Sri Lanka: Mahinda Repeats Old False Allegations

What a tragedy Mahinda has bound himself in! Mahinda has forgotten the days when he stood up against disappearances and worked to give voice to the pain and anguish of the families of the Missing.

 

by Mangala Samaraweera-MARCH 19, 2019

 

Member of Parliament from Kurunegala and current Leader of Opposition Mahinda Rajapaksa has published a statement on 17 March 2019 instructing the government of Sri Lanka on what its position should be when the UN Human Rights Council that is at present meeting in Genevadiscusses Sri Lanka’s progress on national reconciliation.

 

In his statement, as usual aimed at hoodwinking the masses, he assumes a commanding and almost martial tone. Packing it with misinformation to mislead the public, he seems toforget the small detail that he is no longer the President or even the Prime Minister of Sri Lanka – fake or otherwise. As the citizens of our country – Asia’s oldest democracy – remember very well, Mahinda Rajapaksa’s attempts to usurp the position of Prime Minister a few months ago failed miserably in the face of the determined resistance of our citizens and our independent institutions including our judiciary.My recommendation to Mahinda would be, in true friendship:lets put aside the airs. It really is impossible to engage in constructive dialogue if you give instructions and orders on policy to a government that is trying very hard to fix the several troubles that you yourself, your close advisorsand those you appointed to high positions during your time as President created, especially since the conclusion of the conflict in May 2009.

 

And let us be serious. Any advice on policy must be placed on facts, not on fake or exaggerated assertions, which a quick scan ofMahinda’s statement reveals:

 

The opening line of Mahinda’s statement asserts that “The government has announced that they will co-sponsor yet another resolution against Sri Lanka.”

 

What Mahinda says isfalse. There is no resolution “against” Sri Lanka, and there has been no resolution “against” Sri Lanka since 2015. In 2009, the Mahinda Rajapaksa Government spearheaded a resolution in the Human Rights Council calling it a ‘victory resolution’ and got it adopted by a division in the Council. The Rajapaksa Government included in that Resolution, the Joint Statement between the Government and the United Nations that was adopted during UN Secretary-General Ban Ki-moon’s visit and also commitment to the implementation of the 13th Amendment to the Constitution. Non-implementation of this resolution adopted by a vote led to a series of resolutions which the Mahinda Rajapaksa Government claimed to boycott but could not stop from being adopted. Finally, in March 2014, this led to the Human Rights Council adopting a resolution setting up the first known international investigation on Sri Lanka which is called the OHCHR Investigation on Sri Lanka (OISL). Sri Lanka was cornered internationally and was in a pitiable state. Mahinda’s Government put all his eggs in one basket in terms of our economy, borrowing at commercial rates and not being able to repay them. Our military which Mahinda claims to be the guardian of, was losing heavily as they were deprived of military-to-military cooperation with the countries which have the most advanced militaries in the world. They were deprived of training opportunities, participation in UN peacekeeping, and in joint exercises.

 

After Mahinda’s defeat at the election on 08 January 2015, the new Government managed to reassert Sri Lanka’s sovereignty and regain Sri Lanka’s independent right to take charge of discharging the responsibilities of the Government towards its own citizens. As a result of taking charge of handling our own problems ourselves in consultation with all our own citizens, international action that would have followed as a result of the OHCHR Investigation on Sri Lanka that was established under Mahinda’s regime in March 2014 ceased. As a result of Sri Lanka taking charge of discharging its own responsibilities towards its own citizens, international efforts became focused thereafter on support for Sri Lanka’s efforts. Contrary to Mahinda’s narrative, there are no resolutions AGAINST Sri Lanka in the Human Rights Council anymore. The resolutions since 2015are to work together with our partner nations in the world so that our citizens benefit from the best expertise in the world, and we work with all our citizens to set up processes that would help us put behind decades of distrust, violence and impunity and promote, protect and advance the human rights of all our citizens. I urge you to pause to think a little. If this resolution that Mahinda speaks of is AGAINST Sri Lanka – then there should be strictures on Sri Lanka through the resolution, or an investigation established as in March 2014 when Mahinda was President, or there should be sanctions. The resolutions from 2015, on the contrary, do no such thing. They have instead been the basis to secure economic benefits for all our citizens both in the short-term as well as in the long-term. They have been the basis for re-establishing and renewing trust and confidence of our own citizens. They have been the basis for establishing engagement with the international community to benefit our citizens, our administrators, our prosecutors, our forensic experts and our security forces with greater opportunities overall. They have been the basis for the doors of opportunity being open to us to develop Sri Lanka as a hub in the Indian Ocean and pursue a prosperous future for all.

 

Mahinda repeats old false allegations and assertions about the Office on Missing Persons. What a tragedy Mahinda has bound himself in! Mahinda has forgotten the days when he stood up against disappearances and worked to give voice to the pain and anguish of the families of the Missing. He alleges in his statement that“Government bodies at all levels including the armed forces and intelligence services are mandatorily required to render fullest assistance to the OMP even in contravention of the Official Secrets Act.”

 

Mahinda says that if a criminal taking illegal advantage of an official position abducts and kills a citizen, the law must be forbidden to investigate such a crime? What kind of rule-of-law would exist in our country if inquiries on abuse of power were stopped on the grounds of official secrets? The notion of an “official secret” can only apply to legitimate national security concerns. Since when would finding the fate of a missing soldier be a violation of our national security? In what way is our national defense affected by families including the families of missing soldiers finally exercising the right to hold a dignified funeral for their loved ones?

