Sri Lanka’s crisis clouds fate of 20,000 missing people

Relatives of those who disappeared during the country's civil war fear their fight for justice may soon come to a halt due to the current political crisis

Sri Lankan workers bury the bodies of 41 suspected Tamil Tiger combatants recovered by government forces after heavy fighting in the island's north in January 2009, in Vavuniya. The country's political crisis has cast a cloud over efforts to reveal what happened to thousands of people who disappeared during the civil war. Photo: AFP / STR / aj

By JONATHAN GORVETT SRI LANKA, DECEMBER 12, 2018

After seven months of digging around the old Sathosa Building in Mannar, a city some 250 kilometers north of Colombo in Sri Lanka, the remains of some 266 people have been pulled from the clinging earth.

While these bodies remain unidentified – and, in some cases, likely unidentifiable – few doubt that they are witnessing the exhumation of the first of 16,000 to 20,000 people who disappeared here during more than four decades of civil war.

The mass grave is one of several sites uncovered around Sri Lanka in recent years, including another one in Mannar. Further sites have been discovered around the east coast town of Batticaloa, and another in the central town of Matale.

How many disappeared?

However, Saliya Pieris, chairman of the independent Office on Missing Persons (OMP), said: “We just don’t know how many mass graves there are out there.

“We also don’t know exactly how many disappeared. The International Red Cross says 17,000, the Ministry of National Reconciliation says 16,000, while some NGOs say the number is 20,000. Part of our job is to arrive at an accurate figure and try and bring closure for their loved ones.”

Yet now, the fear among many relatives of the missing is that with little progress having been made in finding not only closure, but also justice, things may soon come to a halt, as a result of Sri Lanka’s current political crisis.

“If the political situation prevails, I fear these efforts to find an answer, too, might perish,” Samdya Ekneligoda, whose journalist husband went missing back in 2010, told Asia Times. “When I heard what happened on October 26, I felt fear – both for finding the truth and for my life as well.”

Controversial pasts

October 26 saw the political crisis in Sri Lanka deepen when the United People’s Freedom Alliance (UPFA) — one of the parties that made up the National Unity Government — decided to leave the ruling coalition.

President Maithripala Sirasena then appointed former president Mahinda Rajapaksa as the Prime Minister after ousting the then Prime Minister Ranil Wickremesinghe by issuing a decree known as Extraordinary Gazette no 2094/43.

While Rajapaksa’s supporters welcomed the move, seeing him as the man who brought decades of war to an end back in 2009, for others, the news was alarming.

“It brought everything back,” Amalini De Sayrah, from the Centre for Policy Alternatives think-tank in Colombo, said. “The terrible end of the war, violence, corruption, a crackdown on free speech, the murder of journalists – in a lot of the areas affected by the war, it had a completely chilling effect.”
Rajapaksa was president during the final, bitter years of the conflict and in its immediate aftermath.
He has denied any involvement in disappearances, but his period of office was also the time when many of the disappearances were reported.

Ekneligoda’s husband, Prageeth, had been a strong critic of Rajapaksa in his newspaper columns and a supporter of a rival candidate for president, back in 2010. “And then, the day before the 2010 presidential election, he was abducted. We haven’t seen him since,” she said.

An investigation into his disappearance did not fully get underway until 2015, when Rajapaksa was ejected from office and replaced by Sirasena.

Some 11 military intelligence officers were subsequently named by the Sri Lankan Criminal Investigation Department (CID) as suspects, the case is still ongoing.

Yet, in the courtroom itself, October 26 has already had an impact.

“At the last hearing, in November, the lawyer appearing on behalf of the intelligence officers openly said in court that his clients shouldn’t worry because everything was going to change, now that Rajapaksa was back,” Ekneligoda says.

Frozen truth

The political crisis has also led to a paralysis of government business – freezing some other key steps underway to help the country address the darker aspects of its recent past.

“There was going to be a Truth Commission set up,” says Pieris, “as well as an office for reparations, along the South African model. We’d also got somewhere with financial support for the families of the disappeared people along with the suspension of police and soldiers accused of involvement in crimes while their cases were being heard. But then the crisis came. We have no idea what will happen to these proposals now.”

The Office of Missing Persons, and other steps towards transitional justice have always been controversial, with the fear that the crisis may now give an opportunity for backsliding.
“We think the issue of the missing persons cuts across party political and ethnic lines,” says Pieris, pointing out that some 5,100 serving Sri Lankan soldiers are also among the disappeared.

But he adds: “Some people do see the investigation of this as a betrayal.” Some see the OMP’s work as an attempt to undermine the security forces and their achievements. For many of the relatives though, it is more about ending an anguish that may have lasted for
decades.”

While the OMP has no cut-off date, most of those who are missing, disappeared after 1971, when armed conflict first engulfed the south of the island. This was followed in 1987-89 by a southern-based leftist insurrection, while from 1983 to 2009, the Sri Lankan army fought the
separatist Liberation Tigers of Tamil Elam (LTTE) in the north and east.

“We had a lady come in here recently,” Pieris recalls at his office in Colombo. “She was a 76-year-old Tamil, from the central part of Sri Lanka, and she’d been in Colombo with her husband just as the July 1983 riots broke out. They got separated when the temple they were at was attacked and she never saw her husband again. She never remarried and still had a red dot on her forehead – the symbol of being married– since then.

