Wednesday, August 8, 2018

Radical changes in the Judiciary

New draft constitution - Part 4

By C. A. Chandraprema-August 7, 2018, 12:00 pm

(Continued from last Monday)

A completely new feature of the proposed draft constitution is the 55 member-second chamber of Parliament. Each of the nine Provincial Councils will nominate five of its members to sit in this second chamber. Other than the Chief Minister who will be an ex officio member of the second chamber, the other four nominees of the provincial council should not be members of the provincial board of ministers. These nominees of the provincial councils will hold office for the duration of their Provincial Council. The PCs also have the power of recall over their nominees to the second chamber. The remaining ten members of the second chamber will be nominated by Parliament from among persons of ‘eminence and integrity’ who have distinguished themselves in public or professional life.

Another new feature envisaged in the draft constitution is the restoration of by-elections. If the seat of a Member elected from a constituency falls vacant, a by-election will have to be held. In the event of a vacancy occurring in a provincial or national list seat, the next person on the respective list submitted by the relevant party will be declared appointed to Parliament by the Elections Commission. While the 19th Amendment prohibited dual citizens from contesting elections, the proposed draft constitution seeks to take this one step further by bringin in the additional requirement that a dual citizen wishing to contest an election in Sri Lanka will have to relinquish his foreign citizenship at least 12 months prior to tendering nominations for an election! It is only too plain that this is an attempt to prevent either Gotabhaya Rajapaksa or Basil Rajapaksa from contesting the 2019 Presidential election or the 2020 Parliamentary election.

Another novel feature in this draft constitution is that a candidate at a parliamentary election will be able to contest an electoral constituency while also appearing on the provincial PR list as well as the National List submitted by a party. The present government has a tendency to tailor the constitution to suit the needs of individuals in the government or to keep individuals in the opposition out of the running and it is obvious that this particular provision allowing candidates to appear as candidates in constituencies as well as on the PR list and the national list has been brought in with a view to bringing the favourites of the party leader into Parliament by any means available. Such provisions only goes to show the real motives behind this entire constitution making process.

Supreme Court supreme no more

The judiciary is to undergo some radical changes according to the provisions of the proposed draft constitution. A Constitutional Court is to be established to exercise the Constitutional jurisdiction exercised at present by the Supreme Court. The proposed Constitutional Court is to have a President and six other members who will be appointed by the President on the recommendation of the Constitutional Council. Those appointed to the proposed Constitutional Court are to be persons who have distinguished themselves in the judiciary, legal practice or legal education with specialized knowledge or experience in constitutional law. Members of the Constitutional Court are to be appointed for a term of five years and will be eligible for reappointment. The Constitutional Court is to exercise jurisdiction over interpretation of the Constitution, the Judicial Review of Bills; Judicial Review of Laws & Statutes and Jurisdiction regarding disputes between the Central Government and Provinces. Whenever any question arises in proceedings in any other court on a matter coming under the jurisdiction of the Constitutional court, it will have to be referred to the Constitutional Court. The Constitutional Court is to have sole jurisdiction to determine whether any provision of a Bill requires to be approved by the People at a Referendum.

The jurisdiction of the Constitutional Court to determine any such question may be invoked by any citizen by a petition addressed to the Court and there will be no time limit within which such a reference has to be made. We pointed out in a previous article that one of the new features that the draft constitution proposes to introduce is the judicial review of legislation. The age of retirement of Judges of the Supreme Court and Court of Appeal shall be sixty-five years. Like many other things in the present government’s constitution making process, this Constitutional Court also seems to be tailored to suit certain individuals.

There is no age limit for those sitting on the Constitutional Court. They are to be appointed for a five year term and can be reappointed. Furthermore, members of the Constitutional Court need not be members of the judiciary. Those who have been in ‘legal practice’ or ‘legal education’ with ‘specialized knowledge or experience in constitutional law’ can also be appointed to the Constitutional Court. One gets the distinct impression that some of those involved in drafting the new constitution are trying to create sinecures for themselves to spend their retirement. If such doubts are to be dispelled, there should be a transitional provision in the new constitution which says that nobody even remotely connected with the present constitutional reform process will be eligible for appointment to the Constitutional Court.

The process for the removal of judges of the superior courts is also to be changed. Under the provisions of the draft Constitution, it is the Constitutional Council that will have the power to entertain complaints regarding any judge of the Constitutional Court, Supreme Court or Court of Appeal. If the Constitutional Council finds a prima facie case to have been established against the judge concerned, the Constitutional Council shall refer the allegations to a Panel of three former Judges of the Constitutional Court, Supreme Court or Court of Appeal appointed by the Constitutional Council for that purpose, who shall inquire into the allegations. In the case of an inquiry into the President of the Constitutional Court or the Chief Justice, the Panel shall comprise sitting or former Judges of the highest court in any other Commonwealth state. This Panel will inquire into the allegations and report to the Constitutional Council.

Where a finding of misconduct, incapacity or intentional violation of the Constitution is arrived at, the Panel shall communicate such finding to the Constitutional Council with a recommendation that the Judge be removed. Where the Panel recommends removal of the judge, the Constitutional Council shall refer such case to Parliament and Parliament may thereafter, by a resolution passed by a simple majority of the whole number of Members of Parliament request the President to remove the Judge. Upon receipt of such a resolution the President shall remove such Judge. The requirement that when the conduct of the President of the Constitutional Court or the Chief Justice is being inquired into, the Panel will have to be made up of retired or serving judges from foreign countries will be widely questioned. No self-respecting nation will place an impeachment process under a panel of judges from foreign countries.

