Aboriginal and Australian people participate in a rally which starts in front of the Old Parliament House ending at the New Parliament House on February 12, 2008 in Canberra. Source: Anoek De Groot/AFP
AFTER years of debate, the process for achieving constitutional recognition of Indigenous Australians has reached a crossroads. More than a year has gone by since the Uluru Statement from the Heart, when Indigenous peoples rejected symbolic constitutional reform and asked for more practical changes.
Instead of looking at selected components of the Uluru Statement as a solution, there’s another way forward.
We should examine our existing political system and ask how it can be adapted to meet the aspirations of Indigenous peoples while remaining true to the principles that underpin our constitutional democracy.
In other words, we should look to federalism.
What is a federal model?
Federalism aims to bring disparate entities or groups together through a system of shared-rule in a central or national government and self-rule in a state or region.
Federal systems are usually set up on a territorial basis with two tiers of governments, such as the Commonwealth government and state governments in Australia. Each government exercises self-rule with its own legislative and executive powers and has a direct relationship with the people through elections.
However, there are many different versions. Belgium, for instance, has a type of cultural federalism that isn’t defined by just territorial divisions. Membership of a cultural community is defined according to who you are (in Belgium’s case, what language you speak), rather than where you live.
In this type of federal system, cultural communities have power over language, education and other cultural matters, while regional governments take responsibility for land-based issues, such as infrastructure and the environment.
This approach to cultural autonomy is used in other countries, too. In Estonia, for example, a national cultural autonomy law has been enacted that allows any ethnic group of at least 3,000 people to establish a separate legal identity, levy taxes and take responsibility for education, cultural institutions and youth affairs.
In Scandinavia, separate parliaments have also been established for the Indigenous Sámi population. Norway’s Sámi parliament also doubles as an executive branch of government. It was originally a consultative body, but now has power over most measures to promote Sámi culture and oversees compliance with other relevant administrative orders.
The US and Canada, too, have applied this principle in their Indigenous land settlements and treaties. In this system, sometimes known as “treaty federalism”, rights and benefits are based on membership of a group, not just residence.
Aboriginal elders from Central Australia sit near a fire at a camp near the Old Parliament House on February 12, 2008 in Canberra. Source: Anoek De Groot/AFP
Importantly, these agreements recognise a mixture of territorial and non-territorial rights. For example, the Nisga’a Treaty signed by the Nisga’a Nation, the British Columbia government and the Canadian government grants the Nisga’a people authority over education, taxation and environmental protection on their defined lands, as well as control over citizenship and social services for members living both on and off Nisga’a lands.
This is precisely what makes federalism for Indigenous Australians viable and worthy of exploration as an option for reform.
What an Indigenous nation would look like
The government-appointed panel on constitutional recognition of Indigenous Australians considered allocating seats in parliament to Aboriginal and Torres Strait Islander peoples, but didn’t explore the idea of federalism itself.
Tasmanian Indigenous activist Michael Mansell has called for the establishment of a seventh state comprising Aboriginal lands across Australia. This could be done through legislation, as the constitution permits the parliament to establish new states or territories.
An alternative approach is to follow the non-territorial, cultural model used in Belgium, while at the same time recognising Indigenous rights over traditional lands, such as in the US and Canada.
In this model, an Indigenous “nation” or “nations” would be:
a constituent unit(s) of Australia, equal in status to the states and the Commonwealth
represented (have a voice) in the upper house of parliament
have constitutionally defined executive and legislative powers
have representation on the Council of Australian Governments
Further, an Indigenous nation would be recognised as a sovereign entity within Australia because of its status as a federal unit with powers of self-government.
These powers may be best negotiated in a treaty and could include the responsibility for making laws, delivering services and ensuring compliance on matters like health and education, native title lands and taxation.
Federalism would therefore go quite some way to delivering on three of the four key elements of the Uluru Statement – providing Indigenous peoples with a voice, driving an agreement-making process (a treaty) and recognising sovereignty.
