SRI LANKA: 2 YEARS ON, SCANT PROGRESS ON UN RESOLUTION

Image: Why not a single investigation on Tamil journalists killed  launched, ask the leaders of Jaffna Press Club. (c) s.deshapriya.

14/09/2017

(Geneva, September 14, 2017) – United Nations member countries at the Human Rights Council in Geneva should press Sri Lanka to promptly meet the targets of the council’s October 2015 resolution for transitional justice, Human Rights Watch said today. Sri Lanka should put forward a time-bound and specific implementation plan on the four transitional justice mechanisms it agreed to establish as pledged in the resolution.

The UN high commissioner for human rights, Zeid al Ra’ad Hussein, in his opening remarks at the council on September 11, 2017, highlighted Sri Lanka’s lack of progress, and called on the government to realize that its obligations are not a mere “box-ticking exercise to placate the council but as an essential undertaking to address the rights of all its people.”

“Governments at the Human Rights Council should be clear with Sri Lanka that setting up various reconciliation offices and talking of progress is not the same as implementing the 2015 resolution,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “Long-suffering Sri Lankans need to see the resolution fully carried out, and they need to see evidence that justice is being achieved.”

Sri Lanka has largely failed to implement the consensus UN resolution, Human Rights Watch said.

 The government dismissed the report submitted by the Consultation Task Force, a broad-based civil society effort established by the government to put the resolution into effect. And it took Sri Lanka’s president 18 months to formally create an Office of Missing Persons, as set out in the resolution and enacted by parliament. The gazette notification took place on September 12, just as the Human Rights Council session got underway and a few weeks before Sri Lanka is to present an oral update on steps it has taken to carry out the resolution.

Sri Lanka’s nearly three-decade-long civil war between the government and the separatist Liberation Tigers of Tamil Eelam (LTTE) ended with the LTTE’s decisive defeat in May 2009. Both sides committed many grave human rights abuses, including summary killings, abductions and enforced disappearances, torture, and sexual violence. There are well-documented allegations of laws-of-war violations, particularly during the final months of the war.

The government’s lack of progress in investigating and prosecuting these many crimes spurred the Human Rights Council to adopt the consensus resolution. The Sri Lankan government agreed to carry it out and to report back periodically on its progress.

Sri Lanka has invited several UN human rights experts to visit over the past two years and has given them free and unfettered access. However, the government has largely disregarded their recommendations. One of the key undertakings in the resolution was security sector reform, including repealing and replacing the draconian Prevention of Terrorism Act (PTA) with new legislation that meets international standards. Instead, the government has floated various drafts that in some cases are worse than the existing law, which remains in effect.

The UN special rapporteur on transitional justice, Pablo de Grieff, will make his first official trip to Sri Lanka from October 10 to 23.


“The special rapporteur has been engaged in transitional justice issues in Sri Lanka for a long time, and it is crucial for him to use his first official trip to call out Sri Lanka on its hesitant steps toward justice for victims,” Ganguly said. “Sri Lankan officials need to show that they can do more than just talk the language of human rights and instead put those words into action.”

Convention on Enforced Disappearance clears way for extradition

WHO IS TO BE EXTRADITED?

Protest against wartime disappearances

by SANJA DE SILVA JAYATILLEKA-September 14, 2017, 9:21 pm 

The International Convention for the Protection of All Persons from Enforced Disappearance is to be voted on in Parliament on the 21st of this month. Just 6 days away.

 The Convention came into force on the 23rd December 2010. So far, of the 193 member states of the United Nations, only 57 countries have become State Parties by ratifying it. State Parties have voluntarily undertaken to be bound by its provisions.  Sri Lanka became a State Party on the 26th of May 2016. Just over a year ago.

 Of cardinal significance is that the UK and the US have not become State Parties. When Lord Lester of Herne Hill asked Her Majesty’s Government whether it intends to sign the bill, Lord Triesman, Parliamentary Under-Secretary (Foreign and Commonwealth Office) had this to say: 

"The Government needs to conduct a detailed analysis of the provisions of the treaty and their implications for implementation in order to determine the UK’s position towards ratification, including whether we would need to make any reservations. The UK did not sign the convention at the signing ceremony in Paris on 6 February because the UK does not sign international treaties unless it has a firm intention to ratify within a reasonable time frame. We understand that 57 states, including 10 member states of the European Union, have so far signed the convention..."

 As for the US, this is how it went at the Daily Press Briefings, with Sean McCormack, saying on 7th February 2007 in Washington DC:  

 "QUESTION: Did you notice that 57 countries signed a treaty today that would basically bar governments from holding secret detainees and the U.S. did not join?

MR. MCCORMACK: Yeah. This is — I understand that there is a Convention for the Protection of All Persons and Enforced Disappearances. And I know — I have some information on it here, George. I confess I don’t have all the details. I do know that we participated in all the meetings that produced the draft. Beyond that, I can’t give you specific reasons here from the podium as to why we didn’t sign on to it. We’ve put out a public document that I can give you the citation for afterwards and it explains our reasons for not participating in the draft. But I think just as a general comment, clearly the draft that was put up for a vote or put for signature was not one that met our needs and expectations."