Foreigners to decide ondismissing top judges

Promoters of the present constitution may say that when Sirima Bandaranaike appointed a Commission of Inquiry to look into the assassination of her husband, she appointed two foreign judges from Egypt and Ghana to serve on it. But that was only a fact finding commission, not a panel tasked with recommending the removal of the highest ranking judge and the second highest ranking judge from office. Since the President of a Court of law is only a first among equals, one would think that a Panel appointed from among retired Supreme Court judges by the Constitutional Council would suffice for the purpose as the case of other judges of the same courts. Those who drafted these proposals seem to even mistrust the Constitutional Council they advocate so ardently when it comes to the removal of the two highest ranking judges. In this case, the mistrust is such that decision making power is to be given to complete foreigners. This is a country that does not allow good Sri Lankans who have obtained dual citizenship even to contest elections. Yet the removal of our two highest judicial officers is to be entrusted to complete foreigners who may never have set foot in Sri Lanka earlier!

No retired Judge of the Supreme Court or Court of Appeal may accept any paid or unpaid function in the State sector within two years of his retirement or resignation as a Judge, other than in the training of other Judges or academia. It is interesting to note that the Judges of the Constitutional Court are not burdened with this restriction which means that a judge after serving his five year term on the Constitutional Court, can accept a state sector position – a sure way of ensuring that the judges of the Constitutional Court will always be looking for ways to ingratiate themselves with the government of the day for them to obtain a sinecure after completing their tenure in the Constitutional Court. As we pointed out earlier, one of the purposes of the draft constitution seems to be to provide well paid retirement jobs for its promoters.

After the creation of the Constitutional Court, the Supreme Court will continue to have final appellate jurisdiction in civil and criminal matters, but it will no longer be the highest Court in the land because it will be subject to the jurisdiction of the Constitutional Court. Another major change proposed is that the fundamental rights jurisdiction currently exercised by the Supreme Court will be transferred to the Court of Appeal. It has further been proposed that the composition of the Judicial Services Commission which at present comprises of the Chief Justice and two other judges of the Supreme Court be changed to comprise of the Chief Justice, one other judge of the Supreme Court and the President of the Court of Appeal. The Judicial Services Commission is tasked with the appointment, transfer, dismissal and disciplinary control of judicial officers of the High Court downwards, and of public officers serving as Registrars and other senior officers of the Courts system. Given the change in the status of the Supreme Court that is envisaged in the draft constitution, in a way, there seems to be nothing wrong in the President of the Court of Appeal sitting on the Judicial Services Commission.

There is a provision in the draft constitution which says that in making recommendations for appointments to the office of President of the Constitutional Court, the Chief Justice, President of the Court of Appeal and every other Judge of the Constitutional Court, Supreme Court and Court of Appeal, the Constitutional Council shall consult judges of the superior courts including the judge being replaced, the Attorney General, the President of the Bar Association and any other relevant person. Even when the President was the sole authority in making appointments to high judicial office informal consultations were always made. The very persons who were thus consulted by former Presidents would have been people like sitting and former judges of the Supreme Court, the AG and President of the BASL. However by introducing a constitutional provision to the effect that the Constitutional Council is mandatorily required to consult such individuals before making recommendations for high judicial office, patron-client relationships may be built up over a period of time between those being consulted and the appointees to high judicial office. Since the President of the BASL will have a say in appointing the very judges that he will be appearing before, there will also be an inbuilt conflict of interest in this matter. A more suitable course of action may be to allow the Constitutional Council to make informal inquiries at their own discretion as they obviously do at present.

(To be continued)

A Critical Analysis Of The Draft Constitution Doc By 6 Members Of The Panel Of Experts

By Ruwan Laknath Jayakody –AUGUST 6, 2018

Ruwan Jayakody

Certain Members of the Panel of Experts (six out of 10) have presented a confidential, for discussion purposes only, document, for the consideration of and discussion by the Steering Committee of the Constitutional Assembly, a document which seeks to facilitate the formulation of a Draft Constitution Bill by the Steering Committee.

The Panel of Experts consists of persons nominated and appointed by the political parties represented in the Parliament.

In critically analyzing it, one finds that the application of any approach taken under the various rules of statutory construction or interpretation would not absolve the travesty that is the attempt at Constitutional reforms made by the Six Members of the so called Panel of Experts, who are political appointments, as exemplified in their simple minded and misguided stab at amending the Constitution to suit certain aspirations. Nowhere is this legally unsound, utterly unpragmatic and blatantly obnoxious in terms of the reckless (or perhaps even willful) disregard of national realities more evident than in the case of their attempted undoing of the pivotal provisions of Articles 1 to 5 found in Chapter I of the Constitution which deals with nothing short of the ‘The People, The State and Sovereignty’. It seems that the monkeys have got the razorblades and therefore if by some stroke of woe, lunacy prevails, and the wordings put forward by the Six Members of the said Panel in their reformulations (proposed as Articles 1 to 4 in their document) which are consistent with that of a delusional pipe dream, are adopted, it would precipitate the eventual undoing of this nation. In short it constitutes not Constitutional reforms with qualitative improvements or value additions but a Constitutional perversion.

The Constitution

Chapter I of the Constitution in Articles 1 and 2 deals with the nature of the State while Articles 3 and 4 concern the social contract and the vesting of sovereignty in the various administrative arms of the State, specifically the legislature/the Parliament, the Executive (the President) and the judiciary, and Article 5 defines the territory of the country.

Constitutional Maledictions

The State and its Nature

The nature of the State is, in the present Constitution, held to be one that is a Free, Sovereign, Independent and Democratic Socialist Republic that is also Unitary.

