Saturday, March 16, 2019

HIDDEN AGENDAS IN CONSTITUTIONAL REFORMS

16 March 2019

Constitutional reforms to whose benefit? Will it provide any consolation to the national economic crisis? Was there a demand from the masses for a new Constitution? You may find answers to these questions once you peruse this article.

Article 3 of Chapter 1 of the Constitution states that “in the Republic of Sri Lanka, sovereignty is in the people and it is inalienable.” Article 4 of same chapter states that “sovereignty of people shall be exercised and enjoyed in the manner that legislative power through Parliament consisting of elected representatives of the people and by the people” and “executive power of the people through President elected by the people” and “judicial power of the people shall be exercised by Parliament through court.”

In terms of the above articles, it is absolutely clear that the legislature and the executive could be considered as arms to be used by the people to exercise sovereignty. In that context, it may be noted that the concept “Supremacy of Parliament” is applicable in our Constitution subject to the sovereignty of people. In our Constitution, people are supreme. Accordingly, the legislature and the executive should act and exercise people’s sovereignty delegated to them essentially in congruence with the interests and aspirations of the people of this country. In that process, parliamentary democracy priority should be given to the interests and aspirations of the masses with due consideration being given to the interests and aspirations of minorities. What is happening in our legislature is quite contrary to the above proposition. Once elected to the legislature (Parliament), politicians simply assume the role of masters of people and their performance gives an impression that they act in accordance with their personal agendas, totally disregarding the interest and aspiration of the people. A classic example of this irresponsible behaviour is an attempt to introduce a new Constitution, disregarding protests against the same from people, political and religious leaders and various segments of our society.

The campaign for a new Constitution has been initially launched by architects of Yahapalanaya together with their supporters at the last presidential and general elections in order to oust the Rajapaksa regime

It is worth to analyse from that point of view as to what the leader of the incumbent government is trying to do through constitutional reforms and the proposed new Constitution. It may be noted that an aggressive campaign for a new Constitution, in the present context, has been launched by the leader of the present government, the JVP and the TNA. The government leader has shown extraordinary interest in this process despite hundreds of national issues which require utmost priority over and above so-called constitutional reforms.

The campaign for a new Constitution has been initially launched by architects of Yahapalanaya together with their supporters at the last presidential and general elections in order to oust the Rajapaksa regime. It is a strategy adopted for that purpose to coordinate and consolidate the support of those who were against the Rajapaksa Government namely the international community led by the US and allied forces and the TNA. Who are the active supporters of the architects of Yahapalanaya in this process? It was not a secret that international forces led by the US and its allies through UNHRC and TNA have played a very vital role in the process of ousting the Rajapaksa regime and to establish a new government under leadership of Wickremesinghe. In reality, the need for a new Constitution has been brought up by Wickremesinghe in order to satisfy these parties that rendered their support to oust the Rajapaksa regime.

Joint UNHRC Resolution 30/1 of year 2015 could be considered as vital evidence available to corroborate the above presumption. Joint UNHRC Resolution 30/1 could be identified as a tripartite agreement in which the US and allied forces play the role of first party, the TNA as second party and Wickremesinghe (being the co-sponsor) could be considered as third party. These three parties have their own agendas to be realised through implementation of proposals set out in Joint UNHRC Resolution 30/1. The agenda of the US and allied forces seemed to be setting up of a conducive environment for their global power politics in this country. The agenda of TNA is nothing but devolution of power up to the level acceptable to UNHRC and TNA based on separatism. Agenda of Wickremesinghe seems to be consolidation of power with the support of the TNA and international forces led by the US by implementation of their agenda through constitutional reforms.
The agreement entered into with the leader of the LTTE outfit Prabhakaran – with the intervention of foreign forces – reminds us that Wickremesinghe had kept a record on the betrayal of people’s sovereignty even in the past.

It is a fact that it is not possible to give effect implementation of proposals set out in Joint UNHRC Resolution 30/1 of year 2015 under the present Constitution such as delegation of power up to the extent acceptable by the UNHRC and TNA, setting up of the hybrid court mechanism to investigate so-called war crimes, human rights violations, missing persons and so forth though Wickremesinghe has given a firm undertaking to the UNHRC, US and allied forces and the TNA, to do so having assumed the role of co-sponsor to Joint UNHRC Resolution 30/1 on his own violation for which no mandate had been given by masses of this country at the presidential or general elections. This act of assuming the role of co-sponsor to Joint UNHRC Resolution 30/1 could be considered a great betrayal of people’s sovereignty of this country by Wickremesinghe for his survival in power politics in lieu of the reciprocal support extended from UNHRC, US and allied forces, and the TNA. In other words, a new Constitution would be an instrument which facilitated the implementation of agendas of aforementioned three parties.

