Unfair criticism of judiciary and legal profession

*SRI LANKA: Lawyers, prosecutors and judges should face the mirror

*AHRC and BASL trade barbs

by Lakshman I. Keerthisinghe-2017-09-02

Any fool can criticize, condemn, and complain, but it takes character and self-control to be understanding and forgiving. – Dale Carnegie

It was reported that the Asian Human Rights Commission (AHRC) in a Statement dated 25 August 2017, titled "SRI LANKA: Lawyers, prosecutors and judges should face the mirror" stated that "a press release issued by the Bar Association of Sri Lanka (BASL) has threatened contempt of court action being taken against a deputy minister who has made some serious criticisms against the Courts and the legal profession." The AHRC in its statement points out that the paragraph in the BASL statement "... The Bar Association of Sri Lanka notes with concern the undue and unwarranted attacks on the law enforcement authorities, the Attorney General's Department and now the judiciary...." is even more disturbing and questions: "What are these undue and unwarranted attacks? An association like the Bar Association should specify what it considers as the undue and unwarranted attacks on the law enforcement authorities, and the Attorney General's Department.

May we ask, as to whether is it undue and unwarranted to state that the law enforcement authorities, namely the Police have failed in their primary function of enforcement of the law in Sri Lanka? It is rather strange that the AHRC does not see it fit to reproduce the disparaging comments made by the said deputy minister which are contained in the opening paragraph of the BASL statement dated 23 August 2017 which are "....alleging that a majority of the judges and lawyers are corrupt and was the main cause for the country's present predicament" and the comment, "While condemning the said statement we demand the deputy minister to complain against any corrupt person to the relevant authorities, including the Judicial Service Commission with a view to take necessary action if he has evidence to establish such allegations instead of making generalized statements casting aspersions on the entire judiciary and the legal community."

Corrupt practices

In other words, the BASL has demanded to know from the deputy minister: "Who are these corrupt judges and lawyers? "What are the instances of corrupt practices and instances of corruption committed by them?" The AHRC has thought it fit to question the BASL. The most important question is "What is the country's present predicament?" If such a predicament is present it is for the deputy minister and his government to address such problems and prosecute the corrupt judges and lawyers. The AHRC has questioned the BASL "What are these undue and unwarranted attacks?" It is obvious that the deputy minister in the event of being unable to produce any evidence to substantiate his allegations, has made such an undue and unwarranted attack.

The AHRC would do well to note the following words of Lord Denning which they have quoted from [In] Regina vs Commissioner of Police of the Metropolis ex. parte Blackburn, 2 W.L.R. 1204 which states: "All we ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to those criticisms. We cannot enter into public controversy, still less political controversy. We must rely on our conduct itself to be its vindication." Thus, the BASL in its statement in paragraph 4 aptly states: "The Bar Association reiterates that, it is an imperative requirement for a democratic society founded upon the rule of law to preserve, protect and safeguard the independence of the judiciary." It further states in paragraph 6: "In the circumstances, any unwarranted remarks and interference with regard to the judicial mechanism and its credibility will erode the confidence the establishment. This in turn would have serious consequences on the Rule of law." If the AHRC were to reread the BASL statement, the AHRC would realize the truth of the statements. While constructive criticism based on facts is beneficial, arbitrary baseless criticism could be destructive and damaging to the administration of justice in Sri Lanka.

Unwarranted criticism
The AHRC also poses the questions "Is it an unwarranted criticism that as the prosecutor against crime, the Attorney General has failed to impartially and competently prosecute all the crimes that are taking place in Sri Lanka? Is it an undue and unwarranted criticism to say that the entire system of administration of justice is beset with undue and unwarranted delays and such delays have threatened the very prevalence of the rule of law in Sri Lanka?" The deputy minister and the government should respond to these questions. Has the government provided sufficient human and material resources to the Attorney General's Department to fulfil the said demand? Are there a sufficient number of investigators in the Criminal Investigation Department (CID) and judges to meet the ends of justice without delay?" These are not questions that should be addressed to the judiciary, prosecutors or the legal profession of Sri Lanka. The government has to provide the answers to these questions. Thus the main cause for the country's present predicament becomes obvious if the deputy minister addresses his mind to the above questions.

Concerning the judiciary as Lord Denning stated [In] Regina vs Commissioner of Police of the Metropolis ex. parte Blackburn, 2 W.L.R. 1204 : "...(This) is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism nor do we resent it, for there is something far more important at stake. It is no less than the freedom of speech itself. ...It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say we are mistaken and our decisions erroneous, whether they are subject to appeal or not."

