SLB- UPR PAPERS NO 05/2017:VIOLATION OF HUMAN RIGHTS BY THE POLICE

Violation of human rights by the Police

National Police Commission

FACTS

02/11/2017

Sri Lanka’s independent National Police Commission (NPC) does not have power to discipline & control the police force. Although the NPC has requested to make structural changes to give it the independence and control which it presently lacks, no positive action has been taken by the government^[1].  NPC web site does not provide information in all three languages^[2] and is not even updated^[3].
RECOMMENDATION

• Provide National Police Commission with authority it needs to discipline the police force.
• Make information provided by the NPC trilingual and updated.

Illegal conduct

FACTS
An increasing number of cases of illegal arrests, torturing suspects, shooting at suspects accused of general offences, covering up their wrong doings by the police are being reported.
RECOMMENDATION

• Consider launching a programme of civilian control of police or police and civilian joint supervision of arrest and detention of suspects by the police.
• Make suspects rights known in all three languages in all police stations, clearly visible way.
• Launch long term programme to change the authoritative and abusive police culture

Evidence of police chief being abusive

FACTS
Inspector General of Police Mr. Pujitha Jayasundara has used physical violence against civilian employees and the incident has been recorded by CCTV. No action has been taken by the government against this abusive behaviour.
RECOMMENDATION

• Take appropriate action to ensure justice to the victim of IGP’s violence and disciplinary action against the IGP.

 Extra-Judicial Killings by the police^[4] (2017)

FACTS

Mr. Jayalath Kandambige Chaminda (39), a resident of Meegahajandura, Bandagiriya in Hambantota District in Sri Lanka, had been extra-judicially killed on April 27,  2017, by officers attached to the Central Anti-Vice Unit of Walana, Panadura and Police Special Task Force (STF).
Mr. A D Pushpakumara was arrested on June 18, 2017 by police officers attached to the Pitigala Police Station following a domestic violence complaint made by his wife. He was publicly tortured at the time of his arrest, witnessed by numerous onlookers. His body was found the next morning floating in the Oluvila Canal

Mr. Rajamuni Devage Gunadasa of Rale Kanda, Alawwa, Warakapola was shot by Police Officers attached to the Warakapola Police Station in Warakapola Town on June 26, 2017, while walking on the Kandy-Colombo main road. Later, Police handed over the dead body to Warakapola Base Hospital.

Mr. D P Premasiri (65) of Grandpass, Colombo 14 in Colombo District, was illegally arrested and severely tortured at his house in front of his relatives and neighbours on August 09, 2017. Later, he was handcuffed and pushed against a parapet wall causing him to fall over on the ground and was fatally injured. He was brought to the National Hospital of Sri Lanka by relatives and pronounced dead on admission.

Mr. Chadik Shyaman Wickramarachchi (42), a resident of Rakgahawatte, Biyagama in Gampaha District, was extra-judicially killed on February 25, 2017, by officers of the Paliyagoda Police Station. No investigation was carried out over the matter denying justice for the victim and his family.

Mr. Magoda Pathirage Hemavipul (42), was extra-judicially killed on September 19, 2017, by Officers attached to the Pitigala Police Station. The victim was arrested the previous day and detained in a cell overnight. In the early hours of the 19^th his dead body was found lying in the cell.

Mr. Naiwala Appuhamilage Gamini Edwad (50) resident of Divulapitiya Police Division, was illegally arrested by Crime Branch Officers of the Police Station on October 02, 2017. Later, during his interrogation, he was tortured in to admitting that he committed theft.  He was produced before the Magistrate on the next day and remanded. Later admitted to Negombo General Hospital due to his acute medical condition, on admission the victim was pronounced dead.

Pitawalagedara Chandrarathna (47), resident of Bakamuna Police Division, was arrested on May 04, 2017 and charged with participation in a murder. After being detained for 14 days, he was found dead on September 18, 2017–murdered inside the Polonnaruwa Remand Prison.

Mr. Jayalath Pedige Udaya Samantha Sooriyakumara (31), resident of Warakapola Police Division in Kegalle District, was shot by a team of Police Officers while he was walking with his mother on August 15, 2017. He was immediately brought and admitted to the Wathupitiwala Base Hospital for assessment and urgent medical care. Later, Police issued a communique stating that the victim was innocent.

Mr. Sathasivam Madisam (17) of Karadiyanaru in Batticaloa District was swimming with his friends at Mundeniyaru Lagoon on July 24, 2017 when numerous Police Officers attached to the Maduru Oya Camp Special Task Force arrived, fully equipped with weapons. Seeing the officers with weapons the boys were in fear of their lives and started running. The officers fired in the air and ran after the boys. Sathasivam fell into the water and was drowning. Though his brother and went to his rescue, the Police did not allow him to be pulled out. His body was later brought out of the water by the officers themselves.
RECOMENDATION

• Consider introducing a comprehensive reform package, including mandatory human rights education for the police service in Sri Lanka.
• Take steps to investigate and ensure justice for the victims of police violence.
• Reward exemplary behaviour and punish the wrong doers.

[1] http://www.newindianexpress.com/world/2017/jan/06/sri-lankas-independent-police-commission-lacks-controlling-power-says-outgoing-chairman-1556756.html
[2] http://www.npc.gov.lk/npc/index.php/ta/media/news/press-release-20171004
[3] http://www.npc.gov.lk/npc/index.php/en/legislations
[4] All these incidents have been reported by the Asian Human Rights Commission, an NGO based in Hong Kong @http://www.humanrights.asia/ 
Sri Lanka BRIEF / UPR Papers – 05/2017 Read  as a PDF SLB UPR papers 05 Violation of human rights by the Police

The history of the vanguard

The result of all these experiences with left-wing politics was a long tract against left-wing politics by the ex-communists

In colonial societies like ours, the rift in the left movement was between the base and the superstructure

It was this culture of political complacency that was echoed in the reactions of the left to the JVP student insurrection of 1971

2017-11-03

The first of four articles delving into the Left movement in Sri Lanka.  
Somewhere in the late forties and early fifties in the United States a group of intellectuals and artists who had earlier been members of the Communist Party publicly and willingly denounced communism. Some of them went further; they alleged that communists had infiltrated the Government and the movie industry and thus consciously started a witch-hunt against those who were felt to be too liberal, too soft, with respect to the Soviet Union. An irony, considering that the US War Propaganda Machine had covertly encouraged filmmakers (some of whom would side with the instigators of the witch-hunt) to depict the Soviets as a peace-loving people (this was during the Second World War incidentally, when the communists sided with the Free World against the Nazis). The result of all these experiences with left-wing politics was a long tract against left-wing politics by the ex-communists: The God That Failed. The title was interesting enough. 