The abolition of executive presidency is considered one of the vital requirements in the proposed new Constitution. It may be noted that the executive presidency was created by President Jayawardena due to some shortcomings he experienced in the Westminster system of parliamentary democracy, in which the prime minister is considered one among equals elected to Parliament. In case of a hung Parliament, the prime minister would be under obligation to satisfy self-centred interest of party leaders, who made pulls and pushes in different directions disregarding national interest. The executive president being a single person not one among equals elected by the people can avoid such shortcomings confronted by the prime minister when exercising power vested in him in the Constitution. It is our experience that unprecedented achievements such as the Mahaweli Project, liberalization of the Sri Lankan economy from the grip of closed economy, creating export processing zones under President Jayawardena, eradication of terrorist outfits which had caused devastation to this country over a period of thirty years, huge development projects such as Port City, Hambantota Port, Mattala Airport, highways etc. under President Rajapaksa couldn’t have been achieved without power vested in executive presidency.

Apart from the proposed new Constitution, there are some constitutional reforms implemented under the 19th Amendment to the Constitution.

Although there are some progressive steps taken on constitutional reforms through 19A such as restricting presidential immunity to some extent, restoration of number of terms a person can hold and contest the post of executive president to two, setting up of a Constitutional Council and independent commissions there are some intrusions in 19A that have adversely impacted on unity, stability and sovereignty of the people. The provisions laid down in Articles 46(4) and 46(5) of Chapter VIII of the 19th Amendment for the formation of the national government and a “Jumbo Cabinet” have paved way for political parties that were elected to Parliament to abuse the mandate given to them for their own benefit disregarding public interest.

One of the cardinal principles of parliamentary democracy is that there should be a government party and an opposition in Parliament. This principle has been flouted in the so-called national government, formed under the leadership of Yahapalanaya by appointing the TNA leader who is considered a vital partner of the government party who secured only 14 seats in Parliament, rejecting the party that had secured majority of seats next to the government party.

This mechanism adopted by the Yahapalanaya Government is considered as a kind of bonus offered to the TNA in lieu of support extended to the government for its survival. This mistake has now been rectified by appointing MR as the opposition leader.

From the foregoing facts it may be observed that there is a sinister attempt to give effect to hidden agendas of the US and allied forces and the TNA on the pretext of urging for a new Constitution. The commitment given to implement proposals set out in Joint UNHRC Resolution 30/1 being assumed the role of co-sponsor thereto is considered the first step taken in that direction by present government.

Implementation of those hidden agendas would extremely be detrimental to the unity, integrity and sovereignty of this country. People should take appropriate measures to arrest this situation through the general elections sooner than later.

Facilitating terrorism through the Constitution and the law

The Constitutional Madhouse – Part 7

By C. A. Chandraprema-March 14, 2019, 8:56 pm

We are living through an era when there is growing unease in the country due to the rise of anti-social gangs in the North. They may still be at an incipient stage, but networks are being built and a lifestyle is evolving. One never knows what it will develop into, given the fact that there are thousands of unemployed youth in the North, who are averse to local work and dream of migrating overseas. Then there is the rise of the drug related underworld in the South. On top of all this, comes the problem of extremists who have graduated from smashing Buddha statues to actually trying to kill detractors within their own community. Their hideouts and weapons have been detected. In such a situation, one may think that the public security laws that we have should not only be protected but even strengthened where necessary.

Concerning the matter of public security, the proposed draft Constitution has the following general provisions. The President may, on the advice of the Prime Minister, declare a state of emergency where there is a clear and present danger to public security or maintenance of supplies and services essential to the life of the community. The declaration of emergency shall state the basis on which such a state of emergency was declared. The Governor of a Province, on the advice of the Chief Minister, may advise the Prime Minister that a situation warranting a declaration of a state of emergency has arisen within such Province. Upon the declaration of a state of emergency, the President may on the advice of the Prime Minister promulgate such Emergency Regulations on any matters as are necessary to address the situation giving rise to the state of emergency.

Where the Emergency Regulations vest special powers or functions in the Police, Provincial Police officers shall, for the purpose of the exercise of such powers and functions, be under the control of the National Police. Where the danger arises only in one or more provinces, the declaration of emergency will be applicable only within that Province. Where a situation has arisen in which a provincial administration is promoting armed rebellion or insurrection or engaging in a violation of the Constitution which constitutes a danger to the territorial integrity and sovereignty of the Republic, the President may on the advice of the Prime Minister assume all or any of the functions of the Governor, Chief Minister and the Board of Ministers in the Province and where necessary even dissolve the Provincial Council. So far, so good. The above mentioned provisions in the draft Constitution appear robust enough for the purpose.

Stay orders in an emergency

It is what comes after this that poses a problem. Under the provisions of the draft Constitution the declaration of Emergency will be subject not only to Parliamentary approval as at present but also to judicial review. What this means is that under the proposed new Constitution, the declaration of emergency will be subject to the whole panoply of court procedures. A case will be filed and a stay order requested on the declaration of emergency. Dates will be given for the hearing. All kinds of objections will be raised and each objection will have a separate hearing. In the meantime, the terrorists will be killing all whom they please. If this proposed Constitution had been in place in 1971, the JVP would have captured power before the government got around to imposing a state of Emergency on the country. Even after running the gauntlet within the courts system to get the declaration of emergency upheld, the government will not have a free run. Such a declaration of Emergency will be valid only for one month at a time. If the declaration of Emergency is to be continuously in force for a period in excess of three months or a period of more than 90 days within a 180 day period, that will have to be approved by a two-thirds majority in Parliament.