She just said: “Before I die, I just want to know what happened. I don’t think he can be alive, but I just want to know.”

Way out Via media 

It is time therefore for Rajapaksa to accede to this repeated compromise Wickremesinghe is offering

 2018-12-14

It is a lingering crisis on two demands for political power. Ranil Wickremesinghe and his UNP are asking for their Government back with their PM. With ITAK leadership providing in writing the TNA would support the UNF with no political conditions attached, Wickremesinghe is assured of a majority beyond the required 113 votes in Parliament.

Rajapaksa has his demand too. It is an early Parliamentary Election.
He promised an early election as the major promise of his care-taker Government, when appointed PM on October 26 through a special Gazette.
The Supreme Court that sat over 14 FR Petitions was expected to deliver its decision on Monday and then Tuesday (11) but never came even on Wednesday (12), and is still being speculated while this is being written.
Keeping the SC ruling aside for the moment, politically, could there be a compromise to end this impasse in Parliament?
There is a middle ground if the leaders were keen to compromise. 
A compromise is possible on Wickremesinghe having his Government that he says is legitimate and Rajapaksa having the Parliamentary Election he wants in early 2019.

"Court vacations from tomorrow till early January would certainly deter such crazy interventions or drag this chaotic situation to 2019 as well"

Those protesting and sitting for Satyagrahas in Colombo demanding this Parliament to continue with its four years and six-month term, demanding that 70(1) of the Constitution be respected, have been left behind by Wickremesinghe for a Parliamentary Election with his condition of a legitimate government attached.
He said the UNP was not afraid of an election under a legitimate Government if other parties agreed. Thereafter addressing a representation of the business community in Colombo, he explained that political stability for economic growth needs a new Parliament.
Wickremesinghe has moved away from his earlier demand of having his Government back and nothing less. 

MP Champika Ranawaka has also tagged himself with Wickremesinghe echoing the same slogan of an election under a legitimate Government.
The Colombo middle-class democrats are now with slogans that have lost their shelf life.
It is time therefore for Rajapaksa to accede to this repeated compromise Wickremesinghe is offering. 
Rajapaksa should accept he cannot gain a majority in this Parliament and therefore cannot decide on an early election on his own terms. He has half a possibility if the SC rules the gazette dissolving Parliament as valid. As it is still speculation, it is prudent for Rajapaksa to accept Wickremesinghe’s condition in lieu of an election, if an election is what he ultimately wants. 

Even if the SC rules the Gazette dissolving Parliament as valid, it would not clear a smooth path for an early election as expected.
It may leave a controversy over the status quo that should thereafter prevail. 
Should it be that before October 26, the UNP would keep demanding or, will it be that before the November 09 Gazette? Whatever the confusion, it would have to wait till the SC proceeds today (14 December) with the appeal against the CA temporary stay order on the Quo Warranto writ application testing the eligibility of persons holding public office.

Constitution under Article 170 interprets public officers like those employed by the Republic excluding Judicial officers and also elected representatives from President to Parliamentarians including PM, Ministers and Deputy Ministers.
Yet, would the status quo spur another round of FR petitions to the SC?
Court vacations from tomorrow till early January would certainly deter such crazy interventions or drag this chaotic situation to 2019 as well. 
In such uncertainty, it would still be worth a compromise between Wickremesinghe and Rajapaksa. Logistics, no doubt have to be agreed upon. Wickremesinghe should have a resolution in Parliament calling for its dissolution and an election to be held within three months before Rajapaksa gives way for his Government and accepts Wickremesinghe as PM.

"Compromise is possible Wickremesinghe having his Government and Rajapaksa having the Parliamentary Election"

If that compromise can be worked out clean without individual egos playing out against each other, then President Sirisena will have to go back on his nonsensical decision and appoint Wickremesinghe as PM. 
An election under Wickremesinghe and a new Parliament elected is expected to establish political stability and economic growth.
Political stability, yes for a short while.
That temporary breather, I wrote in these pages not long ago, was necessary for this country right now.
The economic growth, maybe, but certainly not development.

Development and economic growth don’t go together in an insanely open, free market economy.
It was three decades ago, the World Bank too agreed these free markets cannot even promise a trickledown effect, good enough to keep social stability.
That, in fact, is what would make a new Parliament also unstable before long. Before long, the economy that breeds more and more corruption would not leave a Parliament representing People.
Politicians and political parties have long given up on their responsibility to represent and serve People.
That makes me repeatedly use MP Eran Wickramaratne’s recent statement made in front of an audience a few days after the October 26 Gazette that created this mayhem.

“Who has gained in this crisis?” he asked and answered it himself.
“It is only the politician who has gained. It is unimaginable you know, what monies are offered, to actually buy people over.” He says the evidence is there on social media.
Though evidence is not stories shared and liked in Facebook and in other social media,
MP Wickramaratne’s claim was endorsed by no other than President Sirisena himself. President went on record over a week ago saying, Mahinda Rajapaksa failed to collect the necessary numbers as the price of MPs went too high.
Wickramaratne thus stands literally right.