 October Revolution 

Isaac Deutscher, the Polish journalist, critic, and activist, whose biographies of Trotsky and Stalin are revered and acclaimed the world over even today, reviewed this book and began his review by quoting one of the writers, Ignazio Silone: “The final struggle will be between the communists and the ex-communists.” The names of the other writers were marketable enough: Arthur Koestler (Darkness at Noon), André Gide, Louis Fischer, Richard Wright, and Stephen Spender. There were other names involved, of course: Whittaker Chambers, who denounced Alger Hiss during the Red Scare years, and Max Eastman, who had been a close friend of John Reed, the American journalist who covered the October Revolution and was cremated after his death at the Kremlin.  
Deutscher spared no words; for him, inasmuch as the disillusionment felt by these six ex-communists would have been powerful and understandable, the route they had taken, from disenchantment to anger to downright fury, merely made them embrace a form of totalitarianism and paranoia that was no different to that which they had rejected. As legal scholars have pointed out, after all, the Hollywood Blacklist, in which suspected communists in Hollywood were disbarred from engaging in any work in the industry, had no proper legal basis: it was and it remains illegal because no crime was ever properly defined, the powers of the American Congress notwithstanding. In embracing that kind of irrational frenzy, therefore, the ex-communist was no different to the fervent Stalinist. “The heretic,” Deutscher observed, “becomes a renegade.” Pertinent. 

It’s not difficult to imagine the ardent Stalinist cringing before the sight of intellectuals and thinkers being put to death

But there were reasons for the change, not least of them Stalin’s Purges. In themselves these constituted a flagrant betrayal of the revolution because the liberal tradition that had preceded it, during the Lenin years, were all gone in a series of kangaroo trials. It’s not difficult to imagine the ardent Stalinist or even Trotskyite cringing before the sight of intellectuals and thinkers being put to death, or before the cowardice of those who had to yield and betray friends. An irony, certainly, because in later years they would be willing organisers of a similar series of kangaroo trials in their own country that promoted witch-hunts on the one hand and betrayals on the other. But I’m digressing here.  

The Left Movement in Sri Lanka 

This November marks a hundred years since the October Revolution. What it means for Sri Lanka, whether the left movement in this country (if there is such a movement) has survived, are questions best answered later. For now, what interests me is this; in a context where the left has been consistently vilified using all sorts of epithets, what place did it have here and elsewhere historically? In other words, has history been unkind?  
In colonial societies like ours, the rift in the left movement was between the base and the superstructure, or in other words the leadership and the membership. This translated to the rift between the vanguard and the laity, a rift that was necessitated in our societies because for the most it was the vanguard leadership who had access to Marxist literature. Obviously the membership, most of whom were barely conversant in English, did not have that access, a problem compounded by the fact that this was long before any proper Sinhala translation of those texts were made. What resulted was a curious contradiction, between the stated aims of a society of equals and the class orientation of the vanguard, most of whom, it must be said, came from the anglicised upper crust of their countries.  

This November marks a hundred years since the October Revolution. What it means for Sri Lanka, whether the left movement in this country (if there is such a movement) has survived, are questions best answered later

Given this situation it wasn’t too surprising that over the years the personal views of the leadership should clash and give way to rifts, splinters, and amalgamations within the parties based on ideological grounds; between the Stalinists and the Trotskyites, and later between the revolutionary and the gradualist wings of the Trotskyites. Sri Lanka unfortunately proved this to be more the case than the exception, unfortunate because, as the likes of Regie Siriwardena have observed, we did not have the kind of militantly nationalistic bourgeoisie who were agitating for independence in India. Consequently there was an opportunity for the Trotskyites, an opportunity that was not availed of. But this is not the only difference between colonial and postcolonial Sri Lanka (or between Ceylon and Sri Lanka) that proves vital to any assessment of our left movement.  

Culture of political complacency

Commentators sometimes contend that what gave rise to the Stalinist excesses of the thirties and forties was the fact that the Communist Party, in Russia, was a vanguard entity, which is true to an extent. But the vanguard entity that spawned totalitarianism in that part of the world spawned apathy and complacency in ours: despite the best attempts by our most farsighted leftist leaders, N. M. Perera and Philip Gunawardena included, they could not resist yielding to ideological pressures brought about by populist politics. It was this culture of political complacency that was echoed in the reactions of the left to the JVP student insurrection of 1971. One by one, the revolutionists, who would all be rounded up and rehabilitated and then only released to their societies, were indicted as CIA-sponsored fascists fresh from their adventures in Jakarta (where the CIA had earlier taken part in the rise to power of General Suharto, who was by no means a leftist).  