Outspoken comments

Here it is important to note that even outspoken comments must be fair and to be fair such comments must be based on the truth and nothing but the truth. Unfair baseless comments uttered to gain undue political advantage or cheap publicity could be very damaging to the fair administration of justice due to the erosion of public confidence that such comments bring forth and Contempt of Court proceedings lie to punish such irresponsible persons.

As the AHRC states: "It is far better to look in the mirror and recognize whatever that is ugly that may have begun to emerge in one's own appearance. Such honesty and frankness does no harm. However, hypocritically evading criticism is letting down the legal profession, the independence of the judiciary and the freedom for the people to live without fear and suspicion." It is true indeed. AHRC has given valuable advice in the form: "When criticisms are made for whatever purpose they may be, the wise course to follow is to listen carefully and utilize every opportunity to achieve radical reforms that are essential if the rule of law and the recourse to justice are not to become an illusion for the people who seek justice. The legal profession is noble to the extent that lawyers are willing and capable of leading the fight for justice. If we lose a fighting Bar, we virtually lose the battle for justice."

In conclusion, the government must take immediate steps to strengthen the human and material resources in all institutions dealing with the administration of justice including the judiciary, Attorney General's Department and the law enforcement agencies in order to ensure an efficient system of administration of justice in Sri Lanka without further delay. Finally, as Winston Churchill said, "Criticism may not be agreeable, but it is necessary. It fulfills the same function as pain in the human body. It calls attention to an unhealthy state of things."


The writer is an Attorney-at-Law with LLB, LLM, MPhil (Colombo)

Barrier cleared, AG’s Department back on track – Rajitha

Rajitha

*Is it necessary to nurse, nurture and feed a ‘Maithri dragon’ to escape from MR ? President bringing Police and AG under him is a horrendous joke.!

*A ‘heavyweight’ of AG’s department on the road to perdition ! Refrain from saving murderers for your own good !
*90 cases in cold storage at AG’s dept. after CID and FCID had duly handed over the files years ago after concluding its investigations !

by Zacki Jabbar-September 2, 2017, 7:40 pm 

 In an obvious reference to former Justice Minister Wijeyadasa Rajapakshe, Health Minister Rajitha Senaratne says the Attorney General’s Department was back on track now that the "barrier" had been cleared.

  Senaratne said on Friday that there was no allegation of dereliction of duty against the Attorney General Jayantha Jayasuriya and reports of his being summoned to "Temple Trees" and given a dressing down were false.

 The government only wanted to ensure "distributive and not selective justice", as was seen in the lightening speed with which accusations against former Foreign Minister Ravi Karunanayake were pursued (at the bond scam commission), while around 75 corruption and other criminal cases, most of which were against some members of former President Mahinda Rajapaksa’s family and his government, had gathered dust for nearly two years despite investigations being completed, he noted.

 Senaratne claimed that with the "barrier" being removed, a well planned conspiracy to drag criminal cases against the Rajapaksas and their loyalists until 2020 hoping for a change in government had been thwarted.

  There was nothing illegal about a few High Courts conducting only Trial at Bar proceedings to investigate mega corruption and high profile criminal cases for which there was precedent, he observed.

  Senaratne emphasized that the government was not on a witch hunt, but only responding to demands from the masses that its election pledge to bring to justice those who had plundered state resources and used political power to murder people be satisfied.

 Wijeyadasa Rajapakshe, he said, had been stripped of his Justice and Buddha Sasana portfolios for violating Collective Cabinet Responsibility by publicly criticizing the Hambantota Port Agreement with China after having endorsed  it when presented to the  Cabinet of Ministers.  

  However Rajapakshe maintains that he was sacked, to cover up alleged irregularities in the issue of Treasury Bonds by the Central Bank in 2015 and 2016.He promised on August 23, to reveal the "true story" behind the Bond issues but nothing has been heard from him since.

Ranjan Ramanayake Opens A Can Of Worms

By Nagananda Kodituwakku –SEPTEMBER 3, 2017

Nagananda Kodituwakku

The exposure given by the media to the stand taken by Ranjan Ramanayake, MP, against corruption involving the judiciary and the legal profession should be an eye opener to all citizens of Sri Lanka. In my view, his bold attempt to raise this important issue before the voters is entirely lawful, especially at a time the government has already conceded to the international community that the people of Sri Lanka have no confidence in the judiciary, which lacks accountability. In fact, people expect from their elected members of Parliament to address the fundamental issues of this nature that affect the people’s sovereign rights, which cannot be ensured without an independent judiciary and honest legal professionals to assist in dispensing justice.