 

Mahinda alleges that The Prevention of Enforced Disappearances Act enables an alleged enforced disappearance in Sri Lanka to be investigated and prosecuted in a foreign country as if it was an offence committed in that country.

 

Mahinda appears unware thatany country in the world can already investigate and prosecute disappearances and other war crimes alleged to have taken place in any other country in the world, because most countries in the world today have already signed treaties to deny safe haven to war criminals!This is a right that those countries already have which is not determined by whether Sri Lanka accedes to the convention or not. Therefore, our accession to the International Convention Against Enforced Disappearances does not give other countries a right they already have. That is why, in September 2018,Germany charged an ex-LTTE member residing in that country, with war crimes committed against 16 of our brave soldiers. I wonder whether Mahinda has not heard about that case. Of course Mahinda has heard of it, but he hides it and chooses not to mention it in his statement or in any of his speeches because it disrupts hisfalse narrative of international justice aiding terrorism.

 

International justice is activated when national justice fails to act. It was Chile’s lack of action against General Augusto Pinochet which prompted Spain and the UK to arrest him in 1998 and determine his need to appear before justice.This process has not stopped. There are hundreds of universal jurisdiction cases open in the present day, everywhere in the world. These cases could well work against alleged criminals who might travel outside their safe havens to spend their ill-gotten fortunes.

 

Apart from criminalizing Enforced Disappearance with a view to preventing our citizens from ever going missing again like they did for several decades in our country irrespective of ethnicity, language, geographic location, religion or gender, what the Prevention of Enforced Disappearances Act does is to enable us to act on those crimes, so we assert our jurisdiction. In fact, the Act even gives us, Sri Lankans, the capacity to investigate and prosecute disappearances happening in any other country in the world, in case future Pinochets try to spend their time in our beautiful island home.

 

Mahinda alleges that “The UN Human Rights Commissioner in her report on Sri Lanka to the current session of the UNHRC, has called on member states of the UNHRC to investigate and prosecute those suspected of war crimes in Sri Lanka under the principle of universal jurisdiction.”

 

I’m sure this happens to all of us. We all fall asleep in the middle of a movie sometimes, and when we wake up, for a moment we can’t understand what is going on in the movie. I think this is what has happened to Mahinda. But without admitting it, he wants to try to tell our citizens that he knows the plot. The High Commissioner for Human Rights, as a result of the acts and omissions of Mahinda’s regime of impunity, holds the view that Sri Lanka’s judicial system has not made necessary progress. Therefore, the High Commissioner notes that any state can investigate war crimes in Sri Lanka, but this is IF and ONLY IF we don’t do it ourselves! But Mahindaignores the first part of the movie (the inaction which his regime is responsible for) and he goes on to tell the story leaving out a crucial part.

 

As a nation responsible to all our citizens including our military personnel and policemen, we should not fail in our commitment as a sovereign, independent, democratic state to investigate the several emblematic cases of human rights violations currently in our legal system. We must set up a system to investigate and deal with allegations of human rights violations. If we fail to do this, we place our citizens in grave peril because the message we will be sending out to the world will be that we are unable or unwilling to do our job. If we fail to deal with our issues ourselves, then others will step in.

 

Mahinda says that “Lord Naseby has obtained from the British Foreign and Commonwealth Office copies of the dispatches filed by Lt Colonel Anton Gash…Five renowned international experts in the law of armed conflict namely, Sir Desmond de Silva QC, Professor David Crane, Sir Geoffrey Nice QC, Rodney Dixon QC, and Professor Michael Newton have examined the allegations against Sri Lanka and provided written opinions to the effect that no violation of the law of armed conflict had taken place…”

 

This is rich, comingfrom the same person saying that future mechanisms to deal with human rights violations should not have the support of international experts! Mahinda claims he is the one and only protector of sovereignty and yet findssafety behind the robes of British lords and the whips of British colonels! No, Mahinda: we will never fall for this undignified maneuver. Global expertise is needed. We collaborate and work with international experts on almost everything that we do in this country. In fact, we are blessed with the philosophy and teachings of a foreigner – Gautama Buddha, an Indian Prince who became enlightened, and whose teachings were conveyed to us by the son and daughter of an Indian Emperor called Asoka. You brought so many foreign experts to Sri Lanka whose names you have cited in your statement. There is no reason to deprive ourselves from continuing to learn from our brothers and sisters in the Global South, who have already dealt with the legacies of their own conflicts. Why should we slam the door, for example, on Latin American forensic experts, or South African reconciliation experts, or Tunisian fighters against corruption? Sri Lanka should continue, as you yourself have done, to engage in such cooperation and collaboration, but on our terms, and in the capacity that we decide, based on our requirements.

 

Mahinda Rajapaksa, seemingly frustrated by his failure to grab power illegally, gives a series of instructions and finishes his statement by saying that …all members of the delegation representing the government in Geneva should clearly understand that anything short of what he says will be a betrayal of the people of Sri Lanka.

 

By giving such a peremptory instruction, Mahinda is effectively asking the members of the delegation to determine whether they are representatives of Sri Lanka or whether they are Mahinda’s puppets; whether they follow the instructions of the government or the injunctions of the defeated Presidential candidate who failed to grab power illegally last October.

 

The Government will continue to defend Sri Lanka’s sovereignty by reaffirming our commitments to seek durable reconciliation and promote and protect human rights of all. We will, as the resolutions clearly say:

 

• Ensure justice through our national system, in free and fraternal cooperation with experts of other nations going through similar transitions, based on our requirements.

