Sri Lanka: Human rights to dismantle debt trap, says UN expert

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GENEVA/COLOMBO (11 September 2018) – Human rights must be at the centre of measures by Sri Lanka to promote economic growth that would include everyone, says a UN expert.

“The Sri Lankan Government should undertake an assessment of the human rights impact of both its economic reform policies and infrastructure projects,” said Juan Pablo Bohoslavsky, the Independent Expert on the effects of foreign debt on human rights, presenting a statement at the end of a nine-day visit to the country.

“The strategy chosen by the Government, as recommended by the International Monetary Fund (IMF), was to stabilise the economy by strengthening the fiscal and external sectors via international borrowing. It also included developing mega infrastructure projects, many of them launched during previous administrations,” said Mr. Bohoslavsky.

“Servicing this debt is now the country’s most important expenditure, and a significant amount of borrowing is being allocated for this purpose,” he added.

“However, social spending should not be cut in order to repay growing debts if less harmful policy options are available. There are other options to consider. These include boosting domestic demand through progressive tax reforms, expanding social benefits, increasing minimum wages and renegotiating the debt with creditors in order to generate revenues to ensure that no one is left behind,” Mr. Bohoslavsky stressed.

“There is a consensus that a greater mobilisation of resources is needed. It has been estimated that the majority of all illicit financial flows in the world are related to cross-border tax-related transactions. However, because tax evasion is not considered a predicate offence in the country, banks do not have a duty to report suspicious transactions of their clients in relation to tax evasion. I urge the Government to close this legal gap,” the expert said.

Since the end of the war in 2009, large-scale infrastructure projects including the Colombo Outer Circular Expressway, power plants, the Hambantota Port and Hambantota Airport have been started across the country.

“The Sri Lankan legal framework does not establish the obligation to conduct a comprehensive human rights impact assessment of such infrastructure projects before they are started. So, I advise the Government to pass robust and comprehensive laws on the issues based on existing international human rights standards,” said Mr. Bohoslavsky.

“I have also paid specific attention to microfinance, which has helped to lift many people around the world out of poverty by enabling borrowers to maintain their livelihoods. However, the number, frequency and seriousness of abuses by lenders that I have noted in the country call for urgent action by the State.

“I found that while there was a large number of borrowers, women in areas that are poor and affected by war, are specially targeted by microfinance lenders. Those institutions charge up to 220 percent interest rates for their loans and apply compound interest. The mechanism has been designed to make huge profits for the lenders and put a very heavy burden on the shoulders of the largely poor female borrowers,” the expert stressed.

“It is common to see women with three or four outstanding loans from different lenders at the same time, while some others borrow more to avoid defaulting on the loans they already have. Collectors go to borrowers’ houses to collect the instalments due, sometimes on a daily basis. Some stay at the family home for hours until they are repaid.

“Women are at times exposed to psychological and physical violence by these collectors and it was brought to my attention that, in some cases, they were pressured by collectors to exchange ‘sexual favours’ for outstanding instalments. I have also learned of cases of borrowers who have tried to sell their kidneys for money to repay loans,” Mr. Bohoslavsky added.

“I urge the Government to establish an interest rate cap for these institutions and also to pass and implement robust and strict regulation. There should be guidelines in line with human rights standards on how microcredit lenders should assess credit risks. I also urge the Government to declare a moratorium on the debts, until this legislation is passed, in order to prevent groups in situations of vulnerability from being exploited and abused by lenders,” the expert stressed.
The Independent Expert will submit a comprehensive report about his visit to the UN Human Rights Council in March 2019.

ENDS

Juan Pablo Bohoslavsky (Argentina) was appointed as Independent Expert on the effects of foreign debt and human rights by the United Nations Human Rights Council on 8 May 2014. He has previously worked as a Sovereign Debt Expert for the United Nations Conference on Trade and Development (UNCTAD) where he coordinated an Expert Group on Responsible Sovereign Lending and Borrowing. He is independent of any government or organization and serves in his individual capacity. 

The Independent Experts are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

Human Rights Country Page – Sri Lanka

Follow the Independent Expert’s work on Twitter at: @IEfinanceHRs 

For more information and media requests, please contact:

Ms Frédérique Bourque (+41 79 752 0481 / fbourque@ohchr.org or write to ieforeigndebt@ohchr.org )

For media inquiries related to other UN independent experts please contact
Mr. Jeremy Laurence, UN Human Rights – Media Unit (+41 22 917 9383 / jlaurence@ohchr.org)

This year is the 70th anniversary of the Universal Declaration of Human Rights, adopted by the UN on 10 December 1948. The Universal Declaration – translated into a world record 500 languages – is rooted in the principle that “all human beings are born free and equal in dignity and rights.” It remains relevant to everyone, every day. In honour of the 70th anniversary of this extraordinarily influential document, and to prevent its vital principles from being eroded, we are urging people everywhere to Stand Up for Human Rights: www.standup4humanrights.org.