On the other hand, the particular Experts Panel formulation retains the references to a Free, Sovereign and Independent Republic, omits the mention of ‘Democratic Socialist’, and explains that the State “is an aekiya rajyaya/orumiththa nadu (defined in the formulation as being “undivided and indivisible”), consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution”. The new formulation retains that the power to amend or repeal or replace the Constitution is with the legislature and the people as per the manner provided in the Constitution.

Firstly, the references to democracy and socialism are vital are they relate to aspects pertaining to the civil, political, economic, social and cultural life of the people in the country, not to mention the cherished value systems (including the existence of aspects pertaining to a welfare State) under which life is lived. It serves as a constant reminder on how we should treat each other, including the rules and regulations governing the relations between the Government and the body politic. Thus any omission is unthinkable, not to mention unnecessary.

Also, the references to “the institutions of the Centre and of the Provinces” in the new formulation in reality concern aspects pertaining to the administrative apparatuses of the State, and should therefore not be construed as constituting the nature of the State and thereby conflated with such. It is a formulation that should appropriately be brought within the domain of the Article that deals with the ‘territory’ and not one that deals with the ‘nature of the State’.

Furthermore, the case of ‘unitary’ being changed to ‘undivided and indivisible’ is a wholly unwarranted aberration, which also beggars the question as to whether the aforementioned Six have an ulterior agenda albeit even insidiously sinister motive beyond their perceived clever adjective riddled phraseology or word play. Despite the caveat against separatism or secession in Article 4 as proposed in the new formulation, it is no small wonder that the grim spectre of a federalism bordering on separatism as pointed out by other critics, looms, writ large in this particular word manifestation. The aforementioned caveat in this precarious context is tantamount to a case of volunteering innocence when the question of guilt was not raised.

Opposing Sampanthan, is this the time?

2018-08-09

TNA and Opposition Leader R. Sampanthan has been in the forefront of Tamil politics
All this hullabaloo in Parliament by the joint opposition demanding the appointment of Dinesh Gunawardene as Opposition Leader leaves a window open for the island’s citizens to think deeply about the national question.

Sampanthan, has found a way to coexist with the Yahapalana regime
The unity among Tamils would mean they vote together in bringing about a change in regime

When the current Opposition Leader R.Sampanthan was appointed to this post in September 2015 there was allround approval for him even by the hard-line Sinhala MPs in parliament. There was no question about his qualifications and experience and many expected the senior politician to deliver the goods on behalf of the minority Tamils.

Despite Sampanthan having completed almost three years in his post there still exist grumbling Tamils in the north who wish to have their lands back. Apart from the land issue the Tamil politicians have also requested the removal of certain Military Camps in the north.

Liberal minded people of this country wish to have a president who serves all communities equally regardless of cast, creed or colour. The last Tamil vote at a Presidential Election went to a person of that calibre, Maithripala Sirisena

Sampanthan, unlike the Governor of the Northern Province, C.V Wigneswaran, has found a way to coexist with the Yahapalana regime. He seems to prefer the non-aggressive approach to find a political solution to the national question.

In the meanwhile, the Government has found it a challenge to deal with Wigneswaran who prefers to put across his views and demands with a clenched fist. What Sampanthan has to realise is that nothing gets done in Sri Lanka without the parties that are in need staging protest or making aggressive demands. Many felt that Sampanthan was too soft in his stance as Opposition Leader, hence the little progress he has made in winning the rights of the Tamil community.

But there is also a school of thought that a person in the likes of Sampanthan is ideal to deal with the Yahapalana Government during these times of peace. President Sirisena and Premier Wickremesinghe are cool as cucumbers and its easy for a personality like Sampanthan to approach the duo when compared to the aggressive Wigneswaran.

Despite the road leading to the north opening up and investments being made in this war-torn area, there are still shadows of a dark past that haunt the Tamil people. Right now sword gangs are operating in broad daylight and this indicates two things; one being that that the north still needs military camps and the other is that these gangs could be backed by an unseen powerful hand of a politician.

Only Wigneswaran has spoken openly about checking these gangs. He has recently said that if police powers are given to the Northern Provincial Council he would be able to stop these gangs from operating. This statement makes citizens wonder whether Wigneswaran is a magician or whether he is aware of the source that’s backing these gangs. If these armed gangs are backed by a Tamil politician to earn the rights of Tamils, it then defeats the very purpose of working towards a peaceful settlement to the national question.

Sampanthan was forced to leave the country during the war and he himself has said that he lived under challenging conditions in India. A lawyer by profession, Sampanthan has been in the forefront of Tamil politics since returning to Sri Lanka. He is also the Leader of the Tamil National Alliance.
As much as Sri Lanka needs to get out of the debt trap which she is in, there needs to be a similar effort to find a solution to the national issue.

Sampanthan, attending a book launch in Jaffna, had said that Tamils should unite in their efforts to find a political solution to their problem. The unity among Tamils would mean they vote together in bringing about a change in regime. This is why this unity is so important. Retaining Sampanthan as the Opposition Leader has its advantages too. This is because he still would be the preferred choice if the Sinhalese Politicians wish to negotiate with a representative of the Tamils.