 And yet, Sri Lanka’s Yahapalana government which looks to those two countries for guidance, signed up for it. Some of the other countries which signed up, declared certain reservations at the time of signing which are included with their signature. For instance, Cuba has the following declaration:

 "Declaration:  The Republic of Cuba hereby declares, in accordance with article 42, paragraph 2, that it does not consider itself obliged to refer its disputes to the International Court of Justice, as provided for in paragraph 1 of the same article."

 Morocco, Ukraine and Venezuela did the same. Sri Lanka, however, did not.

 Consider the following in Article 13.4:

 "If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the necessary legal basis for extradition in respect of the offence of enforced disappearance."

 From what I understand, this means that in the case of Sri Lanka, even if we don’t have an extradition treaty with another State Party, if they request the extradition of, say, General Jagath Jayasuriya to Brazil (which by the way is a State Party), we have to oblige!

 Isn’t that why this government is gagging to ratify this treaty? If it wasn’t, wouldn’t it have made a declaration that gave it a way out?

 The only declaration Sri Lanka did make at the time of signing is to strengthen the role of the committee:

 "Declaration under article 32: "… the Government [of the Democratic Socialist Republic of Sri Lanka] wishes to declare as per Article 32 of the Convention that it recognizes the competence of the Committee to receive and consider communications in which a State Party claims that another State Party is not fulfilling its obligations under this Convention".

 This was despite the fact that article 32 goes on to say:

 "The Committee shall not receive communications concerning a State Party which has not made such a declaration, nor communications from a State Party which has not made such a declaration."

 This makes it seem like Sri Lanka, in May 2016, wanted very much to avail itself of every opportunity to use this convention fully! 

Even if it claims good faith, it is incumbent on a government to ensure that the country’s security as a state is not jeopardized when it signs international treaties. One has only to recall the Darusman report with its extravagant claims, to be alerted to the dangers of a distorted narrative skillfully mainstreamed by a separatist Diaspora which was able to co-opt even eminent international lawyers to underwrite its claims.

 The claims in Brazil by a civil society group which calls for the extradition of General Jagath Jayasuriya is only the canary in the mineshaft. 

 The inordinate hurry to bring this Convention for a vote in parliament at this time, when most members are seized with the far more important work of the Constitution, only exposes this government’s bad faith in trying to slip it in without due consideration of the national interest, and without granting adequate time for the parliament (i.e. the people’s elected representatives) to study it and make the necessary amendments to it.

 Reading Sir Desmond de Silva QC’s riveting book, ‘Madam Where Are Your Mangoes?’ where he recounts his experiences as the Chief Prosecutor of the Special Court for Sierra Leone which indicted Charles Taylor, the President of Liberia, an evil character by all accounts, it is clear that the international criminal justice system has many ways to bring wrongdoers to justice. Sir Desmond’s Diary record for the 10th of March 2003 reads: "HMS Iron Duke is at anchor off Lumley Beach. Her 4.5 inch guns with a range of twenty two kilometers are trained on Freetown…"  Freetown is where the Special Court was located.  It continues: "C company of the Royal Gurkhas is conducting a set piece firepower demonstration…They will use antitank guided missile and medium range mortars… The projection of power is…a signal that any attempt to interfere with arrests to be carried out, or any attempt to come to the aid of the indicted War criminals will be met with force."

 In President Charles Taylor’s case, despite the African continent’s reluctance to hand him over, ways were found to persuade Nigeria to do the deed. The Appeals Chamber gave a judgment in this case that read: "The principle seems now established that the sovereign equality of states does not prevent the head of state from being prosecuted before an international tribunal or court."

 People such as Charles Taylor needed to be stopped since he sounds like he’d lost his mind— the crimes ascribed to him are utterly heinous. However Sri Lanka at this moment in history is facing a false narrative about its war against an ethnic separatist militia employing terrorism, including suicide bombing, as its weapon of choice. The anti-war, anti-Sri Lanka lobby has been able to win the sympathy of the powerful Western countries, even though this narrative conspicuously failed to win a vote at the UN Human Rights Council in 2009. Before the goodwill gained by that effort could be consolidated to firmly establish a fair account of the war against the LTTE, Sri Lanka’s Ambassador was recalled by the government of the day. Since then, the approach of that Sri Lankan government saw many resolutions censoring it, urging it to prosecute those alleged of War Crimes. It is during this time that we saw the Darusman report present a biased view, which the government of the day never countered! It is now like the gold standard of accounts against Sri Lanka and is quoted in every book and article on the subject. 

 Just as one thought it couldn’t get worse, the successor government was only too eager to co-sponsor resolutions of similar or worse claims.  And now we have this Convention on Disappearances about to be presented in parliament.  

 As the book Travesty by John Laughland shows, in the case of the International Court of Justice for Former Yugoslavia, in the West’s eagerness to prosecute, this court was illegally constituted and its judgments found wanting. Some who have been prosecuted have been exonerated, but too late, for they died while incarcerated.

 In this context, it seems unethical and a crass political expediency for the government to bring this bill to parliament on the 21st of this month, sandwiched between the 20th amendment (Sept 20th) and the tabling of the consolidated Steering Committee report on the Constitution (Sept 22nd). 