So, we see that the proposed draft Constitution seeks to make it virtually impossible to declare or maintain a state of emergency in the country. The ushering in of the new Constitution is to be combined with the repeal of the Prevention of Terrorism Act of 1979 and its replacement with a new counter terrorism law. If a government manages to run the gauntlet of court procedure and parliamentary approval by a two-thirds majority in order to maintain a state of Emergency, the next hurdle it will have to clear is the proposed counter terrorism law. The counter terrorism law that is to replace the PTA is actually not designed to ‘counter’ terrorism but to facilitate it. It seeks to provide terrorist suspects with a degree of safety and comfort not available to suspects being tried under the ordinary criminal law. For example, the punishment for the offence of terrorism is restricted to a maximum of 20 years in prison. It is only if deaths have taken place as the result of a certain act that a life sentence can be handed down. Whereas the ordinary law of the land prescribes the death penalty even for the murder of a single person, any act of mass murder by a terrorist will attract only a life sentence at most.

Aiding and abetting in an act of mass murder by terrorist will attract only a sentence of 15 years and a fine! Under the ordinary law even helping a person to commit suicide attracts the death sentence. Under the proposed counter terrorism law, there is a category of offences called "terrorism related offences", which include the following: a) committing the death of a specified person. b) committing the death of any person in the course of committing a terrorism related offence c) attempting to cause the death of a specified person. d) committing the abduction or wrongful confinement of a specified person. e) taking a specified person or a member of his family or a person of importance to such person hostage f) committing criminal intimidation of any person.

The list includes 36 other offences including killing witnesses, robbery, destroying state property, digital data theft, recruiting people to a terrorist movement. Many people would be hard put to figure out how these terrorism ‘related’ offences differ from terrorism per se. But these ‘terrorism related offences’ carry an even lighter sentence of a maximum of 15 years, a fine and confiscation of property. In the case of a terrorism related offence, too, a life sentence can be handed down only if death occurs as a result of that act. One gets the impression that this category of offences called terrorism related offences has been created only to hand down lighter sentences to terrorist suspects. As for deaths occurring as a result of a certain act, this needs to be proved in court and if the prosecution is unable to prove that a certain person died due to a terrorist attack then the terrorist gets a light sentence.

Many terrorist leaders would be charged with aiding and abetting in the commission of a terrorism related offence and this carries only a sentence of 10 years and a fine whereas under the ordinary law aiding and abetting carries the same penalty as the offence itself. Knowing of the commission of a terrorist or terrorist related offence and failing to inform the authorities carries a sentence of three years imprisonment plus a fine.

When the arrest of terrorism suspects takes place under the proposed counter- terrorism law, at the time of arrest, the person arrested has to be informed of the identity of the person carrying out the arrest and the reason for the arrest. Any person arrested by the armed forces or the coast guard has to be handed over to the Officer in Charge of the nearest police station within 24 hours. The only exception is if the person arrested outside the territorial waters or on a plane or ship and then, too, he has to be handed over to the police as soon as it is practically possible. If the armed forces or coast guard makes and arrest, they have to immediately inform the police of the arrest.

Following the arrest of a person and when he is handed over to the police, the latter will make note of any injuries on the persons arrested and he will be examined by a judicial medical officer or a forensic medical specialist. When female terrorist suspects are arrested as far as possible the arrest is to be carried out by female officers. The law also stipulates that "every practicable measure shall be taken to protect such persons from physical harm." When a person is arrested, in addition to issuing an acknowledgement to a person nominated by the arrestee, the arrest has also to be notified to the Sri Lanka Human Rights Commission within 24 hours. The IGP has to maintain a central register and database of those arrested under the counter- terrorism law. All suspects arrested have to presented before a Magistrate within 72 hours. Detention orders on suspects may be issued by a DIG on an application by the OIC of a police station and will be valid for 30 days. The HRC has to be informed within 72 hours of a detention order being issued. Any Magistrate or officer of the HRC can visit any detention facility at any time and interview detainees without advance notice.

Terrorism a safer career than crime

The maximum number of detention orders that can be issued in respect of one person is six. Detention beyond 90 days will only be with the approval of a Magistrate on the basis of a confidential report which has to be filed before the Magistrate by the police giving reasons as to why further detention is necessary. The decision of the Magistrate in this regard can be challenged in the High Court and the latter is obliged to dispose of the appeal within three weeks. If a detention order has been issued, the Magistrate will direct that the suspect be detained in accordance with the detention order. If not, the Magistrate will remand the suspect if the police make the request. However, to remand a suspect, the Magistrate has to be convinced that the request is reasonable. What this means is that the Magistrate has the discretion to refuse a request to remand a suspect under the proposed law and to personally see the suspect and inquire into his wellbeing and welfare. Such interviews will be held in private in the absence of any police officer investigating the offence.