People have the right to criticize the Judiciary and legal profession

I absolutely agree with MP Ranjan Ramanayake’s view on the judiciary and the legal profession in Republic of Sri Lanka, where the people are considered supreme only in theory but not in practice. This type of actions would be instrumental in educating the people that they are the masters over all organs of the government and that no one in the judiciary exercises any divine power, but the judicial power of the people. And every judge makes a pledge under the Constitution to observe and honour the public trust doctrine and is required to protect vindicate and enforce the people’s judicial power with due respect and regard to the supreme sovereign rights vested in the people.

Therefore, there is no question that a people’s representative like Ranjan Ramanayake, MP, has every right to express his studied concerns about the lapses and failures involving the judiciary and the legal profession, with the sole objective of compelling the Government to take necessary measures to arrest the declining trends and to win back the confidence of the constituents and the international community. 

Bar Association takes different stands

No one can ignore the fact that it was the loss of people’s confidence in the judiciary that made the Government of Sri Lanka to co-sponsor a resolution at the United Nations Human Rights Council on 01st Oct 2015, against itself. It was highly significant that the Bar Association of Sri Lanka too was made to concede the absence of independence and accountability in Sri Lanka’s Judiciary as follows.

“…“… It is unfortunate that existing judicial and prosecutorial system have not met the confidence of many concerned. It is an undeniable fact that over a period of time the independence and credibility of many of these institutions have suffered due to many reasons, resulting in an erosion of the confidence in the system as a whole…” – Geoffrey Alagaratnam, PC, President of the Bar Association, 28th Nov 2015 (Statement of the BASL on the Report of the OHCHR Investigation on Sri Lanka)

However, the people can now observe that the Bar Association under the current leadership has publicly entered into a tussle against MP, Ranjan Ramanayake threatening him either to withdraw his statement or face contempt of court charges an action of which go against the view expressed by the former President of the Bar Association on the independence of the judiciary and the rule of law.

Judges cannot afford to be timorous souls

The celebrated English Judge Lord Denning once remonstrated that ‘judges cannot afford to be timorous souls and they cannot remain impotent, incapable and sterile in the face of injustice’. Therefore, it is inevitable, that when the judiciary fails to observe its constitutional obligations to the people quite naturally it comes under fire from the constituents and their representatives. People always expect the judiciary to be the symbol   of hope against injustice being committed by corrupt criminal elements occupying office in the legislature and the executive. Accordingly, Ranjan Ramanayake expresses his views well within the parameters of the rule of law.

The Judiciary itself is responsible for losing public confidence

In 1988 a Bench of five Supreme Court judges had declared that National List provision (Article 99A) permitting rejected candidates to enter the Parliament was constitutional.   This is a clear case of constitutional fraud committed by the judiciary in collaboration with the Executive (the then President J R Jayewardene) and the Speaker of the then Parliament. The role played by the Supreme Court in this case was a total betrayal of the trust placed in it by the people (click the following link for the judgment).

When this Constitutional fraud was discovered and all National List appointments made after the 2015 General Election were challenged (SC/Writs/5/2015) along with a request to appoint a fuller bench of the Supreme Court to hear this matter of National Importance in terms of Article 132 (3)  (iii) of the Constitution.  Yet, the Chief Justice K Sripavan declined it and after his retirement the matter was once again brought before the Chief Justice Priyasath Dep. Yet again it was declined, which showed that the Judiciary was incapable of giving effect to its constitutional mandates. In this backdrop this important case of National Importance was discontinued by the Petitioner on 31st July 2017.

Click the following link to view the Motion filed in the Supreme Court on 31st July 2017 setting out the reasons for discontinuance.      

For this serious lapse on the part of the incumbent Chief Justice and his predecessor favoring the government they have been charged for committing Judicial Corruption.  In addition several other former Chief Justices and judges in the Supreme Court and the Court of Appeal have also been charged for judicial corruption. The names of these judges include former Chief Justices, Sarath N Silva, Shirani Bandaranayake, Mohan Pieris, K Sripavan and the incumbent Chief Justice Priyasath Dep and justices Eva Vanasundara and Vijith Malalgoda. Further the incumbent Attorney General Jayantha Jayasuriya and his predecessor Yuwanjan Wijayathilake have also been charged for abuse of public office for committing corruption.