1956 had released a whole horde of idealists who would wallow in free education and a government they could consider as theirs. But not unlike the idealists of the forties in the United States, the children of 1956, or the children of those children, who had voted for change over the status quo and hence Bandaranaike over Senanayake, were fast becoming disillusioned by the leadership that had become the leaders of their movement, economically and socially. Needless to say it was during these years – the Sirimavo years, when Sri Lanka attained self-sufficiency in food and tried to keep up with the rest of the industrialised postcolonial world – which gave rise to two far-reaching issues: growing unemployment on the one hand and growing racial unrest on the other. The first would breed the insurrection; the second, a bloody, costly 30 year war.  
By this time, of course, the rift between the vanguard and the laity, and the laity and the fringe, had given way: because of free education along with translations of Marxist texts and literature from Russia, an entire bilingual and vernacular generation grew up to spurn the Old Left that had inspired the vanguard movement. The Old Left was exactly that, therefore: Old. This wasn’t the time for swimming pool, armchair socialists who smoked and led extravagant lives that were manifestly at odds with the kind of the lifestyles they were promoting throughout the country. They had earned the enmity of the bourgeoisie before; now they were earning the enmity of the people, predominantly the middle class.  

So we all became renegades, but not before those among us who remained idealists took to the New Left. In the eighties the LSSP along with a bunch of other parties formed the United Socialist Alliance with Vijaya Kumaratunga to emulate the freewheeling, sahodhara-premaya rhetoric of the JVP. But it was to no avail: as I noted a few months back elsewhere, while the USA depended on Vijaya, Vijaya did not depend on the USA. When he was killed, consequently, the USA was finished, bringing about the third most significant political phenomenon since 1956 and 1971: the federalist-devolutionist discourse that continues in our political circles even today. But that’s for another article.  

If the sixties and the seventies saw a dismantling of the vanguard structure in our left movement, then the new millennium saw a dismantling of the rift between the lay membership and the fringe, at the expense of the leadership. What I mean here, of course, is the empowerment of the student movement, and the fringe movement, both of which have proved to be more powerful, more credible, than the politburos of the New Left. The fringe movement was formerly the monopoly of the ivory tower academic, whose main role today is to apologise for the excesses of whatever government he or she is a part of (a sad contradiction, certainly): now, on the other hand, it has been transformed to an oppositional space occupied by ordinary folk, artists, civil rights activists, intellectuals not cut off from the general public. This particular phenomenon deserves separate treatment. I will get to it. Here. Next week. For now, however, I am done.  

LAW OF CRIMINAL PROCEDURE Part XIX Joinder of Charges V

By Chandra Tilake Edirisuriya-2017-11-03
Know Your Law

Our Courts have expressed the view that the indictment should show, on the face of it, that all the acts alleged were committed in the course of one and the same transaction as held in Kanjamanadan (1903) 7 NLR 52, says Prof. G.L. Peiris in his thesis 'Criminal Procedure in Sri Lanka'.
It must be noted that, even where the distinct acts alleged constitute cumulatively the 'same transaction', the Court has the discretion in determining whether joinder of charges is appropriate. In Boteju v Moorthy (1954) 55 NLR 374, K.D. de Silva J said: "The words used in the Section are 'may be charged' and therefore it is clear that it is not obligatory that all the offences committed by a person in the course of the same transaction should be tried at one trial".

A controversial question in this regard is whether charges based on the existence of an unlawful assembly may be validly joined in the same indictment with charges based on the existence of a common intention as described in Section 32 of the Penal Code, says Prof. Peiris.

In Don Marthelis (1963) 65 NLR 19, Heart J and Abeyesundere J answered this question in the negative. The decision, however, appears to have been based on a concession made by the Crown Counsel who argued the case.

The same view was taken by the Court of Criminal Appeal consisting of Basnayake CJ and Heart and Abeyesundere JJ in the case of Thambipillai (1963) 66 NLR 58. The five accused were indicted on different counts under the Penal Code. In counts 1, 1A and 2 they were charged under Sections 140, 346 read with 146, and 380 read with read with Section 146 respectively. In counts 2A and 3 they were charged under Sections 346 and 380 respectively. In count 4 the first accused alone was charged under Section 394. In count 5 the second accused alone was charged under Section 364. All the accused were acquitted on counts 1, 1A and 2.

The second and the third accused were acquitted of the remaining charges, too. The first, fourth and the fifth accused were convicted of the offences alleged in counts 2A and 3, and the first accused was in addition convicted of the offence alleged in count 4. The Court of Criminal Appeal held that the joinder of counts 2A and 3 with counts 1, 1A and 2 was not authorized by provision corresponding to that contained in the law.

An unlawful assembly

This view has now being conclusively rejected. It is settled law today that the charges based on the existence of an unlawful assembly may be validly joined in the same indictment with charges based on the existence of a common intention as held in Khan v Ariyadasa (1963) 65 NLR 29 per T.S. Fernando J; Ibralebbe (1963) 65 NLR 470, per H.N.G. Fernando J; Khan v Ariyadasa (1965) 67 NLR 145, per Lord Morris of Borth-y-Gest (Judicial Committee of the Privy Council).

It must be noted that joinder of charges is allowed "If, in one series of acts so connected together as to form the same transaction, more offences than one are committed". The basic question, then, is whether, in cases like Don Marthelis and Thambipillai, more offences than one are referred to in the indictment, or whether the same offence is alleged under different names.

Section 32 of the Penal Code provides that "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone".

Section 146 of the Penal Code is to the effect that "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly is guilty of that offence". The main contention, in support of the position that the joinder of charges is not lawful in these cases, is that one of the requirements specified in the law – that 'more offences than one' are alleged – is not complied with in these circumstances. The contention is that, although Section 146 of the Penal Code creates a liability on a member of an unlawful assembly for an offence committed by another member of the unlawful assembly in prosecution of the common object, yet it does not create an offence distinct from the offence committed by the other member. The argument runs as follows: if there is a count charging, for example, an offence under Section 434 of the Penal Code read with Section 146, then the allegation is that one or more those who were members of the unlawful assembly committed house trespass with the result that all are vicariously guilty of house trespass. That being so, a count under Section 434 charging the direct commission of house trespass cannot – so the argument runs – be joined and tried at the same time with a count based on Section 146, for that would be a charge of the same offence and there would not be charges of "more offences than one".

