Wednesday, September 20, 2017

STEPS TO ESTABLISH THE FOUR TRANSITIONAL JUSTICE MECHANISMS HAVE TAKEN, SRI LANKA GOVT TELLS UN

Image: Then FM Mangala Samaraweera made Commitments to establish comprehensive TJ process at HRC 30.©slb.

Sri Lanka Brief20/09/2017

The government has taken steps to establish the four transitional justice mechanisms committed to under Resolutions 30/1 and 34/1, says  Sri Lanka’s draft National Report for the Universal Periodic Review (UPR) of Human Rights to be held in November this year. It also says implies that the draft laws on a truth-seeking mechanism and Office of Reparations has been sent to the Attorney General for vetting for constitutional compliance.

None of these  drafts laws are in public domain and there has been no public discussion on these ‘drafts’.

Here is the relevant paragraph in the UPR submission:  “First, in August 2016, it enacted legislation to establish the Office on Missing Persons. Second, a Working Group comprising senior academics, government officials and transitional justice experts was appointed to draft legislation on a truth-seeking mechanism. The recommendations of the above mentioned CTF were fully considered in the drafting process. Third, a Reparations Technical Committee was appointed to draft legislation on the establishment of an Office  Working DRAFT as at 19 June 2017 of Reparations. The report of the Task Force, and the views of a number of state ministries and public officials with experience in granting reparations were considered in the drafting process. The draft laws on a truth-seeking mechanism and Office of Reparations will be presented to Cabinet once the drafts are vetted by the Attorney General for constitutional compliance.”

Relevant sections 0f the draft report follows:

38. The GOSL co-sponsored UNHRC resolutions 30/1 and 34/1 titled ‘Promoting reconciliation, accountability and human rights in Sri Lanka’ in September 2015 and March 2017 respectively. The resolutions set out Sri Lanka’s broad commitments to promote reconciliation, ensure accountability for alleged abuses of international human rights law and IHL during the war, and improve the human rights situation in the country.

The constructive recommendations of the Lessons Learnt and Reconciliation Commission (LLRC) form part of the substance of the resolutions. The LLRC report was also a core document in the formulation of the NHRAP 2017-2021. Hence the government has sought to implement the recommendations of the LLRC via the fulfilment of its commitments under the resolution and the action points in the NHRAP.

The resolutions specifically commit to the establishment of transitional justice mechanisms including an Office on Missing Persons, a truth-seeking commission, an Office on Reparations, and a special court with independent counsel.

39. Sri Lanka established three new agencies namely, the Ministry of National Integration and Reconciliation (MNIR) with H.E. the President as the Minister, the Ministry of National Co-existence, Dialogue and Official Languages, and the Office for National Unity and Reconciliation (ONUR) as an agency of the MNIR, to spearhead programmes to usher in unity and reconciliation in the country. In consultation with the two relevant Ministries, the ONUR developed a draft National Policy on Reconciliation through a one-year process of consultations with multiple stakeholders, and through revisiting previous national initiatives on reconciliation including the LLRC’s report.

The Policy provides direction to the process of reconciliation in the country, and steers all  Working DRAFT as at 19 June 2017 stakeholders working on reconciliation towards a uniform and coherent approach to national reconciliation. Consequent to a joint Cabinet Memorandum submitted by H.E. the President as the Minister of National Integration and Reconciliation, and the Minister of National Co-existence, Dialogue and Official Languages, the Cabinet of Ministers approved the Policy for adoption in May 2017. ONUR, in collaboration with state and private media, and through social media, has meanwhile commenced a nationwide media campaign to foster the vision of a plural and inclusive Sri Lanka.

40. In December 2015, the government established the Secretariat for Coordinating Reconciliation Mechanisms (SCRM) under the Prime Minister’s Office to ensure that the commitments under UNHRC Resolution 30/1 are met. The SCRM was tasked with the design and facilitating implementation of the government’s transitional justice mechanisms, and also serves to facilitate and provide support to achieving the nonrecurrence agenda via ONUR.