Sathurukondan massacre: 185 Tamils slaughtered by SL army and Muslim home guards remembered

The slaughter of 185 Tamils by the Sri Lankan army with the assistance of the Muslim home guards in Sathurukondon, Batticaloa was remembered 28 years on at the memorial site in the village. 

10Sep 2018

Families of those massacred gathered to remember the horrific event. 

On September 9th 1990, Sri Lankan soldiers and Muslim Home Guards rounded up 186 Tamil men, women and children from Sathurukondan and surrounding villages. The Tamils were taken to a nearby army camp. 

The one survivor, Kanthasamy Krishnakumar who managed to escape after being stabbed, described how all others were slaughtered with machetes, knives and blunt objects. 

"On this day at around five thirty in the evening Army men both in civil and military clothing came and told that the officer in charge of the Camp wanted us to come to the camp for enquiry and so they took us. Elderly, Women, children and even babies were taken to the Sathurukondan Army camp," Krishnakumar later testified. 

"After that, four of us were taken to the backside of the camp and blindfolded and our mouths were stuffed with cloth. Later they laid us on a wood brick and suddenly they started stabbing us with sharp knives. I laid there as if I was dead. I heard voices of agony and pain I can’t even describe, all around me."

The massacre came just days after the Vantharumoolai round-up, from which 158 Tamils seeking refuge at the Eastern University campus were arrested by Sri Lankan soldiers and never seen again.

The mass killings, which were carried out during the presidency of the UNP's Ranasinghe Premadasa, were investigated in a probe established by then-president Chandrika Kumaratunga in 1997. The probe identified three captains in the Sri Lankan army as being responsible for the killings. The retired judge who led the inquiry, K Palakidnar said that there was strong evidence for the massacre and urged Ms Kumaratunga to hold the perpetrators to account, however no action was taken by the government.

Related Articles: 

09 September 2018 : Batticaloa Municipal Council pays tribute to victims of Sathurukondan massacre

Three stories and task of the office of missing person

By Jehan Perera-September 10, 2018, 8:50 pm 

An academic of Sri Lankan origin, Dr. Minoli Salgado, recently conducted a workshop on Writing Truths: The Power of Testimony, in which key concepts in testimony studies were discussed in the Sri Lankan context with a view to developing a survivor-centred approach in the production and reception of testimonies in the country. As part of its commitment to the UN-mandated concept of transitional justice, the government has also pledged to set up a truth-seeking commission in which testimony will be given and recorded. The setting up of the Office of Missing Persons (OMP) by the government, as part of this same commitment, and the OMP’s issuance of its first report last week made this workshop a relevant intellectual exercise at the present time.

As part of the workshop methodology, the participants were asked to share a story of a war victim that they had heard from the person sitting next to them. As there were many of us, we were given only two minutes to summarise the story that we had heard. Sitting next to me was a female and she told me this story of a mother who had lost her daughter. It was the last days of the war in May 2009. About a hundred youth in an area were rounded up by the Sri Lankan military and put into a bus. The daughter of the woman was one of them. The mother got onto the bus along with another mother. They were permitted to travel for a while but at a certain point they were offloaded and the bus went on. They never saw their children again.

This was the story I related to the participants at the workshop. I was congratulated for having summarized the story I had heard in less than two minutes. This story was described as a fitting case for the OMP to investigate as it fitted into the mandate of that newly set up institution. This is the challenging task of the OMP which has to deal with 20,000 other cases of missing persons as well. This is going to be challenging not least because the victims have fragmented memories of fragmented lives in the context of being displaced numerous times, and the structural obstacles to finding out what happened to those that went missing.

BROKEN MEMORY

But as the discussion at the workshop continued, I suddenly remembered that I had left out an important part of the story in my hurry to summarise the story into the two minutes that had been allocated. This was that six years later in 2015, the mother saw the photograph of her daughter amidst a group of youth who were photographed along with President Maithripala Sirisena. When I said this, the participants observed that the story was now a new one, and there was a prospect that the missing girl would be found. The story had taken on a second dimension and this was a hopeful one. The discussion at the workshop proceeded with others sharing their stories.

Then again I remembered, I had left out another important element of the story. The mother’s belief that she had seen the picture of her missing daughter along with the President received wide coverage in the news media. "Tamil mothers recognize disappeared children, in a photo with President Sirisena" wrote Melani Manel Perera as the headline of a story that appeared in the Asia News website. (http://www.asianews.it/news-en/Tamil-mothers-recognize-disappeared-children,-in-a-photo-with-President-Sirisena-35401.html) As a result of this and other media publicity, the mother of the missing girl had said that she received a visit from a person who claimed to be associated with the President’s media unit. He had said he would find the girl in two weeks.

Much later the message came that there was no information. The girl continues to be missing, one of the 20,000 missing who have been registered with various authorities. This third version of the story I heard and reported in such a broken and fragmented manner to the participants of the workshop brings us to the great tragedy of those who have lost their loved ones and continue to search for them. The task for the OMP would be to patiently and tirelessly document each case as an individual one, with as much detail as possible. It will not suffice, nor be acceptable, if a general statement is made that all those missing are presumed dead, as done by governmental leaders. Such blanket pronouncements, that do not show a sign of caring for individuals, will not end the search for the missing persons, and will more likely bring bitterness that the Sri Lankan state does not care.