 If the really existing Opposition is unable to successfully appeal for postponement, they should at least attempt to include reservations by way of amendments. It may be unusual procedure since we have already signed the convention. But since the convention itself allows amendments to it with the support of two thirds of the state parties, I don’t see why a parliament which was not consulted when the convention was signed by the Sri Lankan Foreign Ministry, should meekly accede to it without proper consideration of our national interest. It is for this purpose that we have sent our representatives to parliament. The least they can do is to declare its opposition and enter its reservations into the ratification to properly reflect the position of the people of this country.  

 At least some of us citizens don’t want this government to use this convention to eliminate the competition that it clearly cannot overcome at an election.

 [The writer is author of ‘MISSION IMPOSSIBLE-GENEVA: Sri Lanka’s Counter-Hegemonic Asymmetric Diplomacy at the UN Human Rights Council’, published by Vijitha Yapa and now available at the International Book Fair, BMICH.]

Tilting windmills at blathering politicians is no answer to rule of law failures

• Sunday, September 10, 2017

A former Army Commander or two jousting before the television cameras for sport, alleging war crimes against each other, is a seducing sight for public consumption. But this is not what the crisis of justice in Sri Lanka is all about.

No political or military leader can plead absolution

Indeed, these deeply cynical games distract attention from institutional failures that go to the heart of political and military responsibility. That fact must be properly understood for any reform process to even begin, whether in relation to war crimes or the failure of the Rule of Law in respect of ‘ordinary crimes’, as some may like to differentiate. And the less grandstanding there is in regard to these issues, the better.

One simple truth stands out. No Government is free of responsibility. No political or military leader can wash his or her hands of blood. It is a collective responsibility that comes into play here. So getting dazzled by allegations and counter-allegations are counter-productive. Accountability must be extracted, bit by bit, like drawing fire from an impossibly hard stone. If that lesson had been taken to heart from 2015 itself, probably we would be left with less ruination of the so-called people’s revolution to stare at now.

Certainly with all its talk since the unity Government came into power, it has taken little or no steps to redress a pervasive failure of justice. Refraining from overtly interfering with the judiciary does not suffice as an answer to critics though this does stand to its credit. Its party man to whom the Justice portfolio was handed to (until his ignominious departure recently) excelled in playing to the political gallery rather than mustering resources and public opinion for a concerted effort to address the problem.

An unfortunate state of affairs

It seemed incontrovertible that this inaction or in some cases, active collusion to subvert the course of the law was condoned by the United National Party. Evidence of its bad faith in the incident of the Central Bank bond scam and the subsequent attempt to cover-up was scandalous. On its part, the Bar Association of Sri Lanka also contributed precious little to actual policy reform on pervasive failures of justice, apart from holding donor funded talk-shops. Now its main focus appears to be leveling threats of contempt of court when criticisms are leveled against judges and lawyers.

This is truly an unfortunate state of affairs. And the tragedy is that even in cases where convictions are handed down after long and agonizing struggles, the cause of justice is not served. Earlier last month, the United Nations Human Rights Committee handed down a Communication of Views under the Optional Protocol procedure to the International Civil and Political Rights Covenant which illustrated this fact very well. The Protocol allows Sri Lankan citizens to come before the Committee if there has been any violation of Covenant rights. From one perspective, this was a typically run-of-the-mill case. On the other hand, it presents in a nutshell exactly where the systemic breakdowns occur in this country with extraordinary clarity.

In this instance, a seventeen year old Indian Tamil girl had been abducted and raped by two men belonging to the Sinhalese community in 2001. It took her close to fourteen years to obtain a judgment from the Kandy High Court convicting the perpetrators and sentencing them to twenty-three years of imprisonment. Before the Committee, her complaint was that even despite the conviction, the violations that she had to suffer remained unaddressed and that the State’s legal remedies at the domestic level were highly ineffective.

A classic litany of all that is wrong

Her complaint reads like the classical litany of all that is wrong with Sri Lanka’s justice system. Though she filed a complaint for rape at the Talawakelle police station on 14 August 2001, she was forced to make her statement through an unofficial interpreter translating into Sinhala, since no facilities to record her statement in Tamil were provided. She was then taken to the Kotagala hospital and subsequently to the Nuwara Eliya hospital, from where she was discharged later. The medical records clearly indicated that this was a case of rape.

The victim identified both perpetrators, who were held on police remand. Non-summary proceedings were initiated but both suspects were released on bail. During the hearing, the victim’s character was denigrated. No mention was made of the fact that she was a minor at the time of the offence. After more than three years, the Magistrate’s Court concluded that there was sufficient evidence to charge the alleged perpetrators and referred the case to the Attorney General following which indictment was filed in 2006 against the accused.

After this, the record reflects interminable postponements before court due to various reasons. At several points, this was because the prosecution had failed to produce the evidence or the prosecuting state counsel was absent. Then again, postponements were due to the absence of a permanent judge or because all the evidence had not yet been received by Court. The case was thereafter transferred to the High Court of Nuwara Eliya and then again postponed several times. At other points, the accused (who were continually out on bail) failed to be present or the case was out off on the request of the lawyers for the accused.

Time to address systemic problems of justice

In the meantime, the victim stated that she never failed to attend hearings, and she has not been responsible for any of the delays. She detailed her physical harm and psychological trauma. In addition, she and the members of her family had been continually harassed by the two perpetrators out on bail, who had tried to intimidate her into withdrawing her complaint.