41. Since its establishment, SCRM has entered into partnerships with the UN Country Team to ensure that international best practices are adopted in the design of the reconciliation mechanisms in Sri Lanka. These partnerships include those with UNDP, OHCHR, UN DPA, IOM, UNICEF, and UN Women. A Peace-building Priority Plan was accordingly formulated to provide support to actionable areas in the government’s reconciliation agenda. The SCRM is currently engaged with the UN in finalising the monitoring and evaluation components of the Plan in addition to finalising the concept notes which have been developed in close coordination with key government
stakeholders and UN agencies.

42. A high-level Steering Committee on Reconciliation was established to provide overall direction to all activities concerned with reconciliation and non-recurrence in Sri Lanka. The Chairperson of ONUR, former President Chandrika Bandaranaike

Kumaratunga, chairs this Committee, and the Secretary General of the SCRM serves as the convenor of the Committee.

43. In January 2016, the government also appointed a Consultation Task Force (CTF) on processes relating to reconciliation and transitional justice. The CTF comprised reputed civil society representatives and was assisted by a Committee of Experts, and a Representatives Committee, which connected the task force to relevant stakeholders. The CTF carried out nationwide consultations and received over 7,000 submissions. Its final report was presented to government in January 2017, and is being considered in the process of preparing draft legislation to establish transitional justice mechanisms.

44. The government has taken steps to establish the four transitional justice mechanisms committed to under Resolutions 30/1 and 34/1. First, in August 2016, it enacted legislation to establish the Office on Missing Persons. Second, a Working Group comprising senior academics, government officials and transitional justice experts was appointed to draft legislation on a truth-seeking mechanism. The recommendations of the above mentioned CTF were fully considered in the drafting process. Third, a Reparations Technical Committee was appointed to draft legislation on the establishment of an Office  Working DRAFT as at 19 June 2017 of Reparations. The report of the Task Force, and the views of a number of state ministries and public officials with experience in granting reparations were considered in

the drafting process. The draft laws on a truth-seeking mechanism and Office of Reparations will be presented to Cabinet once the drafts are vetted by the Attorney General for constitutional compliance.
45. The government has also sought to promote reconciliation through short and medium term confidence building measures in the areas of land, education, livelihoods, language and psychosocial support. Many of these measures were in fact recommended by the LLRC.

46. The release of private land occupied by the military is another major priority of the government. 24,336.25 acres of private land have been released since the end of the war in 2009, out of which 4,190.58 acres have been released since January 2015. A total of 6051.36 acres of private land occupied by the military remain to be released.


Excerpts from Sri Lanka’s draft National Report for the Universal Periodic Review (UPR) of Human Rights

Backtracking on accountability measures will harm all Sri Lankans: Tamil leader

NewsIn.Asia

By  on 
Colombo, September 19::Backtracking and tardiness in the implementation of pledges in regard to accountability measures such as the ratification of the international convention on enforced disappearances, will harm all Sri Lankans, writes P.K.Balachandran in Daily Mirror.
Media reports state that, at the suggestion of President Maithripala Sirisena, the parliamentary debate on the Bill to ratify the International Convention for the Protection of All Persons from Enforced Disappearances (CPAPED) will not be held as scheduled on September 21.
The media also quoted Prime Minister Ranil Wickremesinghe as saying that the “Disappearances Bill” pertains only to future cases and not those of the past (including disappearances which had occurred during the war).
These two claims have pleased the Joint Opposition (JO) led by former President Mahinda Rajapakse and Sinhala nationalists outside the JO framework, because they imply that personnel of the tri-forces will be let off the hook. But the minority Tamils are extremely disappointed, if not livid. Of the two claims, the one made by the Prime Minister has hurt the Tamils a great deal.
“The whole purpose of the Disappearances Act will be defeated if the past is left out of its ambit,” said Mano Ganeshan, Minister for National Co-existence, Dialogue and Official Languages and leader of the Tamil Progressive Alliance (TPA).
“The very reason for the legislation is to inquire into the disappearances during the conflict, especially the last few years of the war. And most cases pertain to the Tamils,” he pointed out.
“We condemn the reported move to postpone the debate on the Disappearances Bill and the Prime Minister’s interpretation of the Bill’s applicability,” said M.A.Sumanthiran MP and top leader of the Tamil National Alliance (TNA).
“If the disappearance of the Tamils during the conflict and war can’t be inquired into, it means that the Tamils are not just second class citizens, but are fourth class citizens,” he asserted.
Sumanthiran said that the Government had been dragging its feet on the introduction of the Disappearances Bill and making the Office of Missing Persons (OMP) operational because of a “lack of courage and political will” in the face of opposition from the Rajapakse group.
“The reported decision not to hold a debate on the Disappearances Bill on Thursday (after having postponed it once earlier) only shows the Government’s pusillanimity,” the Tamil leader said.
According to Sumanthiran, if the Government issued a notification making the OMP operational from September 15 and declared its intention to re-introduce the Disappearances Bill on September 21, it was because President Sirisena was going to be in the UN to address the General Assembly on September 19.
Another reason was the recent speech made by the UN High Commissioner for Human Rights, Prince Zeid Ra’ad bin Hussein, castigating Sri Lanka for tardy and inadequate implementation of the resolution on accountability and reconciliation which it had co-sponsored at the UN Human Rights Council (UNHRC) in September 2015.