Yet his bland statement “This is an indictment on our whole society and on the values we hold” is another way of palming off responsibility.
It is the society and not politicians alone. He nevertheless underlines one single, indisputable truth.
“Politicians will never change the destiny of this country…..” he stresses.
“I have been the advisor to many politicians. And after advising them, one day a politician turned to me and said, “Eran’, a minister said (obviously a UNP Minister), you have been working with me for two or three years, you haven’t still understood something……don’t you realise that this system works for us,” he told me. And why should we change it?....” It is no indictment on the whole society. It is an indictment on politicians without reservations.
He says the whole society as he believes the People as responsible for electing politicians who would never change the destiny of this country and for electing politicians who will not “change the system that serves them.

"It is prudent for Rajapaksa to accept Wickremesinghe’s condition in lieu of an election"

There is no better proof of it than the advisor-turned-politician Eran Wickramaratne MP, who now argues publicly to continue with this Parliament full of politicians, who would never change the destiny of this country and he is a strong advocate of this system that serves politicians only.
How decent and dignified is that politics? It is proof, there cannot be decent and dignified politicians in this system, however professionally and academically qualified they could be or however religiously pious and culturally refined their upbringing is.
It is a system that is being nurtured by the filthy rich born out of the system itself and thus become half-brothers of politicians who wouldn’t change the system that both thrive upon.

People thus have a role to play. They need to find a way out of this unholy system.
They need to discuss to find an alternative to this ‘system’ which means this awfully corrupt, incurable open market economy. The crisis is much deeper and more complex than what is said in media briefings and electing a new Parliament for a temporary respite. It is a new intellectual debate that this crisis demands.

Alternative News (English) 11-Dec-2018 (Video)

(Lanka e News -12,Dec.2018, 11.30PM) Alternative news bulletin 

---------------------------
by     (2018-12-13 02:44:44)

Birth anniversary of revolutionary Tamil poet marked by Indian Consulate in Jaffna

181211 Bharathiyar birth.jpeg

 11 December 2018

The revolutionary Tamil poet Subaramani Bharathi or Bharathiyar was celebrated on the 137th anniversary of his birth by the Indian Consulate in Jaffna on Tuesday.

Prominent local figures including politicians, local government officials and elected representatives, and religious leaders attended the event held at the iconic Bharathiyar statue in Nallur.

Bharathi, popularly known as Mahakavi or great poet for his pioneering influence on Tamil literature, was born in Thoothukudi in British India in 1882 and died in Chennai in 1921.

His poem Thamil Thaai Vaazhthu - 'invocation to Mother Tamil' - was traditionally sung in Tamil schools across the North-East, and is still sung to inaugurate Tamil cultural events, as a replacement of the Sri Lankan national anthem.

Another iconic poem Achamillai - 'fearless' - is also popularly invoked as a rallying cry of Tamil resistance.

Related Articles: 

31 May 2018 : 37 years on - remembering the burning of the Jaffna Public Library

Sirisena Pushed Up Against The Wall As Ranil Wins Numbers Game 

By Rasika Jayakody – DECEMBER 13, 2018

Rasika Jayakody

President Maithripala Sirisena, who triggered the political crisis in Sri Lanka by appointing an MP without a parliamentary majority as the Prime Minister on October 26, is now slowly being pushed up against the wall.

Ousted Prime Minister Ranil Wickremesinghe stamped his authority over Parliament today by demonstrating a clear majority in the House: He emerged the winner of the “numbers game” in Parliament, as his rival, former President Mahinda Rajapaksa lost it not once, not twice, but six times in a row.

With 117 MPs from the UNP and the TNA supporting him, Wickremesinghe has become the sole choice of Parliament for the post of Prime Minister.

While the legislature has repeatedly demonstrated “no confidence” in President Maithripala Sirisena’s chosen Prime Minister Mahinda Rajapaksa, it has explicitly supported Wickremesinghe’s appointment to the post.

The outcome of the confidence motion has left Sirisena with limited options. If the President is to accept the will of the House, he has to reappoint Wickremesinghe as the Prime Minister.

Any move to deviate from the will of the legislature will set him on a collision course with Parliament which exercises authority over many aspects of the government, including public finance.

Before the confidence motion was moved in Parliament, Sirisena resorted to desperate measures to drive a wedge between Ranil Wickremesinghe and his second-in-command in the party, Sajith Premadasa.

As a part of this plan, a newspaper owned by a controversial businessman—a supporter of the Sirisena-Rajapaksa alliance, carried a scandalous story that said Wickremesinghe had promised the Finance Ministry and a Deputy Leader post to Ravi Karunanayake, if the party returned to power.

Sources representing Wickremesinghe and Karunanayake categorically denied the story and confirmed that no such assurances had been made. Both parties said it was not the right time to discuss positions with any parliamentarian, as the UNP was entangled in a larger battle over forming a legitimate government.

The objective of this fabricated story was to rattle Sajith Premadasa and frustrate the middle class with the leadership style of Wickremesinghe. The UNP Deputy Leader has played his cards wisely since the outbreak of the political crisis and has thrown his weight behind Wickremesinghe, earning the respect of the party rank and file.

