapaksa incriminated  two former Senior Army officers including an Army Commander and a former high ranking state official for large scale corruption.

Former Army Commander Daya Ratnayake, former Commander Jaffna Security forces Headquaers Maj.Gen.Mahinda Hathurusinghe, Maj.Gen. Udaya Annesley Perera among the those who were involved in this case.

Gotabhya Rajapaksa has stated that he never approved the dismantling of the Kankesanturai (KKS) Cement Factory and cement company and sale of its machinery and equipment as scrap iron. He had also not seen any document granting approval for it signed by him either, reports Daily News.

Now most probably it will be a case where Gotabhaya Rajapaksa will be giving evidence against high ranking military officers and military officers implicating Rajapaksa for the sale of Kankesanturai (KKS) Cement Factory.

The report further says that:

“The PRECIFAC is conducting investigations into an alleged fraud involving the dismantling of the Kankasanturai Cement Factory reported to be in a re-operational condition and the cement company and the sale of the machinery and equipment as scrap iron for over Rs.100 million by the Army during the previous regime.

This alleged fraud was disclosed by State Counsel Senior Attorney Janaka Bandara during submissions made before PRECIFAC about AN alleged act of fraud and corruption committed during the Rajapaksa regime from 2011 to 2015. Documents relating to this alleged fraud were found during investigations made by the Commissions. Former Additional Secretary to the Defence Ministry Siripala Hettiarachchi had made an official note at the Ministry to the effect that former Defence Secretary Gotabahaya Rajapaksa told him that former President Mahinda Rajapaksa had sanctioned the sale of this stock of iron. Another note at the ministry stated that Internal Auditor R.M. Premachiandra had pointed out the need for Cabinet approval to effort the sale.

The machinery and equipment at the cement factory had been manufactured in the UK and Germany. The German machinery and equipment carried a 100 year guarantee from the manufacturers.
Investigations revealed that this stock of iron had been sold to one Siraz Mohamed and Yusuf Asthan and a retired Army officer named E.M.V. Ekanayake. A sum of Rs. 75 million had been realised as proceeds from the stock sold to Ekanayake.

It was revealed that this action had been taken by the Army in an arbitrary manner without any acquisition of the Cement Corporation premises situated in an area of 741 acres, State Council Senior Attorney Janaka Bandara making submissions made for he prosecution said. These had been made with written evidence during investigations made by Constables Herath and Wijesinghe under the supervision of Sub Inspector Herath,former Army Commander Daya Ratnayake, former Commander Jaffna Security forces Headquaers Maj.Gen.Mahinda Hathurusinghe, Maj.Gen. Udaya Annesley Perera, Additional Secretary Defence Ministry Siripala Hettarachchi, Yousuf Asthan and Siriaz Mohamed appeared as defendants before the commissions.

Ex-Commander among 50 navy officers grilled-

Wartime disappearances:-

*DKP to be produced in court today

By Shamindra Ferdinando-July 18, 2017, 10:59 pm 

Commodore D. K. P. Dassanayake, remanded in connection with wartime disappearance of 11 persons, neither functioned as Director Naval Operations (DNO) nor supervised special teams, commanded by two Lt. Commanders, R. P. S Ranasinghe (since then promoted Commander) and H. M. P. C. K Hettiarachchi allegedly responsible for the disappearances during the previous administration, according to navy headquarters records as well as statements given by senior retired and serving navy officers to the police.

Ranasinghe was the senior officer in charge of naval intelligence in the East whereas Hettiarachchi was attached to reconnaissance team assigned to the then Navy Chief Admiral Wasantha Karannagoda.The former navy spokesman Dassanayake was produced in court last Friday (14). Besides, Dassanayake functioned as Acting Director, Maritime Special Forces.

Police headquarters spokesman Superintendent of Police and attorney-at-law Ruwan Gunasekera’s statement to the media last Sunday was contrary to information available to the investigators, sources familiar with the case told The Island.