A hypothetical case

Prof. G.L. Peiris says that the fallacy of this argument has been convincingly exposed in the decided cases. He says that one of the most helpful judgments in this connection is that of H.N.G. Fernando J in Ibralebbe. For the purpose of convenience, His Lordship approaches the relevant provisions of the law in the same way as would a State Attorney engaged in the task of framing an indictment upon facts which are at first sight simple and which become complex only in stages.H.N.G. Fernando J discusses a hypothetical case in which the evidence discloses (a) that A shot at X with a gun at close range; (b) that the gun-shot injury resulted in X's death; and (c) that a jury may reasonably infer a "murderous intention" on the part of A. On these facts, there must undoubtedly be framed a count that A committed murder by causing the death of X. if, in addition to the facts stated above, the evidence also discloses (d) that, at the time of the shooting, A had been a member of an assembly together with five or more persons of unknown identity having a common object of causing the death of X; and (e) that A, in all probability, fired at X in prosecution of that common object, the question arises whether there can be properly added a second count charging A with an offence under Section 146 of the Penal Code.

There would be no doubt that an offence under Section 146 would have been committed for, in terms of the requirements in Section 146, (i) an offence was committed by a member of the unlawful assembly; (ii) the offence was committed in prosecution of the common object; and (iii) A was, at the time of the commission of that offence, a member of the assembly. A is, therefore, guilty of "that offence" – namely, the offence of murder – and the appropriate count against him on this score would be under Section 146 and Section 296, read together. The appropriate charge would then be under Section 296, read with Section 146.

In regard to the propriety of joining the two charges, under our law, the significant question is whether A did indeed commit two different offences – in other words, whether the offence under Section 146 is distinct from the offence under Section 296. There is no doubt, in the present condition of our law, that the question has to be answered in the affirmative. The basis of this view was cogently explained in Ibralebbe's case: "It is technically correct that, on the facts as assumed, the charge which may be framed against A under Section 146 of the Penal Code would be one of murder. But in truth the acts which render 'A' guilty of the offence under Section 146 are distinct from the acts which constitute murder within the definition in Section 293 and 294 of the Penal Code. The offence under Section 146 consists in A's having been a member of an unlawful assembly, having the common object of causing X's death, at a time when some member of that assembly actually caused the death in prosecution of that common object. The ingredients of this offence are surely different from those involved in the offence of murder under Section 296. The ingredients, which were numbered (a), (b) and (c), completely satisfy the definition of murder: it is only because of the existence in addition, of the ingredients (d) and (e) that A becomes guilty of the offence created by Section 146".

Offence of murder

The distinction of the two offences was lucidly stated by H.N.G. Fernando J: "A person is guilty of the offence of murder defined in Section 294 because he caused death with the requisite intention, but a person is guilty of the offence (of murder) created by Section 146 for an entirely different reason, the principal reason with reference to himself being that he was a member of a particular unlawful assembly at a time when murder was committed in prosecution of the common object".

In this context, the commonest case of the application of Section 146 is one where the very member who commits the offence of murder in prosecution of the common object of the unlawful assembly is charged with, and convicted of, offence under Section 146 read with Section 296. Thus, where an unlawful assembly is alleged to have consisted only of five named persons, and all five are charged with the offence under Section 146 read with Section 296, the very basis of the charge is that one of the five did commit the murder. The ground for the conviction is not the fact that he committed murder and is not different from the ground for the conviction of the other four members; the ground in each case is membership of the assembly at a time when some member committed the murder in prosecution of the common object.

In Khan v Ariyadasa (1963) 65 NLR 29, it was held, per T.S. Fernando J, that a simple test for deciding whether what the prosecution alleges are two distinct and separate offences are in reality one and the same offence would be to consider whether the elements necessary to establish the one are the same as those required to establish the other. Judged by this test, it is clearly seen that the elements necessary to prove the offence under Section 296 are quite distinct from the ingredients required to constitute liability under Section 146, says Prof. G.L. Peiris.

Anthony Bourdain’s Sri Lanka

By Jagath Asoka –NOVEMBER 3, 2017

Dr. Jagath Asoka

Over the last ten years, now and then, I have been watching Bourdain’s shows, even before his “Parts Unknown” on CNN.  Bourdain regales his audience with stories about the extraordinary cuisine and people of the countries that he visits. Usually, at the end of every show—some people call him the Indiana Jones of the food world—I often have the same cravings and longings: I feel like visiting the country, eating their food, and having a conversation with them because each episode is much more than just food and people, and Bourdain is much more than a chef, gastronome, journalist, and deipnosophist. Bourdain’s episodes reminds me of a Danish film.

Have you seen the Danish film Babette’s Feast, which was the first Danish film to win the Academy Award for Best Foreign Language film in 1987? Babette wins 10,000 francs and spends all her money to prepare a delicious dinner for a small congregation. Her meal is more than a feast; the meal is an outpouring of Babette’s appreciation, an act of self-sacrifice.

When you share a meal, something mystical and magical happens to the human spirit: old wrongs are forgotten, distrust and animosity are abandoned, ancient loves are rekindled, and a numinous feeling settles over the table. This is the exact thing that happens when you visit a poor Sri Lankan villager. I am certain that those who have visited a Sri Lankan village know what I am talking about. A meal prepared by a Sri Lankan villager enchants the angels. For them sharing a meal is an act of perfect kindness.

It is very rare for CNN, here in the USA, to talk about Sri Lanka, let alone spend one hour talking about its culture and cuisine; usually, on CNN News, albeit very brief, suicide bombers, a devastating tsunami, and Tamil tigers were the topics of Sri Lanka. Most Americans have not heard of Sri Lanka, let alone its civil war, and most Americans find it difficult to pronounce the tongue-twisting word “Sri.”

While I was watching Bourdain’s latest show—Anthony Bourdain goes to Sri Lanka—I sank into despondency. Well, there is only one word that I can use to describe how I felt after watching Bourdain’s Sri Lanka: doldrums. I wonder what others, who had watched the show, would say about this show—I know that some people stopped watching it in the middle of the show.