Sampanthan had at that book launch reminded those in attendance that it was the Tamil vote that was vital at the 2015 Presidential Elections in bringing about a regime change. Liberal minded people of this country wish to have a president who serves all communities equally regardless of cast, creed or colour. The last Tamil vote at a Presidential Election went to a person of that calibre, Maithripala Sirisena.

it’s wise to have Sampanthan continuing in this pivotal post, given that the outside world is monitoring the welfare of this minority group during the post war reconciliation process

The Joint Opposition has called for the appointing of one among them as the Opposition Leader and backs this request by stating that it enjoys 70 members in Parliament. The UPFA has already unanimously decided that Sampanthan should remain as Opposition Leader. Whoever, if at all, there is one who gets the nod from the joint opposition to be the Opposition Leader, he is likely to be controlled by the Rajapaksas, who are slowly working their way to towards returning to power. In this context it’s wise to have Sampanthan, a Tamil, continuing in this pivotal post, given that the outside world is monitoring the welfare of this minority group during the post war reconciliation process.

Speaker Karu Jayasuriya has said that he would make a statement in Parliament regarding the post of Opposition Leader after consulting all party leaders and seeking legal advice. Government minister Lakshman Kiriella has said that a section of the UPFA can’t hold the post of Opposition Leader. Let’s hope that the lawmakers take a wise decision that makes the big problems this nation is facing little ones.

SC rules two clauses of Reparations Bill inconsistent with Constitution

by Saman Indrajith-August 8, 2018, 12:01 pm

The Supreme Court had determined that two clauses of the Office for Reparations Bill were inconsistent with the Constitution, Speaker Karu Jayasuriya told Parliament yesterday.

The Speaker, making an announcement at the commencement of the sittings, said that the SC in its determination, sent to Parliament after concluding the hearing of two petitions challenging the Bill, had stated that Clause 27(a) and 27 (a) iii, were inconsistent with the Constitution.

The SC has ruled that the Bill has either to be passed with a two-thirds majority in Parliament and a referendum or be amended as per the SC’s recommendations to make it consistent with the Constitution.

The Bill provides for the provision of individual and collective reparations for aggrieved persons. The Clause 27 (a) deals with the interpretation of "aggrieved persons". The Clause 27 (a) says "aggrieved persons mean persons who have suffered a violation of human rights or humanitarian law, their relatives and missing persons". The Clause 27 (a) iii interprets that "aggrieved persons" also include the individuals, groups or communities of people of Sri Lanka who had faced systematic gross violations of the rights.

If the above two clauses are amended as per the SC’s recommendations those will cease to be inconsistent with the Constitution. The SC has determined that the rest of the provisions in the Bill are in accordance with the Constitution.

The Bill was presented in Parliament for the first reading on July 17.

The scope of legislation applies to the conflict in the North and the East, as well as "any political unrest or civil disturbance, systematic gross violations of the rights of individuals, groups or communities of people of Sri Lanka, and enforced disappearances".

Under the "individual reparations", the bill facilitates any monetary payment or material benefit provided to an aggrieved person, micro-finance and concessionary loans, educational programmes, training, and skills development programmes, administrative assistance, and welfare services including psycho-social support provided to an aggrieved person, measures of restitution, including the provision of land and housing, and other appropriate measures identified by the Office for Reparations.

Under the "Collective reparations", the bills facilitates remembrance of deceased persons, including memorials, development of infrastructure, educational programmes, training, and skills development programmes, community development programmes or services, and other appropriate programmes as identified by the Office of Reparations in consultation with affected communities.

The Rehabilitation of Persons, Properties and Industries Authority Act, No. 29 of 1987 will be repealed by the new Bill.

The power of small miracles

Thursday, 9 August 2018

Quite a few years back we became quite familiar with the term ‘small miracle’ which never took to the stage it was intended but contributed perhaps definitely to the use of few hundred millions of rupees as no process is expense free.

However, I wish to make sense of the power of small miracles even if the whole of Sri Lanka is not one small miracle. The latter can be argued perhaps in many ways with and as said once in the US, in the long run you never beat the White House. A comment by a White House deputy to a US EPA Administrator William Reilly indicating it is not the scientific merit that matters.

Consistencies in developed economies

Large or small, developed economies appear to show some remarkable consistencies. You are almost always impressed with efficiencies, see compact places with many millions running super confidently, rail with people cycling into their compartments literally, massive projects with perhaps tiny plaques if any and with only an occasional rumpus happening from street protests. The latter may be just may be so as to keep that protesting gene in their bodies without going extinct by becoming completely lame and docile.

How such comparable predictive situations have occurred which had led to the establishment of quite memorable quality of life scenario that they radiate. This definite difference that exists had left so many putting even their life on ‘life support’ just for the opportunity. The urge is so strong that some place all that they have at risk, as the picture of the baby body of Alan Kurdi demonstrated.

The world polarised between a developed and a developing status sadly appears to have pushed people to achieve quick success not so by hard work-based achievements but by high-risk, short-term opportunistic risk taking.

Many of the changes that contribute to some cities surpassing many others are not even felt and understood as important. Definitely those who led to such changes are unknown. They are the silent unknown innovators. While looking at monuments one could in many of these cities come across a tomb of the Unknown Soldier. Faceless adulation but people know that many lives were sacrificed at different times for society and the respect has stretched over centuries.

There are no such tombs for the Unknown Innovator in any society. As societies change, still improvements keep on materialising and find many a happy user. When people come across such changes they do not ask from whom but are quick to consume and benefit only.

Consider what the US Economics Professor from Stanford Paul Romer studied. He identified something that saved perhaps a few seconds to be quite remarkable. This example is about a one size fits all cup lid. Usually there are three service offerings in a coffee shop and such shops are quite ubiquitous in developed states – small, medium and large. These initially had three different size cup lids and the consumer usually after getting the cup had many a difficulty in finding the right lid, losing time and creating additional stress as well.