Behind every missing person will be a family and relatives who feel the need to find out what happened to their loved one specifically and in detail and will not be satisfied with general answers. This will be the most difficult task to which the OMP has to find answers as the system that made these people go missing is unlikely to collaborate. One of the participants at the workshop, Sandhya Ekneligoda, whose husband Prageeth went missing outside the battlefield a year before the end of the war, said that suspects in her husband’s likely killing have been taken into state custody. But they will not provide any further information that might incriminate others who were more responsible for the human rights abuses that took place in that time of impunity.

UPHILL TASK

In its interim report that was released last week, the OMP recommended the publication of a full list of all detention centres as well as detainees and ensure that persons are not detained in any unauthorised detention centres and to repeal and reform provisions of the Prevention of Terrorism Act, which permits prolonged detention of individuals without judicial review. It also recommended the suspension of state officials, including members of the armed forces and police who are named as suspects or are indicted in cases relating to abductions and enforced disappearances till the final determination of those cases. It also recommended to provide adequate material and human resources to law enforcement officers, the Attorney-General’s Department as well as the judiciary to investigate, prosecute and punish perpetrators of enforced disappearances. ‘

In addition to the focus on political and human rights issues, the OMP in its interim report also gave attention to economic development aspirations of the government and the general population. The current socio-economic situation of many families of the missing and the disappeared is dire and cannot wait until a final reparations scheme is devised. Thus, a key set of measures is required to provide urgent and immediate relief to the families, the report says. Among the interim relief proposals of the OMP is a proposal to pay a monthly living allowance of Rs. 6,000 to those who have no permanent income. In addition the OMP recommends the introduction of an employment quota of 1% within the state sector in order to facilitate family members of the missing and disappeared who have requisite skills, when vacancies in the public and semi-governmental sectors are being filled.

The OMP faces an uphill task but it comprises some of the best persons that Sri Lanka could bring forward to do the best that can be done in the prevailing circumstances. This is a new experience to Sri Lanka, and the demands will be very great. In other parts of the world, these processes take decades to unfold. The OMP’s seven commissioners bring different skills and experiences to bear but the binding factor will be their integrity and commitment and their success will be in their maturity and sense of balance. The work they do will lay the foundation for truth, justice and reconciliation to emerge, which is essential if Sri Lanka is to leave its divided past behind and journey forward to a shared future.

Kanakarayankulam OIC Assaults And Hospitalizes Children

SEPTEMBER 10, 2018

A father, mother and two of their three children were mercilessly attacked by police who went to inquire about a Muslim man’s land lease and the dispute arising with a Tamil man named Vasanthakumar over that. The two children, Vasanthakumar Kirubaharan aged 16 years and Vasanthakumar Kiriya aged 13 years have been admitted to the Mankulam hospital this evening (9 Sept.).

The mother, Vasanthakumar Sharmila, stated that “the land in Kanakarayankulam where the Dhas hotel stands belongs to us. And of the two acres we gave only an acre on lease for two years in 2010 to a Muslim man. The lease has been renewed again and came to an end in August 2017. Even though we have given in writing for lessee to leave the place he is running a shop there against the law and is supported by the police.”  

Continuing, she told this reporter, “We have complained many times to the Kanakarayankulam police but to no avail. In this situation, we started planting coconut trees in the remaining one acre for our livelihood. This morning while we were watering the trees the shop owner deliberately came to fight with us. The police came, had a look and went away but did not tell us anything. Then this evening, with the police hiding in the shop, the shop owner called us to come out. When my husband went there the Officer-in-Charge of the Kanakarayankulam Police severely attacked him. When I saw that, I ran to the place to help my husband. But the OIC attacked me too severely in spite of my being a woman, and also pulled my dress till the two sides tore. I was standing thus in the middle of the road.  When my 16 year-old son saw that, he tugged me away from the OIC and shouted ‘Let my mother go.’ Upon this the OIC twisted his neck so hard. That he was badly injured and had to be admitted to the hospital with a swollen neck.”

Amid tears streaming down her face, she went on, “At the same time the OIC punched my thirteen year old daughter hard in the stomach without any mercy. She is badly hurt and she too has been hospitalized. We have been threatened saying that my husband was once a member of the militancy. Unlike the shop owner, we have no money to heavily bribe the police with.”.

Five separate witnesses confirmed that it was the OIC who perpetrated the assault.

A resident interviewed for this story said, “The police can be bought. Kanakarayankulam is just North of Puliyankulam. The state is trying to settle the place with Sinhalese. The Police are the driving force against Tamils. The Omanthai Police Station is now called Omantha Police Station. Every police station in a Tamil place named after a Kulam (pond) is now the Police Station of such and such  Kulama. The state’s colonization project is going on at full speed even under our new government. Even Jaffna has not been spared. Kantharodai has been successfully renamed Kadurugoda.”