In consideration of the complaint, the Committee found that the victim’s equality rights before the law and equal protection of the law had been violated. The Committee concluded also that the State party’s failure to conduct a prompt and an effective investigation also violated Sri Lanka’s obligations under the Covenant.

This is just one of virtually hundred such cases which have either been denied justice or where the victims have waited so long that a conviction by itself, fails to bring any relief or redress systemic problems. It is time that the Bar Association directs its collective mind to policy reforms that correct such pervasive failures of justice rather than titling windmills at blathering politicians who talk of corrupt judges and lawyers.

Constitutional Assembly Steering Committee approves Interim Report on Constitutional Reform

Thursday, September 14, 2017

After months of deliberations and contentious arguments in closed door meetings, the Steering Committee of the Constitutional Assembly last week approved the final copy of its Interim Report on Constitutional Reforms.

A member of the Steering Committee confirming that the report is ready for submission said the Constitutional Assembly has been summoned to meet on September 21 morning.

A copy of the report will be handed over to President Maithripala Sirisena.  

The interim report, which deals with the vital aspects of Constitutional reforms including the electoral reforms, devolution of power and nature of the State, spells out the contours of Constitutional Bill. 

The Interim Report will be tabled along with the observations made by various parties. Accordingly, the observations of the Joint Opposition, SLFP, TNA, JHU and JVP have been included into the report as annexes.

The report also consists of a separate collective document submitted by the Tamil Progressive Alliance (TPA), Sri Lanka Muslim Congress (SLMC), All Ceylon Makkal Congress (ACMC) and Eelam People's Democratic Party (EPDP).

Constitutional Lawyer Dr Jayampathy Wickramaratne has submitted his own report.

The UNP has not made a separate submission as the party agrees with the report in its entirety.  

It was deduced that the observations made by various parties indicates contradictions and clashing views on core issues related to the Constitution.

While the SLFP has sought to retain the Executive Presidency, the JVP insists on its abolition. While the TNA is bent on a ‘federal’ solution within an ‘undivided and indivisible country’, the JO is adamant on preserving the clause on ‘unitary state’. 

“It is now time for hard bargaining. These views are not fixed positions. Nothing is cast in stone. The challenge is to hammer out an agreement cutting across all parties through compromise and negotiation,” the Steering Committee member said.

Sources said a date for the debate on interim report would be fixed after its submission and the Steering Committee headed by Prime Minister Ranil Wickremesinghe would go ahead with drafting the Constitutional Bill based on the proposals and suggestions to be made at the debate. 

The Steering Committee which conducted its first meeting on April 5, 2016 has so far conducted over 70 meetings. The Constitutional Assembly formed following a resolution passed unanimously in Parliament in March last year has so far conducted four sittings. 

In the meantime, the reports of six sub-committees on “Fundamental Rights, Judiciary, Finance, Public Service, Law and Order, Centre-Periphery” were presented to the Constitutional Assembly by the Prime Minister on November 19.

A three-day debate on Constitutional reforms initially scheduled to commence from January 9 was postponed indefinitely as there was no consensus among the political parties.    

Powerful zealots and the prisoners of Zen

Friday, 15 September 2017

I have been thinking about prison and their inmates a lot recently. Not because it is the pleasantest of subjects. But because I have been bombarded by media, social media, and antisocial elements on the subject. And I’m beginning to smell a rat. Or half a dozen.

On the one hand, there is just cause to consider the present prison system. Our jails are overcrowded for starters. And there is no guarantee that those within the walls of Welikada and other accommodation courtesy the State are treated humanely. Or that they should be there at all – Or that they continue to languish in incarceration at the Government’s pleasure owing not to justice, but some injustice at best… Or, at worst, political victimisation and expediency – not to mention the draconian PTA.

Nor can society rest assured that those who presently enjoy the right to life, liberty, and the pursuit of happiness should be permitted to remain at large as they do. In the face of such damning allegations, indictments, rumours, suspicions, and the judgment and execution of the court of public opinion.

If the allegedly criminal cabal that was Rajapaksa, Bros., & Co. is still at large, a huge question mark hangs over a justice system which jails minions complicit in relatively minor demeanours. While sharks swim in waters churned only by the occasional Charybdis of conventional token visits to the FCID. I may sleep with the fishes for saying this… but while the alleged killers of editors, reporters, and sundry dissidents (including dissenting prisoners filing FR cases against the then regime) are still out and about, no one may sleep easy now that only minnows go to gaol…

On the other hand, Government has an Augean stable on its hands. As media commentary (including, most pointedly, cartoonists) has reminded us, the prisons system itself is rife with crime, crookedness, and corruption. It is a convenient Lethe into which we forcefully dump the less desirable elements of society – including (in one fell swoop) thieves, rapists, armed robbers, and now hapless secretaries of suspect ministries under antidemocratic authoritarian regimes of the recent past… while sycophantic robber barons, royal henchmen, and loyal stooges enjoy immunity and impunity.

It is also the crucible for future crime, in which a present cauldron or double-toil and trouble (drugs and violence) is forever bubbling at the cellular level. It was also the Labyrinth in which two score and more unfortunate prisoners lost their lives. In the still unsolved crime of the Welikada prison massacre. In which 27 petty criminals (some of them with secrets that a few grand larcenists may not want leaked into society) went silently to their graves.