The middle class, which was disillusioned with the Sirisena-Wickremesinghe government’s ineffective administration for three-and-a-half years, started rallying around the UNP Leader after his unlawful dismissal. Wickremesinghe is currently riding a wave of public sympathy and Sirisena’s continuous attempts to undermine the Constitution and democratic processes have boomeranged on him. Karunanayake’s alleged involvement with Arjuna Aloysius, the man at the centre of the Treasury bonds fiasco, does not sit well with the middle class and the news of his reappointment as the Finance Minister was aimed squarely at unsettling them.

Unfortunately for Sirisena, this last-ditch attempt did not yield results and it was Premadasa who moved the confidence motion in support of Wickremesinghe in Parliament earlier today. While presenting the motion, Premadasa unequivocally said Wickremesinghe was the MP commanding majority support of the House and the suitable person to be appointed the Prime Minister.

Sirisena now thinks a referendum will be an easy escape route. However, opting for a referendum on an early General Election, in the face of an unfavourable ruling by the Supreme Country, will plunge him into deeper trouble and unchartered territory. Although the Constitution allows the President to hold a referendum on a matter of national importance, there are diverse views on whether he could hold a referendum on a matter that is deemed unconstitutional by the Supreme Court.

This, needless to say, will land President Sirisena in a fresh legal battle and prolong the current political deadlock. Therefore, going for a referendum under the current circumstances will be a politically suicidal move to make. 

Sirisena, addressing a party leaders meeting of the UNF last week, famously said he would resign from office and go back to farming in Polonnaruwa, if pushed up against the wall.

The confidence motion passed by 117 MPs in the House has in fact pushed the President against the wall and has severely restricted his bargaining power.

He, therefore, has only two options – either to re-appoint Wickremesinghe and work with a UNP government for 12 months until the Constitution warrants a dissolution of Parliament, or reappoint Wickremesinghe as the PM and step down from the presidency, as promised to the UNF party leaders.

Read More

The President must bow to unanimous Supreme Court verdict

MPs shake hands with ousted Prime Minister Ranil Wickremesinghe after parliament voted overwhelmingly on Wednesday, expressing their confidence in him and demanding that he be reinstated as prime minister. AFP.

2018-12-14

he Supreme Court has spoken, justice has been delivered, and the President’s action of dissolving parliament has been declared illegal, unconstitutional and a violation of the fundamental rights of the petitioners. But whether the crisis has ended is still a major question. We hope the President will bow to the unanimous verdict of the seven-member Supreme Court bench which upheld democracy and constitutional governance. 

This column, a fortnight ago, said that even if the economy suffers and the administration grinds to a halt, justice must prevail and democracy should emerge victorious.  Defending democracy, United National Party Deputy Leader Sajith Premadasa in his speech on Wednesday in Parliament quoted John F. Kennedy as saying, ‘Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.’

On the one hand, such a stand, however painful, is justified in the interest of democracy. If a democratic order is upheld, generations to come will not only relish the benefit of democracy to the fullest but also will be saved from constitutional conspiracies by power-hungry populist politicians.
On the other hand, we need to understand there is an urgent need to solve the crisis and prevent the country from sinking deeper into the abyss it has been pushed into by the October 26 event. 

It goes without saying that power politics, at the cost of the people’s wellbeing, is hampering a speedy solution to the problem. The question is how long the people can undergo the suffering brought about by the recklessness of a few self-centred politicians at a humongous cost to the nation’s economy. 
The problem precipitated by President Maithripala Sirisena’s impulsive and arbitrary decision to remove legitimate Prime Minister Ranil Wickremesinghe and appoint, in his place, Mahinda Rajapaksa, in a major blow to democratic traditions, has eroded investor confidence, suspended the inflow of foreign aid, made loans expensive 
and negatively affected the tourism industry.  

The crisis is virtually killing the economy. It is said it will take years to restore investor confidence in Sri Lanka to the pre-October 26 level.  Ours is a country which depends heavily, apart from exports, on the inflow of foreign investment, tourism and remittances from Sri Lankan expat workers to offset the trade deficit and avert a balance of payment crisis.  There is no gainsaying that the crisis has also added a heavy strain on debt servicing. If we do not honour the repayment of debts and our sovereign bond commitments by the due dates next year, we will be further downgraded by international credit rating agencies.  Besides, if the crisis is not solved soon and a budget or a vote on account is not passed before the end of this month, hospitals will run out of medicinal supplies, the law-and-order situation will be crippled as Police will have no money to buy fuel, salaries and pensions will not be paid, and state schools will have no money to buy even chalk. Yet, it appears that the power-hungry politicians show no urgency to solve the crisis.  They do not give a damn about the looming catastrophe arising out of the absence of a legitimate government.  Like Nero, they are playing their fiddles while the people – most of whom are financially and economics-wise illiterate -- are being 
duped into believing their political rhetoric.  

It is unfortunate that the crisis erupted when the economy was showing signs of taking off and the then government was pushing forward ambitious programmes such as Gamperaliya and Enterprise Sri Lanka to fast-track the economic growth, despite hostile local and international factors, such as sharp rises in the prices of oil and the US dollar.