A Jaffna-based academic asked “How can such a police force offer us protection?” He continued, “I expected a lot more after the Police Commission was established. But the Commission is quite public in saying they cannot rein in the IGP. The IGP himself has been videoed assaulting a staff member for not attending a religious service he had arranged. The Police Commission did nothing. I venture that they are powerless to save this Kanakarayankulam family.”

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LACK OF PROGRESS IN DELIVERING KEY STEPS RISKS UNDERMINING RECONCILIATION EFFORTS IN SRI LANKA – CORE GROUP AT HRC 39

11/09/2018

The Human Rights Council takes place at the Palais des Nations in Geneva.

This statement is delivered on behalf of Germany, Macedonia, Montenegro and the UK as members of the Sri Lanka core group.

We welcome further recent steps Sri Lanka has taken to implement commitments made to the Council in 2015 and 2017. We welcome the Government’s continued engagement with the UN system and actions to implement its National Reconciliation Action Plan and Peacebuilding Priority Plan. We applaud the Office on Missing Persons’ commencement of work and encourage everyone able to advance or contribute to its work to do so. We hope the Government will establish an Office for Reparations quickly. We also welcome the return of further private land in the north, and commitments to return more military-occupied land to civilian ownership.

Nonetheless, the pace of progress on important areas remains much slower than many hoped for. As time passes, lack of progress in delivering key steps risks undermining reconciliation efforts.

In co-sponsoring resolution 30/1, Sri Lanka recognised that national accountability mechanisms are essential to dealing with the past, and to restoring confidence among its communities. These have yet to be established. The Prevention of Terrorism Act has not been replaced with a law that accords with international standards. And, though processes to consider reform to important provisions of the Constitution, including devolution of political authority, has been ongoing since 2016, a way forward has not been found. We are concerned by recent reports of harassment of and attacks on human rights defenders.

Our view remains that, with determined leadership and a clear time-bound action plan, this Government can make more progress towards delivering its Council commitments, and that doing so will better position Sri Lanka and its people to enjoy a more enduring reconciliation and prosperity. We urge Sri Lanka to prioritise and drive forward implementation of resolutions 30/1 and 34/1, before the Council next considers Sri Lanka in March.

This UK statement was delivered at the 39th session of the Human Rights Council during the Sri Lanka Core Group Statement.

Sri Lanka: Patriotism After 9/11

Our social fabric was preserved via military intervention in both the southern and northern insurrections

by Priyan Dias- Sep 11, 2018

Sep 11, 2018

( September 11, 2018, Colombo, Sri Lanka Guardian) Much rhetoric has been used in various media over the years, and recently too, on the subject of patriots and traitors. I feel constrained to express my views as well. Samuel Johnson in his Dictionary (1755) defined a patriot as “One whose ruling passion is the love of his country.” This is certainly a laudable goal and worthy of emulation by all citizens; it suggests a cause bigger than one’s self and hints at a sacrificial character. Why then did he also say that “Patriotism is the last refuge of a scoundrel”? Genuine patriotism is not easy to define. And the use of rhetoric often infuses the term with a very narrow content.

In any case allegiance to one’s country, while important as part of a social contract, is not absolute. We recognize this in Edward Snowden, who acted against the interests of his country (the U.S.) by leaking classified information in the wider interests of the world at large; also in Nelson Mandela, whose actions to end apartheid in South Africa got him labeled as a “terrorist.” What we see here is that true love of one’s country is not easy to define; and must be judged by higher universal norms of justice.

In our country, the term “patriot” is sometimes defined very narrowly as one who defends military heroes, whatever the charges against them; and a “traitor” as one who dares to scrutinize their actions. Military heroes are in turn defined as those who prosecuted war against the LTTE, which undertook an armed struggle to create a separate state. There is no doubt that the end of the war against the LTTE brought great relief to all Sri Lankans – whether those in the South who feared bomb explosions in buses on a daily basis; or indeed those in the North, whose sons and daughters were forcibly recruited by the LTTE. Hence there is much gratitude towards the armed forces. But gratitude cannot be equated to the condoning of all actions taken during the course of one’s actions.

This applies to all citizens, but in particular to those given power over others. Hence anyone in the military has power over other citizens by virtue of being armed; politicians have the power of governance over the people; and principals and teachers have the power of selection and examinations over their students. All such power has to be held in trust and exercised for the public good and not abused for personal gain or gratification. As a society we accept that politicians and principals are not above the law. Principals are convicted for taking bribes for school admissions. And while not many are convicted, many politicians are indicted or at least investigated for their abuse of power. Even Mahinda Rajapakse is being investigated, and there is no public outcry of “traitor” against those who are investigating him, despite his being the commander in chief of the armed services that won the war.