When one size fits all made its debut, suddenly the consumers found themselves not needing to think at all – there was only one type of lid for all three cup sizes. You pay for your drink and just use the lid. Imagine in a nation addicted to drinks on the go, finding even a few seconds being made available to a different productive activity. Right across all such activities, some are introducing innovations. The power of such combined innovations means the power of small miracles. Yes it is important that simple unproductive leisure is not simply extended to benefit from small innovations, then the absolute power is no more.

Those perceived qualities really were as a result of many such mobilisation of small innovations. All societies at all times will be able to identify pain points. Pain points may have something to do with convenience, efficiency, effectiveness, productivity, dullness or progress.

Seeking solutions to pain points

The difference of a society that decays with time is when the creativity in identifying opportunities is lost but is replaced with cynical opportunistic behaviours. When such become the majority, you never seek a solution to any pain point. The pain points are allowed to be cancerous and a whole process of negativity accumulates.

I recently faced the experience of giving as an example a list of pain points in our society across several dimensions. My interest was to see how a student group would response with possible answers and the willingness to go an extra mile. My final experience with a very short feedback time was the expectation was too much. They fear to fail even though I never had any interest in failing.

How the group perceived the issue was as the challenge was individually threatening and many perhaps were imagining problems first why the challenge cannot be done and it was easy to see fears spiralling. We engage with a subject to go through easily with it and want to be on the horse, which is easier to win with.

Education system

Most students of our current system of education are about seeking maximum blessings from the sun to Jupiter and any relevant moon before the examination. Identify directions of departure and even may come out through the backdoor of the house if that is the suggested direction.

You may try to find a time too which may need either you trying to run at full speed to get to the examination hall or spend some real good time twiddling thumbs having had to come out of the house too early. As we have mass-scale distribution of blessed pens, etc. in quite a few places and observing the crowds, one may wonder how one can repeat the process year on year if the results from the previous year’s distribution is known.

May be that the blessed pen was kept closer to the heart and the student used another pen. Or just may be that those who failed to understand that the pen should be closer to the head rather than the heart are definite not to succeed. It is important to understand that we at present make most of our decisions from heart.

We must understand that pain points are evolutionary with progress as well. There will always be a different way to do things. Different ways of thinking will pave the way to solve and small miracles would happen. Little change, mass acceptance and a resulting small miracle.

Many thousands of small miracles happening almost silently across societies transform themselves. So you need citizens as change agents and all students are citizens and it is incumbent that a real good student should be an innovator.

Many may spend their lives not getting known to the outside and they themselves may not realise the enormity of their contribution in altering the direction of their society. However, this group is a natural and a must have for a developed society.

Breeding opportunities

The lesson I want to push for our economy is that we need to create this group or give powers to any identified to breed their numbers. Breeding is to be understood by valuing idea infusion, enabling execution interest, supporting creative spaces.

To go back to my earlier experience given above, students did not see the breeding opportunity – they thought that with time and all the other pressures they simply do not have the ability to make it. They were lining up all the negatives and the issue would have appeared to be so insurmountable they definitely did not see the availability of doing brilliantly even while failing to achieve the end objective which too had been taken as ‘successful implementation’.

In any learning environment you do not necessarily succeed solely by being right. It is the effort that you make, the multiple directions that you take and how spectacularly you may fail – how audacious even the single try that you took! – can make a different person out of you. I would have accepted both the brilliant success and any spectacular failure equally. The system should have that flexibility built in.

Students by and large respond to the signals that they get or what has been culturally embedded. Those who challenge, those who wish to walk on roads not travelled before, those who understand a singular reason for our place in society is purpose, make all the differences as they only have the ability and opportunity seeing a different view.

The majority not attempting anything new, who play safe and enjoy leisure, are not going to show us the power of small miracles. We will just move from one tag line to another and spend money on advertising agencies to support our branding – to give makeovers.

The power of small miracles is evident when the execution of many ideas is littered across the landscape continuously and conspicuously. Billboards, whether digital or analogue, cannot grow nations!

Will Sri Lanka Elect A Moral Leader In 2020?

By Niranjan Canagasooryam –AUGUST 8, 2018

Niranjan Canagasooryam

With the end of the civil war in 2009, the Rajapaksas’ deceitful claim of zero civilian casualties had inadvertently trapped their regime into an irreversible position. This absurd claim meant the inability to acknowledge the losses of a battered society that suffered the brunt of terrorism and faced the horror of the unacceptable death toll of their loved ones during the final stages of the war. It also resulted in the missing of a historic opportunity for a genuine reconciliation. It is estimated around 100,000 civilians died from the inception of the civil war in 1983 (although the uprisings commenced much earlier) with further estimates of up to 60,000 lives brutally lost in the final stages of the war. The majority of the victims were from the minority Tamil ethnicity. The tragic loss of lives of their loved ones is not easy to let go and the Sri Lankan government must address this and deploy an action plan to have a genuine and sincere reconciliation to ensure that this tragedy does not reoccur.

Successive governments have failed to carry out genuine reconciliation. Instead, there was the casual public display of unity among communities by merely showcasing acts such as Independence Day celebrations with children from all communities parading in their unique cultural dresses, religious leaders from all communities seated next to each other and heads of states making great speeches of unity as their commitment towards reconciliation. None of these public displays and speeches has addressed the true grievances of a minority community or resulted in the execution of any reconciliation actions that have had a real impact to the society at large.

Genuine Reconciliation

Though true reconciliation and the healing process may take decades, the following could serve as a starting point.