The Magistrate can direct the suspect to a forensic medical examination and if evidence of torture is found, he may direct the police to detain the suspect in a different place. In such an event, police officers who previously had access to the suspect will no longer have access to him. No person can be held in remand for longer than one year unless criminal proceedings have been initiated against him. If a suspect is to remain in remand beyond one year, the high court will have to issue an order sanctioning it on an application made by the Attorney General. The extension of the period of remand in that manner should not exceed another year and after that bail will be mandatory. After indictment if the High Court cannot conclude the case within two years, the accused will have to be granted bail unless the delay is caused by the accused himself or his lawyer. All detainees on detention orders have to be presented before a Magistrate once every 30 days and the magistrate has to inquire into the welfare of the suspect. In addition to all those relief measures, there is also to be a Board of Review chaired by the relevant Ministry Secretary and two other persons appointed by the Minister in charge of the subject. Any detainee can appeal against his detention to this Board of Review and the latter has to hand down a decision within two weeks. The decision of the Board of review can then be challenged in court if the suspect so wishes.

After the recording of the first statement by police following an arrest, the arrestee will have access to a lawyer after 48 hours. From pages 25 to 40 of the proposed draft law, there are some strict sounding provisions about the formation of a specialized counter terrorism unit in the police force, the manner in which this unit is to function and the powers it will exercise. However, the obvious intention of such window dressing is to camouflage the laxity and indeed the solicitude this proposed law displays towards terrorists. The proposed counter terrorism law has an inbuilt amnesty mechanism through provisions for the suspension or deferment of indictment at the discretion of the Attorney General. If death or grievous bodily injury has not been caused by the terrorist act, and if the security of the state has not been affected seriously, or serious harm to property has not been caused, the AG can defer the indictment for not less than five years and not more than 10 years or even to withdraw the indictment altogether after taking into account the views of the IGP, the views of the victims and the representations made by the accused.

The AG can impose conditions such as a public expression of remorse before a Magistrate, the provision or reparations to the victims as directed by the AG, voluntary participation in a programme of rehabilitation, social service or community services and a pledge to refrain from committing similar acts in the future. A confession made to a police officer will be valid only if the person who made the confession is presented for a medical examination both before and after the statement is given. The burden of proof will be on the prosecution to prove that such statement was made voluntarily. We see from the above that the purpose of the proposed counter terrorism law is to give more protection and lighter sentences to terrorists than ordinary criminals committing the same crimes.

Sri Lanka attaché to be retried in U.K. over ‘throat-cutting’ gesture

Brigadier Fernando made the gesture to Tamil protesters

Vidya Ram
-, MARCH 15, 2019

A former Sri Lankan defence attaché to the U.K., who faced private prosecution over a “throat-cutting gestures” made to Tamil protesters outside the country’s London Embassy, is to face a new trial in May, after the judge decided the case needed to be re-tried following a technicality.

It came after a previous hearing at which the judge had concluded that while the attaché, Brigadier Priyankara Fernando, was covered by diplomatic immunity on the day of the incident, he was no longer a diplomat and as the role he was carrying out didn’t count as an “act performed in the exercise of his functions”, he no longer had diplomatic immunity.

“It was not part of Brigadier Fernando’s job description to make the alleged cut-throat gestures on the three occasions, it could not be part of the mission’s function,” concluded Chief Magistrate Emma Arbuthnot of Westminster Magistrates Court, in a hearing earlier this year. However, at a hearing on Friday, it was decided that the case should be reheard on May 7, after it emerged the court had failed to notify the private prosecutors and the defence team of documents that had been forwarded to it relating to notification given to Britain’s Foreign and Commonwealth Office around the case.

The alleged incident occurred on February 4, 2018 (Sri Lanka’s independence day) when Tamil protesters gathered outside the nation’s Embassy in London, some waving Tamil Eelam flags, some carrying placards calling for the release of political prisoners in Sri Lanka. It is alleged that during this time, Brigadier Fernando, a former member of the Sri Lankan Army’s 59 division which was involved in many of the frontline battles with the LTTE made three “throat cutting gestures” towards the protesters while dressed in military uniform.

After complaints were made across London police stations, the police got involved, and MPs raised the issue in Parliament and the Brigadier was suspended. While the U.K. government insisted it took the case “very seriously”, the Brigadier left the U.K. last year without charge. However, a private prosecution has been mounted by three men involved in the protest and in January, the Brigadier was convicted — in his absence — of public order offences.

However, an arrest warrant was issued and hastily withdrawn amid questions of his status as a diplomat. Then the judge concluded that because the act didn’t count as one performed in his exercise of functions as a diplomat, he no longer enjoyed diplomatic protection for it. Campaigners had expressed concerns about some of the facts to emerge during the course of the case – including details of the Brigadier’s job description which involved monitoring anti-Sri Lankan activities in the U.K. and reporting on them, which some Tamil campaigners have labelled a “witch-hunt”.