It is unbelievable for a Chief Justice to plead with the Executive (President and the Prime Minister) of the new government to remain in office, assuring judgments favouring the government and also to appoint judges according to the wishes of the government. Regrettably, this became a reality with the former Chief Justice Mohan Pieris and the Prime Minister Ranil Wickremesinghe brought it before the parliament on 30th Jan 2015, humiliating the entire judiciary. Another notable serious lapse recorded in the recent judicial history is the public apology made to the people by the former Chief Justice (Sarath N Silva) for his failure to perform his office as required by law in ‘Helping Hambantota case’ involving former President Mahinda Rajapaksa.

These evidence are in the public domain and the people and their representatives have every right to examine them and criticize the judiciary for its serious lapses affecting the citizenry. 

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Picking a wrong week for a serious topic:Economic rationale for the beleaguered Provincial Councils

by Rajan Philips-September 2, 2017, 7:01 pm 

This is hardly the week to start a new line of advocacy for the beleaguered Provincial Councils. A quick glance of the headline stories during the week gives a bewildering menu of options to pick a topical theme for weekend comment. I have chosen to stay with a premeditated theme despite the risk of being overlooked among other sexier and excitingly gossipy political pursuits. But let me start with a short list of the week’s headline stories as a warm up to a somewhat esoteric theme.

The week began with the usual hullabaloo over yet another constitutional amendment, this one involving provincial council elections. The government is divided over the 20th Constitutional Amendment for postponing elections to three provinces that are due this year. The critics of the government are over the moon that there would be neither a two-thirds majority in parliament nor unanimous support among the provinces to ensure passage of 20A. The week ended with the government being put on notice that it is going to be toppled over its handling, or mishandling, of the SAITM matter. It’s that serious. And it is the ultimate ultimatum after a series of penultimate ultimatums by the congenitally sick and strike-driven GMOA. The wag would like to know which part of the government is going to be toppled by members of the learned profession: the part that supports 20A, or the part that opposes 20A but started the whole SATIM mess as part of a former government whose heads are now part of the Joint Opposition. There are too many bloody (not bleeding) parts (and heads) for the good of the country as a whole.

Even the military is in parts – with two former chiefs battling in public over war crimes allegations after an intrepid international busybody filed war crimes lawsuits in Brazil and Columbia, with more to follow in Argentina, Chile and Peru. And those who insist on war crimes accountability, not so much for reconciliation as for eye-for-an-eye and tooth-for-a-tooth retaliation, are also embattled and divided in their own provincial house. The one Province that is the root cause for the creation of the provincial-council system in the country has its first elected council hopelessly divided and dysfunctional. The Chief Minister of the Northern Provincial Council tired after venting hotheaded resolutions is now in a mode of firing and hiring ministers to keep his cabinet of four going. Fortuitously, the constitution limits provincial cabinets to four ministers only, unlike the national cabinet that can constitutionally limits its size and then ‘un-limit’ it at whim.

One headline story yesterday was about the JO’s ire at the American diplomatic presence in a candle light vigil in Colombo to mark the UN Day commemorating Victims of Enforced Disappearances. The JO spokesman may have protested a bit too much about the transgression of diplomatic norms. A more cutting exception would have been to draw contrast to the torch-lit and hate filled White Supremacist march in Charlottesville, Virginia, that the American President chose to justify and not condemn it unreservedly. Yet in his own way, and quite inadvertently, Donald Trump has become a teacher for negative revulsion of racism in any and every form, in his own country and hopefully everywhere else. That is a whole different story in itself.

Economic rationale for devolution

My pre-meditated theme for today is a follow-up to my article two weeks ago on the august/August ruling of the Supreme Court that it is legal and constitutional to advocate a federal form of government within the present unitary constitution. While acknowledging the symbolic and substantive significance of the court ruling, I also pointed out that the ruling by itself does not address the political difficulties and administrative challenges in achieving a successful system of devolution, let alone federalism, in Sri Lanka. At the same time, whether anyone likes it or not, the country has a system of provincial governments and it makes no sense to let that system go on at great cost without letting it do what it is supposed to do. What are provincial governments supposed to do? This question has been flogged more than enough from political, legal and constitutional standpoints, but not enough at all from the standpoint of devolution economics.

The economic rationale for devolution and decentralization is the normative proposition, called the ‘Decentralization Theorem’ in the literature, that in the absence of economies of scale and the need for national level co-ordination, public goods and services are better delivered at sub-national levels for lower costs and higher benefits than they would be at the national level. Wallace Oates, the University of Maryland Economist, who formulated this theorem, has also differentiated between the political/constitutional approach to devolution and decentralization, or more generally to federalism, on the one hand, and the economic approach to them, on the other. To the economist, the entire public sector has a vertical structure with an inherent scope for national/sub-national decision making regardless of whether or not there are formal constitutional arrangements for such decision making.