And if an Indigenous nation agreed to unite with Australia’s states “in one dissoluble Federal Constitution”, this could finally give our constitution legitimacy.
People gather to listen to Kevin Rudd his formal apology presented on media screens nearby the New Parliament House on February 13, 2008 at Canberra. Source: Anoek De Groot/AFPAustralia
Logical next step
Such an approach may seem impractical, but all the elements already exist or are in the works in Australia.
Native title settlements, for all their shortcomings, recognise distinct groups, define membership in those groups, establish rights over areas of land and allow for government-to-government relationships.
Numerous Indigenous nations, such as the Ngarrindjeri in South Australia and the Gunditjmara in Victoria already have in place the equivalent of legislatures and executive branches that are legally recognised. Federalism is the logical next step.
Further, federalism does not mean that Indigenous peoples would have an extra vote. Like the Máori in New Zealand, Australian Indigenous peoples could choose to vote in an Indigenous electorate or a general electorate.
Self-determination has been the one proven approach to addressing Indigenous disadvantage in other parts of the world. It’s time we realise that federalism is the political structure best suited to delivering this in the Australian context.
Saudi authorities accuse Egyptian hotel worker who appeared in ‘offensive’ video with female co-worker
A video showing an Egyptian man having breakfast with a female colleague has caused outrage. Photograph: Twitter
Guardian staff and agencies-
Saudi authorities have arrested an Egyptian hotel worker who appeared in what officials described as an “offensive” video eating breakfast with a female co-worker.
The footage – which was filmed by the man and showed the pair sharing a meal at a desk and joking together – sparked outrage on social media in the ultra-conservative kingdom.
The woman, draped head to toe in Islamic niqab, is seen waving to the camera and eating breakfast.
The video has been shared widely on social media where it has caused outrage. The point that has prompted the most anger is at the end of the 30-second video when the woman appears to feed the man.
“The labour ministry arrested an expatriate in Jeddah after he appeared in an offensive video,” the ministry said.
Local media identified the man as an Egyptian national.
Strict segregation between men and women is enforced in Saudi Arabia. In workplaces and many restaurants, women and men who are not close relations must sit separately from one another.
Women are also not allowed to go about many activities without being accompanied by a male guardian – often a male family member.
The ministry said the hotel owner had been summoned for failing to adhere to government regulations that stipulate a gender-segregated workplace.
As the video sparked a torrent of criticism from arch-conservatives, the public prosecution urged expats in the kingdom to respect “values and traditions of Saudi society”.
The incident comes in the midst of Crown Prince Mohammed bin Salman’s far-reaching liberalisation drive that has ended a decades-long bans on women driving, has seen cinemas reopen after 35 years, and some mixed-gender concerts allowed.
The backlash underscores the challenges facing the prince as he seeks to modernise a country steeped in conservatism.
In April, Saudi sports authorities shut down a female fitness centre in Riyadh over a contentious promotional video that appeared to show a woman in tight gym clothes.
Later in June, Saudi Arabia sacked the head of its entertainment authority, following an online backlash against a circus featuring women wearing skin-tight leotards.
U.N. humanitarian coordinator Mark Lowcock attends a news conference at the United Nations in Geneva, Switzerland, September 10, 2018. REUTERS/Denis Balibouse
SEPTEMBER 10, 2018
BEIRUT/GENEVA (Reuters) - More than 30,000 people have so far fled their homes in northwest Syria since Syrian government and allied forces resumed air and ground bombardments there last week, the U.N. agency coordinating relief efforts said on Monday.
The U.N. Office for the Coordination of Humanitarian Affairs (OCHA) said an all-out military assault on the last major stronghold of active opposition to President Bashar al-Assad could set 800,000 people to flight. The OCHA chief, Mark Lowcock, warned that this risked provoking the worst humanitarian catastrophe of the 21st Century.
Damascus, backed by Russia and Iran, has been preparing a major assault to recover Idlib and adjacent areas of northwest Syria from rebels.