“For my client it’s a very important case,” says Paul Heron, one of the private prosecutors from the Public Interest Law Unit. “They feel that they have escaped from the extremely difficult situation in Sri Lanka, particularly in the Tamil area, and come to one of the oldest democracies to feel safe and secure and they feel it important that no matter who you are — a diplomat or a cleaner — you have to abide by law.”

Sri Lanka: A decade of inaction and impunity

ICJ advocacy on Sri Lanka at the UNHRC

Following is the written -Saturday, 16 March 2019

statement submitted by

International Commission of Jurists, a non-governmental organisation in special consultative status, to the UNHRC ahead of the

interactive dialogue on Sri Lanka that is to take place on 20 March. The ICJ has been actively engaged in the UNHRC process regarding human rights and rule of law issues in Sri Lanka.

Almost 10 years after Sri Lanka emerged from a period of conflict and massive human rights violations, the Government of Sri Lanka still has largely failed to implement its human rights obligations and commitments as reflected in Resolution 30/1.

This failure particularly impacts women who were directly victimised by the war. Despite 80% of the displaced population being female and more than 23% of households now being led by women,1 issues of specific importance to women seldom get highlighted or addressed.

Furthermore, although women were in the forefront in pursuing peace and demanding truth and accountability, they now appear to have been largely excluded from meaningfully participating in transitional justice processes.

In this submission, the International Commission of Jurists (ICJ) will focus on two of four transitional justice mechanisms which the Government committed to establish under the Resolution: (a) the judicial mechanism with special counsel to investigate violations of human rights and international humanitarian law; and (b) the office of missing persons.

The judicial mechanism to investigate violations of human rights and international humanitarian law

The judicial mechanism to investigate violations of human rights and international humanitarian law has not been established. The President has publicly rejected the idea of foreign involvement in such a judicial mechanism,2 despite Sri Lanka having committed to such involvement in resolution 30/1. Although authorities have suggested the possibility of establishing a purely domestic judicial mechanism that will investigate allegations of violations of human rights,3 the Government has not even taken any steps towards this wholly inadequate measure.

In the context of adoption of Resolution 30/1, the ICJ highlighted why international participation (e.g. foreign judges, prosecutors, and investigators) in the judicial mechanism is necessary.4 First, the Sri Lankan justice system has for decades systematically failed to respond independently, impartially and effectively to violations of international human rights and humanitarian law perpetrated by security forces.5 Second there is a profound lack of trust in the domestic system from the Tamil community, arising from a perception that domestic courts have an ‘ethnic bias’. The outcome of the murder trial of Tamil parliamentarian Nadarajah Raviraj, where an all-Sinhalese jury acquitted five men including three Navy intelligence officers, seems to have further reinforced this perception.6

Women are grossly under-represented in the justice sector in Sri Lanka. Only 23% of the judges in Sri Lanka are women.7 The principle of gender equality should guide all judicial appointments,8 and will be particularly important in any judicial mechanism implementing resolution 30/1. The leadership and genuine participation of women in the judicial mechanism would contribute not only towards integrating gender into the work, but it should also build confidence of women in civil society and female victims, resulting in their fuller engagement with and participation in this and other transitional processes.

Establishment of an international judicial mechanism is particularly urgent for women in conflict-affected areas, especially those in the Northern Province who still live in a highly militarised environment and are compelled to live among their perpetrators – members of the military who have been accused of war crimes including rape and other forms of sexual violence. There have been reports of sexual harassment and demands for sexual bribery by military personnel, even after the war. This vulnerability to violence, coercion and harassment impacts other aspects of their lives including their freedom of movement and to pursue a means of living. These circumstances hold back women from pursuing prosecution against perpetrators of sexual and gender based violence for fear of reprisal and stigma.9

Furthermore, perceptions that the military continues to hold influence over the Government and that the Government generally ensures impunity of the military, are reinforced by the rewarding of high-ranking officers with promotions and diplomatic postings, instead of being brought to justice for crimes they are accused of having perpetrated during the conflict. Major General Shavendra Silva, for instance, was recently appointed Chief of Staff of the Sri Lankan Army,10 despite a lawsuit in the United States of America accusing him of war crimes.11

The Office of Missing Persons

The Government adopted the Office of Missing Persons Act in August 2016, but only established the Office of Missing Persons (OMP) in February 2018, more than a year later. The fact that the establishment of the OMP was delayed until a month before the Resolution was to be re-examined at the UNHRC has led to the perception that its creation was primarily an attempt by the Government to avoid criticism for failing to meet its commitments under the Resolution.

The establishment of this institution is especially important for women because those who escaped the war with their lives are predominantly female. These women are now heads of their households and must navigate the complicated processes of seeking the fate and whereabouts of their family members while dealing with a myriad of other socioeconomic issues.

A core function of the OMP is to facilitate the provision of certificates of absence to family members of a missing person. A certificate of absence legally recognises that a person is disappeared and allows the family to conduct transactions as though the person is dead. The family may then be able to access bank accounts of the disappeared person and receive social welfare benefits they are entitled to as next of kin.