According to an article published in the Financial Times (Sri Lanka) on November 20, the Sri Lanka Prosperity Index (SLPI) increased to 0.771 in 2017 from the 0.661 in 2016, mainly due to improvements in the Economy-Business Climate and Socio-Economic Infrastructure sub-indices. In the complex ranking order, Sri Lanka occupies the 67th place -- one place below Kuwait and one place ahead of South Africa. But, for obvious reasons, sections of the mainstream media missed the story, deliberately or otherwise, though the report certainly infuses in Sri Lankans reasons to be optimistic about the future.  The positive story goes against the Sirisena-Rajapaksa camp narration that the President had to intervene and appoint a new Prime Minister because Wickremesinghe was taking the economy on the path to ruin.  

Now that the President’s has been proved wrong by the Supreme Court, he should stop being petty and be a full-fledged democrat to solve the crisis by appointing Wickremesinghe as prime minister, as he proved on Wednesday that he commands the confidence of the majority in parliament. The President must not heap further economic burden on the people who, for three long decades, had suffered the devastating consequences of the separatist war. The President should work out a cohabitation arrangement to run the government amicably till a general election is held sooner than later in terms of the constitution.  Otherwise, it will become obvious that the President is playing a power game, putting self before the country and the people.

It’s power politics, stupid

Yes, in the core of the crisis is political power. Parliamentarian Mahinda Rajapaksa, one of the chief protagonists of the crisis, in a recent interview with the Daily Mirror, was frank, when he was asked for comments on charges that he grabbed power through the backdoor while he could have won the next general election with much ease. Rajapaksa said: 

“There is no such thing called capturing power through the backdoor. A political party is not meant to be in the opposition forever. It should try to become the ruling party on the very first occasion made available to it. We vowed to topple the government after two Vesak Poyas. One Vesak Poya is over. We toppled the government before the next Vesak Poya. Our duty is to topple the government if it 
is possible….”

He is right. Power politics knows no moral principles. It is simply dirty and therefore, one has to be animalistic to survive in politics, which is characterised by eternal alertness, mutual suspicion, perpetual competitions, cold blooded conflicts, skullduggery, backstabbing, intimidation, assassinations and countermoves. In power politics, those who have power will not only protect it at any cost but also enhance it to prevent even the distant rival from coming closer to them to stake a claim for power. Those who do not have power, on the other hand, will continue to undermine the plans of those who are in power and plot to overthrow the government given a half chance.

Yes, if Wickremesinghe had been a ruthless power-centric politician, he would have anticipated the backstabbing the President delivered in the night of the long knives on Friday, October 26, and taken countermeasures to fox 
the President.

Judicious justice!

 The Supreme Court’s long-awaited judgment on the dissolution of Parliament last month by President Maithripala Sirisena was delivered yesterday, ushering in a ray of hope for democracy - Pic by Shehan Gunasekera

• Supreme Court makes history with landmark judgment as seven-member Bench unanimously pronounces dissolution of Parliament by President Sirisena unconstitutional
• Quashes Gazette proclamation dissolving House, says dissolution can only take place after 4.5 years

 By S. S. Selvanayagam-Friday, 14 December 2018 

In a landmark judgement, a seven-judge Bench of the Supreme Court yesterday unanimously ruled that the Gazette dissolving Parliament, issued by President Maithripala Sirisena on 9 November, was unconstitutional, and Parliament cannot be dissolved until four and a half out of its five year term is completed.

In the much-awaited judgment, running to 87 pages, the Supreme Court also quashed the Gazette notification.

The Bench comprising Chief Justice Nalin Perera and Justices Buwaneka Aluwihare, Sisira J. de Abrew, Priyantha Jayawardana, Prasanna Jayawardena, Vijith K. Malalgoda, and Murdu Fernando, also ruled that the said Proclamation is null and void and has no force or effect in law. Thirteen Fundamental Rights Petitions were filed against the dissolution of Parliament by the President, while eight Petitions were filed to oppose.

The Petitions were filed after the President moved to dissolve Parliament on 9 November, after he removed sitting Prime Minister Ranil Wickremesinghe on 26 October and appointed MP Mahinda Rajapaksa instead. Following litigation by MPs, political parties and civil society, a three-member Supreme Court Bench on 13 November issued a Stay Order against the Gazette dissolving Parliament.

Petitioners sought a declaration from the Court that the impugned Declaration of dissolution of Parliament by the President infringes fundamental rights.

They also asked a Declaration from the Court that the decisions and/or directions in the Proclamation are null and void ab initio (ineffective from the beginning) and of no force or effect in Law.

UNP Parliamentarians Kabir Hashim and Akila Viraj Kariyawasam, Lal Wijenayake of the United Left Front, CPA, Election Commission Member Prof. Ratnajeevan H. Hoole, Attorney-at-Law G.C.T. Perera, Sri Lanka Muslim Congress, All Ceylon Makkal Congress, and MP Mano Ganesan filed the Rights petitions.

K. Kanag-Iswaran PC, Tilak Marapana PC, Dr. Jayampathi Wickremaratne PC, M.A. Sumanthiran PC, Viran Corea, Ikram Muhamed PC, J.C. Weliamuna PC, Ronald Perera PC, Hejaaz Hizbullah, and Suren Fernando appeared for the petitioners.

Gamini Marapana PC with Navin Marapana, as well as Sanjeeva Jayawardena PC, M.U.M. Ali Sabry PC appeared for the Intervenient-Petitioners.