Russian and Syrian warplanes resumed their bombing campaign last week and the presidents of Turkey, Iran and Russia on Friday failed to agree on a ceasefire that would forestall the offensive.
OCHA spokesman David Swanson told Reuters that as of Sunday, 30,542 people had been displaced from northwest Syria, moving to different areas across Idlib.
About 2.9 million people live in the opposition-held area, which comprises most of Idlib province and adjacent small parts of Latakia, Hama and Aleppo provinces. Around half of them are already displaced from other parts of Syria.
ON THE MOVE AGAIN
“We are very actively preparing for the possibility that civilians move in huge numbers in multiple directions,” OCHA head Lowcock told a news briefing in Geneva.
“There needs to be ways of dealing with this problem that don’t turn the next few months in Idlib into the worst humanitarian catastrophe with the biggest loss of life of the 21st Century,” he said.
Swanson said that since Friday’s summit, mortar and rocket attacks had increased, especially in the northern Hama countryside and southern Idlib rural areas.
He said 47 percent of those displaced have moved to camps, 29 percent are staying with families, 14 percent have settled in informal camps and 10 percent are in rented accommodation.
Abu al-Baraa al-Hamawi, a rebel leader in northern Hama, said about 95 percent of people had left a number of villages in northern and western Hama province and in southern Idlib province in the last three days due to intensive air strikes.
More than half a million people have been killed and 11 million already forced to flee their homes in Syria’s seven-year-old war.
Christy Delafield of Mercy Corps, one of the largest organisations delivering aid in Syria, said it has been hard for aid workers and communities to keep up with the displacement.
“There is a lack of water storage capacity in many of the areas in which we operate, with just two or three days worth of water available to civilians,” she told Reuters.
“The crossing points along the front lines between the government and opposition-controlled areas have been closed, and as a result, food prices have dramatically increased.”
The opposition accuses Russia and its allies of striking at hospitals and civil defence centres to force rebels to surrender in a repeat of earlier, large-scale military offensives.
Russia has said it wants all militants to be pushed out of Idlib and that it avoids civilians and targets only radical al Qaeda-inspired groups.
The Syrian Observatory for Human Rights war monitor said rebel shelling on Monday had hit Hama military airport and another nearby military complex which lie in government-held territory.
U.N. Special Envoy Staffan de Mistura began two days of talks in Geneva on Monday with senior officials from Russia, Iran and Turkey on forming a Constitutional Committee in Syria, but which were expected to be overshadowed by the Idlib crisis.
Tehran and Moscow have helped Assad turn the course of the war against an array of opponents ranging from Western-backed rebels to Islamist militants. Turkey is a leading opposition supporter which has troops in the country and has erected 12 observation posts around rebel-held Idlib.
Turkish Defence Minister Hulusi Akar on Monday was reported as saying by broadcaster NTV that air and ground attacks on Idlib must stop and a ceasefire must be established.
Saudi authorities accuse Egyptian hotel worker who appeared in ‘offensive’ video with female co-worker
by Dr Ruwantissa Abeyratne-
All civilizations become either spacefaring or extinct… Carl Sagan, Pale Blue Dot
( September 10, 2018, Montreal, Sri Lanka Guardian) Recently, astronauts in the International Space Station (ISS) discovered a leak of approximately 1.5 millimetres in the Soyuz capsule on the Russian side of the ISS. While some ascribed the leak to a crash of a micro meteorite on the capsule, there were reports in the media that the Russians were suggesting an act of sabotage committed by one of the astronauts. The cause remains undetermined but under investigation.
Although there have been some instances in the past where conduct in outer space has been the focus – such as when NASA discussed in the 1970s whether Skylab’s crew should be given small quotas of wine to be taken with them on their sojourn to space – which was abruptly dropped in response to public outrage – the closest we could come to crimes in space was in Ian Flemings book You Only Live Twice (later made into a blockbuster James Bond movie) which started with the mysterious disappearance of Russian and American spacecraft in orbit – attributed to a fictional terrorist organization called SPECTRE.