These certificates of absence are most especially important for women in the Northern Province whose husbands are missing. Under the Jaffna Matrimonial Rights and Inheritance Ordinance, married Tamil women cannot conduct transactions involving immovable property (e.g. land) they own without the written consent of their husbands.12 This expressly discriminatory legal provision compounded with the disappearance of their husbands prevents women from using their properties to resume their livelihoods and restore normality to their lives.

The ICJ has already received reports that many women are hesitant to apply for certificates of absence, fearing that once issued, the State may cease any effort to find the disappeared person on the basis that they have been deemed to have died. There is therefore a need for the OMP to spread awareness about the use and importance of these certificates, especially among women.

Recommendations

The ICJ considers that the gravity and character of the crimes under international law committed in Sri Lanka, and the failure of the Government of Sri Lanka to meet its obligations and commitments to ensure justice for such crimes including as provided for in resolution 30/1, means that referral to the International Criminal Court or the creation of another international mechanism to facilitate criminal accountability would be fully warranted. If however the Council does not choose to pursue these options at this stage, the ICJ urges the Council at minimum to:

nContinue the monitoring of Sri Lanka through the adoption of a new resolution to ensure that the Government complies with all its obligations and commitments as reflected in resolution 30/1.

Provide for OHCHR to develop, with the Sri Lankan Government, an implementation strategy with definitive timelines to ensure that the time afforded under the new resolution is utilised to expedite the implementation of measures assured under Resolution 30/1.
Encourage Member States to exercise universal jurisdiction in order to bring perpetrators to justice.

The ICJ urges the Government of Sri Lanka to:

Take immediate measures to establish the judicial mechanism with international involvement as contemplated under operative paragraph 6 of Resolution 30/1. The mechanism should ensure gender parity, be accessible for women in civil society, and allow female victims to fully participate in the process.
Spread awareness regarding the importance of certificates of absence and confirm to the community that issuance of a certificate will not result in the end of efforts to find the person.
Ensure an overall gender strategy is integrated in all other transitional justice mechanisms that are yet to be established so that structural injustices against women, especially in terms of discrimination and lack of participation, are addressed.

Footnotes:

1Satkunanathan Ambika, (2017). “Sri Lanka: The impact of militarization on women”, Oxford Handbook of Gender and Conflict (Fionnuala Ní Aoláin & others, eds).

2President rejects foreign judges, Daily Mirror, 2017.01.07 [http://www.dailymirror.lk/article/President-rejects-foreign-judges-121833.html].

3Sri Lanka President wants ‘internal ‘ war crimes court, BBC, 3 October 2015 [https://www.bbc.com/news/world-asia-35376719].

4E.g. Sri Lanka: ICJ Statement on UN accountability report, 30 September 2015, [https://www.icj.org/sri-lanka-icj-statement-on-un-accountability-report/].

5 See e.g. ICJ’s 150-page report, Authority without Accountability: The Crisis of Impunity in Sri Lanka (2012), [https://www.icj.org/sri-lanka-new-icj-report-documents-crisis-of-impunity/].

6 Raviraj murder: Acquittals raise credibility concerns, 26 December 2016 [https://www.thehindu.com/news/international/Raviraj-murder-Acquittal-raises-credibility-concerns/article16943223.ece].

7 Cho, Yonjoo & Ghosh, Rajashi & Y. Sun, Judy & Mclean, Gary. (2017). Current Perspectives on Asian Women in Leadership: A Cross-Cultural Analysis. 10.1007/978-3-319-54996-5.

8 Bangkok General Guidance on Applying a Gender Perspective, paragraph 18. Available at https://www.icj.org/wp-content/uploads/2018/06/Southest-Asia-Bangkok-Guidance-Advocacy-2016-ENG.pdf.

9 International Crisis Group, Sri Lanka’s Conflicted-Affected Women: Dealing with the Legacy of War (28 July 2017), page. 11, available at https://reliefweb.int/sites/reliefweb.int/files/resources/289-sri-lankas-conflict-affected-women-dealing-with-the-legacy-of-war.pdf

10 See Sri Lanka: Allegations against new army chief of staff highlight the urgent need to address impunity https://www.amnesty.org/en/documents/asa37/9665/2019/en/

11 Lawsuit filed against Sri Lankan Army General Responsible for execution, torture and attacking civilians, Human Rights Brief, 23 September 2011,[ http://hrbrief.org/2011/09/lawsuit-filed-against-sri-lankan-army-general-responsible-for-executions-torture-and-attacking-civilians/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+hrbrief+%28The+Huma].

12 Section 6 of the Jaffna Matrimonial Rights and Inheritance Ordinance.

SRI LANKA: LAND RELEASES UNTIL END OF 2018 WITH A POSITIVE LIGHT

By Sanjeewa Wimalagunrathne and Tharaka Hettiarachchi.

It has been a decade in to their displacement and hundreds of families are still awaiting the dawn of a new hope—the hope for a new home. On the other side of the coin, returning lands in Sampur under the current regime in 2016 was a great achievement for the affected community who has been displaced for years. According to the former Eastern Province Governor Austin Fernando, 825 families and 12,000 individuals were displaced in Sampur.