SP Gunasekera told a hastily called media conference at the Information Department that the then Captain Dassanayake had been navika hamuda meheyum adyaksha (Director Naval Operations) and in charge of two special teams responsible for abductions and disappearances. SP Gunasekera named those who had been abducted allegedly by them while claiming relatives of some of the victims had met Dassanayake to plead on behalf of their loved ones.

Commodore Dassanayake will be produced before Fort Magistrate Lanka Jayaratne today (19).

At that time present Commander Vice Admiral Ravi Wijegunaratne and incumbent Chief of Staff SS Ranasinghe held the post of DNO. Dassanayake was the Deputy Director.

Sources said the Office of the DNO had nothing to do with the alleged arrests, sources said, pointing out that no less a person than the then navy commander Admiral Wasantha Karannagoda had made a written complaint to the CCD (Colombo Crime Division) on May 28, 2009 regarding the recovery of four national identity cards, one passport bearing the name of one of those whose national identity cards were found, one mobile phone, promissory notes worth over one million rupees and approximately 450 rounds of ammunition from Lt. Commander Sampath Munasinghe’s cabin, the then senior officer in charge of Admiral Karannagoda’s security.

The CID launched the investigation in early June 2009.

Among those questioned in connection with the disappearance was Rear Admiral JJ Ranasinghe, Vice Chancellor of the Kotelawela Defence University (KDU), who brought the disappearance of 21-year-old Rajiv Naganathan of Kotahena one of the missing eleven to the notice of Admiral Karannagoda in May 2009. JJ Ranasinghe, who functioned as navy spokesman before Dassanayake sought Admiral Karannagoda’s assistance on behalf of a UK based close relative of the missing youth. As the youth had contacted his family from Trincomalee using a phone provided by navy personnel, his family knew of the name of the commanding officer of the base where he was held hence Admiral Karannagoda calling for an explanation from Lt. Commander Ranasinghe. When Lt. Commander Ranasinghe denied the allegation that secret prisoners were being kept, the navy chief sent the then Eastern Commander Rear Admiral Thusitha Weerasekera to check the junior officer’s claim. Rear Admiral Weerasekera, too, confirmed that there were no secret prisoners.

The police also recorded a statement from Rear Admiral Weerasekera (now retired). Admiral Karannagoda, Rear Admiral KJCS Fernando and several navy intelligence personnel were among about 50 persons so far questioned by the police. Dassanayake’s statement was recorded in late Feb. 2015 though he was arrested last week ahead of UN Special Rapporteur Ben Emmerson’s, visit. Emmerson, in his preliminary report released last Friday referred to Dassanayake’s arrest in connection with the alleged disappearance of 11 persons.

Of the eleven persons, five persons were allegedly taken in on Sept. 17, 2008 by navy personnel along with black coloured Tata Indica. Police have identified them as Rajiv Naganathan (21 years/Colombo 13), Pradeep Vishvanathan (18 years/Wasala Rd, Colombo 13), Mohammed Sajith (21 years/Dematagoda), Thilakeswaram Ramalingam (17 years/Bloemendhal housing complex, Colombo 13) and Jamaldeen Dilan (Maradana). Those involved in the operation were believed to have been accompanied by a navy informant Mohammed Ali Anwar alias Hadjjiar of Karagampitiya, Dehiwela. Subsequently, the 28-year-old informant, too, had disappeared; he has been listed among those eleven missing.

The remaining five persons are Kasthuriarachchilage John Reid (21 years/Kotahena/8-9-2008)), Amalan Leon (50 years/Arippu, north/25-8-2008)) and his son Roshan Leon (21 years/Arippu north/25-8-2008), Anthony Kasthuriarachchi (48 yerars/Kotahena/10-10-2008) and Kanagaraja Jegan (32 years, Trincomalee)

Due to Admiral Karannagoda’s intervention, Lt. Commander Munasinghe surrendered to the police in June 2009 after having accused CoN of planning to assassinate Army Chief Lt. Gen. Sarath Fonseka. Lt. Commander Munasinghe and Lt. Commander Hettiarachchi received bail while five persons, including Commander Ranasinghe are in remand pending further investigations.