The question that obviously arises is why formal arrangements would be needed if such devolved decision making could go on inherently, so to speak. The answer is that such decision making is invariably impeded or constrained both in the absence of formal arrangement, as well when formal constitutional arrangements are in place. The challenge is in finding a balance between governance structure and the assignment of goods and services, as well as policy decisions, between different levels of government. The governance structure must be broadly understood to include not only the legislative and executive branches at the national and sub-national levels, but also the judiciary, and the organization and function of political parties in the electoral process. As for the bundle, or ‘vector’, of goods and services, as well as government policies, there should be flexibility for these components to move ‘up’ (to national/supranational levels), or ‘down’ (to provincial/local levels) within the vector.

Historically, few constitutions, if any, have come into being following an economic assessment of the governance structure and the distribution of government functions. A rare exception could be the European Union which at once embodies both ‘supranational integration’ and ‘subsidiarity decentralization’ of the functions of independent European states. What is remarkable about the EU is the emphasis on the principle of subsidiarity and the practical success in its application. While EU has run afoul of many national governments on account of its ‘supranational growth’, it has also cultivated much support at local levels within each European country by providing local communities a new voice in political decision making and new protection for local products in the context of globalization. In a sense, the European Union embodies both the ‘coming together’ and the ‘holding together’ processes of federalism that I referred to in my article on the Supreme Court ruling on federalism.

In other situations, the two processes lead to different institutional challenges in achieving a good balance between national and sub-national assignment of responsibilities and decision making. In the ‘coming together’ situation, where pre-existing units decide to set up a federal system, new federal institutions are created and invested with powers and resources overarching existing ‘state’ (as in the US) or provincial institutions. On the other hand, in the ‘holding together’ cases, that better represent the Sri Lankan situation, new (provincial) institutions are created in between existing national and local government institutions. India’s colonial experience was in itself a quasi-federal experience that encompassed not only government administration but also the organization of the anti-colonial struggle, including especially the organization of the Congress Party itself. Not surprisingly, the Indian constitutional experience is seen by some as ‘federal’ with strong unitary features, and by others ‘unitary’ with strong federalist features.

In Sri Lanka’s case, its colonial and post-colonial experiences are not conducive to successfully implement the new provincial-government system. In terms of the Decentralization Theorem that I referred to earlier, the goods and services that are most amenable to delivery at the sub-national level include education, health, municipal services including waste management, local and regional transport etc. And they are provided for in the Provincial Council List of powers in the Thirteenth Amendment. But the newly created provincial governments cannot take over these tasks unless they are progressively handed over to them by the national government. Even the present government, while vociferously promising constitutional changes to improve the system of devolution, is undercutting its own mission in daily decision making in each and every area that should properly be left to the provinces.

There are other obstacles as well among the different components of a decentralized governance structure which, as I noted earlier, include the judiciary as well as political parties and the electoral system. My current refrain is that the Supreme Court ruling on federalism is indicative of positive legal thinking. But it cannot take the project of devolution any further than the premises of the court unless there are corresponding changes in the political and administrative spheres. These changes cannot be brought about by waving constitutional magic wand. The economic approach that I am suggesting here needs to be taken further to identify and overcome roadblocks and bottlenecks that have emerged over time – from Donoughmore to JRJ and beyond, in each of the powers and functions that the 13th Amendment has assigned to the provinces, but on which none of the provincial governments have been able to make any headway for nearly 30 years.

Examining Facets of Corruption in Sri Lanka

LAKSIRI FERNANDO on 09/02/2017

Recent events have brought the issue of corruption into the spotlight. When you open a daily newspaper, chances are there will be four or five cases involving corruption within its pages, reported almost every day. Corruption derails development, distorts the democratic system and decays the moral fabric of society. The ultimate victims are ordinary people. Those who can make a major contribution against corruption are not limited to one or two organisations. The media, academics, journalists, civil society organisations, religious leaders and ‘leftists’ should make a concerted effort to oppose and expose corruption, without bias to any one political party or regime.

Examining Facets of Corruption in Sri Lanka.docx by Thavam Ratna on Scribd

Sri Lanka: Defence deals under the Good Governance — Russian Ship Deal (Part One)

 The cost of a ship intended to be bought from Russia > three ships in an open market

by Nilantha Ilangamuwa-Sep 3, 2017

( September 3, 2017, Colombo, Sri Lanka Guardian) A maverick deal after deal; nothing small but all of them are multi million worth commission which are directly filling the pockets of third party agents. But the people in this country have to pay the actual cost. Not only had those already born but also yet to be born generations are under heavy debt just because of the corrupted unaccountable way of governance that has prevailed in last few decades. When are we going to be a nation where true hope and true happiness of the people would flourish?