Bat. Cat. Rat.

If ‘Good Governance’ is to have any meaning at all, it will have to bat around the wicket – and not only as regards inland revenue successes and audit bill lacunae. It will have to invest significant time, interest, money, energy, resources, in critically addressing and meaningfully resolving a plethora of prison system ills…

In the meantime, the cat is about to be let out of the bag as regards that prison massacre of November 2012. At the forthcoming literary fair of September, a book in the country’s most read language is scheduled to be released – ostensibly revealing the inside story of how a commando of armed men styled as State paramilitary forces entered a high-security prison and executed 27 inmates while making two others disappear off the face of the earth.

If the exposé makes public what every private citizen has suspected all along, an erstwhile senior bureaucrat powerful under a previous regime might be in for the high jump. And many others complicit in the dastardly staged riot in order to execute the thorns in certain governors’ sides. No way can the axe now not fall when such knowledge becomes commonplace.

I, however, am not holding my breath. It is because I remember Victor Ivan’s ‘Bandit Queen’ – the book, not the lady – and how little effect it had on the saleability – of the lady, not the book. The sad stale truth is that years after the riots and executions, no one gives a pardon my expletive any more. Also those who do are cowed into silence or submission for fear of their lives. There is no knowing when the good days will end, and the bad and ugly return with a vengeance.

The reasons why I smell a rat are as follows:

• I am a journalist. I know nothing. Until someone educates me in my ignorance.
• I am an editor. Everything interests me. Especially when a gory story lands on my desk.
• I am a writer. Being suspicious of everyone comes naturally to me because I know my own agendas in essaying anything. (Relax. I have no bias other than rattling the cage of rats who take refuge in ungodly abuse of power.) 

(In this case, I’d like to question not the happening itself, or the release of the book, but the timing of the release, and the sheer abundance of ‘media noise’ around the larger concerns and issues. Coincidence? Happenstance? I think not. In the light of all that has taken place in the recent past, my bet is on ‘enemy action’…)

Therefore these questions:

PRISON RELEASE REVIEW

(please return the pencil provided. do not pilfer it. please do not swallow the paper on which you write your responses. it contains a faint trace of cyanide.)

A.Essays.

1.After over two years in office, and despite so many promises as well as opportunities to investigate and punish violent crimes under the past regime, what has the Government achieved in terms of bringing once powerful but perhaps still deadly criminals to justice? Explore with reference to Realpolitik, the Bush Doctrine (“if you are not for me, you are against me”), and the dictum that “my enemy’s enemy is my friend” in the context of bargaining chips at presidential election time.

B.Short Answers.

1.If you wanted the Welikada prison massacre investigated until the very moment you realised who the criminal mastermind behind the black op was, who are you? (HINT: Until recently you had a monopoly on what passed for ‘justice’ in this country…)

2.If you used your power and your position to stage the execution of personally and politically explosive persons imprisoned, what should be your own fate? (Go to gaol. Go directly to gaol. Do not pass ‘Go’. Do not collect any money, Monopoly or otherwise.)

C. MCQ.

1.Who wants to know the truth about the Welikada prison riot?

a.No one.

b.Everyone.

c.Someone.

d.None of the above.

2.What then is the purpose of publishing a book that purports to expose the same truth?

e.To tell the truth.

f.To tell part of the truth and sell a pack of lies, inter alia.

g.To embarrass the government on its grotesque failure to book the real culprits.

h.To embarrass the previous government on its gruesome complicity in bloody crimes.

3.Where will it all end?

i.Somewhere, because we still believe in good government and other fairy tales.

j.Everywhere, because once the spaghetti hits the fan, everyone gets spattered.

k.Nowhere, because powerful vested interests are protecting the real culprits.

l.Don’t care, as long as it is not where the sun shines for me and my folks.

It is speculated that a ruling elite staged the riot and the excuse for the security forces to strike back to contain the threat – the ruse working to the effect of enabling the expedient execution of nuisance inmates filing FR and other cases against a corrupt regime.

It is thought that the traumatised parents of the innocents remanded who were killed as collateral damage – and/or to make the rough injustice meted out seem like State control – are behind the pending book. It is felt that not a dent will be made on either the public consciousness or the political conscience of the present set of political rulers.

We are all prisoners of the kind of zen that sees no evil, hears no evil, speaks no evil, seeks no justice against evil. While the worst who were full of passionate intensity get off scot-free because they were once among the zealots who saved, rescued, and delivered our grateful nation from the scourge of terrorism.

(A senior journalist, the writer was once Chief Sub of The Sunday Leader, 1994-8, and is ex-LMD: Editor, 2004-8. He has made a career out of asking questions and not waiting for answers.)