• Affirm the honor of the institutions of the army, navy and the air force, and project their professionalism including in UN peacekeeping missions, and increase their opportunities for collaboration with the best militaries in the world, by investigating allegations and prosecuting any abusethat may have taken place in accordance with the due process of the law.

• Affirm the rights of ALL citizens including citizens in the north and the south, military and civilian, Buddhist, Muslim, Hindu, Christian,and others to establish sustainable peace, reconciliation, and prosperity for all;

• Affirm the rights of ALL by determining the fate and whereabouts of ALL the missing including security forces personnel and police;

• Provide for those left behind – for all citizens in need – with integral reparation to rebuild their lives and strive for national development.

• Forever forbid the recurrence of horrors of our past like torture, sexual violence, war and white van abductions.

 

Nothing more and nothing less is what this government is committed to do for ALL the people of Sri Lanka. We will, in this journey, work with the international community. They will be our partners as they have always been. They will also be our witness as well as supporters of this solemn undertaking, and they will tell our story so that others too in this world can learn from Sri Lanka’s example of reconciliation.

 

No doubt our journey has been difficult, with ups and downs, achievements and disappointments, but those who caused the trouble in the first place, have very little authority to criticize us. Those who embraced and never investigated child abductors and war criminals like Karuna, can’t tell Sri Lanka what a war hero is. Those who paralyzed the country on 26 October 2018 to send our economy into free fall cannot be allowed to continue their attempts to sabotage the progressive path of our nation.

 

I’m sorry to be the one breaking the news, Mahinda, but someone has to say this: you do not have the authority to impose a fine on a badly parked tuk-tuk, much less give instructions to an official delegation representing Sri Lanka overseas.Your pretension to be Prime Minister in October 2018 failed several months ago. Stop trying to deny to a legally established government, the democratic authority it is endowed with. The journey toward reconciliation will continue. The people of our country are tired of pessimists and compulsive liars and fear mongers. They know that their future lies not in fear but in truth and that the economic prosperity of our nation depends on achieving sustainable peace, non-recurrence of conflict, strengthening the rule of law and democracy, and protecting and upholding the rights and dignity of all, and in working towards our goals together and in partnership with all the countries of the world and international organisations in which Sri Lanka is a member.

 

The writer, Miniter of Finance and Mass Media, Government of Sri Lanka 

Expedient Politics Toy with Executive Presidency

JR, CBK, MR, MS and RW added new dimensions to it

• All three present National leaders are ‘conspiring’ to scrap the Executive Presidency

• The  nation is in dire straits with indecision, uncertainty, and insecurity looming due to lack of direction and drive

‘An ideal executive must be both stable as well as responsible to the people.’ 
- Ambedkar

18 March 2019 

When politicians do something to advance themselves politically, something that offers an easy way to attain a goal or result, but not necessarily an ethical solution, it is called expedient Politics.  We use expedient when we want to hint that a particular answer or policy has certain benefits serving to promote one’s interest and rewards but is not totally fair. Politicians, faced with a conclusion, will prefer the most expedient alternative.
Presidential system is a democratic system of government where the head of state leads an executive branch that is separate from the legislator. In most cases he/she is also the head of state. There are quite a few executive presidential systems in operation in the world. Out of the political systems, the presidential system is the most common and popular. This system has its origins in the American presidential system which created the office of ‘president’ as head of state by its 1787-Constitution.

No system is Ideal or Perfect as long as Politicians Operate it 

All three present National leaders are ‘conspiring’ to scrap the Executive Presidency. Each one of them has ‘valid reasons’ to agree upon the idea based purely on personal agenda. Maithripala Sirisena cannot even dream of contesting on his SLFP card which he knows has lost the sting as a national party which ended a distant third at February 10, in spite of several stalwarts who backed him then but since the electoral debacle switched to MR’s Pohottuwa. Constitutional restrictions have stood in the way of the most popular of the three, Percy Mahinda Rajapaksa - he cannot contest - best option for his party is the man in demand brother Gotabhaya. The people’s anxiety that Gota may achieve something, in the same way he faced Prabhakaran and his role as head of the UDA, enhances his chances. But, Gota, the man most likely to win is somewhat arrogant and unlikely to bow down to older brother’s whim and fancy: further, dreams of dynasty can change its course. MR prefers to abolish.
Prime Minister, Ranil Wickremesinghe, obviously the reluctant contender who palmed the chance to an outsider for fear of losing in 2010 and again in 2015 will naturally prefer to skip this time as well. Apart from his party’s poor performance a year ago, its credibility has further deteriorated with exposition of corrupt activities of the cabinet ministers since the inception of yahapalana government.   

It was JR Jayewardene who conceptualized the Executive presidency, as far back as 1966, in delivering an address to the 22nd Annual Sessions of the Ceylon Association for the Social Sciences and Humanities Review onDecember 24.  It conceptualizes his vision in an emergent form. He observed that, “Our cabinet, is chosen from the legislature and throughout its life is dependent on its maintaining a majority therein; we have followed the British Constitution. In some countries, the Executive is chosen by the people and is not dependent on the legislature during the period of its existence.  The French Constitution is a combination of the British and the American systems. Such an Executive is a strong Executive, seated in power for a fixed number of years, not subject to the whims and fancies of an elected legislature; not afraid to take correct but unpopular decisions because of censure from its parliamentary party. This seems to me a very necessary requirement in a developing country faced with grave problems such as we are with today.” He emphasized the need to convert the Westminster parliamentary model of government to a Presidential one. He believed it was the best form of administration for a developing country like Sri Lanka. The president is made the head of the state, chief of the Executive, the head of the government and the commander in chief of the armed forces. 