About the same time the international community came up with the Outer Space Treaty (1967) which declared that the use of space should be the heritage of humankind and for peaceful purposes, – a principle in international law reiterated in the 1996 Declaration on International Cooperation that space is the “province of all mankind”. Tis recognition gave added impetus to the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS) established by the General Assembly in 1959.
Times are different now. We are at the cusp of regular space transport in an age where a dedicated group of billionaire entrepreneurs comprised of intrepid adventurers such as Elon Musk, Jeff Bezos and Richard Branson are in full sway, using Silicon Valley type technology to make space tourism a reality and the colonization of extra terrestrial property a distinct possibility. Christian Davenport, in his book The Space Barons, aptly notes: “Bezos was five when he watched Armstrong walk on the moon. Musk had not yet been born. But with their massive fortunes and ambition, they were re-enacting the Cold War space race, a pair of space barons starring in the roles of nations, hoping to pick up where Apollo had left off more than a generation earlier. Their race to the stars was not driven by war or politics; rather by money and ego and adventure, a chance to extend humanity out into space for good”.
This brings to bear the compelling need for us to consider that one of the consequences of prolific space travel in the future would be adverse human conduct, in a manner similar to unruly passenger conduct in air travel. However, before we consider adoption of rules of conduct for spacefarers we must evaluate what we already have in place, if any. Taken from a socio-legal perspective, space tourism brings to bear unique considerations, from the status of the space tourist to the conduct expected of such a person and the various liability regimes that might be required to address the “package deal” concerning the contract of carriage to outer space and amenities provided by the service provider. Additionally, real concerns of liability, insurance coverage and risk management would have to be allayed before a sustained space tourism programme takes to the heavens.
Freedom of outer space, which lays the foundation for conduct of persons in outer space, is enshrined in Article 1 of the Outer Space Treaty, which stipulates that the exploration and use of outer space, including the moon and other celestial bodies, must be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. The provision also requires outer space to be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law. Finally, the provision grants free access to all States in relation to all areas of celestial bodies.
Under Space Law, there is no such being as a “person” in outer space. There are only astronauts and personnel. The Outer Space Treaty stipulates that State parties to the Treaty must regard astronauts as envoys of mankind in outer space and render to them all possible assistance in the event of accident, distress or emergency landing on the territory of another State party or on the high seas. The provision also requires State parties to return astronauts under the above circumstances safely and promptly to the State of registry of their space vehicle.
Jurisdictionally, any person comes clearly within the purview of the State on whose territory he is or above whose territory and in the airspace of the State concerned, if he is in an aircraft. Generally, in outer space, this status quo changes, and astronauts become liable under the laws of the State of registry or the State which launches their spacecraft for travel and work in outer space. This is brought to bear by Article VIII of the Outer Space Treaty which provides that a State party to the Treaty on whose registry an object launched into outer space is carried must retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.
However, the interpretation of Article VIII could well result in ambivalence and confusion. The “object” and “personnel” referred to in the Treaty provision do not adequately cover persons who are not “personnel” such as passengers in a spacecraft. Of course, the quasi jurisdiction of the State of registry of the spacecraft can apply both in the instance of conduct in the spacecraft as well as outside the spacecraft on the basis that the astronaut concerned would always be deemed to belong to the spacecraft in outer space. Logically, therefore, such jurisdiction could be imputed to passengers, visitors and guests by linking them to the spacecraft in which they travelled. This far reaching generalization would then cover the conduct of an astronaut or other persons while walking on the moon, Mars or other celestial body, as well as such persons who go on space walks outside the spacecraft in which they travelled.