Why then is the military viewed differently by some sections of our society? Is it because of a sense of collective guilt that we allowed them to risk their lives while many of us in the South (though not those on the borders) lived in relative safety? Is this the same reason why there was so much public southern euphoria in May 2009 at the end of the war? I wonder whether the euphoria was shared by those who had lost children or spouses serving in the forces? Would we have emerged better as a society from the war if conscription was resorted to, so that the risks of war would have been better shared? (There was certainly some discussion of it.) These questions cannot be answered; certainly not in a consensual manner. I am just raising them because I have not heard them raised before. How about those in the forces who fought a disciplined war with honour, but have a cloud over that honour because the military is viewed with a jaundiced eye in some quarters? Would they prefer investigations of some sort so that miscreants can be brought to book and the collective honour of the military restored?

There are various allegations regarding the complicity of the military in some terrible incidents – notably the killing of five Trincomalee students in 2006; the deaths of the local ACF workers in Muttur also in 2006; and various kidnappings for ransom. We do not know for certain whether the military is guilty of these actions. But there is certainly a pall that hangs over it as a result of the uncertainty. And until properly investigated that pall remains. Also, we begin to believe, not only within the military but in all spheres of life, that power can be abused with impunity. Perhaps all of this started with the impunity that went unchecked during the two JVP insurrections – i.e. the mass scale extra-judicial elimination of young people, then in the South. Hence this Sri Lankan attitude of “forgetting the past and moving forward” will not suffice; since a past that is not dealt with will haunt our future. Pardons may even be considered for anyone convicted; but without investigations and convictions, impunity reigns supreme. And because we did not have the strength of character to investigate these incidents properly ourselves, Geneva will thrust foreign judges on us.

Our social fabric was preserved via military intervention in both the southern and northern insurrections. Most, if not all of us, are grateful for that. It must be said in passing however that such insurrections are often spawned by injustice in the status quo. Whether such injustices have been mitigated as a result of the insurrections remains moot however. Nevertheless, the Youth Commission Report following the southern insurrection did give voice to rural southern grievances, most poignantly through the phrase “Kolambata kiri; gamata kekiri.” And given that the JVP has now come into mainline politics and doing yeoman service in the opposition, one could say that the social fabric has accommodated the southern voice. The northern voice still seeks expression however largely via a promised constitution, something that all provincial councils apparently desire too.

At any rate, the military was never hailed as being the saviours of the nation at the end of the southern insurrection, as much as it was in 2009 after the northern one – this despite the fact that the country and its capital city were more severely disrupted as a result of the former, with southern universities closed for two whole years!! So the rhetoric behind today’s adulation of the military is that it prevented the separation of the country that was attempted by the LTTE.

Once again, while expressing gratitude to the military, I would like to deconstruct this rhetoric.

Who indeed has prevented the separation of the country? Those who fought the LTTE in active combat certainly qualify. But we read in the newspaper recently that a group of rehabilitated former LTTE members gave an emotional farewell to Colonel Ratnapriya Bandu, the commander of the Civil Defence Force in Mullaitivu, when he was being transferred. I do not know whether Colonel Bandu has been decorated for valour in warfare. But he has obviously made a huge contribution to reducing the risk of separation through his empathetic treatment of former separatist cadres. Perhaps to a lesser extent, every service person at a Colombo checkpoint who treated visiting northerners with dignity and courtesy would have contributed to the idea that we can remain one nation.

When a bomb blast resulted in 23 deaths and 80 injuries on the road between the Katubedda junction and the Moratuwa University in 2008, almost all the male Tamil university students living close to the campus were taken in for questioning by the Moratuwa police. To my knowledge (and I am willing to stand corrected) only two university teachers visited them at the Police Station; but dozens of their Sinhala landlords did, just to express concern for their young Tamil tenants. Even ordinary citizens of the country would have contributed in many such ways to reducing the risk of separatism. One cannot prevent separatism by force alone; in many situations, force could actually hasten separation.

Once again we are all grateful to the military. They certainly prevented the separation of the country. But so did many others, in ways that are different but no less effective. So I am relativizing the role of the military; and also re-iterating that glorifying the armed services is not the only form of patriotism. There are at least two other ways in which we can show tangible “love of our country.”

The first, of course, is allegiance via sole citizenship and long service in the country. There are many ordinary people from all walks of life who have served or are serving the nation for a lifetime, in honesty and integrity, whether in the private, public, NGO or other sectors. Such service counts more, in my eyes, to stamp them as patriots, rather than whatever opinions they hold about the armed services or the national anthem. Members of Parliament are not allowed to hold dual citizenship, and rightly so. Those who play a pivotal role in the affairs of a nation should be required to have their futures inextricably linked to that nation. I say this because suspicion and dissent among people groups in this country are more often than not sown and nurtured by those who have secure futures in other climes. To be a patriot is not to relive the past, but to bind one’s self to the future of one’s country. For over 35 years I have been a teacher in the state university system, delivering free-of-charge education to generations of students from all corners of the country. A large percentage of them see a university degree as a passport to a foreign job. I do not believe in the curtailment of personal freedom. And many such who live overseas help Sri Lanka in numerous ways. But her destiny must be dictated by those who live (together) within her borders.