M.A.Sumanthiran.Photo. TNA

This was what Zeid said about Sri Lanka on the opening day of the 36 th. Session of the UNHRC last week: “I urge the Government to swiftly operationalize the Office of Missing Persons and to move faster on other essential confidence building measures, such as release of land occupied by the military, and resolving long-pending cases registered under the Prevention of Terrorism Act. I repeat my request for that Act to be replaced with a new law in line with international human rights standards.”
“In the North, protests by victims indicate their growing frustration over the slow pace of reforms. I encourage the Government to act on its commitment in Resolution 30/1 to establish transitional justice mechanisms and to establish a clear timeline and benchmarks for the implementation of these and other commitments.”
“This shouldn’t be viewed by the Government as a box-ticking exercise to placate the Council, but as an essential undertaking to address the rights of all its people.”
“The absence of credible action in Sri Lanka to ensure accountability for alleged violations of international human rights law and international humanitarian law makes the exercise of universal jurisdiction even more necessary.”
According to Sumanthiran, the Sri Lankan Government hopes that making the OMP operational and fixing a date for a debate on the Disappearances Bill will silence critics in the UN at New York and Geneva at least during President Sirisena’s sojourn in New York.
But unfortunately for the Government, JO leader G.L.Peiris let the cat out of the bag by claiming publicly, that the President had assured his group that the debate on the Disappearances Bill will not be held on September 21.
Postponement isn’t going to go down well with the powers-that-be in the UN and the international community, Sumanthiran warned.
He recalled what Zeid said about window-dressing for appearances’ sake. Zeid said that the accountability and reconciliation measures taken so far “should not be viewed by the Government as a box-ticking exercise to placate the Council, but as an essential undertaking to address the rights of all its people.”
Flawed OMP Gazette   
Soon after the gazette making the OMP operational from September 15 was issued, the Center for Policy Alternatives (CPA) pointed out that it wasn’t constitutional, implying that it could be challenged in court.
Translating the legalese in CPA’s statement into common language, Sumanthiran said: “As per 19A, the President can hold only two ministerial portfolios – those of Defense and Environment. He cannot be Minister of any other subject. But in violation of this constitutional provision, he had made himself the Minister of National Integration and Reconciliation. And then, now, in a further violation of the constitution, he has issued an important notification setting up the OMP as Minister National Integration and Reconciliation, a post he is constitutionally barred from occupying. Anybody can challenge this notification in the Supreme Court.”
“On this ground, the OMP may be scuttled,” Sumanthiran warned.
Disappearances Convention   
Article 2 of the International Convention Against Enforced Disappearances says that for the purposes of the Convention, “enforced disappearance” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”