Usually, Bourdain’s shows make his viewers dream of places that they have not visited before, coerce them to crave for sumptuous indigenous treats, open their hearts to people who seem aliens, arise their curiosity in traditions and rituals that seem ungodly. This latest Bourdain’s portrayal of Sri Lanka seems like a potpourri of incongruous elements, from Alfred Hitchcock’s 1963 American horror-thriller, the Birds. Instead of birds, now and then, you will see a murder—a group—of ravenous, ominous black crows; a ragtag bunch of actors, attempting to portray Sri Lanka’s civil war like a Shakespearean tragedy; some scenes are reminiscent of the movie Indiana Jones and the Temple of Doom, where Hindu devotees in a trance-like-state perform rituals to appease Kali by piercing their tongues, cheeks, and other parts of their bodies by hooks resembling silver vels. Our cuisine is similar in many ways to that of southern India; in Jaffna Bourdain gets to try sumptuous Sri Lankan crab curry.

Yes, Sri Lanka is peaceful, but Colombo has become a dumpster. Black crows and garbage go hand in hand like vultures and carcasses. We brag about cozy condominiums in Colombo, yet we have not figured out how to dispose and manage our garbage. In hotels, having a fulltime employee to chase away crows with a catapult is not a tourist attraction. Some scenes were depressing or somewhat eerie. Bourdain’s shows also deal with politics.

Sri Lanka, which used to be the land of Yaksha and Naga tribes, has become the abode for mealy-mouthed preta pachyderms—most of our politicians and some of our Buddhist monks. I think every Sri Lankan knows the word preta, an unresting ghost tortured incessantly by hunger and thirst, which is also an English word that most Americans find it difficult to remember or understand.

Read More

Sri Lanka: Let’s Learn from Timor-Leste

Visit to Dili District Court in Timor-Leste

by Lucille Abeykoon-Nov 2, 2017

( November 2, 2017, Timor-Leste, Sri Lanka Guardian) I was interested to visit a courthouse when I heard that there is a list fixed with time to call up cases in courts in Timor-Leste where we never found such schedules in Sri Lankan court system.

I was given the opportunity to visit the Dili District Court in Timor-Leste on the 11th October 2017 by the Judicial System Monitoring Programme (JSMP) which is a leading non-governmental organisation in Timor-Leste, monitoring the Justice System and engaging in advocacy about legality, transparency, accountability, and strengthening the Rule of Law. I was accompanied by JSMP staff members Ms. Eurosia de Almeda and Mr. Jose Moniz.

Sri Lanka Let’s Learn from Timor-Leste.docx by Thavam on Scribd

Commissioners berate SASG Dappula de Livera

SAYS NEVER SEEN SUCH UNBECOMING CONDUCT:


Amali Mallawaarachchi-Friday, November 3, 2017

The Bond Commissioners yesterday reprimanded Senior Additional Solicitor General Dappula De Livera, for questioning the Commission’s order and the way in which he was behaving.

The Commissioners pointed out that his behaviour is unbecoming for a senior counsel.

Commissioners, Justices Prasanna Jayawardena and K.T. Chitrasiri both said that in their lengthy careers, they have never seen such unbecoming conduct and also said that they have never witnessed anybody who kept making submissions following an order was made.

Several officers of the Criminal Investigation Department testified before the Treasury Bond Commission yesterday. These officers were assisting the Treasury Bond Commission for its investigations during its mandate period.

A heated argument erupted as the Attorney General’s panel who was leading evidence moved to mark the statements recorded by these CID officers from witnesses, as evidence before the Commission.
Counsel Chanaka de Silva who represents former Central Bank Governor Arjun Mahendran, raised an objection to this move. “I will strenuously object to this.The Commission opted to call witnesses to give evidence before the Commission. The Commission is acting on the evidence given before this Commission. A statement made in front of a police officer is not evidence. Nowhere in our legal system is a statement made to a police officer considered as evidence.

I wish to object the process of marking these statements as evidence.”

“Most of these statements were available at the time these witnesses gave evidence before the Commission.

These statements should have been either put to them, shown to them or contradicted. But none of the witnesses were shown these statements.” De Silva said.

“In terms of law, a statement made before a police officer can only be used when contradicting evidence given by a witness. That was not done. In addition to that, there are statements apparently recorded from persons who have not given evidence before this commission. What is the situation then?” De Silva questioned.

Commission Chairman, Supreme Court Judge K.T. Chitrasiri said that the Commission has seriously taken note of De Silva’s objection.

Commissioner Justice P.S. Jayawardena said that in his view SASG De Livera’s submission has no merit. He also said, “I am sure your words will be appropriately reported by media.We are not interested in what newspapers report. We are interested in doing our job of work. And at the end to write a report.”

Counsel De Silva also pointed out that “Once these statements are marked it becomes evidence.” And furthered saying; “This is like sanctioning our entire system of law. What is the situation with regards to witnesses who have never given evidence before this Commission? Once their statements are marked before the Commission, they go in as evidence!” He also pointed out that these materials were not made available to them.“So marking statements as evidence is alien to our system of law and system of justice.” he said.

It was also observed that marking of these statements goes against the rules of evidence in the Evidence Ordinance and the Code of Criminal Procedure.

President’s Council Kalinga Indatissa also observed that marking the statements recorded by police officers as evidence is against the rules of natural justice.

At this point Additional Solicitor General Yasantha Kodagoda who was leading evidence observed that the Commission which is in a process of ascertaining the truth, and in fact can accept these statements recorded by police officers as material of the investigation.

“The PCoI is established to ascertain the truth. For the purpose of ascertaining the truth, there are two mechanisms to a Commission of Inquiry. The first is the process of investigation, second mechanism is inquiring.We are currently going through inquiry.The process that took place two halls away from this hall done by these officers was investigation.In the 2008 amendment to the Commission of Inquiry Act, there is specific reference to both investigative tool and the inquiry tool. In order to look into truth the Commission can accept evidence lead before the Commission as well as materials collected during the course of the investigation,” ASG Kodagoda observed. He also read a verbatim in paragraph 7 section A of the Commissions of inquiry Act supporting his observation.