Dassanayake is so far the senior most officer arrested in connection with the disappearances. At the time of his arrest, Dassanayake was on the staff of the Chief of Defence Staff (CDS).

Although the navy headquarters lodged a complaint in May 2009 with the police the progress of the investigations had been slow, sources said. When Vice Admiral Jayanath Colomabge became Commander of the navy in late 2012, he appointed Lt Commander Ranasinghe as his PSO.

Three navy personnel including Lt. Commander K.C. Welagedera, who had been Ranasinghe’s deputy in Trincomalee implicated Dassanayake in the disappearances. Following their statements, particularly the one given by Welagedara, investigated by the Office of the Provost Marshal for his alleged involvement in human smuggling operations, Provost Marshal Dassanayake faced difficulty in taking part in a prestigious US military course. Welagedara accused four officers, including Dassanayake of threatening him. Although Dassanayake was allowed to proceed to the US in Sept. 2014, the then navy Commander Vice Admiral Jayantha Perera requested him to return in mid Feb 2015. The police recorded Dassanayake statement two weeks later.

Lt. Commander Welagedara is currently in Australia on overseas leave.

The travel ban imposed on Dassanayake by court on a request made by the police in Feb. 2015 remains in force.

The allegations in respect of disappearances deprived Dassanayake of due promotion to the rank of Commodore.

The intervention made by the Human Rights Commission of Sri Lanka (HRCSL) on Dassanayake’s behalf recently led to him receiving the appointment as temporary Commodore with seniority backdated to June 1, 2015. The police arrested Dassanayake before HRCSL received representations by retired Admirals, Karannagoda and Thisara Samarasinghe.

Meanwhile, investigations conducted by the navy during the war implicated at least four of the missing persons (not among those abducted on Sept 17, 2008) and the informant in LTTE operations. Those residents of Arippu North had been responsible for operating a fleet of boats between northern Sri Lanka and Tamil Nadu and key elements in the LTTE. Those allegedly taken in on Sept 17, 2008 were believed to have been involved in a credit card racket with the knowledge of the LTTE.

Police officers accused of killing Jaffna Uni students bid to move case out of North, East

• CA grants another date to file counter objections

By S.S. Selvanayagam- 19 July 2017


The Court of Appeals on Monday granted another date for five police officers who had been arrested in connection with the shooting of two Jaffna University students to file a counter objection on 3 August in regard to their appeal.

The accused police officers are seeking the court to transfer their case out of Northern and Eastern provinces.

They are also seeking the court to issue an interim order restraining the continuation of their case in the Jaffna Magistrate’s Court until the final determination of their application.

The matter came up before Court of Appeals President Justice L.T.B. Dehideniya.  Counsel for the appellant police officers requested another date to file counter objections.

The police officers involved in the shooting are D. Sarath Bandara Dissanayake, E.M. Jayawardene, P. Navaratna Bandara, S.A. Chandana Kumara Pathirana and Thangarasa Lankamaman in their petition cited the Jaffna Police Station OIC, the OIC of the Criminal Investigation Department and the Attorney General as respondents.

Tirantha Walalaliyadde PC instructed by Shashika Mithuna Arachchi appeared for the petitioners. DSC Shanaka Wijesinghe appeared for the Attorney General. M.A. Sumanthiran appeared for the slain students.

The officers are accused of killing two students of the Jaffna University Vijayakumar Sulakshan (24) of Kandarodai in Chunnakam, Jaffna and Nadarajah Gajan (23) from Iranaimadu in Kilinochchi. They are now detained at Anuradhapura Remand Prison.

The officers plead that their life would be in danger if they continue to travel to the Jaffna Courts.

Both were third-year students at the Jaffna University’s Faculty of Arts and were studying political science and journalism.

On the night of 20 October 2016, it is reported that they were gunned down by the police at a police checkpoint at Kulappiddy Junction in Kokuvil, Jaffna. The students sustained fatal injuries after they were shot at by the police for allegedly disobeying their orders to stop their motorcycle at a roadblock.

Although police initially denied shooting the students, a post-mortem found bullets in one of the student’s bodies.