Attorney General Jayantha Jayasinghe with Solicitor General Dappula de Livera, Senior Additional Solicitor General Sanjay Rajaratnam, Additional Solicitors General Demuni de Silva, and Farzana Jameel, as well as Deputy Solicitor General Nerin Pulle, Senior State Counsel Shaheeda Barrie, State Counsels Kanishka de Silva and Manohara Jayasinghe appeared for the Attorney General.

Sri Lanka: Eva’s Day of ipso facto

Dec 13, 2018Dec 13, 2018

Controversial Supreme Court judge Eva Wanasundera is set to hear an appeal by her law-college pal Mahinda Rajapaksa on Friday raising concern among opposing petitioners who fear bias.
 
The appeal filed against a Court of Appeal interim order restraining Rajapaksa and his purported cabinet exercising the powers of their offices is to be taken up by a three-judge bench of the highest court on Friday.
 
The bench headed by Eva Wanasundera includes justice Buvenaka Aluvihare and Vijith Kumara Malalgoda.
 
The Quo Warranto was filed by 122 legislators of the United National Party and their allies and that case is to be heard from January 16. In the meantime, the court has issued the restraining order against Rajapaksa and his disputed cabinet.
 
Attorneys for the 122 MPs are expected to file objections to Eva Wanasundera being on the bench to hear the case given her public remarks about her close friendship with Rajapaksa. 

Sri Lanka’s Deshaya newspaper on July 06, 2014, has quoted Wanasundera and set out her extra ordinary friendship with Rajapaksa.
 
When the appeal was mentioned in Supreme Court on Tuesday,lawyers for Rajapaksa had wanted the next hearing to be on Friday, though theother party has said they are prepared to hear it the very next day (Thursday).
 
In the run up to the appointment of Rajapaksa as Prime Minister, President Maithripala Sirisena had wanted to name Wanasundera to the post of Chief Justice, but due to pressure he had to withdraw her name.
 
President Sirisena is yet to confirm two other nominees to the Supreme Court approved by the Constitutional Council.

Interview published by Deshaya in 2014 

In a world of contradictions

 

2018-12-13

The heavy debates regarding the present political crisis in the country continue on social media, especially on Facebook, leaving the country at large rather peaceful. At present there is no prime minister, government ministers and a Cabinet, but with only a president in office this nation continues to function; giving hiccups to the outside world which has been critical of the present political situation in Sri Lanka.

When it comes to facing crises there is something about Sri Lanka. The islanders have some inner ability to bounce back after a fall, largely when the crisis is associated with a natural disaster. But the man-made disasters often take quite some time to be settled; the best example being the war against Tiger rebels which was finally finished off after a struggle which lasted for almost three -decades.
We have negotiated well the effects of world recession and the often occurring floods, but we mustn’t get cocky. This time a ‘tsunami’ erupted in parliament due to a faulty Constitution and the high handed acts of the Executive. Now the country is worried about a 2019 Budget that must be presented and passed in parliament.

• Despite the political stalemate President Sirisena carries on functioning as if not bothered by the fact that the ‘state establishment’ is severely jolted
• Sirisena has said that there is no disruption or violence in the country because the people are nurtured by the Buddhist culture
• He has said that the media has played the issue up as a crisis. Sirisena has added that the present political issue isn’t a serious matter in his opinion
• But the JVP claims that the president is taking the credit for the positives of the 19th A and passes the buck on its negatives to the others
• We are a nation that appoints the most unsuitable representatives to Parliament and then tolerate their nonsense
• We are only short of ‘bad’ politicians who would not know how to fatten their purses if they were given an opportunity to serve the people

A Government needs finances to function. The present impasse and court cases indicate that a solution to the stalemate would be delayed before it finally arrives. Parliamentarian Dr. Harsha de Silva warned that an economic crisis is in the offing. De Silva says that the president has no power to control state finances. He adds that the president is not vested with the power to spend finances for the four months starting January. There is another impending danger of Sri Lanka’s financial mess being dragged to a further low if the Supreme Court judgement on the dissolution of parliament is not delivered by December 14. This is because the ‘Court Vacation’ commences after this Friday (December 14) and continues till early January.

Despite the political stalemate President Sirisena carries on functioning as if not bothered by the fact that the ‘state establishment’ is severely jolted. He has praised the people of the country for the peace that prevails. Sirisena has said that there is no disruption or violence in the country because the people are nurtured by the Buddhist culture. He has also acknowledged the contribution by all religions to the moral conduct of the citizenry as a whole. Sirisena also knows or believes that the political impasse will not create bloodshed on the streets; akin to some Middle Eastern nations. The biggest critics of the Government have been Britain, Japan and the USA.

But Sirisena maintains that the foreign nations remain friends of Sri Lanka. He has said that the media has played the issue up as a crisis. Sirisena has added that the present political issue isn’t a serious matter in his opinion. But the British Government has maintained that it is extremely concerned about Sri Lanka’s current political situation which is causing great damage to the country, both politically and economically.

positive piece of legislation

The 19th Amendment to the Constitution was passed during the Yahapalana regime with Sirisena as the president. The amendment annulled the powers the president had to dissolve parliament anytime; a privilege the the 18th Amendment gave the president. But the president went back on the promise which he gave the people regarding this clause by dissolving parliament before the stipulated four and a half years finished. Naturally the president has been labelled as a man full of contradictions.
Sirisena has maintained that the 19th is a positive piece of legislation. The president has said that the 19th strengthens democratic institutions, upholds human rights and ensures judicial independence. But the JVP claims that the president is taking the credit for the positives of the 19th A and passes the buck on its negatives to the others.