ASG Kodagoda further said that “If someone is alleging that while as witnesses, these officers have intimidated them or used force to make statements in a particular manner, this is an opportunity to cross examine the relevant officers.”

It was reported last week that a Central Bank official filing a fundamental rights petition has sought the Supreme Court to prevent him from being questioned by Attorney General’s Department officers assisting the Bond Commission until the final determination of his petition.

Following ASG Kodagoda’s remark, Counsel De Silva stood to state that “This Commission should not be used as a platform to answer allegations made elsewhere.This is like washing linen of others.” Then Senior Additional Solicitor General Dappula De Livera rose to say that “We are not washing other’s linen. We know when and where to do it.”

He also pointed out that the Commission is mandated to examine the materials collected in the course of investigation and accordingly can accept the submissions to mark the said documents.

The Commission observed that some persons have given statements to both the police and the Commission. It also observed that such persons were not shown or cross examined on their statements before the Commission when they testified. The tribunal was of the view that such action was against the rule of natural justice. Therefore following all the submissions made by the counsels, the Commission made the order that marking of these statements to be unacceptable.

Speaking of the order SASG De Livera rhetorically observed that “This commission by this order has prevented itself from looking at investigative materials.

“My position is that the commission is making a mockery of this proceeding by preventing itself from looking at these investigative materials.” CID officers IP I. Raban, IP Nalinda Herath, Sergeant Mahinda Soma Jayathilake and Sergeant Siril Ranasinghe testified before the Commission.
The Commission is to sit on November 16, 2017 again. 

Ex-Dy. Minister Shantha Premarathne sentenced to 4 years RI

2017-11-03

Former Deputy Minister Shantha Premarathne, who was found guilty of accepting a bribe of Rs.50, 000 from a woman after promising to get her a government job, was sentenced to four years rigorous imprisonment and told to pay a fine of Rs.10,000 by Colombo High Court Judge Piyasena Ranasinghe yesterday.

Assistant Director of the Bribery Commission Ms. Ruwani Wickramasinghe told court that the general public had been programmed to believe that while clerical level or junior employees were the ones who usually get caught in the net of corruption and are harshly penalised as a result, the bid fish or the ministers etc. are set free and often do not have to face the consequences when caught taking bribes among other crimes. Taking this into account she requested the judge to make an example of this accused who held a responsible post as a people's representative and hand out a severe penalty to him which would send a message to others of the same ilk that no one, big or small was above the law. She also stated that the accused had misled an innocent village woman by not delivering on his promise to get her a job after accepting the bribe.

The High Court Judge took the request made by the AD of the Bribery Commission into account when passing judgment on the accused. (Manopriya Gunasekera and Ranjan Katugampola)

Protests and celebrations mark Balfour centenary as letter still stirs controversy

Israel's Benjamin Netanyahu arrives in London to celebrate the declaration, while Palestinians take to streets

Palestinians throw shoes at an effigy depicting Arthur Balfour during a protest in the West Bank city of Bethlehem (Reuters)

 

Thursday 2 November 2017

Protests in the West Bank, East Jerusalem and Gaza and a celebratory banquet in London, attended by Israel's and the UK's prime ministers, are the contrasting ways in which the centenary of the controversial Balfour declaration supporting the establishment of a Jewish homeland in Palestine is being marked.

As Israeli Prime Minister Benjamin Netanyahu, British counterpart Theresa May and other dignitaries dined at London's Lancaster House mansion on Thursday evening, protesters in Palestine and the UK have called for the British government to acknowledge more fully the suffering that the declaration caused for the Palestinian people, and to recognise Palestinian statehood.

In London, Netanyahu criticised the British government for what he said was a failure to fully implement Balfour's promise by keeping parts of historical Palestine -- the West Bank and Gaza -- under Arab control.

"I don't forget for a second that the British backtracked from the decision, but I am doubtful that without it we would have received international recognition of our right on the land. But it is clear to me that without defence and settlements, we wouldn't have received a nation," Haaretz quoted him as saying.

Protesters took to the streets of Gaza City, the main city in the Gaza Strip which has been besieged and blockaded by Israel since 2007, on Thursday morning, waving Palestinian flags and tearing up copies of the declaration. Some carried placards reading "Balfour declaration 100" with the faces of Arthur Balfour, the British foreign secretary who signed the letter, and May obscured by red crosses.

Hundreds of people also took part in Palestinian Authority-organised demonstrations in Ramallah, the political capital of the occupied West Bank, with some carrying signs which read: "The promise of he who doesn't own to those who don't deserve," the AFP news agency reported.

Some protesters also held black flags calling for Palestinian refugees to be granted the right to return, as they marched from Ramallah's Arafat Square to a nearby British cultural office.

"Balfour promised to establish the Israeli entity and its result is everything the Palestinian people still suffer from today, such as displacement, destruction and pain," said Abu Haitham Amro, 70, who was carrying a Palestinian flag.

Balfour effigy

In Bethlehem in the West Bank, protesters threw shoes at an effigy of Balfour as Israeli security forces stood guard next to a watch tower in the wall separating Palestinian territory from Israel.

In occupied East Jerusalem, which the Palestinians claim as the capital of a future state, scuffles broke out between protesters and Israeli security forces outside the British consulate.

In Jordan, home to about 2.4 million Palestinians descended from refugees who fled or were forced out of their homes in 1948, protesters gathered outside the British embassy.

"This is a message to the British government that what they did before, 100 years [ago], will never pass and we will never forget and we are going back for sure," Hisham Abdo told the Reuters news agency.

'This is a message to the British government that what they did before, 100 years [ago], will never pass'

- Hisham Abdo, protester in Jordan

Speaking with Netanyahu in Downing Street on Thursday, May raised the issue of settlement building.