Acknowledging the Truth – The first step is acknowledgement. The government should utilise the strong roots of democracy to reach out to the marginalised society by acknowledging the tragedy and informing the truth to the victims. This is the only way the people who lost their loved ones will be able to accept and commence the process to move on. GOSL should not shy away from publicly seeking and delivering the truth in fear of extremist and ultra nationalist reactions taking political mileage. Grief cannot, and should not, be suppressed. If GOSL omits this initial step of delivering the truth, it is accepting to its fellow citizens the notion that some lives matter less.

Though it frequently is viewed from this perspective, seeking and delivering the truth is not to be taken as revenge or to bring the perpetrators to justice. It needs to be carefully noted that this process is indeed different. Instead, pardoning by way of granting amnesty from both civil and criminal prosecution should be applied. Perpetrators are to be forgiven, provided there is an equal attempt to restore the honour and dignity of the victims and to give effect to repatriations.

Whilst this may seem idealistic, a similar approach was carried out quite successfully in South Africa. The Truth and Reconciliation Commission was set up in 1994 where victims of gross human rights violations by the Apartheid regime were invited to give statements about their experiences, and some selected for public hearings. Perpetrators of violence could also give testimony and request for general amnesty. This was hauled a great success in the healing process and South Africa moving forward. This is unlike the Nuremberg style prosecution of violators where perpetrators were sentenced depending on the level of injustice carried out.

National Apology – The head of state must deliver a national apology representing the country to all citizens, particularly to those who have lost their loved ones. It is not a personal responsibility but a claim of nationalistic sorrow for all the people, your people, who were unfairly affected by this civil war.

Sirisena family which blossomed with ‘Pubudamu Polonnaruwa’ !

(Lanka e News -07.Aug.2018, 11.45PM) It is very clear to all of us Polonnaruwa Gamarala and his family are these days reveling and rejoicing to the hilt. They must be joyfully thinking never before did they have this gaiety and so much to ‘gobble up’, and so exploiting the opportunity to the full.

Gamarala has been able to successfully complete the ‘Pubudamu Polonnaruwa ‘ project respecting traditions though it is better known as a huge national plunder pumping colossal sums of money in billions into the bank accounts of president Sirisena Gamarala’s brothers and daughter Chathurika while pulling the wool over the eyes of the people . There is nothing that a cunning , crooked ‘Tompachaya’ (confirmed liar) cannot accomplish and so Gamarala did just that.

We have been hearing about the fanfare , huge publicity and the trumpet sounds for three days that accompanied the handing over of 180 projects which were inaugurated recently in Polonnaruwa district , to the people under the patronage of Gamarala .

Mministers , parliamentarians , officers, their families , even grandchildren and lackeys in their tens of thousands flocked to Polonnaruwa to gourmandize and fill their pot bellies to the point of bursting at state expense. All these sumptuous meals and beverages were served at Chaturika’s ‘Thidas Aruna’ hotel

Bills of the daughter are footed by ‘president father’ . One can therefore imagine what amount of ‘national service’ this president father is doing on behalf of his daughter .Therefore , is it any wonder if father and daughter are reveling and rejoicing as never before in the mirth and merriment designed by and for them ?

Believe it or not , the sum spent on account of the ‘Pubudamu Polonnaruwa’ program is a whopping Rs. 60 billion!

It is noteworthy there are another 24 districts in the country . We are well aware in these districts there are no proper roads , schools , hospitals and even a drop of pure drinking water . We have seen several villages and we been met by people in the villages who have expressed their grouses and grievances to us. Sadly for Gamarala the frog in the well , the entire world is Polonnaruwa and vice versa. Of course there are also people who think , ‘even if he is of no use to us , he developed at least Polonnaruwa.’ But the true story abut this development is diametrically opposite.

Though the country may not be aware , those living in Polonnaruwa are well aware how the Sirisena brothers (president Gamarala’s siblings) , namely Dudley , Kumara ,Lal and Chaminda ‘gobbled up’ about Rs. 40 billion of the huge Rs. 60 billion that was disbursed towards the much hyped Pubudama Polonnaruwa program. .

Can you beat that ! the Sirisena brothers aforementioned are the suppliers of all the raw materials including bricks , sand , earth , steel, cement and carpet mix for the 180 projects which were completed .

Not even a fly could get past them !

Gamarala said , the contracts for supplies were entrusted to the forces and not to contractors to avert fraudulent practices . He said that in order to ward off accusations that may be hurled at him . But he did not make any mention that it were his brothers who supplied the raw materials.

What is most perplexing and intriguing about these contracts is , a certain percentage of the wealth generated from these contracts being channeled to the Rajapakses.

These murky activities were on going even in the past. A good illustration was : When Basil Rajapakse was the minister of economic development , orders were given to all the contractors Island wide to buy the paving concrete stones for roads only from Dudley Sirisena’s contract Co.

In 2013 /14, 800, 000 paving concrete stones were produced , and Namal Rajapakse’s bank account was credited with Rs. 1.00 per stone. Even today the contractors identify these stones as ‘Namalketa’

It is also no secret Chaturika along with her uncles ( father’s brothers) went to meet Mahinda Rajapakse during the beginning of this year . Obviously when it comes to greed for wealth and power both the families are under the same roof . No wonder ‘they scratch each other’s backs’ even when they are afflicted with incurable scabies elsewhere in the body.

It is a pity despite all these camouflages , subterfuges and ‘subterranean’ activities, Prime minister Ranil Wickremesinghe and his parliamentarians are still staying put under the spell of the curse of Gamarala while getting pummeled from Gamarala himself.