Sri Lanka Defence deals under the Good Governance — Russian Ship Deal (Part One).docx by Thavam Ratna on Scribd

Country At Cross Roads

By Rusiripala Tennakoon –SEPTEMBER 2, 2017

Rusiripala Tennakoon

Many things are happening and many things are scheduled to happen. More revelations of corruptions and deals follow in rapid sequence of concurrence. Startling as they are one wonders whether such things can happen in an environment of a firm commitment to eradicate corruption and ensure good governance.

In the political front, within the government there are developing uncertainties. Both the main coalition partners appear to be in trouble due to mounting pressure from within. For the UNP the situation is aggravated due to the surfacing of corruption & malpractice related issues. 

High way deals that the media expressed most recently has shattered the silence maintained within close doors. The contract is faulty and stinking with mis-representation of facts which now transpire to be untrue and concealed with dishonesty. Total value of the plunder is in the range of Rs. 1.5 Billion ($100 Mn) as alleged.

Individual corruption record of some highly placed UNP Ministers has made the situation worse. Minister Malik Samarawickrama’s name came out in connection with a corrupt land deal in the Kotte, Rajagiriya area which will certainly have to be investigated. A No Confidence against another vociferous Minister Rajitha Seneratne was ruled out but the allegations raised there will be in public circulation very soon.  Some of these matters either remain suppressed in Bribery & Corruption inquiries and some others such as the Modera Fisheries Harbour deal are under investigation.  Public statements coming from new comers to the UNP like Dr. Harsha De Silva expressing sheer disgust over the prevailing affairs have added to the confusion. What is going on is not mere corrupt activities but appear to be daring instances of callous disregard to principles of Good Governance and Public Opinion.

The other coalition partner is not placed any better. Due to some taken into the government to fill the gap through the National List submerging the pending corruption and abuse of authority allegations and some with pending investigations and inquiries, the SLFP in the Government too is under attack and slander. The SLFP’s. Anti-corruption commitment is tarnished to that extent and the UNP is well aware of this situation. Some Senior SLFP Ministers have started openly stating their dis-satisfaction about the current state of affairs.  Labour Minister Seneviratne is in the fore-front and already has declared his position in no uncertain terms.

According to him they are continuing in  the coalition with no desire but only owing  to their party loyalty. They do not appear to be much concerned about punishing the bosses of the former regime. Instead they seem to be more inclined towards and unity in the party to enable them to stand alone abiding by the party principles. The developments taking shape towards the Local Government Elections will further influence the widening of differences in the coalition.

In the meantime after the forced resignation of Minster Ravi Karunanayake the UNP back benchers have come to the fore front up in arms against the slow moving action to prosecute the wrong doers of the former regime, mainly the Rajapaksha clan. With the change of the Justice Minister they expect a speeding up of the action plan to put as many as possible behind bars.  Although such expectations are contrary to the modus operandi by their leader, who without the knowledge or approval from his back benchers is inclined in his own direction to maintain a balance of the counter forces to the advantage of the UNP in an amiable manner.  But looking at the ongoing actions it appears that the process of hunting has been accelerated and many new court cases are reported daily.

The overall unity situation for both the coalition partners is also coming into controversial areas due to the termination of the Agreement under which they were working together, in August. There will definitely be a very strong public cry and a more serious concern by the civil society, clergy and such other organizations clamouring for a period of real good governance to pressurize both parties to agree on a public program oriented towards delivery rather than rhetorics. These bodies will also demand positive commitments towards solving of current priority social problems instead of long drawn utopian targets which was the escape life line for survival.

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Crossfire between military top brass over ‘war crimes’ will put President Maithri in a political mess

BY GAGANI WEERAKOON-2017-09-03

President Maithripala Sirisena is to spell-out his plans on the continuity of the alliance with the UNP today at the 66th Convention of the Sri Lanka Freedom Party (SLFP) at the Campbell Park in Colombo.

The 66th Convention today will be crucial, as the party is already facing a challenge of deciding its path to future elections with the majority of its stalwarts threatening to either quit the government if it continues to be a UNP-SLFP joint government.

The government is lready crippled by many of SLFP seniors, with a massive vote base, joining the Joint Opposition, following party deciding to oust them from their respective organizer posts and President Sirisena having to appoint a host of fresh electoral and district organizers.