"Britain remains committed to a two-state solution. I'm sure we will want to be talking about the peace process in the Middle East," she said.

"I also want to talk about what we see as some of the barriers and some of the difficulties like the illegal settlements in relation to that peace process."

Netanyahu claimed that Israel is committed to peace.

"A hundred years after Balfour, the Palestinians should finally accept a Jewish national home and finally accept a Jewish state. And when they do, the road to peace will be infinitely closer. In my opinion peace will be achievable," he said.

Israeli Prime Minister Benjamin Netanyahu (L) and British Prime Minister Theresa May met at Downing Street on Thursday (AFP)

The Balfour declaration, which is dated 7 November 1917, is a 67-word letter from Balfour, the foreign secretary of Lloyd George’s British government, to Walter Rothschild, the leader of the British Jewish community, which is considered by Zionists to indicate British support for the establishment of a Jewish national home in Palestine, which was then under the control of the Ottoman Empire.

While Israel reveres Arthur Balfour, naming streets and a Tel Aviv school after him, Palestinians decry his declaration as a promise by Britain to hand over land it did not own which led to the establishment of the state of Israel in 1948 and the eviction of many Palestinians from their lands.

Critics point out that Balfour's promise included the caveat that the establishment of a Jewish homeland should not prejudice the "civil and religious rights" of "existing non-Jewish communities".

Research by Palestinian historian Basheer Nafi also suggests that Balfour himself had misgivings about any interpretation of his letter which resulted in the creation of a Jewish government in Palestine.

In a letter to Lord Curzon, his successor as foreign secretary, in 1920, Balfour wrote: "Such a claim is in my opinion certainly inadmissible, and personally I do not think we should go further than the original declaration which I made to Lord Rothschild."

READ MORE ►

Why the Balfour Declaration did not promise a Jewish state

Britain controlled Palestine, under a United Nations mandate, from 1922 until after the end of World War Two.

Israel declared independence in 1948, at the end of British Mandatory rule and after the UN General Assembly voted in 1947 in favour of a plan, rejected by Palestinian representatives, to partition Palestine into an Arab state and a Jewish state.

The ensuing regional conflict, played out over a series of wars between Israel and its Arab neighbours, has left the Palestinians seeking to establish an independent state in territories captured by Israel in the 1967 Six Day War.

Britain's foreign minister, Boris Johnson, on Monday praised the declaration for helping to create a "great nation", but he also said the spirit of the declaration had not been fully honoured.

"The vital caveat in the Balfour Declaration - intended to safeguard other communities - has not been fully realised," he said.

READ MORE ►

The Balfour Declaration dissected: 67 words that changed the world

In an article in the Guardian newspaper on Wednesday, Palestinian Authority President Mahmoud Abbas said: "The Balfour declaration is not something to be celebrated – certainly not while one of the peoples affected continues to suffer such injustice. The creation of a homeland for one people resulted in the dispossession and continuing persecution of another – now a deep imbalance between occupier and occupied.

"The balance must be redressed, and Britain bears a great deal of responsibility in leading the way. Celebrations must wait for the day when everyone in this land has freedom, dignity and equality."

Recognising Palestine?

In Israel, the Knesset was set to hold a special commemorative session, while the parliament's foreign affairs and defence committee will hold what was described as a "special celebratory meeting" entitled "100 years since the Balfour Declaration, to independence, to becoming a regional superpower".

READ MORE ►

What if Wales had been offered to the Jews as a homeland?

Britain has refused previous Palestinian demands for an apology and does not officially recognise Palestine as a state. Johnson said on Monday Britain would be willing to do so, but wanted to time it to give maximum impetus to peace efforts.

"We certainly will do it - we want to do it - but now is not yet the time," he said. "That on its own will not end the occupation or bring peace."

May called for a solution that would ensure lasting peace.

"Sadly, Balfour remains unfinished business – as his fundamental vision of peaceful co-existence has not yet been fulfilled," May said at the dinner on Thursday evening, according to a copy of her speech distributed by her office.

"I believe it demands of us today a renewed resolve to support a lasting peace that is in the interests of both Israelis and Palestinians – and in the interests of us all."

In an interview with Middle East Eye, Emily Thornberry, foreign affairs spokesperson for the main opposition Labour Party, said the centenary of Balfour was an appropriate moment for the British government to recognise Palestine.

“I don’t think we celebrate the Balfour Declaration but I think we have to mark it because I think it was a turning point in the history of that area and I think the most important way of marking it is to recognise Palestine. The British government have said they will do, it’s just a question of when the time is right and it seems to me this is the time,” Thornberry said.

Photojournalist flees persecution by Palestinian Authority

Mohammad Alhaj 

 Mohammad Alhaj

Nora Barrows-Friedman The Electronic Intifada 2 November 2017

A Palestinian photojournalist says he was forced to flee to Jordan to escape threats of prosecution and imprisonment by the Palestinian Authority over his Facebook posts.

The Ramallah-based authority is using the same extreme surveillance, intimidation and detention tactics Israel deploys against Palestinian journalists and human rights defenders.

Mohammad Alhaj, 37, told The Electronic Intifada that in August he was contacted by the PA’s intelligence service offering him a job as an informant, ostensibly to spy on other journalists and media workers.

Alhaj, who has previously contributed to The Electronic Intifada, said he refused.
Several weeks later, in mid-September, he said he was summoned again by PA intelligence over a Facebook post he had re-published to a news group he administers.

At their offices in the occupied West Bank city of Ramallah, the intelligence officers repeatedly demanded he hand over passwords to his social media, email and messaging accounts, Alhaj said.

When he refused, Alhaj said he was threatened with criminal prosecution under the Electronic Crimes Law, which Palestinian Authority leader Mahmoud Abbas decreed in July.

The decree imposes sweeping restrictions on what Palestinians are allowed to say online. It has been roundlycondemned by Palestinian and international human rights and free speech defenders.
Amnesty International has urged its repeal.