How many years have passed without any help? We will be happy back in Sampur…… There’s nothing like home. We just want our home back. We are waiting …. hoping …

-Victims in Sampur-(CPA Documentary of Sampur land issue,6 April, 2016)

Many people were displaced and sinking in misery without hope for years in Sampur and it was a hallmark in the land releasing history in post war Sri Lanka, as it has given a glimpse of hope ending the decade long struggle in getting back lands.

Releasing of lands is one of the acute issues pertaining to the post war period in Sri Lanka. A decade has passed, since marking the end of a thirty-year war. Moving from a tragic past, there are a number of issues that require dire attention that needs immediate intervention. Hence, restitution should to be redressed in a broad manner in gaining the trust of victims and aggrieved persons.

Restitution and restorative justice

Restitution constitutes a form of reparation and the Legal literature states “The term restitution refers to an equitable remedy (or a form of restorative justice) by which individuals or groups of persons who suffer loss or injury are returned as far as possible to their original pre-loss or pre-injury position.” According to Roth-Arriaza “restitution involves the return of property belonging to survivors that has been unjustly taken away from them”.

The Sri Lankan government has a huge responsibility with regard to releasing lands which has been occupied by the military and police. Land occupation includes both state and private land occupation in the North and East. The reparations bill passed on 10^th October 2018 and restitution via land releases is one of the key areas of focus under reparations. The right to receive reparations is one of the human rights.

In October 2015, at the 30th Session of the United Nations Human Rights Council (UNHRC), Sri Lanka cosponsored a resolution in which it pledged to address longstanding issues relating to the conflict, including prompt return of occupied land. Cosponsoring this resolution, the government of Sri Lanka is now responsible and committed to promote reconciliation, accountability and human rights in Sri Lanka. Moreover this was also accordance under the Consultation Task Force final report which was handed over to the Government on 3rd January 2017.

Land disputes vary from state to private lands

Categories of land disputes vary from state to private lands, such as; misplacement of documents of lands, landless and requesting for a land, boundary disputes or access to property disputes due to the death of original owner, secondary occupation of lands in conflict affected areas, boundary disputes which the neighbor has overlapped on his parcel of private land, state occupation of land and request to utilize it for ‘public purpose’, disputes in dividing state land within the family, secondary occupations of state land in which private parties have encroached especially on private temple lands that are held by a religious trust.

“Restitution should, whenever possible, restore the victim to the original situation before the gross violations of human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship; return to one’s place of residence, restoration of employment and return of property.” – Former Eastern Province Governor Austin Fernando –

In January 2016, a Committee headed by the Secretary of Defense was appointed by President Sirisena to expedite the release of lands, reconstruction and resettlement work in the North. Followed by the committee set up commit to expedite land releases.

Studying the land releasing statistics issued by the government from May 2019 to 25th of January 2018, it is very much evident that there is a drastic improvement in land releases from 2015 onwards. Despite the fact that the Lessons Learnt and the Reconciliation Commission (LLRC) has stressed importance upon land restitution, the issue of land restitution has been almost absent till 2015. From May 2009 to 2014, only 41658.65 acres of land has been released within the six-year time period, whereas within the span of four years and a month, 47563.23 acres of land has been released; from 2015 to 25th January 2019. Land releasing data from 2015 to 5th January 2019 (private and state both) are as follows;

2009 to 2015 (Jan) – 41658.65 acres of land

2015 – 27478.76 acres of land

2016 – 7883.76 acres of land

2017 – 5160.59 acres of land

2018 – 5797.10 acres of land

2019 Jan 01 to 2019 Jan 25 – 1243.02 acres of land

There are 28,910 acres being occupied by 25th of January 2019 and the most significant changes in data were seen in state and private lands occupied by Forces. According to the data, 25379 acres of state land has been occupied, whereas the occupation of private lands are very low compared to the number of acres of state land given as 3531 acres. Presently the government has planned to release 1861.82 acres of private and state land. The government plans to release slightly more acres of state land than private land, and the data will be respectively, 1434.97 acres of land and 426.85 acres.

Currently 28,910 acres of land are being used and it is interesting to note that 88% of it is state and 12% of it is private land. However, given the stark contrast in land releasing between state and private land, it is apparent that state land releases have taken a backseat over releases of private land and positively, only 12% of private lands are to be released.

Issues related to land releases are numerous and returning the home of an individual is a key remedy in the light of sustainable reconciliation. As a responsible government it should recognize the violations and restore rights, namely; right to movement, right to property, right to self-determination and right to an adequate standard of living. Moreover, the right to property is recognized and protected internationally, having been included in Article 13 of the Universal Declaration of Human Rights (UDHR).