 At the end of his second term in October 1988, JR was toying with the idea of using his 5/6 majority to bring in another amendment to do away with the two-term rule. He in fact used some of his confidantes to make public statements ‘demanding  him to consider their sincere request’. North and South burning in a huge inferno, the ruling party  and the aging leader himself increasingly becoming unpopular, the old fox after reading the pulse of the electorate concluded that defeat was inevitable. JR with his two trusted lieutenants, Lalith and Gamini, decided to field Premadasa in a ‘kill two birds with one…’ a formula, which misfired. His sudden decision to dissolve Parliament at the final hour to prevent Premadasa manipulating the two-thirds, was in response to unexpected swing in the electorate in favour of the man he disliked. 

The 1978 Constitution granted many powers and functions to the executive president which are vastly concentrated to the office in contrast to other two branches of the State. There is little check and balances to control President’s powers and functions. Executive president has been entrusted with overriding the executive, legislature and judiciary powers. Additionally more powers and functions had been granted through Constitutional amendments, with almost all the powers of Government, for JR to proudly boast that all he couldn’t do was to ‘turn a man into a woman’. Eliminating the 17th amendment and enactment of the 18A helped to considerably increase the powers and role of the executive presidency with the institution of Parliamentary Council and elimination of the term limit of a president. But 19A diluted these powers extensively
20th Amendment to the Constitution and Its sponsor, the JVP [Janatha Vimukthi Peramuna] is continuing with the effort although the likelihood of it being passed with two/thirds in the house are remote. In a surprise move the JVP met with former President MR over the issue and stated that discussions were “somewhat successful”.

The Amendment if passed would abolish the Executive Presidency and replace it with a ceremonial Presidency that we experienced before 1978. Executive functions would revert to the office of the Premier and Parliament, empowering a legislative that consist mostly of corrupt uneducated or sufficiently educated to ransack and loot the national treasures with impunity. 
JR continued his argument in favour of the phenomenon again while discussing the position JR at the Constituent Assembly in 1972, when he declared, 
 “An Executive President duly elected for a period will not be subject to the vagaries of political forces in the legislature”,JR at the Constituent Assembly in 1972. He continued backing-up  his contention  mentioning the case  where Sirimavo Bandaranaike’s democratically-elected government was forced out of power in 1964, due to pressure exerted on it by ‘outside elements’ acting through parliament and depriving  her of parliamentary majority. 
The  nation is in dire straits with indecision, uncertainty, and insecurity looming due to lack of direction and drive. The country has plunged into one of the most awful catastrophes in seven decades.
It was Ven. Maduluwave Sobitha Thera who said,  “Yes, I am ready to stand as a Single-Issue presidential candidate,… I will serve for six months only within which time I will abolish the Executive Presidency and institute a parliamentary system by constitutional methods.… The roots of bribery, corruption, nepotism and bad governance lie in Executive Presidency,”   

Three views on EP

 There are three divergent views on the Executive Presidency; some wants to continue it in its present form; they think proper implementation of growth strategies can be more competently apprehended under an executive President and meet threats to the sovereignty of nation. Another school professes total abolition, and a third sector who believes in a few more amendments to clip the wings of the office. 
The challengers of the executive presidency would argue that there is a concentration of state power in an individual at the expense of representative body, but even under the Westminster parliamentary system, PM as the head of the state becomes a virtual dictator with declaration of an emergency powers. The prospect of being held accountable will prevent the President from being disrespectful of the law of the land. Further there are provisions for the impeachment of President while in office. Maithripala Sirisena never spoke of abolishing the Executive Presidency altogether. Maithri’s manifesto says,

 “The new Constitutional structure would be essentially an Executive allied with the Parliament through the Cabinet instead of the present autocratic Executive Presidential System. Under it the President would be equal with all other citizen before the law. I guarantee that in the proposed Constitutional Amendment I will not touch any Constitutional Article that could be changed only with the approval at a Referendum. I also ensure that I will not undertake any amendment that is detrimental to the stability, security and sovereignty of the country. My Amendments will be only those that facilitate the stability, security and sovereignty of the country.”  
The reality has been that anybody elected to that all-powerful position having powers to do anything but change man into woman and vice versa will be averse or unable to renounce those powers.  

Writer can be contacted at  -  kksperera1@gmail.com

UNHRC Resolution, Guided by India, to Give Breather to Sri Lankan Government

The Geneva-based body will adopt a new resolution that will give time till 2021 for the Sri Lankan government to fully implement commitments it made four years ago on transitional justice and accountability.

Ranil Wickremesinghe. Credit: Reuters

Devirupa Mitra-18 March 2019

New Delhi: India’s desire to give some breathing space to Sri Lankan Prime Minister Ranil Wickremesinghe found a sympathetic ear in the international community. His government is to be granted a further extension of two years to carry out key pledges on transitional justice and accountability.

Just before the UN Human Rights Commission (UNHRC) session ends mid-week, the Geneva-based body will adopt by consensus a new resolution – proposed by the UK, Canada and Germany – that will give time till 2021 for the Sri Lankan government to fully implement commitments it made four years ago.

Sources said that India had been kept informed “at every stage” about the drafting of the resolution by the UK. This is the first time that the US is not taking the lead, since it withdrew from the HRC last year.

This is the first regular session that India will participate as a member of UNHRC, after a mandatory gap in 2018 of one year following two consecutive terms.

According to sources, various countries were aware of the very recent turbulent political history and the fraught ties between President Maithripala Sirisena and Wickremesinghe.

“It was felt that the government required a break and this was not the right time to impose any stringent strictures,” said an Indian government official.