“Instead of presiding over a chilling campaign designed to silence dissent, intimidate journalists and breach the privacy of individuals, the Palestinian authorities must stop arbitrarily detaining journalists and drop charges against anyone prosecuted for freely expressing themselves,” Amnesty’s regional director Magdalena Mughrabi said in August.

At least six Palestinian journalists across the West Bank were arrested in August by the PA and 29 websites were shut down, according to Amnesty.

Mughrabi told The Electronic Intifada that the law infringes on freedom of expression and breaches the privacy of journalists and activists.

“Under the new legislation, authorities oblige service providers to give authorities personal data about users and force them to retain data on users,” Mughrabi explained.

The right to know

The Facebook post Alhaj said sparked his investigation concerned a photo, from July of a purported Palestinian Authority internal memo instructing officers to continue “security coordination” with Israel even though Abbas promised Palestinians that it would stop.

The PA annually receives hundreds of millions of dollars from the European Union and the United States, among other international donors claiming to promote human rights and free speech.

Yet this Western aid is typically conditioned on the PA’s role as a key enforcer of Israel’s occupation, under the banner of “security coordination” with the Israeli army and intelligence.

This includes collaboration with Israeli agencies that torture Palestinians.

Human rights groups have documented dozens of cases of Palestinians detained and interrogated by the PA prior to their arrest by Israel.

This photograph of an alleged internal memo, posted to Facebook, sparked a campaign of harassment and investigation against Mohammad Alhaj.

The memo purportedly from the PA’s civil affairs ministry instructs PA security branches that Abbas’ announcement that he was freezing contacts with Israel did not include “security coordination,” such as working with the Israeli military at crossings and checkpoints.

Alhaj said that the intelligence officers demanded to know his sources for the original Facebook post.

The right to know

After refusing to give officers access to his digital accounts, including his photojournalism portfolio website, Alhaj said, he was called back to PA intelligence.

But instead of returning to face further intimidation and possible imprisonment, he escaped to Jordan, where he remains.

As a journalist and citizen, Alhaj said he has the right to know what is happening politically and to discuss it online. “What they [the PA] are trying to do is to make their official news the only information for Palestinians. They don’t want Palestinians to hear or to see other news than what they’re publishing,” Alhaj said.

He said he left his wife and three young children behind, and could not tell them nor anyone else he was fleeing to Jordan.

Imprisoning dissent

Earlier this month, a Palestinian civil rights organization launched a petition calling on Abbas to repeal the Electronic Crimes Law, which was signed by hundreds of Palestinian groups.

“The PA now has the legal power to imprison any dissenting voice and it has not been shy about using it,” statedthe prisoners’ rights group Addameer.

In September, the PA also used the Electronic Crimes Law to detain and charge prominent human rights activist Issa Amro over Facebook posts critical of the PA’s earlier arrest of the head of a radio station in Hebron.

Amro, who was released on bail by the PA, is already facing an Israeli military tribunal for his activism resisting the colonization of Hebron by Israeli settlers and soldiers.

Under Israel’s occupation, Palestinian security forces should work to protect Palestinians, Alhaj said, not monitor and silence them.

“I keep asking myself the same question,” Alhaj told The Electronic Intifada. “How much money is [the PA] spending just to spy on Palestinians?”

Sustained repression

Diana Buttu, a lawyer and former negotiator for the Palestine Liberation Organization, told The Electronic Intifada that as opposing political factions gain popularity – especially over the internet – Abbas has searched for ways to monitor dissent.

The Electronic Crimes Law ratchets up repression that has been mounting for years.

“Anybody who uses a VPN is considered to be contrary to the law,” Buttu explained, referring to to virtual private networks, a method to make an internet connection private.

Abbas’ decree also outlaws speech “harming national unity,” or damaging “social harmony” or “state security.”

“The fascinating thing is that there is no national unity,” Buttu said. “And in terms of the national interest, saying that the PA is collaborating with Israel, well, I’m not sure that security collaboration is in the Palestinian interest.”

Buttu said Abbas has taken Palestinians down “a very slippery slope” by emulating Israel’s repression of journalists and social media users.

“We’re already living in a police state without living in a state,” Buttu said.

Recently, Israeli forces raided and shut eight Palestinian media offices across the West Bank, confiscating equipment and arresting two staff.

Since 2015, Israel has arrested and jailed dozens of Palestinian journalists and approximately 800 social media users for what it calls “incitement.”

Israel has also pressured companies including Facebook to remove Palestinians’ social media content.
Israeli intelligence has recently developed so-called predictive policing computer algorithms to identify Palestinian “suspects” online, according to an analysis from the Palestinian think tank Al-Shabaka, The Palestinian Policy Network.

Dareen Tatour, a Palestinian citizen of Israel, was jailed by Israel in 2015 over her poem, “Resist, my people, resist them,” which she posted to Facebook and YouTube.

But typically Israeli authorities do not reveal “to detainees which of their social media posts led to the issuance of a warrant for their arrest and their subsequent detention,” reports Adalah, a legal center for Palestinian citizens of Israel.

“Freely and safely”

“Journalists should be able to do their jobs freely, safely and without interference,” Justin Shilad, of the Committee to Protect Journalists, told The Electronic Intifada.

He added that there is a “dark irony in the fact that both the Israeli authorities and the PA have similarly detained journalists and shuttered media outlets while, at the same time, pointing out the other’s lack of respect for democratic norms and human rights.”

In 2017 alone, Shilad said his group has documented abuses against journalists by Israel, Hamas in Gaza and the PA in the West Bank. “For all of their oft-stated differences, the one thing that seems to unite these forces is an apparent shared desire to silence journalists who speak truth to power,” Shilad said.

Meanwhile, Alhaj remains in Jordan without work and unable to tell his family when he can return home.

“I feel I am in the middle of nowhere,” he said.

Translation by Ali Abunimah.

Nora Barrows-Friedman is an associate editor of The Electronic Intifada.