Another provision which sheds some light on past attempts by the international community to identify liability and jurisdictional issues relating to astronauts is Article 12 of the Moon Treaty of 1979 which provides that States Parties must retain jurisdiction and control over their personnel, space vehicles, equipment facilities, stations and installations on the moon…
It is presumed that the legal link between the personnel and the spacecraft they travel in under the circumstances are imputed to the State of registry of the said craft. If this were not the case, and such a link cannot be established, the provision itself becomes meaningless and destitute of effect.
The above provisions, although seemingly adequate for an incipient world space programme, do not adequately address modern exigencies of outer space activity such as collaboration in space stations where repair missions and salvage activities may call for multinational crews, joint space exploration calling for multiple space technology, and transportation to outer space of passengers.
The recognition that the scope of manned space flight is being expanded from the flight of astronauts to other persons such as repair crew and passengers, is becoming evident. In an attempt in 1988 at drafting a Convention on manned space flight, a team of draftsmen comprising a distinguished cluster of experts in space law from Germany, the Russian Federation and the United States succeeded in a sustained attempt at producing a draft legal instrument which covered certain exigencies of personal conduct in space travel. The most significant thrust of this draft Convention is that it blends harmoniously the essential qualities of scholarship and practicality. The draft Convention was published to draw the attention of the world community of space lawyers and seek comments. It effectively conveyed the fundamental postulate that manned space flight is the cornerstone of exploration of outer space and therefore its development requires guidelines on international cooperation and liability.
The draft Convention, in Article III links itself to the Outer Space Treaty principle of awarding jurisdiction in relation to a manned space object and person therein to the State of registry in relation to occurrences in outer space or in a celestial body or on or in the high seas or any other place beyond the jurisdiction of any State. Article IV of the draft Convention devolves responsibility and authority over a manned space flight, the space object involved in such flight and all persons on board, on the commander of the space object. The commander is given sole authority throughout the flight to use any reasonable and necessary means to achieve this end. The same provision makes both the commander and all members of the crew answerable to a person identified as the Director of Manned Space Flight Operations, who is defined by the draft Convention as a person who is designated by the State exercising jurisdiction and control over the space object to oversee a particular manned space flight. By this measure, the draft Convention skilfully and unequivocally identifies the chain of command, giving the commander absolute authority on the spot over all those in the space object during the flight, while making him answerable to a person designated as Director of Manned Space Flight Operations, who presumably will be on ground and in mission control.
The draft Convention also ensures safety of persons involved in a manned space flight whether they be crew, passengers or any other category of persons affected by such flight. One of the strengths of the draft Convention is its provision with regard to environmental pollution or other harm caused to the environment by a manned space flight, where the instrument lays responsibility on States whose manned space exploration may jeopardise an existing environmental balance. It also provides for assistance to be given by persons in a manned space flight to others in distress in outer space and prescribes international responsibility on States, whether the space flights in question are carried out by governmental or non-governmental entities.
Outer space and celestial bodies can be used for the common heritage of mankind but are res extra commercium like the high seas. However, here the distinction ends, in that unlike the high seas, which can be appropriated in certain circumstances, such as through acquiescence by one State of appropriation of an area of the high seas by another, outer space or celestial bodies cannot be appropriated under any circumstances. It is not possible to apply the principle of appropriation to the conduct of crews of other persons in outer space. One cannot establish a pattern of conduct as a prescriptive right in outer space because there are no territorial limits demarcated by and between individual States in outer space. A fortiori, outer space has been identified as one composite area which cannot be appropriated by one State to the exclusion of others by Treaty provision.
Criminal conduct is an area where the principle of international law applicable to the High Seas lend themselves as a useful analogy to space law. Of course, the offence of piracy cannot be committed by astronauts who are sent to outer space in spacecraft belonging to a State. The offence must be committed for private ends by persons in a private ship or craft. The offence of piracy in the high seas would nonetheless apply as an analogy to a similar offence committed by private individuals in outer space who do not represent a State as official crew members. This would cover the improbably but nonetheless possible events of the future such as a mutiny on board a commercial spacecraft carrying passengers (which is an analogy derived from shipping law). Piracy in outer space may also occur in instances where personnel of a space craft could act on the orders of a recognized government which is in gross breach of international law and which show a criminal disregard for human life.