However, some Nordic countries with large Sri Lankan Tamil diasporas, had tried to introduce stronger language in the text. This was when India intervened to “remind” the international community about the current circumstances in Sri Lankan polity, sources noted.

However, officials said that there was largely not much intervention required, as there was consensus among the international community about the need to give the government some breathing space. “We didn’t have to do too much,” said the official.

This will certainly be good news for Wickremesinghe, who has been embattled domestically, with presidential election due in Sri Lanka within a year.

This agreement came despite Sri Lanka not having a good record of meeting its assurances on reconciliation and transitional justice.

According to a Sri Lankan think-tank, Verite Research, Colombo has fully implemented only six out of 36 commitments made by the government in resolution 30/1. There has been no progress on the creation of a judicial mechanism with foreign elements, but the Office of Missing Persons was set up last year in February.

The UN human rights commissioner’s report on Sri Lanka, which will be discussed on March 20, has acknowledged some of the steps taken by the government, but continued to be critical about the pace of accountability reforms.

However, with Sri Lanka co-sponsoring the resolution, as it had done with two previous iterations, officials said that the text would be adopted without the need for a vote.

After the adoption, India’s statement will include references to the need to take into account the sentiments of the Tamil population. There could also be a rare public mention of the full implementation of the 13th amendment that decentralises power to provincial councils. India had been a key advocate for the 13th amendment, but it has largely been absent from recent statements.

The scenario would have been different if President Sirisena had gone ahead with his proposal to send a separate delegation on his behalf to the Palais de Nations in Geneva.

On March 6, Sirisena informed heads of media organisations that he will be sending a three-member team his behalf, led by former foreign minister Mahinda Samarasinghe. He also indicated that Sri Lanka will not co-sponsor the resolution and would instead ask the international community to abandon plans for investigation into alleged atrocities. “I want to tell them [the UN] not to pressure us…What I want to tell them is don’t dig the past and reopen old wounds,” he said.

Maithripala Sirisena. Credit: Reuters

Observers had felt that Sirisena, who has been unable to convince the joint opposition to field him as their presidential candidate, had been hoping to earn some brownie points by advocating a Sinhala nationalist position against the prosecution of security personnel over alleged incidents of war crimes during the civil war. Leader of opposition Mahinda Rajapaksa has been opposed to Sri Lanka co-sponsoring the resolution.

A few hours later on the same day, a two-page joint press release was issued by the Ministry of Foreign Affairs, Department of Government Information and the Prime Minister’s Office that Sri Lanka would be co-sponsoring the resolution. In effect, there would have been two separate delegations from Sri Lanka at UNHRC’s 40th session.

Taking a dig at Sirisena, the press release stated, “The allegations made against the co- sponsoring of the roll-over resolution by the GOSL is part of the campaign to mislead the public and gain undue political advantage.” It also blamed the “infamous constitutional coup of 26th October, 2018” for the delay in bringing in some of the required legislation to implement commitments.

After months of estrangement, Sirisena had removed Wickremesinghe and made Rajapaksa as the prime minister in a surprise move last October. Wickremesinghe was restored as prime minister after the Supreme Court deemed the presidential orders to be unconstitutional.

Eventually, Sirisena climbed down after a week. According to the Sri Lankan media, Samarasinghe told President Sirisena that it would be embarrassing to go to Geneva and advocate a position at the UNHRC that was directly opposite to his previous commitments.

In October 2015, UNHRC had agreed to a resolution – co-sponsored by Sri Lanka and backed by India – that called for a domestic judicial mechanism with foreign judges and lawyers. With Sirisena defeating Mahinda Rajapaksa in a shock upset at the January 2015 presidential elections, the new government in Colombo was basking in the glow of the international community’s approval.

A year earlier in March 2014, India had abstained on the resolution that called for an international probe into human rights violations that occurred in the last stages of the civil war. In 2013 and 2012, the UPA government – under coalition pressure – had voted in favour of US-sponsored resolutions that criticised the Mahinda Rajapaksa government for not taking enough steps to ensure accountability.

Sources told The Wire that the Sri Lankan president had also been discretely informed by India and other members of the international community that if Colombo didn’t co-sponsor the resolution, it was highly likely than a vote would have been called on March 21. “If that had happened, then all bets were off,” said a highly-placed official.

Nagananda debarred from practising as lawyer for three years

 

March 18, 2019, 12:00 pm

The Supreme Court, yesterday, issued a restraining order preventing Nagananda Kodituwakku from practising as a lawyer for three years.

A three-member bench comprising Chief Justice Nalin Perera, Justices Sisira de Abrew and Prasanna Jayawardena issued the order over a 2015 defamation case. The case was filed by Justice Vijith Malalgoda, while he was the President of the Court of Appeal.

The Supreme Court initiated a disciplinary inquiry in respect of attorney-at-law Nagananda Kodituwakku’s conduct in the Court of Appeal on May 21, 2015 before the then President of the Court of Appeal justice Vijith Malalgoda, PC and justice H. C.J. Madawala, based on the complaint.

Justice Prasanna Jayawardena, who read the verdict, said that the actions of Kodituwakku had tarnished the image of the judiciary and would lead to public losing faith in the institution. Kodituwakku, on March 13, declared that he would withdraw the allegations he had levelled at Malalgoda and tendered an apology. "However, the Supreme Court is compelled to give this verdict, given the grievous nature of Kodituwakku’s statement," Justice Jayawardena said.