President Sirisena vowed to restore the present political crisis within a week., but has later said that he would wait for the Supreme Court decision on the case filed against his order to dissolve parliament. Now we see a woman filling a petition in court seeking a court order to examine the president’s state of mind.

Given all what the president is saying and doing the country’s citizenry is awaits patiently to see what he’d do next. This is because there is only Sirisena that they have to deal with given that there are no other members forming the lawmakers’ collective; which under a normal circumstance we’d call the Cabinet. For the record this situation arose following a court order banning the members of the Sirisena-Rajapaksa Government from functioning in their capacities as ministers.

We are a nation that appoints the most unsuitable representatives to Parliament and then tolerate their nonsense. We voted for this president and can now only grieve due to the position he has put us in. The president has the gumption to tell the media that there is no violence in the country because ‘the people have put the country before self’. Isn’t this a virtue that all government ministers should adopt in their thinking? 

We are not short of food, drinking water and fuel apart from the cold environment in December to comfort us during this crisis. We are only short of ‘bad’ politicians who would not know how to fatten their purses if they were given an opportunity to serve the people.

As the political tug-of-war continues we have no other option but to grit our teeth and and watch....but for how long?

Let memory speak: A litany of remembrance

Photography by Frank Augstein/WPA Pool/Getty Images, via Bloomberg

BISHOP DULEEP DE CHICKERA- 12/13/2018

Any intelligent discourse must offer memory its rightful place. This is because, memory has present potential, to take us to happenings of the past, so that happenings to come, may be less divisive and destructive.

Memory is a human attribute that sits above human rights and does not depend on constitutions or the judiciary for protection. Memory is invincible and universal; no tyrant can dissolve, distort or destroy it, and it sustains the political prisoner, motivates the refugee, empowers the abused and stirs the exploited, regardless of where or who or when.

In the Christian tradition, memory is the creative restlessness that drives us to authentic solutions in an exceedingly unreasonable and unjust world.

Memory today

In turbulent times like these, memory does not allow the headline or the head lie, however loud or intimidating to have the last word.  Its research is endless, its gentle persuasion opens multiple windows.

Memory confirms that legislators steal democracy from the people. Once stolen, this priceless gift of human dignity and freedom is distorted to scoff at peoples’ needs and opinions and mislead the very people who entrust these very legislators with authority to safeguard this very gift.

Memory reiterates that it is none other than this distorted brand of democracy that has ruined our post-independence life as a nation. What is happening now is not new and could happen again; but it has never been so cheap and ugly.

Memory warns that when left unchecked, democracy distorted spreads to plunder state coffers and then readily embrace foreign loans for the enticing commissions they bring. In such wanton corruption spiced with indirect taxation, it is those whose life is pressed in on all sides, whose breath is pressed out of their bodies.

Memory insists that the promise and process of investigations into corruption and crime are unconvincing. The cyclic ritual of recorded statements, court hearings, remand and bail, are as predictable as the publicity given. Both, ritual and publicity, serve as a screen for connivance or hidden obligations.

Memory demands that those responsible for investigations into public crime and who have failed us, are also to be tried for negligence and breach of trust. The years have passed, the guilty remain free, stolen monies have disappeared and the rhetoric gets louder.

Memory regrets that our Constitution that allows for larger cabinets when national governments are formed, has been compromised. If the size of a cabinet is determined by the needs of a people, the only reason for a bigger cake is the greed of the additional ones at the table.

Memory reveals that our champions of democracy who fan hysteria on the UN resolution on accountability, have achieved much more for themselves at home. Labelling accountability as a bad word, they have cleverly evaded accountability for responsible governance among their own.

Memory urges that if we are to consequently keep a tab on our legislators and hold them accountable, we are to insist on a periodic review of their performance and bank accounts, at a people’s tribunal.

Memory endorses that resilience and energy for change grow, when legislators take it in turn to mess things up.  In the heat of the unfolding intrigue we are to draw inspiration from the late Sobitha Himi’s campaign that led to regime change not too long ago. His unfinished agenda is todays continuing agenda; the inordinate concentration of power in an individual and the arrogance it multiplies, is deadly. It must be stopped.

Memory cautions that elections will no longer make a difference if the same familiar faces reappear on our walls. Since a people’s democracy does not allow a boycott or the spoiling of ballot papers, however tempting; we are to instead demand (and facilitate) new faces, unpretentious manifestoes and public apologies. When these things happen, we are to make up our mind and make our way to the polling booth.

Memory concludes that those who strive for people’s democracy have no rest. They are to press on to claim patches of socio-political stability and extend these brief gains into longer more sustainable periods of integrated, responsible governance; the fruit of real, active, people’s democracy.

With peace and blessings to all.

Executive Presidency- Absurdity Of The Immunity Cover! 