Since outer space has no jurisdictional application, crimes on board spacecraft which are in outer space at the time of commitment of the crime, must be linked to the State in which the spacecraft in question is registered and consequently to the criminal laws applicable in that State. In this context, the principle enunciated in the 1906 case Mortensen v. Peters, where the captain of a fishing vessel was successfully prosecuted under the Scottish Herring Fisheries Act which applied to an offence committed in the high seas, should apply. As Lord Dunedin, Lord justice General said, the court was bound to give effect to the terms of legislation passed by the Lords, if the legislation explicitly prescribed punitive measures against an offence, irrespective of where it was committed.
That we have to be spacefaring is incontrovertible. As Stephen Hawking, the celebrated theoretical physicist, said in 2001: “I don’t think the human race will survive the next thousand years, unless we spread into space. There are too many accidents that can befall life on a single planet. But I’m an optimist. We will reach out to the stars”.
However, we had better be prepared with perspicacious clarity as to the legal ramifications of such an exigency.
The author has published numerous books on aerospace law, among which are Frontiers of Aerospace Law (Ashgate) and Space Security Law (Springer). He is former Senior Legal Officer at the International Civil Aviation Organization and is currently a Senior Associate at Aviation Strategies International.
Krishanthi Kumaraswamy, the Tamil schoolgirl raped and murdered by Sri Lankan soldiers in 1996, was remembered in her hometown of Chemmani on Friday.
Tribute was also paid to members of her family who were killed shortly after, as well as to the victims in the Chemmani mass grave.
Following on from the tradition of recent years, the victims memories were honoured by family members and Northern Provincial Council members who handed out school supplies to disadvantaged local students.
The above-titled survey was done by the Ministry of Health, Northern Province of Sri Lanka with the support of an expert panel under the directions of Hon. Provincial Minister of Health, Dr. P. Sathiyalingam. The three districts of Kilinochchi, Mannar and Mullaitivu were covered. Here is a preliminary report based on their report.
This was meant to be a survey of the Northern Province. However, after the Kilinochchi data was released, the government felt uncomfortable and ordered the suppression of the Mullaitivu and Mannar data which Colombo Telegraph has accessed and produces here. The data for Jaffna and Vavuniya is not ready because the study is not complete. We may never see that because the embarrassed government has halted funding of some Rs 11 million that is due.
( September 7, 2018, Colombo, Sri Lanka Guardian) The establishment of the Office on Missing
Persons (OMP) marks a significant milestone in the efforts of the Government of Sri Lanka to address the issues of the missing and the disappeared. Established under the Office on Missing Persons (Establishment, Administration and Discharge of Functions) Act No. 14 of 2016 as an independent commission, the OMP’s objectives are to trace and search for the missing, make recommendations towards nonrecurrence, ensure the protection of the rights of the missing, the disappeared and their relatives, and to identify proper avenues of redress. With the appointment of the OMP Commissioners in February 2018, the operationalisation of the Office commenced. The process of operationalisation includes designing and setting up units and regional offices, hiring staff, and developing policies, rules and procedures.
The OMP also engaged in public consultations with the families of victims and held confidential meetings when requested by affected families. In order to secure expert knowledge required to perform specialised tasks, such as forensics, legal and archiving of data, the OMP consulted with national and international organisations and experts, and also established key relationships with several government bodies and international organisations. Furthermore, the OMP is engaged in inquiries on specific cases, supporting the ongoing excavation and exhumation of a mass grave in Mannar, consolidating existing records of missing persons and preparing recommendations and clarifications on legal issues affecting victims and families. The challenges faced by the OMP are many and need to be balanced with the urgency of the needs of families of victims enduring years of physical and mental suffering. The failure of successive state institutions to provide families with truth, justice and reparations has created a deep distrust of the State and by extension the OMP.