According to party sources, the 66th Convention also faces a threat of a lower crowd as opposed to previous two years, with no proper organizing and propaganda plan in place.

Several Ministers and deputy ministers have already threatened to quit the government and according to Deputy Minister Arundika Fernando, at least 10 including himself will sit in the Opposition following the convention.

It was in the midst of this that former President and Kurunegala District MP Mahinda Rajapaksa invited Leader of the Opposition R. Sampanthan to his official residence at Wijerama Mawatha last Tuesday (29).

According to well-informed sources, this one on one meeting went on for almost one hour behind closed doors with not even aides allowed in.

MP Namal Rajapaksa said, the meeting was a cordial and formal one and the invitation was extended by the former President as he did not get a chance to meet Sampanthan for 'proper talks' for a while.
According to close confidantes of Rajapaksa focus of the talks were on the new Constitution and the Constitution making process.

Sampanthan had, as insisted by him on many occasions, said that he would not let the country be divided, yet it is important to have greater power sharing arrangements.

Rajapaksa on the other hand, has also shown interest in the constitutional amendments and had insisted about Joint Opposition members remaining in the Constitutional Assembly, despite ally Wimal Weerawansa and his party leaving the process.

War crimes charges

Sri Lanka faced a fresh case of war crime allegations, when a Human Rights groups in South America filed war crimes lawsuits against former Sri Lankan General Jagath Jayasuriya, who was the Ambassador to Brazil.

According to foreign media reports, the suits against Jagath Jayasuriya are based on his role as a commander in the final phase of Sri Lanka's civil war in 2009. They allege Jayasuriya oversaw military units that attacked hospitals and killed, disappeared and tortured thousands of people.

Jayasuriya had diplomatic immunity in the countries where he was ambassador: Brazil, Colombia, Peru, Chile, Argentina and Suriname. Carlos Castresana Fernandez, the lawyer coordinating the effort, as was quoted by foreign media, has stated that suits were filed last Monday (28) in Brazil and Colombia. Petitions also will be filed in Argentina, Chile and Peru in the coming days, he had said, adding that authorities in Suriname refused to accept the suit.

"This is one genocide that has been forgotten, but this will force democratic countries to do something," Fernandez said. "This is just the beginning of the fight."

The criminal suits, were spearheaded by the human rights group International Truth and Justice Project, an evidence-gathering organization based in South Africa. Fernandez, the coordinating lawyer, was one of the attorneys who worked on international cases against Argentine Gen. Jorge Rafael Videla and Chilean Gen. Augusto Pinochet. He has also helped indict many Guatemalan war criminals and organized crime members, including former President Alfonso Portillo.

The suits say Jayasuriya was Commander of the Vanni Security Force from 2007 to 2009, one of the bloodiest periods in a war estimated to have killed more than 100,000 people. The UN estimates between 40,000 and 70,000 died in the final phase alone.

According to the suits, Jayasuriya oversaw an offensive from Joseph Camp, also known as Vanni Security Head Quarters, which the papers claim was a notorious torture site. The International Truth and Justice Project said it interviewed 14 survivors of torture or sexual violence at the camp. According to the group, victims described hearing the howls of detainees at night, which the suits contend Jayasuriya would have been able to hear.

With foreign media reports indicating that Jayasuriya has fled Brazil, Sri Lanka's Foreign Ministry issued a statement clarifying the situation and confirming that Jayasuriya was in fact on his way back to Colombo as directed by the Ministry with his diplomatic term coming to an end.

Meanwhile, Kate Cronin-Furman - a postdoctoral research fellow in the International Security Programme at the Harvard Kennedy School's Belfer Centre for Science and International Affairs in an analysis stated that:

"If domestic accountability for war crimes seems unlikely, so do international criminal trials. Sri Lanka is not a member of the International Criminal Court and is an unlikely candidate for the creation of an ad hoc international tribunal. That's where cases like the one, activists are trying to launch in Brazil (and in the other countries where Jayasuriya held an ambassadorial post) come in.
Although domestic Courts generally only have jurisdiction over crimes that occur on national territory, many countries assert universal jurisdiction over serious violations of international law.

Brazil's legal code allows its Courts to try anyone present on its territory for crimes that Brazil has treaty obligations to punish, like genocide or torture. Of course, as an ambassador, Jayasuriya has diplomatic immunity. To pursue criminal charges, Brazil would have to ask Sri Lanka to waive his immunity, something the Sri Lanka Government is extremely unlikely to do. This fact makes Jayasuriya's unceremonious departure a puzzling choice. Ambassadors lose their immunity when they step down. If one of the Latin American countries decides to proceed with an investigation, he could then become subject to an international arrest warrant. At that point, he would have to avoid the territory of any country whose government would be willing to arrest and extradite him.