Mano Ganeshan 3

This definition gives the impression that the Convention and the Bill to follow, will be targeting the Sri Lankan Security Forces and not the LTTE which is a non-State entity. This is a major worry among millions of Sri Lankans who are grateful to the armed forces of ridding the country of the scourge of terrorism.
But, as moderate Tamil leaders and even serving military commanders have said, enforced disappearances outside the framework of the law, can’t be permitted or condoned even if the perpetrator is a man in uniform. This basic principle is for the good of the forces and the people of Sri Lanka at large.
“If the Convention becomes part of domestic law ,then there will be no reason for the UN High Commissioner for Human Rights to complain and go on to say that it may be necessary to use the principle of Universal Jurisdiction in Sri Lanka’s case,” Sumanthiran argued.
The Tamil MP added that incidents of the kind which happened in Brazil against former Army Commander Gen.Jagath Jayasuriya (when he was threatened with arrest fo alleged war crimes) would not happen if Sri Lanka had a law banning enforced disappearances and trials were held.
The Convention will be useful to all except those who had indulged in abductions which the world considers heinous.
As regards the fear that the LTTE, which had abducted and executed countless Sri Lankans, including Tamils, will be allowed to go scot-free, Sumanthiran said that once the Convention is ratified, the spirit of a universal legal principle gets embedded in domestic law and cases against the LTTE can be filed and conducted.
Sumanthiran said that the TNA isn’t against LTTE cadres being proceeded against for abduction, so long as the due process is followed in letter and spirit and the application of the law is even handed.
(The featured image at the top shows Sri Lankan President Maitrhipala Sirisena and Prime Minister Ranil Wickremesinghe) 

Putting Sri Lanka’s Office of Missing Persons in Perspective

Operationalizing Sri Lanka’s Office of Missing Persons isn’t necessarily that significant.
Putting Sri Lanka’s Office of Missing Persons in Perspective
By Taylor Dibbert-September 19, 2017
The DiplomatSri Lanka’s Office of Missing Persons (OMP) became operational on September 15. The OMP is one of Colombo’s four big transitional justice mechanisms – the others being an office to handle reparations, a truth commission and a judicial mechanism to address allegations of wartime abuses.
Colombo announced an impressive transitional justice agenda two years ago, yet far too little has happened since then. The other three mechanisms have yet to be established.
Ostensibly, an operational OMP is a step in the right direction. But, for now, the efficacy of the body remains an open question. For example, how will it be staffed and resourced? How independent will it be? Others have raised important constitutional concerns about the OMP.
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Ruki Fernando, a Colombo-based human rights activist, has doubts about how much the OMP will be able to accomplish. “The OMP has the potential to find the truth about the fate and whereabouts of at least some of the disappeared persons, and lead towards criminal justice and reparations, but in the overall context it comes about, there is very little hope and confidence this could happen,” he notes. “A lot more will have to be done by the present government to build hope and confidence in the OMP.”
Here’s more from Fernando:
I spent last weekend, with some families whose loved ones had disappeared, from the 1980s to 2016. This was just after the latest announcement about the OMP. None of the families expressed enthusiasm, hope and confidence about the OMP or obtaining truth, justice and reparations in general. It’s understandable. The latest OMP announcement comes amidst reports of continuing abductions and disappearances in Colombo and the North in 2016-2017. It comes after reports of reprisals against a campaigning wife of a disappeared man and the intimidation of journalists covering a protest on disappearances. Tamil families of the disappeared have been at continuous roadside protests for seven months, in five districts in the North and East. But they have not received answers, despite reaching out to majority Sinhalese, coming to Colombo to talk to media, government officials and diplomats, and having had several meetings with various ministers. They managed to secure a meeting with the president after a determined five-hour-long blockade of the major highway to the North. But even the promise made by the president at that meeting to provide a list of those who surrendered to the Sri Lanka Army at the end of the war has not been kept for three months.
Time will tell if the operationalization of the OMP augurs a sincere commitment to a credible, comprehensive transitional justice process. What’s quite likely is that the timing of the president’s move is tied to the UN General Assembly, which opened its 72nd session on September 12. Sirisena is slated to speak today.
In short, this is probably more about cosmetic maneuvering, attempting to placate international actors and optics than anything else. “I still believe it is important to work towards a strong, independent, effective OMP, particularly through appointments and ensuring its legality is beyond doubt,” says Fernando. “It will be a mistake to discourage families from pursuing truth through the OMP, as much as it will be a mistake to prematurely raise hopes and praise the OMP ignoring the ground realities and overall context.”
The bottom line is that we don’t yet know how significant this latest piece of news is. What we do know is that – given all the false promises, empty rhetoric and contradictory statements from the coalition government – a heavy dose of skepticism is more than warranted.
*A version of this piece first appeared in Medium.

If concern is only for ‘disappearances in the future’ Maithri-Ranil ‘s political future too can disappear..!