The OMP recognises the multiple needs and positions of various families and the importance of securing their trust. For the OMP to be effective, it requires the active cooperation of other arms of the State. The harms suffered as a result of the violation of the rights of the missing and disappeared need to be addressed through reparations. Therefore, the enactment of a bill for a credible and effective Office for Reparations is vital. The OMP, however, recognises the urgency of the needs where families have become destitute due to the disappearance of a family’s sole or primary breadwinner.
Hence the OMP identifies the provision of interim relief to families of victims as a priority and is recommending a number of such measures. It is duly noted that interim relief in the form of welfare or other measures does not amount to reparations. Victims retain their right to reparations even if they accept interim relief from the State. The OMP also recognises the critical need for justice to address the issue of the missing and disappeared. The OMP welcomes the enactment of the International Convention for the Protection of All Persons from Enforced Disappearances Act No. 5 of 2018 (The Enforced Disappearances Act) as it criminalises enforced disappearances and reinforces the State’s obligation set out in the Constitution and according to national laws.
However, incorporation of the crime of enforced disappearances into domestic law remains inadequate. The OMP, whilst noting multiple areas for reform with regard to justice, makes recommendations to address urgent issues where there is credible evidence of violations and specific hurdles in pursuit of justice, including incidents of intimidation and harassment of families, activists and lawyers working on human rights issues.
Residents and local business people held a hartal on Friday to protest against the establishment of a bottle water factory in Batticaloa.
The hartal follows a protest last month in Eravur, where residents expressed concern the factory would take excessive amounts of water from Batticaloa's local water supplies.
Local council members, Eastern Provincial Council members and religious leaders had participated in the protest.
ECONOMYNEXT – A complaint to the Supreme Court against the conduct of former chief justice Sarath Silva may have unwittingly triggered a knotty question – should English take precedence over Sinhala — in unravelling what promises to be thorny constitutional issue.
Deputy Minister Ranjan Ramanayake set the ball rolling when he lodged a formal complaint with Chief Justice Priyasath Dep over Silva’s alleged violation of the constitution by engaging in the legal profession that is barred for retired superior court judges.
Ramanayake pointed out that Silva breached Article 110 (3) of the constitution as spelt out in Sinhalese, an official language of the country. The Article clearly prohibits a retired superior court judge pleading, appearing before or acting any court or institution as an attorney, or practicing the profession.
However, the English translation appears to be as straightforward as the original Sinhala text. The Sinhala version takes a broader view and bars a retired judge engaging in the legal profession even outside courts.
Recent Acts of parliament stipulate that Sinhala will take precedence over any other language in the event of any discrepancy in translations, but the Supreme Court has a tradition of going by the English version in their normal course of work.
"This could be a test case, because the SC will have to decide if they go by tradition and take the English version, or follow the Sinhala text, a senior lawyer told Economynext.com
Retired superior court judges can engage in law practice only on the written permission of the president, and Ramanayake said he was confident that Silva had not obtained such permission when he acted as legal counsel to former president Mahinda Rajapaksa on August 17.
The Social Empowerment deputy minister Ramanayake said Silva was by former president’s side when he was questioned by the Criminal Investigation Department in connection with the 2008 abduction and torture of journalist Keith Noyahr.
When the former president was questioned, Rajapaksa had also obtained legal advice from Ali Sabry, Jayantha Weerasinghe, P. Ganesh and G. L. Peiris in addition to Sarath Silva, according to court records.
The CID officers had reportedly stopped Professor Peiris intervening as he had no standing in the case. Although he is a professor of law, Peiris has no license to practice law.
In the case of Sarath Silva, out of respect for the previous office he held, the CID did not stop him, but reported the matter to the Mount Lavinia magistrate. Proceedings during the August 17 questioning were also tape recorded with permission from President Rajapaksa.
The tapes are almost certain to form part of any Supreme Court inquiry into the complaint by deputy minister Ramanayake who is also known as "One Shot" in connection with his acting career.