The cane: Our children as our priority

2017-09-15

The problem with our justice system, in general and over the years, has been its blatant lack of regard for the specific needs of children

Children, taken initially as flouters of the law, were transformed into victims via a justice system

Corporal punishment, however worrisome it is to me, belongs by default to the private sphere, encompassing student leaders, teachers, principals, and entire institutions

Last Sunday (September 10), I woke up earlier than my mother, who woke up so late that breakfast delayed meant my schedule for the day would be delayed. I don’t resolve to travel during weekends; those are the only two days during the week that I spend at home. But September 10, no different to all other Sundays in September, was special. To me. Somewhere in Colombo, an organisation was about to hold its inaugural forum. This forum, I got to more than an hour after it started. What I heard and what had I missed, despite the inconvenience of a late, hurried breakfast, has stuck with me to this day, because I had known that this organisation would be initiated a few months back.  

Before that, though, a perusal of some facts and figures. Records in 2012 show 758 children who were sexually molested and another 745 who were sexually abused. There were nine cases of incest by a family member, in addition 22 cases of child murders, 54 child abductions, 10 attempted murders, and 247 cases of child assault. From 2011 to 2012, the National Child Protection Agency (NCPA) collected more than 20,000 complaints, an almost unprecedented amount. Why do these matter? Because this organization, through that forum on Sunday, seeks to combat instances of gross neglect, wanton abuse, and irrational complacency that make up our justice system when it comes to our number one priority: our children, our next generation.  

There are fundamental differences between fairness and expedience with respect to the legal system of a country. This approximates to the wider differences between an individual and a collective in any given society: put simply, the interests of the former can and will be weighed against the interests of the latter, which is why we talk of the greater good and the lesser evil. The conflict or rather conflicts between these two can and must be balanced out, so as to ensure a) due process and b) fair hearings for everyone. What gets missed out here, however, is that perpetrators are often victims of abuse, and the victims of today can well become the perpetrators of tomorrow.  

The problem with our justice system, in general and over the years, has been its blatant lack of regard for the specific needs of children. On two fronts at least, our children have become conditioned to accept, to conform, to set aside those notions of individuality that make up who they are: the cane and the court.  

I am less interested in the former than I am in the latter, but for the purposes of my column I will delve through both. Beginning with this: in a culture that privileges deference to and absolution of ultimate authority (whatever that authority may be), children are inadvertently taught about two kinds of citizens: those who wield the baton (the perpetrators) and those who resist it (the victims). The problem, obviously, is that the fine line between these two can, and more often than not does, get blurred.  

Take the problem of corporal punishment. Our statutes are discernibly ambivalent over the issue. Article 82 of the Penal Code of 1883, for instance, absolves a guardian (or any person acting as such lawfully) when he or she inflicts punishment on a child, if that act of inflicting the punishment is committed “in good faith.”  

Now “in good faith” is probably one of the vaguest legal phrases out there. Despite the later reforms which invaded the Penal Code (not least being Article 308A, which explicitly provided for the offence of cruelty against children), there were subtle exceptions that shielded teachers whenever they chose to inflict punishment (Article 314, for instance, which is about the offence of “criminal force”, conveniently inserts a caveat: a schoolmaster in the “reasonable exercise of his discretion as master” who flogs a student is not, for all intents and purposes, committing that offence).  

It’s this concurrent, confused attitude of support for and opposition to corporal punishment (whether inflicted by hand or through a weapon) which has coloured the contemporary discourse on the topic for so long. Even now, it’s so confused that all it has done is sustain a dichotomy within our society.
Let’s not forget that no less a person than the president, in a speech delivered last year, gave an instance where he had been caned for a mistake committed by another child. A friend of mine, having heard this, informed me that when such erroneous crimes go unpunished, they add to a society where even upholders of the law either punish suspected offenders or blow trivial misdemeanours out of proportion and torture those suspects. A quick perusal of Basil Fernando’s harrowing Narrative of Justice in Sri Lanka will convince anyone that this country, a paradise to many and a hellhole to some, is chock-a-block with glaring instances of disproportionate punishments.  

So while we’re at it, here are some other points. Pertinent points. Like the fact that the sections in the Penal Code absolving teachers were authored by Englishmen, not “natives.” Or the fact that inasmuch as various Circulars issued by those in charge of our education policy (in particular, the Circulars of 1907 and of 1927, the latter being the first such issued by the Education Department on the subject) regulated the use of the cane and limited it to glaring instances of indiscipline, calls for abolition came much, much later, and could hardly be said to be “Westernised.” That is why some believe that the culture of caning students excessively, like our puritanical attitude to sex, divorce, and love, was a result of “enlightened” laws drafted by Victorian men.  

Here’s what I wrote last year on this; they may have been, or are you for the calls for reform made by bodies that have evolved considerably from the Victorian Era? Or in still other words, would you prefer to remain Westernised in the Victorian sense of that term or Westernised in the modern, civilised sense of that term?”

That final question, despite the fact that I abhor simplification of any sort in whatever conversation and argument, is what makes out for the resolution of this debate.  

Corporal punishment, however worrisome it is to me, belongs by default to the private sphere, encompassing student leaders, teachers, principals, and entire institutions. The other problem belongs to the public sphere, and therefore bothers me even more; the lack of a proper system of juvenile justice in this country.  