The second way is to pay one’s taxes. In the U.S. every child must “pledge allegiance to the flag of the United States of America” every day at school. This is dangerous patriotism in my opinion, one that is easily exploitable by its leaders; as seen for example in the invasion of Iraq after 9/11. And that is the biggest problem with patriotism all over the world including Sri Lanka – it is actively cultivated by those who want to capture or retain state power. But at least most if not all Americans recognize the importance of paying their taxes – they convert their display of patriotism to some tangible nation building action. In South Korea, when the Central Bank was in trouble in 1998, it is said that average citizens donated their own gold to enable it to pay back a loan to the IMF!! Sri Lanka’s GDP per capita has increased from 370 USD in 1985 to 3860 USD in 2016 – a tenfold increase (six-fold, based on purchasing power parity); but its GINI index (that measures income inequality) has also increased from 32.5 in 1985 to 39.8 in 2016. We have become wealthier while becoming more unequal; and the case is clear for increasing direct taxation. I am not a spokesperson for the present government, but even the JVP has consistently wanted indirect taxation reduced from its current astronomical level of 80%. And the patriotic (“love for country”) thing to do is to increase personal income tax. In this “wonder of Asia” however, it is the very people who pontificate on criteria for assessing patriots and traitors who also agitate to reduce their taxes. What a travesty!

Does Sri Lanka’s Enforced Disappearance Act apply to the Past?

BY GEHAN GUNATILLEKE-9September, 2018

FacebookBY GEHAN GUNATILLEKE-9September, 2018

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Sri Lanka enacted the International Convention for the Protection of All Persons from Enforced Disappearance Act in March 2018. The new law criminalises enforced disappearance, and grants the High Court in Colombo exclusive jurisdiction to try offences under the law. A question that vexes families of the disappeared is whether the new law applies to persons who disappeared prior to its enactment. This article argues that it most certainly does.

Definition of enforced disappearance

There are three elements to the offence of enforced disappearance under section 3(1) of the new law. First, the Act must be perpetrated by a ‘public officer’ or a person ‘acting in an official capacity’, or any person ‘acting with the authorisation, support or acquiescence of the State’. Thus, an enforced disappearance, by definition, involves an agent of the state.

Second, there must be an arrest, detention, wrongful confinement, abduction, kidnapping, or any other form of deprivation of liberty. According to the definition provided in section 25 of the Act, ‘deprivation of liberty’ means ‘confinement of a person to a particular place, where such person does not consent to that confinement.’

The third element of the offence requires that the accused person (responsible for the act under the second element) additionally refuses to acknowledge the deprivation of liberty, or conceals the fate of the disappeared person, or fails or refuses to disclose, or is unable to disclose without a valid excuse, the subsequent or present whereabouts of the disappeared person.

All three elements of the offence must be satisfied for the offence of enforced disappearance to take place.

Rule on retroactive application

Sri Lanka’s Constitution has an explicit prohibition on the retroactive application of criminal law. Article 13(6) provides: ‘No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence.’ Any prosecution of a person for an enforced disappearance that took place prior to March 2018 could arguably be challenged as violating article 13(6) of the Constitution.

For example, say an agent of the state abducted a person on February 18, 1990, and the agent refused to acknowledge the abduction. If the abducted person was subsequently found, and the perpetrator was identified, all three elements of the offence of enforced disappearance have been satisfied. Yet, the involvement of the state agent, the abduction, and the refusal to acknowledge the abduction, took place prior to the enactment of the Enforced Disappearance Act. It is possible to argue that the new law cannot apply in this particular instance without resulting in an inconsistency with article 13(6) of the Constitution. The rule on retroactive application would arguably prevail.

A proviso to this general rule is contained in article 13(6). This proviso states that a person could still be tried and punished for ‘an act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.’

There is some force in the argument that enforced disappearance was criminal according to the general principles of law recognised by the community of nations prior to the enactment of Sri Lanka’s Enforced Disappearance Act. However, the present article will not explore this argument.

Continuing offence

The definition of ‘deprivation of liberty’ in the Enforced Disappearance Act provides for a broad range of situations. It does not necessarily have to relate to a single act, such as an arrest or abduction. It in fact covers situations where a person is continually confined to a place without that person’s consent. Thus, if a person is in such confinement at the time of the enactment of the Enforced Disappearance Act, the second element of the offence is most certainly satisfied.

The same logic applies to the offence of drug possession. If a person comes into possession of an illegal drug on September 8, but the law prohibiting such possession is enacted on September 10, the new law cannot apply to a case of possession that ended on September 8.

But if the suspect is still in possession of the drug on September 10, the person is liable to be prosecuted under the new law.

Thus, if a person is in fact deprived of liberty on the date the Enforced Disappearance Act came into operation, the new law applies to such a case regardless of the fact that the confinement began on an earlier date.

Let us take an example of a person who goes missing on January 24 2010. If the person remains missing on the date on which the new law comes into operation, the new law most definitely applies to this case. The reason for such application is not due to a retroactive application of the law. It is due to the fact that, if the person is alive and in continual confinement, all elements of the offence could potentially be satisfied after the new law came into operation.