If Jayasuriya's worst-case scenario is that he has to exercise some caution in his vacation planning, what is the value of attempting to launch a universal jurisdiction prosecution against him? It's true that the effect on him is negligible, especially when weighed against the gravity of the crimes of which he is accused. But stronger effects may be felt elsewhere.

For the Sri Lanka Government, exceedingly conscious of its international reputation, the embarrassment of this episode may prompt a rethink of its long-standing habit of rewarding its 'war heroes' with plush diplomatic posts."

Jayasuriya who addressed media upon his return to the country said he was not responsible for anything and in fact is in possession of a letter by then commander Sarath Fonseka where he was ordered to stay away from operational activities.

Fresh crisis arose, when Field Marshal Fonseka, now a politician, dropped a 'war crime' bombshell saying he will testify in 'any court' against Jayasuriya and prove that he was involved in 'war crimes'.
"When I was the Commander I did receive certain complaints of crimes committed by Jayasuriya's brigade mostly to do with crimes perpetrated on those detained during the war," Fonseka told reporters.

Fonseka was also accused by human rights groups of being involved in war crimes during the final stages of the nearly three-decades-long war that ended in 2009

"I did not put Jayasuriya in-charge of a fighting brigade. His job was to defend the Army's bunker lines and to be in-charge of supplies to fighting brigades in the battle front. I have details of crimes committed by his brigade," the former Army Chief said.

Fonseka said he was on the verge of ordering an inquiry against Jayasuriya before he ceased to be the Army Chief. The Field Marshal turned Minister also said it was important for Sri Lanka to maintain the good name of its Security Forces.

Fonseka, in his quest to avenge his arch rival Jayasuriya, who became the Army Commander after Fonseka being imprisoned, seems to have forgotten that he earlier said that he as the Commander would take full responsibility for everything that took place during the last phase of war and that his Army was not involved in war crimes.

His comments however, stand in contrast to those of his Cabinet colleagues with Cabinet Spokesman Rajitha Senaratne asserting that charges against Jayasuriya were of a very general nature and the Sri Lankan troops did not commit any crimes during the war.

It was not an unknown secret that Fonseka despises Jayasuriya on personal grounds. Things did not go unnoticed when he refused to shake hands with Jayasuriya, who was the Chief of Defence Staff at the time when the former was made the Field Marshal of Sri Lanka.

It was not many years ago that then Opposition member, now a powerful minister of the same Cabinet where Fonseka is holding a Cabinet portfolio, Mangala Samaraweera said, that he (Fonseka) was only fit enough to be the Commander of the Salvation Army.

With recent developments, many voice their opinion against Fonseka on social media platforms justifying both Samaraweera's sentiments and Rajapaksa's actions.

This, according to legal experts, would have a greater impact of Sri Lanka, as this was the first time a government member came out openly accusing and directly naming a member of the military of committing war crimes.

With this, President Sirisena, the SLFP and Prime Minister Ranil Wickremesinghe and his Party United National Party too would be compelled to voice their stance on the situation, whether they too, believe Sri Lanka's military members have committed war crimes.

The Jathika Hela Urumaya and Minister Champika Ranawaka, who believed to be a strong supporter of President Sirisena have already voiced their concerns.

The Jathika Hela Urumaya (JHU) said, today the government should represent on behalf of the rights of former Army Commander Jagath Jayasuriya as he was a government servant and had acted legally according to international laws.

JHU stated that General (Rtd) Jayasuriya did not carry out a private duty, but he carried out a collective responsibility as an Army Officer of the Sri Lanka Army belonging to the legally and democratically elected government.

"The government should intervene in the case filed against the former Army Commander. He performed a duty of the Army. The government has a responsibility to represent on behalf of this government servant. The duty he performed as the Vanni Commander is legal and conforms to local and international laws. He carried out a collective responsibility to protect the President, Cabinet and the people in the country. He contributed to bring in peace to the country".

The Party said if there were moves to file war crime allegations against the Army heads, people in the country would be compelled to demand legal actions against 12,000 LTTEers in Sri Lanka.


"About 12,000 LTTErs who surrendered to the Army during the war were released by former President Mahinda Rajapaksa without any observation or proper procedure. People in the country would be compelled to demand legal action against them instead of reconciliation if Army heads were taken before Court for war crimes. It is a regrettable situation," JHU said.