Before I move into that issue (which I leave for next week’s column), though, a word about that forum I attended last Sunday. Former President Chandrika Kumaratunga, invited as the Chief Guest, and in response to the statistic that one in four children in the country have been abused, exclaimed, surprised despite herself and her own experience in the field (it was under her regime that the NCPA was formed, let’s not forget). “Perfect summing up,” I thought to myself, as I reflected on the many instances in which children, taken initially as flouters of the law, were transformed into victims via a justice system that, following a rather misconceived education sector that confuses unconditional deference for respect, treats them like the adults they are not. The organisation behind that forum, incidentally, was the Child Protection Force. More on that, and the main objectives it seeks to achieve, next week.   

Action can be filed against MR over his open admission ! Then why wait ? Legal fraternity asks

(Lanka-e-News- 14.Sep.2017, 11.45) The recent statement made by deposed and  presently people discarded president Mahinda Rajapakse in relation to the sentence of 3 years rigorous imprisonment delivered by court  plus heavy fines against his ex secretary Lalith Weeratunge and another State officer Anusha Pelita have  stirred up a hornet’s nest among the legal fraternity , who are of the carefully considered  opinion that Mahinda can be hauled up in court  on his recent revelation alone , based on what they revealed to  Lanka e news.  

Mahinda said categorically,  when he was the president ,Lalith Weeratunge who was his secretary had to act according to  his orders .Though this is not a new concept, yet Mahinda did not take any steps to appear in court to save his secretary.  Lalith Weeratunge too in court made the same revelation which Mahinda is now saying. That means Weeratunge has clearly acted on the instructions given by Mahinda Rajapakse when the latter  was the president.  Nevertheless , the judge did not consider Weeratunge’s averment as a cause to exonerate him. Instead sentenced him to 3 years rigorous imprisonment while also imposing a heavy fine on each of the two culprits.

The decision of the judge was guided  by the laws of the Establishment code governing the State officers.  The code clearly stipulates that if a superior gives an order that is contradictory to the laws , the state officer shall not abide by it . And if the State officer carries out the order, it is he/she who becomes first  liable and guilty , the Establishment code states. 

Since 11 th , Mahinda Rajapakse is announcing that it is he who gave the orders to Weeratunge . Doesn’t that mean Mahinda Rajapakse is clearly admitting  ,the illegal order carried out by Weeratunge confirmed by court via its verdict  was given by him ? Mahinda Rajapakse at the same time  saying  , that order is not illegal has no effect because the court has already decided duly it is illegal.

In the circumstances , whether that order was illegal or not has to be ascertained by the court , and not based on the fact Mahinda Rajapakse was the former president , or on  his immunity he enjoyed then .

Mahinda Rajapakse does not enjoy immunity any more than that  Chandrika a former president was entitled to . There is nothing extraordinary about his immunity . Neither his Hitler mustache nor his cursed shawl he flaunts proudly render him eligible for additional immunity. Besides , that immunity attaches  only as long he/she is the president. Mahinda therefore has no immunity after he is  thrown out of power. Hence ,all what he can do now to safeguard himself is to wear an amudey and  carry a mammoty instead of relying on immunity. It has already been proved ,if during the tenure of office unlawful actions are committed , cases can be filed against those offences after the presidential term is over……

The Supreme court (SC)  in the case against Mahinda’s predecessor Chandrika Bandaranaike in connection with  the fraud  in which Chandrika during her tenure of office transferred the Water’s edge land to  Ronnie Peiris , a friend of hers via an irregular transaction , the SC in regard to state and private  interests , after weighing the pros and cons clearly explained , section 35 (1) of the constitution concerns the circumstances when immunity is available  , and section 35 (2) concerns circumstances when  immunity is  not available. According to the SC , the president in power is entitled to immunity , and when out of power the immunity ceases to operate.

In the Sri Lanka  law report 339 of 2008 regarding  case No. FR 352/ 2007 Sugathapala vs Chandrika Bandaranaike  Kumaratunge , P.B. Jayasundara and others , the judges Sarath Nanda Silva ( CJ at that time) , Shiranee Thilakawardena and P.A. Ratnayake unanimously decided , the ‘immunity’ of the Executive  president does not mean it is a license given to an executive  president to commit wrongs. The SC made it abundantly clear , after the term of office of executive presidency , the executive president is liable before the law and is answerable to the wrongs committed during the tenure of office of  the  executive presidency .

In that case involving the sale to Water’s Edge Hotel of the  land that was acquired by the government for  development purposes ,  Chandrika was found guilty by the SC . The court imposed a fine of Rs. 3 million on her , and Ronnie Peiris who earned  a profit of Rs. 5.7 million owing to Chandrika’s illicit transaction  was fined Rs. 2 million . In addition the court  ordered that compensation shall be paid to the plaintiff.

When the court verdict of the past  is most lucid and unambiguous , if Mahinda Rajapakse is saying openly that it is he  as president then who issued those illegal orders to Lalith Weeratunge, and if the court too has already confirmed that order was illegal, without any trace of doubt  legal action can be taken against Mahinda Rajapakse for issuing those illegal orders. It has now   been confirmed based on the verdict of the highest court of SL, he does not also  enjoy presidential immunity any more. 

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by     (2017-09-14 23:49:23)

A Hypocrite’s Masquerade Of Virtue

By Mass L. Usuf –SEPTEMBER 14, 2017

Mass Usuf

It is said that hypocrisy or double‑facedness is the evil characteristic of the person who assumes an outward appearance and simulates a behaviour that is contrary to his inner state. Such a person may give an impression of friendship and pretend to be sincere and sympathetic, while in his heart he harbours an opposite feeling. These are those who behave in one manner in front of people and differently in their absence. To masquerade displaying one’s virtues and acting contrary to the displayed virtues is plain hypocrisy.