The new law applies to the past

The application of the Enforced Disappearance Act to continuing confinement compels the state to investigate each and every case of past disappearance under the new law. Such a statutory duty arises under section 14(3) of the new law, which compels the state to investigate any case where there are ‘reasonable grounds’ for believing that an enforced disappearance has taken place. This duty arises notwithstanding the fact that a person went missing prior to the enactment of the new law, as in each case, the person concerned could still be alive and in confinement.

On the one hand, if as a result of such investigation, it transpires that the person was alive and was in confinement at the time the new law came into operation, the three elements of the offence are most likely satisfied.

On the other hand, if it transpires that the person was released from custody or died in custody prior to the enactment in March 2018, the new law may not apply.

But the perpetrators may still be prosecuted for offences including murder, culpable homicide, abduction,or kidnapping – all of which were offences at the time of the incident. Either way, the Enforced Disappearance Act most certainly warrants full investigation of the incident to ascertain whether an offence has taken place.

Conclusion

Sri Lanka’s Constitution prevents the retroactive application of criminal law. However, offences such as drug possession and enforced disappearance are continuing in nature, and escape the rule on retroactive application.

Accordingly, it is clear that the new Enforced Disappearance Act applies to past instances of disappearance, as the persons concerned could very well be alive and in confinement today. This potential compels the state to investigate all cases of missing persons in which there are reasonable grounds for believing that an enforced disappearance has taken place.

Broken buildings, beer bottles and a Buddhist shrine - Jaffna school released from military occupation

A school in Myliddy, Jaffna was released after 27 years of military occupation, with most of the buildings demolished and a well-maintained Buddhist shrine and piles of discarded alcohol bottles in their place.

11Sep 2018

The release of the Myliddy Kalaimahal Vidhyalayam was marked with a routine grandiose event last Thursday, packed out with military officials and local community members, including schoolchildren and accompanying teachers from a local school.

Locals including old students and teachers of the Kalaimahal Vidhyalayam returned to find that the school’s buildings had been razed to the ground.

Locals noted with displeasure that while the buildings had been demolished and the school left like a wasteland, the new addition of a Buddhist shrine under a young bodhi tree seemed well-maintained by contrast.

Teachers were also angered by the empty alcohol bottles littering the grounds, from which they had to steer their visiting students away.

Related Articles: 

03 September 2018 : Continued military occupation preventing redevelopment of Vali North

24 August 2018 : Sri Lankan president inaugurates Myliddy harbour reconstruction while residents remain displaced

07 May 2018 : Wigneswaran discusses problems faced by families returning after military occupation

The Vijayakala Vortex: Standing Up For A Tamil Woman In Sri Lankan Politics

By Chamindra Weerawardhana –SEPTEMBER 10, 201

Dr. Chamindra Weerawardhana

In an article published in the Colombo Telegraph on 6th July 2018, this writer wrote the following:

When writing about ethno-national politics in post-war Sri Lanka, this writer has constantly sought to highlight one point – that there is such a thing called Tamil nationalism. Tamil nationalism is a given, and whether some of us like it or not, it continues to exist and in some quarters thrive. A key component of reasonable steps towards reconciliation involves understanding and acknowledging the existence of stakeholders with colliding and opposed views.

Sri Lankans who are Tamil nationalists have the right to espouse their Tamil nationalism. However, it falls upon them [in the very same way it falls upon Sinhalese nationalists], to ensure that their nationalist discourse and actions do not drift into vicious cycles of extremism. We Sri Lankans have for many decades suffered due to such chauvinistic excesses. In 2018, it is definitely time to sit back, adopt a ‘live and let live’ approach, and share the collective responsibility of challenging and containing drifts towards extremism at all levels of Sri Lankan sociopolitical life.

Tamil nationalism is a given. It is an ideology that exists in many shapes and forms, and just like Sinhalese nationalism, Tamil nationalist advocacy takes place along a spectrum, from somewhat moderate, if not parliamentary-political, or a constitutional-nationalist position, a more robust form of regionalism and self-determinism and to a much harsher secessionist discourse. Since the end of the 30-year war in 2009, secessionist Tamil nationalism has been largely confined to Tamil diaspora circles in Southeast Asia and the West.

The fact that Tamil secessionism has no future in Sri Lanka is a geo-strategically proven reality. There is next to no inclination in international law to ‘separate’ and draw dividing lines in islands home to deeply divided socio-political backdrops. In the South Asian context, the national security concerns of the regional superpower, emerging Eastphalian forms of internationalism, the West’s alliance with India in facing up to rising China, the aversion to secessionism in the region at large are all reasons that should have enabled the LTTE to come to terms with the fact that their ‘separate state’ aspiration was thoroughly unrealistic. Their inability to understand this fact, or, to be precise, V. Pirapakaran’s inability to take stock of pressing strategic and geopolitical realities, and especially his unwillingness to take heed of the advice of a vice man, the late Dr Anton Balasingham [especially in the aftermath of the Oslo round of peace talks], were core reasons that led to his ultimate nemesis, along with his militant secessionist movement.