When this is the true sad situation , is it any wonder if the Sirisenas who were ploughing the fields in Laksha Uyana transform into billionaires, to have a whale of a time at the expense of the country which is in an economic abyss owing to them and none other ?

Polonnaruwa resident

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by (2018-08-07 19:49:07)

Deep Impact: Emmerson’s Report Reveals Lasting Legacy of PTA

Featured image courtesy Middle East Online

RAISA WICKREMATUNGE-08/08/2018

On July 23, former UN Special Rapporteur on Counter-Terrorism and Human Rights, Ben Emmerson released a report following on from his visit to Sri Lanka in 2017.

Emmerson pulled no punches in his report – saying that the need for repealing the Prevention of Terrorism Act (PTA) was “unequivocal” while urging that any replacement legislation be aligned with international standards.

Emmerson met with representatives of Government, several High Court Judges, and a number of detainees during his visit. His findings highlight the deep and lasting impact that legislation such as the PTA have had in perpetuating police brutality and torture, even post-war – a fact already highlighted by several bodies including through the Human Rights Commission, which noted that the practice of torture was ‘routine’ in 2016.

Often, detainees were made to sign statements or confessions in a language they did not understand.

The PTA allows for broad admissibility of confessions, acknowledged as a contributory factorallowing for torture of detainees, but it is sobering to see just how widespread this is in practice.

A Colombo High Court Judge told Emmerson during his visit that he had been able to acceptonly 1 out of 11 confessions as evidence, while a Judge in Anuradapura noted that 12 out of 14 cases before him were based solely on unreliable confessions.

The solution put forward by the State has not helped to inspire confidence.

These concerns echo those long raised by members of civil society.

Legislation like the PTA must be placed in the context of ongoing stigmatisation against the Tamil community, including underrepresentation at an institutional level, Emmerson noted in his report.

These charges were denied by Government representatives – during the visit, the State highlighted several projects for economic development benefiting the Tamil community as proof of lack of discrimination. It was suspicion of Government institutions that prevented members of the Tamil community from participating in State institutions, the Government contended.

Emmerson’s statement at the conclusion of his visit in July 2017 was not received kindly in some quarters – to put it mildly. Former Ambassador and Permanent Representative to the United Nations in Geneva Tamara Kunanayakam and former Ambassador and Permanent Representative to the United Nations, Dr Palitha Kohona termed it “ arbitrary, judgmental, arrogant, accusatory, threatening, interventionist,and insulting” and charged that the Special Rapporteur had exceeded his mandate. The then Minister of Justice, Wijeyadasa Rajapakshe charged that Emmerson lacked ‘calibre and diplomacy’. These statements were given coverage by mainstream media, shifting the focus away from any examination of the substance of the statement, even though, as Groundviews noted in 2017, members of civil society felt Emmerson’s statement accurately represented the current situation on the ground.

In contrast, Emmerson’s final report made barely a ripple in mainstream media coverage locally (although a report in the Guardian noted Emmerson’s scathing review of the reforms process, which he said had ground to “a virtual halt.”)

Groundviews spoke to a cross-section of civil society on the findings of the report, including activists, lawyers and members of civil society. (The Minister of Justice was unavailable for comment at the time this story was published – Groundviews made repeated attempts to contact her for a comment on the report.)

“The Special Rapporteur’s report is one of the most comprehensive in recent times, highlighting some serious concerns related to counter-terrorism and human rights in Sri Lanka,” activist Ruki Fernando said. “His call for a moratorium on the use of the PTA until the Government fulfils its promise to repeal it is significant. The PTA was reportedly used to arrest Tamils even last month, despite the September 2015 promise to repeal it.”

However, Fernando did raise some concerns with the Rapporteur’s suggestions on the CTA. “The Rapporteur supports [the introduction of a CTA] on the condition that it adheres to international human rights law, without addressing the fundamental question of whether there is, in fact, a need for special counter terrorism laws.”

There was no reference to the trend, both in Sri Lanka and globally, on misusing such laws against particular communities in order to suppress dissent, Fernando pointed out.

Many of the trials for PTA detainees are not held in areas with a significant Tamil population, despite the majority of these detainees being Tamil.

Fernando added that the former Special Rapporteur had chosen to take a legalistic approach to the CTA without commenting on the political context – missing out important points such as the secrecy with which laws in Sri Lanka are often drafted, and the lack of a consultation process around them, including in this instance, from survivors and families of PTA detainees. The Rapporteur had received access to the draft law, but members of the general public did not have the same level of access, Fernando pointed out.

Attorney-At-Law Ermiza Tegal echoed Fernando’s concerns on access and the need for a replacement law. “I would disagree fundamentally with the position that Sri Lanka needs a CTA…The damage caused to the fabric of civil liberties under the PTA cannot be reversed by a CTA. By continuing to give primacy to the security of State over individual security and liberty, we continue to protect impunity entrenched in the legal and policing systems,” Tegal said. In addition, the wide-ranging powers available under the Public Security Ordinance, and the possibility of enacting specific offences if needed pertaining to terrorism under the ordinary law, and of taking executive measures to strengthen police response in a crisis, all indicated that a special law such as the CTA was not needed. “Legislation similar to the CTA continues to recognise extraordinary powers and discretion for the executive. Sri Lanka needs laws and measures to protect civil liberties and freedoms, not laws that will contribute to eroding the rule of law.”

Tegal added that she had seen firsthand the deeply problematic effects of the PTA – “There have been cases within my own experience of complaints of police torture, mainly in the South of Sri Lanka, in which purported ‘confessions’ or even statements said to be signed by the victim surface, and the victim of torture denies giving such a statement.”