During the proceedings, which commenced in 2017, Kodituwakku, who holds Sri Lankan and British dual citizenship, was told to show cause why he shouldn’t be suspended or removed from the Office of Attorney-at-Law in accordance with Section 42 (2) of the Judicature Act No 02 of 1978 read with Supreme Court rules (Part Vll) of 1978 made in line with Article 136 of the Constitution.

The Supreme Court has listed four specific allegations on the basis of submissions made by Kodituwakku on May 21, 2015 in respect of a case filed by two persons against the Director General of Customs in the Court of Appeal seeking the transfer of the case to a different bench. Having examined the representations made by the Court of Appeal to the Supreme Court, the latter declared, in summons issued to Kodituwakku, that his submissions were contemptuous and his conduct disgraceful, dishonourable, deplorable and essentially unworthy of an attorney-at-law.

Rule Of Law Or The Rising Rule Of Power? 

By Lucien Rajakarunanayake –MARCH 18, 2019

Lucien Rajakarunanayake

The approach of a presidential election and the reality of the UNHCRSessions in Geneva are driving this country to the frightening fantasies of both government and application of the law.

While the Mangala Budget does little to face development and growth needs of the country and people, the patterns emerging in our courts are leading to new concerns about the genuine independence of the judiciary, which the Supreme Court displayed with pride on the Constitutional Coup issue of October26; but is increasingly questioned by the behavior of both jurists and counsel in the Chambers of Justice today.

The Supreme Court decision on the petition by former Navy Commander Admiral Wasantha Karannagoda to prevent his arrest over the case involving the abduction and killing of 11 Tamil youth, and the courtroom circus by Gotabhaya Rajapaksa to prevent his arrests and hearing of the case involving alleged fraud in the construction of the mausoleum for his parents, are the shockers in trends in the play of law in the country.

What we see in governance is both farce and fantasy. President Sirisena has taken a step back from his ‘naadagam’ move of sending his own delegation to the UNHRC Sessions in Geneva. He must have heard the drumbeat of diplomacy in his ears, to have the Foreign Minister lead the official, government delegation. The real farce here is the unity of thinking among the Presidential and Prime Ministerial teams on the controversial UNHCR Resolution. What both Maithripala and Ranil will seek is to extend the term of the Resolution by two more years. Sirisena has to give into the realities of governance and diplomacy, whatever fanciful thinking he may have of kicking away the political basin he was elected from more than four years ago.

The spread of fantasy is the stuff of politics and governance today. Didn’t we hear and read Mahinda Rajapaksa say recently how the Mangala Budget 2019 would be defeated in parliament? What happened? He placed too much faith in the ‘naadagam’ politics of Sirisena. The pro-Sirisena SLFP team kept away, and the Budget was passed with a good majority. Mahinda’s ‘pohottuva’ team could not come anywhere near it.

Another piece of fantasy we are fed today is about the presidential candidacy for Sirisena, under an SLFP-SLPP alliance. The talks between the two parties are progressing, but the Rajapaksas are getting louder about a family figure in the run, with the heat on Gotabaya. Sirisena will have to do plenty of ‘naadagam’ performances if he faces the election, for which he will need much better drummers than the recent provincial governors he appointed. Their drum beats in several provinces go beyond a ‘naadagama’ to dances of political madness.

The leading light or gloom in the coming presidential candidacy, none other than Gotabaya Rajapaksa, is certainly engaged in a different ‘naadagama’ — ‘adhikarana naadagama’ – judicial theatrics. There seems to be no court he will avoid from the Magistrates to the Supreme, in his performances against being charged with fraud, corruption, and misuse of public funds, when he was Secretary/ Defence under the Rajapaksa Family Regime.

The decision to disallow to arrest of Admiral Karannagoda, and the courtroom trail of Gotabaya Rajapaksa makes us bother about trends in the judiciary. Was the system of justice that we got from the Dutch and British in any way planned for such delays in and twisting of Justice? The Attorney General and Senior Counsel, with Presidential tags too, have now become captains in this Mastery of Justice – Delay and Denial. It may not be far when the people will have to come out in public against this dance of madness in the chambers of justice in our country.  

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Budgets in Uncertain Times

18 March 2019 

ith Provincial, Presidential and Parliamentary elections looming over the next year, these are uncertain times. With the Budget for 2019 itself delayed by four months due to instability within the Government and political crisis late last year, the Budget Speech and its proposals reflect a tentative agenda. Indeed, the Budget is neo-liberal in rhetoric, but populist in substance.   
Budgets provide a succinct view of the Government’s economic plans over one year, and this year is going to be an even shorter one of just over eight months. What does the economic trajectory look like over the medium to long term? Here, budgets can signify a shift or reinforcement of an economic strategy over the medium to long term. However, Budget 2019 for all purposes is and will be seen as an aberration. It is political developments over the next year that will shape Sri Lanka’s economic strategy for the next half decade if not longer.   
In the current debates about the Budget and the Government’s economic policies, an important determinant of Sri Lanka’s economic trajectory is again neglected. That is the over-determining role of international actors; particularly global markets, international agencies and the powerful bilateral donors.   