As Sri Lankans – and if we support a smart-patriotic Sri Lankan identity – there is a salient reality that needs to be understood  – that Sri Lankan citizens who so wish have every right to uphold Tamil nationalist perspectives. This is extremely important, especially in the context of post-war Sri Lanka.

Unsurprisingly, this is a reality that many Sri Lankans have been reluctant to admit during the first post-war decade. In our democracy, the right of each and every citizen to engage in political activity and mobilization is an inalienable right, and within the democratic sphere, that right must be guaranteed. Any shortage of such an inclusive policy risks causing threats to national sovereignty, national security and to the territorial integrity of the land. Tamil nationalism, whether some of us like it or not, continues to be an influential political discourse in post-war Sri Lanka. However, many people, especially Sinhalese people, tend to cling to the puerile fallacy that the end of the war signified the end of Tamil nationalism. Many people also harbour the impression that Tamil leaders should adopt a servile, subjugated stance, and avoid any evocation of issues such as federalism, regional autonomy, self-determination, linguistic justice, truth-seeking, and justice for missing persons. This is suggestive of a high level of ‘fragility’ within the ethnic majority, which is being exploited by Sinhala nationalist politicians [especially male politicians] for short-term political capital. There is a clear necessity to develop a Sinhalese mass movement against the deployment of an anti-minority discourse [if not a fear psychosis] to the narrow political advantage of a handful of Sinhalese politicians.

Ms. Maheswaran: a controversial statement?

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Ex Navy chief Ravindra fearing CID interrogation in his multiple murder involvement flees country with Gamarala’s help !

(Lanka e News – 10.Sep.2018, 10.15PM) Former Navy commander and present chief of staff Ravindra Wijegunaratne who is incriminated in the ghastly murder of 11 innocent individuals including students after extorting payments had fled the country on the sly in the early hours ( 3.00 a.m.) of the morning today (10) .

There is cogent and copious evidence that Ravindra hid the prime suspect Navy Sampath alias Prasad Chandana Hettiarachi in this ghastly multiple murder , and helped him to flee the country after giving him Rs. 500, 000.00 .

Ravindra had fled the country at 3.00 a.m. today (10) when the Criminal Investigation Division of Police (CID) had asked him to be present at the CID at 10.00 a.m. today to record his statement in connection with the gruesome multiple murders.

It is no less a person than president Gamarala who has by now earned the notoriety as the only president in the whole wide world who openly shields and safeguards criminals and crooks had aided and abetted Ravindra to flee the country.

According to a spokesman of the defense ministry , Ravindra left the country on an invitation from Mexico. What is most shocking is , Ravindra has obtained the air ticket at 6.00 p.m. yesterday and flee the country 3.00 a.m. early morning today .If truly an invitation is received from a foreign government , that is always received several months ahead , and there does not arise the necessity to reserve the air ticket in such a sudden haste .

According to reports reaching Lanka e news , this stupid scoundrel has firstly left via a plane to Qatar. Ravindra who arrived at the airport early morning had walked direct to the plane through the VIP channel.

It is learnt his passport had a four year American visa , and probably he will finally end up hiding in the states.

There is a court order banning foreign travel of Ravindra. Yet that order was not sent to the Immigration and Emigration controller by the secretary to the ministry of internal affairs , P. Swarnapala . The latter had kept that order with him for two weeks , sources say. Swarnapala was a an ace crook cum high rung state officer during the last regime and a batch mate of Gamini Senarath , the former chief of staff of the secretariat of the former president .

None can say these were orchestrated without the knowledge and consent of president Gamarala.

The multiple murders were committed during the Rajapakse corrupt criminal era . Even Gotabaya despite his notoriety as a murderer had not come to the open to protect these murderers of the 11 individuals which included students . He had told the CID to conduct the investigations , and he does not want to get himself involved in it. Yet it is Pallewatte Gamarala who became president swearing with all his might day and night at every meeting that he would flush out all the criminals and crooks , and mete out punishment who is shamelessly and disgracefully moving heaven and earth to shield and safeguard the brutal criminals 

Gamarala who would stoop to any lowliest level if only it will serve his selfish ends , during the period when Ravindra was the navy commander got the approval for the Russian warship corruption tainted deal. As a reciprocal gesture Gamarala extended Ravindra’s service and later made him the chief of staff .

In much the same way as Raveendra got caught aiding and abetting Navy Sampath to flee the country , in the not too distant future , those who aided and abetted Raveendra to flee the country too are sure to get trapped.

Connected reports …

Navy Chiefs Karannagoda and Wijegunawardena distort ‘Navy Sampath’s’ name to disentangle themselves from mass murder -president protects them !

President openly and brazenly shields criminals ! President liable to impeachment motion and contempt of court charges – legal luminaries pinpoint

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by     (2018-09-10 16:59:18)