Aung San Suu Kyi has won many awards for democracy and human rights, including the Sakharov Prize for Freedom of Thought (European Parliament, 1991), the Nobel Peace Prize (1991), and the International Simon Bolívar Prize (1992). She was influenced by the teachings of Gandhi, who was a believer in nonviolent civil disobedience.  She was called the ‘Prisoner for Peace’ and the ‘Fearless Voice of Burma’.

During the period when Suu Kyi’s was under house arrest the United Nations called for her release, as did a number of other national and international groups, including Amnesty International and the worldwide human rights organizations.

The Suu Kyi of today seems not the same person. Times have changed and the true inner state of this pretender is now gradually revealing itself. Opportunism and selfishness embellishes the laurels of this Nobel laureate. The letter from anti-apartheid campaigner and Nobel laureate of South Africa Archbishop Desmond Tutu speaks volumes of the greed which has enveloped this woman. The Archbishop with reference to the present humanitarian catastrophe that is being played out under her leadership wrote: “My dear Sister if the political price of your ascension to the highest office in Myanmar is your silence, the price is surely too steep”.

Sri Lankan Suu Kyi

Are these characteristics unique to Suu Kyi? We have scores of Suu Kyis in Sri Lanka too, though not in the same gender but sharing similar demeanour. For instance, it is nothing but pure greed for power that makes those in the previous regime to do whatever they are doing and to say whatever they are saying. We see the same greed in those who are in power who are holding on to it tightly lest it slips away from them. In all this drama patriotism, Buddhism, nationalism and race are prostituted to cater to the same selfish and opportunistic goals. If Suu Kyi’s conduct is deceptive and pretentious not different are most of our local counter parts.

Suu Kyi Speaks Only The Truth. 

Satellite images of several burnt down villages according to Suu Kyi were destruction caused by the villagers themselves collectively burning down their own houses. The number of Rohingya refugees fleeing the killing fields of the Rakhine province into Bangladesh has risen sharply to nearly 300,000. 

Most of them had walked for four days through dangerous routes to cross the border. They are now living in makeshift camps and settlements along the roads. The UN camps are full and overflowing. These refugees have no food nor proper shelter. The infants are crying in hunger and those injured by gunshots are slowly dying due to lack of emergency medical treatment. All this according to Suu Kyi is dramatization.

Suu Kyi knows very well that the Rohingyas who were citizens of Myanmar were deprived of their citizenship overnight by the passage of a new Citizenship law making them aliens. Systematic pogroms and burning of houses and villagers meant that these people’s documents were all destroyed. Then the Myanmar government makes the claims that they are illegal immigrants and that they do not have proper documentations.

Apparently, only Suu Kyi is speaking the truth. The rest are all uttering falsehood. For her the massacre that is continuing is fake news. She blames the “terrorists” for “a huge iceberg of misinformation”. The views of the so-called defender of human rights, the advocate of rule of law and a committed non-violence activist are absurd.

Based on the Suu Kyi hypothesis of “huge iceberg of misinformation”, here is a list of those who are mere speculative ‘liars’, on the worsening situation in the State of Rakhine and the Rohingya people.

1. More than 300,000 people have signed an online petition asking the Nobel committee to rescind the prize awarded in 1991. (The Guardian, 05.09.2017).

2. Is it for nothing that the Nobel Laurette South African Archbishop Desmond Tutu wrote, “I am now elderly, decrepit and formally retired, but breaking my vow to remain silent on public affairs out of profound sadness about the plight of the Muslim minority in your country, the Rohingya.”

3. Pope John Paul II has regularly spoken out in defence of the Rohingya, calling them a persecuted Muslim group in predominantly Buddhist Myanmar.  On Sunday, he bemoaned the latest “sad reports of the persecution of a religious minority, our Rohingya brothers” adding: “I would like to express my closeness to them and all of us ask the Lord to save them and to prompt men and women of good faith to help them and ensure their full rights.”

4. The United Nations secretary-general, António Guterres, has appealed to Myanmar to end the violence that has led more than 120,000 Rohingya people to flee in the last two weeks, which he warned was “creating a situation that can destabilise the region”. The United Nations secretary-general has warned that the operations could verge on ethnic cleansing.

5. The UN Human Rights Council in March 2017 established an independent, international fact-finding mission with a mandate to investigate allegations of recent human rights abuses in Burma, especially in Rakhine State.

6. Human Rights Watch said that new satellite data is consistent with widespread burnings in at least 10 areas in northern parts of Burma’s Rakhine State, The Burmese government should grant access to independent monitors to determine the sources of fires and assess allegations of human rights violations. 

The government of Myanmar has refused to cooperate even with the UN Human Rights Council mission and indicated it will deny visas to three experts appointed to the mission. “The Burmese government has repeatedly shown that it has neither the interest nor the skill to credibly and impartially investigate abuses in Rakhine State,” said Robertson of Human Rights Watch. “Concerned governments should press for independent investigations of serious rights violations, or there will be many more victims.”

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