Entrepreneurs and the Rural

The Budget 2019 is neo-liberal in rhetoric, particularly with emphasis on entrepreneurship, urban regeneration and trade liberalisation. However, the thrust of the Budget in terms of the larger allocations and proposals consists of a range of populist measures.   
Continuing on the theme of entrepreneurship, many proposals refer to the Enterprise Sri Lanka loan schemes for a range of actors. The question of course is whether everyone can become entrepreneurs? I for one can say that if I was asked to become an entrepreneur and contribute to the economy by taking a loan, I would be an utter failure. It is the misplaced faith in entrepreneur-led production and growth facilitated by finance and trade, which has been a central platform of the UNP’s economic agenda. The other plank of neo-liberal development of all governments since the open economy reforms in 1978 have been urban regeneration with increasingly speculative financial investment in real estate and urban infrastructure.  
In reality, however, Budget 2019 is a hangover of the long drought into last year and Rajapaksa’s populist local government election victory in February 2018. That rude political awakening early last year has brought the rural to the fore and the related generation of populist measures. It is the agenda of Gamperaliya rather than Enterprise Sri Lanka that is the priority in this Budget with large allocations to build community infrastructures around the country. Indeed, a short drive into any region cannot escape the sight of a Gamperaliya project whether it be of a rural road, a religious structure or a sports facility. Elections over the next year will tell if this robust electoral strategy will work or not, but the rural populist thrust of this Budget is clear.  

North and Debt Relief 

A welcome continuity in Budget 2019 from 2018, is the focus on the North and efforts to address the indebtedness crisis. Here, I must disclose that I am not an impartial observer of these developments with respect to Northern reconstruction and debt relief.   
The small projects that were initiated to address the war-torn economy in the North last year with a focus on rebuilding livelihoods and rural regeneration through the co-operative movement are again reinforced in the Budget for this year. The Palmyrah Fund announced to address the social and economic issues in the Northern and Eastern Provinces is another significant step; it provides an opportunity to address the special needs and problems of the war-affected people. Whether the capacity exists to make a success of these long awaited regional development initiatives will only be known in a few years.   
Another significant initiative undertaken by the Government is debt relief piloted in the North and slowly expanding to the rest of the country. In order to arrest the tide of predatory microfinance loan schemes devastating rural women, a number of measures are in the works. An interest rate cap on microfinance by the Central Bank late last year, a partial debt write off for some women trapped by microfinance loans in the twelve drought affected districts, continuing efforts to provide concessionary loans to indebted women, and the building of an alternative co-operative credit system in the North are aspects of an initiative that may finally address a problem that has ravaged rural economies in many countries.  

Donor Trap

Over all, if the Budget is tentative in its economic thrust, what are the undercurrents of the economic development trajectory in Sri Lanka? I argue that Sri Lanka’s neoliberal development agenda is continuing; with big banner donor projects and through stealth by economic reforms pushed by international actors.   
The debt trap of foreign loans have ensnared Sri Lanka into unquestioningly accepting every international development project. These donor projects focused on infrastructure build-out and economic reforms are not grants but rather loans that have to be paid back. However, there is little to show that the returns on investment from such projects will be beneficial to the country.   The first set of culprits are the triad of international agencies dominating Sri Lanka, consisting of IMF, World Bank and Asian Development Bank (ADB). Whether it is the current UNP Government or the past MR regime, these agencies consistently determine the economic reform and development agenda. From trade liberalisation, privatisation of state owned enterprises, expansion of financial markets to the larger number of donor funded projects in sectors such as education, healthcare and urban development, these agencies consistently push their agenda over the long-term with vigilance. And to reinforce that trajectory are the competing geopolitical interests of bilateral actors such as China, India, Japan and the US. Even more significant in the mix are the global financial markets to which Sri Lanka owes its future through the large levels of foreign market borrowings.   

"IMF, World Bank and Asian Development Bank (ADB), whether it is the current UNP Govt or the past MR regime, these agencies consistently determine SL’s economic reform and development agenda"

Scale is important to assess the economic development trajectory. For example, public investment characterised by capital expenditure by the Government estimated for 2018 in this Budget Speech was Rs. 625 billion. And days after the Budget announcement, Sri Lanka floated US$ 2.4 billion (Rs. 430 billion) in sovereign bonds in the global financial markets to roll over past foreign loans. Furthermore, a large number of donor projects for a range of sectors and infrastructure investment continue on the order of US$ 100 million (Rs.18 billion) to US$ 1 billion (Rs.180 billion) in multi-year development projects. My argument here is that even as we scrutinise the allocations in the Budget, we often fail to analyse the substance and consequences of both the high level of foreign debt and the economic changes that come with such external engagement.   
On the national front, until the Provincial, Presidential and Parliamentary elections are over, these times of uncertainty will continue. Our challenge is to bring in economic justice critically into debates not just about the Budget, but also in the elections that will determine future economic policies. In this context, we cannot afford to neglect the external debt trap and donor development agenda that may well determine the national possibilities for charting the economic path after the election cycle.  

SRI LANKA MEDIA RIGHTS ACTIVISTS DECRY NEW ANTI-TERROR LAWS

Image: FMM convener C.Dodawatta at the press conference on 18 March 2019.
MARCH 18, 2019/ Colombo, Sri Lanka.

19/03/2019

Media rights activists on Monday urged the Sri Lankan government to withdraw proposed anti-terror legislation, calling it is a set of draconian laws aimed at suppressing the media freedom and democratic rights.

The new Counter-Terrorism bill approved by the cabinet of ministers is now before the Parliament. A date has yet to be announced for a debate and a vote on the bill, which the government says would repeal the existing tough anti-terror law.

C. Dodawatta, convener of the Free Media Movement, a local media rights group, said the proposed act could be used to arrest and detain journalist for “distributing or making available any information to the public.”

He said the new government came into power in 2015 promising to repeal the existing anti-terror law — the Prevention of Terrorism Act — that has been criticized by rights groups who say the successive governments have used it for arresting and detaining the journalists, media workers, artists, rights activists, ethnic minority Tamils and opposition politicians.