By Mohamed Harees –DECEMBER 13, 2018

Lukman Harees

The concept of presidential immunity became very much entrenched in the scope and structure of the present Constitution. Article 35(1) of the Constitution provides that: ‘While any person holds office as President, no proceedings shall be instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity’. The 1978 Constitution essentially took away much powers of the Parliament and gave the President excessive power, presumably to balance representation with governability.

US Judge Brett M. Kavanaugh, once wrote about Presidential Immunity, in a review article in the Minnesota Law  Review Magazine titled, ‘Separation of Powers During the Forty-Fourth Presidency and Beyond’; ‘ I believe it vital that the President be able to focus on his never-ending tasks with as few distractions as possible. The country wants the President to be “one of us” who bears the same responsibilities of citizenship that all share. But I believe that the President should be excused from some of the burdens of ordinary citizenship while serving in office’. 

In the SL Context, Sharvananda CJ in Mallikarachchi vs. Siva Pasupathy explained the immunity granted to the President as follows: ‘…the President is not above the law. He is a person elected by the people and holds office for a term of six years. The process of election ensures in the holder of the office correct conduct and full sense of responsibility for discharging properly the functions assigned to him. It is, therefore, necessary that special immunity must be conferred on the person holding such high executive office from being subject to legal process or legal action and being harassed by frivolous actions. If such immunity is not conferred not only the prestige, dignity and status of the high office would be adversely affected but the smooth and efficient working of the Government of which he is the head would be impeded. That is the rationale for the immunity cover afforded to the President’s actions both official and private’. 

The provisions of Article 35(2), however, explicitly limits immunity to the duration of tenure, as it suspends the running of time during a person’s tenure in office as President for the purpose of determining whether an action against that person is out of time or subject to prescription. Further, the Constitution provides three specified instances in which the presidential immunity would not, during the Presidency, apply. First, where the President under Article 44(2) of the Constitution ‘…..assigns to himself any subject or function not assigned to any Minister…..’ proceedings may be instituted against the President, in that capacity regarding matters arising out of that Ministry. Second, Parliament has a power to move a Resolution alleging that the President is ‘permanently incapable of discharging the functions of his office by reason of physical or mental infirmity or that the President has been guilty of’ one of the offences enumerated in five sub-paragraphs of Article 38(2)(a). Third, the President has no immunity from proceedings where his own election as President is being challenged or any matters pertaining to that election has given rise to any other legal proceedings, including any appeals that may result.

Prof. S. Sarath Mathilal de Silva- Attorney-at-Law in an article in CDN on ‘Presidential immunity: Scope and application’ (May 2018) commented;’ Immunity does not render acts committed, obligations assumed, duties breached, privileges and powers misused in law, a nullity; rather it merely shields makes the one with immunity from legal proceedings during the currency of that immunity, thereby ‘disabling’ others from commencing legal proceedings against him/her. However, if ever that shield is lost and the person loses that immunity, the person becomes liable to legal proceedings for any and all liabilities incurred during the period in which he had the protection of immunity.  

He quoted Justice Sharvananda (as he was then) in Visvalingam v Liyanage, as dismissing the preliminary objection raised by the State, his Lordship observed:…..an intention to make acts of the President non-justiciable cannot be attributed to the makers of the Constitution. Article 35 of the Constitution provides only for the personal immunity of the President during his tenure of office from proceedings in any Court. The President cannot be summoned to Court to justify his action. But this is a far cry from saying that the President’s acts cannot be examined by a Court of Law. This was an important principle in relation to the scope of the doctrine of presidential immunity. The Court appeared to draw a crucial distinction between the person of the President –who is necessarily granted immunity from suit – and the acts of the President – which necessarily remain subject to judicial review. Justice Sharvananda further opined: Though the President is immune from proceedings in Court a party who invokes the acts of the President in his support will have to bear the burden of demonstrating that such acts of the President are warranted by law; the seal of the President by itself will not be sufficient to discharge that burden.

Learned Professor in his article concluded,  ‘It appears that both presidential immunity and other indemnity provisions within the law contribute significantly towards the culture of impunity in Sri Lanka. The provisions in the present Constitution and statutory law that form the basis for official immunity must be narrowly interpreted to reflect greater consistency with the rule of law. Yet such an approach is wholly contingent on the independence and integrity of the judiciary as well as the competence of individual judges.’ This is quite true as we noted from subsequent developments. It became apparent that the concentration of executive powers in one individual along with the immunities attached to the office had proved to be greatly inimical to the constitutional balance of powers, despite the limitations and the gradual repeal of the powers of the Presidency, with the enactment of the 19th Amendment to the Constitution.  

In the context of controversial developments wholly authored and instigated by the present incumbent Maithri since 26th October 2018- appointment of MR (who himself brought disrepute to this high office during his tenure of office) as PM, proroguing the Parliament as well dissolving it and calling for fresh elections, speaks volumes of his high-handedness, impunity and many other acts and statements unbecoming of this post.  These contentious issues are presently before the higher courts of law for adjudication as to whether they violated the constitution. Be it as it may, Maithri would have been definitely brought before courts , if he  did not enjoy the immunity of his office and makes or does many of the statements or acts he made or did in recent times. There is also a writ of mandamus to push the Police to ask the courts to refer MS to mental health review. 

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