One of the main reasons for torture in the cases Tegal had handled was for the extraction of a confession – tallying with the accounts of the High Court Judges Emmerson had spoken with during his visit. “I would say forced confessions are a familiar practice associated with criminal investigations,” she said.

Attorney-at-law Kishali Pinto Jayawardena said the Government should take Emmerson’s warnings seriously, particularly those on the draft CTA. “As at this date, Sri Lankan citizens have no idea as to the status of this draft framework. This must be released for public scrutiny well before it is presented as a Bill,” Jayawardena said.

Although the State has repeatedly made the case that examination of detainees by a Judicial Medicial Officer was a sufficient safeguard to prevent torture, Emmerson’s observations and numerous cases indicate otherwise, Jayawardena said. The issue of uninhibited access to an independent lawyer was also important.

“These are concerns that must be addressed substantively, not superficially,” Jayawardena said.

Jayawardena was not the only person to note the importance of political will.

Senior Researcher, Research and Advocacy from the Centre for Policy Alternatives (CPA) Bhavani Fonseka noted that President Maithripala Sirisena and the current government had promised to put in place a range of reforms, including the repeal of the PTA and the introduction of new legislation, in adherence to international standards.

“Despite these promises, the PTA continues to be used, with media reports indicating that suspects are as recently as July 2018 being indicted under the PTA Regulations. The custodial death in June this year and reports of torture are a grave indictment of a government that promised an ambitious set of reforms in 2015.”

These are concerns long raised by civil society, which Emmerson’s report has only underscored. (In fact, CPA was the only civil society organisation to challenge the PTA Regulations in Supreme Court in 2011.)

The continued use of the PTA raised serious concerns towards the deprivation of civil liberties, Fonseka said.

While some space has opened up for civil society input post-2015, Emmerson’s report demonstrates the urgent need to address the culture of impunity and introduce urgent reform.

Executive Director of Adayaalam Research Kumaravadivel Guruparan said that Emmerson’s report made it clear that there had been “zero security sector reform” given the continued use of torture, adding that in his view there was no real political willingness to repeal the PTA.

“The commitments in Geneva were mere rhetoric, part of the Government’s ‘soft diplomacy tools’ in their foreign policy management strategy,” he said.

Unlike Fernando, Guruparan felt that Emmerson’s report did include some important context on the PTA specifically, on continued discrimination against the Tamil community.

“[Emmerson’s report] acknowledges that Tamils have borne the brunt of the [PTA] legislation disproportionately and makes it clear that the law remains in place as an instrument of oppression against the Tamil community. “

Human rights reporting’ in and on Sri Lanka has artificially sought to depoliticise the issues at hand, in turn leading to a de-Tamilised narrative of the conflict. Ben Emmerson’s report is an outlier in this sense,” Guruparan said.

Adding to this, the North East Coordinating Council (NECC) spoke of the continuing practise of militarisation and surveillance in the North and East, and the lasting impact this had on members of the community, including civil society and activists.

NECC responded to sections looking at length of detention and the use of torture, discrimination against Tamils, and recommendations made on the CTA, habeas corpus trials, demilitarization and the UNHRC resolution.

Several rights activists had been attacked in the wake of Emmerson’s visit, a representative of the NECC who requested anonymity said. A male activist was physically attacked and sexually assaulted, and a female rights activist was attacked and hospitalised.

Surveillance took many forms. The police and military would often use local informants, the NECC said. Sometimes, this included local government officials and administrative officers, who were pressurised into providing information. Intelligence personnel would join community meetings and surreptitiously video them, or follow and video members of civil society. At times, the intimidation was subtle– members of the Intelligence services would question neighbours, with the intention of ostracising civil society among their local communities.

This surveillance often extended inside the court-room, particularly for habeas corpus trials, highlighting the need for witness protection and the need for protection for lawyers and detainees.

Though Emmerson had personally met PTA detainees held without charge had for years (with some of the detained having been held for over a decade) arbitrary arrests had in fact begun in the early 80s, particularly when thousands of Tamil youth were detained and tortured in the infamous Boosa detention camp a representative from NECC who requested anonymity said. In particular, women were subject to torture, and humiliating “punishment”, often sexual in nature, at detention centres.

This is not to say that there have not been incremental steps in the right direction. A directiveissued by the Human Rights Commission in 2016 to police on arrest and detention under the PTA made recommendations on the process during and after arrest, including specific provisions for women and those under 18 years of age. Also in 2016, the Government adopteda zero tolerance policy on torture, while the police appointed a Committee to eradicate Torture. In 2017, the Supreme Court ordered Batticaloa police to pay over Rs. 2 million each to the parents of two youth tortured and killed in police custody, following the filing of a Fundamental Rights case.

Despite these steps, the reports keep coming. In 2017, an Associated Press report quoted ‘dozens’ of men who described rape and torture under the current government. Groundviewshas repeatedly flagged the continued use of arbitrary detention and torture, during and after the war, including under the current government.

The people Groundviews interviewed for this piece include members of civil society based in the North and East, lawyers and activists. While there were disagreements on finer points, what is striking is the almost universal agreement that Emmerson’s report only underscores ongoing, pervasive issues on torture and arbitrary detention.

Yet, the apathy with which Emmerson’s report was received does not bode well for Sri Lanka’s prospects of long-term reform.

Editor’s Note: Also read “The Gloves are Off: Reactions to Ben Emmerson’s Statement on Torture, Counter Terrorism” and “Continuing Abuse under PTA: Abductions, Arbitrary Arrests, Unlawful Detentions and Torture“