For sustainable peace and reconciliation

Owning a land in one’s country is recognized as an essential requirement and is one of the ways to eliminate poverty and rebuild the lives of those who are deprived of it. Vagle and de Medina-Rosales states that conducting a restitution process in the aftermath of an armed conflict is thus a fairly new endeavor and is likely to be of topical interest in the future. Return to one’s place of residence or restoration of livelihood is considered lifting up the victims physically and psychologically. No human being is willing to be displaced or bereft of shelter. It is discernible that the discharging of lands will inevitably lead to the re-establishment of the livelihoods of those victimised, bringing forth new hope and prospects to their lives.

The psychological triumph one can receive by having a land is immense, as the support they receive from their immediate community and social circles will restore in them much confidence, thereby paving the way to heal and rebuild the wounded souls of the victimized. This would undoubtedly benefit them in various ways. With the improvement of land releasing it is paramount to acknowledge that the current regime has worked towards gaining the trust of victims and have recognized them as equal citizens with the same rights and privileges. Moreover, the former Eastern Province Governor Austin Fernando’s contribution to land restitution is noteworthy.

For sustainable peace and reconciliation, it is pivotal to address durable national solutions with land releasing disputes, such as livelihood support and infrastructure development to make the land releasing process more fruitful. Furthermore, there should be more emphasis on surveys regarding land occupation and land releases and also access to current surveys in order to have a clear perception concerning the topic.

Reparations, including the restitution of land if implemented aptly, can contribute to long-term peace building efforts and prevent further marginalization of war–affected communities. Closing upon a decade of war, the victims are yet in adversity and distress. In the light of the above, each and every process in transitional justice needs to be up surged in maintaining a healthy political situation in the country, despite hindering the process of transitional justice.

Friday, March 15, 2019

Revisit History Before Launching National Action Plan For Combating Bribery & Corruption

By Chandra Jayaratne –MARCH 15, 2019

Chandra Jayaratne

Dear Mr. President Maithripala Sirsena,

An Important Note of Caution: To be Aware of the Historical Outcomes: Prior to the Launch of the National Action Plan for Combating Bribery and Corruption

I note that you will be the Chief Guest at the “Warrant of Integrity: The Launch of the National Action Plan for Combating Bribery and Corruption”, scheduled to be held on the 18th of March 2019, at the Shangr-La Ball Room.

I believe it is my duty as citizen activist committed to and championing transparency and good governance, to sound a note of caution, in bringing to your notice and awareness, the duly reported historical outcomes of achievement of the Bribery and Corruption Commission over the last 10 years. I am at this stage unaware, whether the National Action Plan to be launched will highlight the information to be shared with you in this letter.

I believe this information, obtained directly from the Bribery and Corruption Commission, by filing a Right to Information request, will permit you to review the National Action Plan for Combating Bribery and Corruption, being aware the correct background perspectives. I also believe that the information herein provided will enable you, to raise strategic questions and evaluate their responses from a position of being better informed of the historical achievements.

The key Right to Information questions and their responses are detailed below:

1. The Total number of cases filed in courts of law by CIABOC, during the last 10 years, in connection with allegations of

a) Bribery in Sri Lanka or in foreign Countries, where the alleged bribe(s) was/were in excess of Rs. 10 million, in each such filed case-? Response: One Case –Case Number HCB/32/2017

b) Corruption, where the value of the alleged act of corruption was in excess of Rs. 25 million, in each such filed case? Response: Nil

2. Total number of cases, out of each category referred to above, which have been concluded by December 2018, with resultant convictions of the offenders? Response: Nil

3. Total Value of fines imposed and/or assets confiscated/recovered, by December 2018, consequent to case decisions in each of the categories referred to above? Response: Nil

4. Total number of cases out of each of the categories referred to, which have been dismissed or withdrawn? Response: Nil

5. The Total costs expended in the maintenance of CIABOC as an institution over the period of 10 years ending in December 2018? Response:

	Year	Expenses
		Rs. Mln
1	2009	110.87
2	2010	140.47
3	2011	157.63
4	2012	201.23
5	2013	180.67
6	2014	196.13
7	2015	256.33
8	2016	317.44
9	2017	366.36
10	2018	429.38
		2,356.51

I believe, a strategic review of the National Action Plan, should begin with a critical assessment of why the aforesaid dismal outcomes were the results over the last 10 years of operation of the Bribery and Corruption Commission? And there after the review should proceed to critically assess the inherent drivers leading to these outcomes and finally to a cost benefit analysis? Further, it will be essential to ask strategic questions to determine as to whether these dismal outcomes were the results of the:

Vavuniya disappearance campaign reaches 100,000 signatures

190311 Vavuniya FOD Trinco NJ 1.jpg

Families of the disappeared in Vavuniya, who launched a signature campaign calling for international intervention in Sri Lanka to ensure justice for Tamils, reached 100,000 signatures this week.

13 March 2019

The families took their protest in Trincomalee on Monday.

Last month families of the disappeared in Mullaitivu also launched a petition campaign, calling for an international accountability mechanism to ensure justice for their loved ones.

The petition, launched ahead of the UN Human Rights Council session later this month, calls for an international mechanism which Sri Lankan leaders have repeatedly rejected despite co-sponsoring a resolution that mandates foreign judges participating in a accountability mechanism in 2015.