BY BHARATHA MALLAWARACHI ASSOCIATED PRESS

Budget of Hopes amidst achievement deficits

Budget of Hopes amidst achievement deficits

Finance Minister Mangala Samaraweera arrives to present the 2019 Budget in Parliament on 5 March - File photo

Tuesday, 19 March 2019 

Every budget introduced in the Parliament ushers in plenty of hopes and promises but the record of achievements have always fallen short of initial promises. This has been the sad history of Sri Lankan Government budgets, at least until the demise of its most successful FinanceMinister and budget critique, Dr. N.M. Perera.

Minister Mangala Samaraweera’s 2019-20 Budget will not be an exception to this historic reality. No one in the Parliament keeps track of the record of a budget’s achievements or holds the minister concerned accountable until the next budget is introduced.

Captioned “Enterprise Sri Lanka – Empowering People and Nurturing the Poor” with added resolve to “shift from a culture of hand-outs to a culture of empowerment and independence”,it ison the face of ita carefully drawn exercise in balancing the demands between international and institutional lenders – especially the IMF on one hand, and on the othertherestless massescrying for relief from mounting economic pressures, especially the cost of living. Given the prevailing economic scenario of worsening trade and budget deficits, depreciating currency, interest burden on inheritance and current debt, with an inescapable need to fall into more debt, as well as falling resource productivity, all at a time when the nation is about to go to the polls at least twice if not thrice this year, the FinanceMinisterfrom a government on life supportis bold enough not to make his Budget either emphatically growth-focused or benevolently distribution-oriented.

In that sense, it is a balanced budget. However, how much of the Budget is achievable is a daunting question to answer. The Minister said that this Budget was the “continuation of the thrust” of his previous Budget, but he forgot to tell us how much of the previous Budget was achieved, at least until the infamous October crisis. It is unfair to make the President a whipping boy for all the failures of the Government. Achievement deficit, like several other deficits in the country, is a perennial problem of National Budgets in our blessed land.

The strength of any budget should be measured not by its aspirations and accounting techniques but by its plan of implementation. How is this Budget going to be implemented given the facts: (a) arunning war between the Prime Minister and President, in which the latter has determined to sabotage the Government, (b) at least one part of the country and its population feelingignored and frustrated because of the Government’s lacklustre response to itspre- and post- war grievances, (c)the reign of rampant corruption and unchecked finance scandals, and (d) an incompetent public service.

Even in a country without these problems there is a time lag between budgetary declarations and implementation because the bureaucracy takes time to process the Minister’s intentions and policies. In the context of Sri Lanka, even if the current Government were to come back after the next election, it is doubtful whether even 50% of the Minister’s policies and measures would have seen completion in practice.Administrative corruption and incompetency is the biggest challenge facing any government in this country.

The Budget’s resolve to give incentives to the private sector by way of encouraging foreign direct investment, capital assistance to small and medium size enterprises, reforming educational curricula and teaching with a view to enhancing skills suited to modern economies, and measures to bring in more women into the workforce, are commendable aspirations. But they all depend on how the Government is going to tackle the fundamental issues mentioned above.

Although a budget is an economic document, it has to be implemented within the ruling political and administrative climate. That climate can be either conducive to implementingthe budget fully,or indifferent if not adversarial, working to either slow down or halt its implementation. Given the overwhelminglypoliticisedpublic service and trade unions, andthe President’s open declaration to actually bring down the Government, full implementation of the budget proposals is not guaranteed.

Facilities like capital assistance to small and medium size enterprises are also liable to be exploited by the corrupt and powerful unless there are strict guide lines for the selection of such enterprises. The rich and corrupt have ample ways of using Government concessions and facilities to enrich themselves. Even the FinanceMinister’s own Parliamentary colleagues are subject to influence by lobbyists and charlatans.

At least in a couple of my previous contributions to this journal, I have insisted that what Sri Lanka needs is a technocratic Cabinet with an iron fist at the top. Meritocracy should rule public service and administrative malfeasance must be punished without fear or favour. To do that,the rule of law must prevail and the judiciary must be totally independent. This is a basic necessity to revolutionise our culture of governance which is subject to all types of pulls and pushes. Without meritocracy, bureaucratic competence, rule of law and independence of the judiciary,maladministration will ruin all economic plans or National Budgets, howeversound they are in theory and practice. Good governance is an absolute necessity to pull the economy out of its present rut.

Managing an open economy is a complex task. Domestic upheavals can have international reverberations, as we witnessed in October last year, and international volatilities can have disastrous consequences to the domestic economy.To provide certainty at home is to win confidence abroad, and winning confidence abroad is to ensure profitability and progress at home.

“Although a budget is an economic document, it has to be implemented within the ruling political and administrative climate. That climate can be either conducive to implementing the budget fully, or indifferent if not adversarial, working to either slow down or halt its implementation. Given the overwhelmingly politicised public service and trade unions, andthe President’s open declaration to bring down the Government, full implementation of the budget proposals is not guaranteed.”

The best asset any country can have are its people. Without the co-operation of the people no government can translate its plans into action. That applies even to the Budget. Co-operation will come only if there is honesty and justice in governance.

We are not ruled by robots and machines but by fellow humans. This is why we need rules and guidance to direct our behaviour. No amount of religious preaching and worshipping can guarantee good governance. Only rationally drawn out rules and regulations with a humane face and strict separation of powers under a democratic constitution can deliver good governance.It is the absence of this that will make MinisterSamaraweera’s Budgetan instrument to empower the rich and corrupt.
(The writer is attached to the School of Business and Governance, Murdoch University, Western Australia.)