-By Sandaruwan Senadheera-

LEN logo
(Lanka-e-News - 19.Sep.2017,11.30PM) Following the announcement made by Prime Minister (P.M.) Ranil Wickremesinghe regarding  the proposed Commission based on the agreement which  has now been signed pertaining to missing persons, that  the proposed enactment will not have retrospective operation and will apply to the future disappearances only , has incurred the disillusionment and displeasure of  the masses that made supreme sacrifices to elect the good governance government .

After  Lanka e news posted  the report revealing P.M.’s statement  , Sri Lankans within and outside the country in large numbers  expressed their resentment against the government over this announcement to Lanka e news via phone.

In a nutshell …

It is of course true history is written by those who won the war , and not by the vanquished.  In the same way , the victors have never become wrongdoers owing to the war . Therefore the question is not which government was in power when the war was fought , rather it is for the present government to understand and address  the issues as victors.
It is an indisputable fact that the issue of missing persons  is not relating only to those who disappeared during the war. It concerns those who are now living. It is a burning issue of the relatives living now who are not sure whether those who disappeared definitely died during the war.
It should not be the issue for the group that is presently ruling whether those who are living or missing are Tamils , Muslims or Sinhalese. In the  circumstances , the present government must address this issue from the standpoint of those who are presently living and in grief , with a view to redress  their woes,  without getting itself too overwound   on behalf of an individual and with his rights who is going to be an accused  henceforth . 
Those who disappeared went missing in the recent past and are not of  the ‘future’. If the government is to search for only those who go missing in the future ? Is that   an index it is anticipating disappearances on a mass scale in the future ?
The relatives living  in the North have been  staging a fast for the last over 200 days demanding that some statement be issued  regarding the missing persons. Though the government officials began a search as soon as the fast was commenced , nothing is heard or nothing is being done about it  now. 
Following P.M.’s announcement , it will be a matter for surprise if these relatives who are  staging the fast upon realizing  they have been fooled by the government  do not commit suicide . This is because their relatives have gone missing during the past and not in the ‘ future’. This announcement is most rudely shocking because 80% of them cast their votes for this government to  install it in power. When the  80 % voters voted  for this government , didn’t they among other hopes think the new ‘godhead ’ would find for them their lost relatives or at least furnish an answer ?   Hence , hasn’t this statement of P.M. devastated their entire hopes , and the temple they built for this godhead is  now crumbling ?

Cannot get emotional …

Though politicians can have emotions, this decision should be arrived at by the rulers  without  getting  emotional .  Or , it may be like  a decision based on government ‘s policies That is, if all those over 55 years old must go on pension   , it means even  those who can work must go on pension at the age of 55. As citizens nothing can be done against that . 
This decision is  one like that because a search for missing persons of  a 30 years old war  cannot be concluded even in a 100 years. Moreover ,  today , it is only KP who is among the living of the leaders of LTTE which was  mostly responsible for the disappearances.  In any event today , it is the group whose  members in large numbers  fell  victims  should be given  consideration. Many in that group  are relatives of those  who went missing after they surrendered to the forces following  the conclusion of the war.
Based on the evidence in the  possession of Lanka  e news , about 1500 of those who surrendered , on the orders of Gotabaya were later taken away , and there is no record of what happened to them thereafter. Recently former army commander Sarath Fonseka who fought the war said , he is prepared to give evidence if necessary against Jagath Jayasuriya because the latter is answerable for those crimes.

Those disappearances did not occur during the war, but after the war ended on  2009-05-19 . LeN journalist, Prageeth  Ekneliyagoda went missing after the war. If truly the government is concerned about its citizens and acts more responsibly towards them , at least it could have made the new law operative from the day following the conclusion of the war.

Yet the government did not choose that direction. According to the P.M.,  investigations into forced disappearances  will relate only to those crimes committed  after October 2017. However the members of the Commission have still not been named.  Therefore , if  the citizens entertain the view that the government is indirectly protecting criminals of the Rajapakse era , they cannot be blamed. 

Let us forget they are Tamils for a moment …

Let us forget they are Tamils for the moment and  focus on the Sinhalese...
An elderly couple nearly 90 years old , living  in Pamunugama , Maharagama is known to the writer.  It was the family of late J. R. Jayawardena who were  the pet customers of the tailoring shop of this old man sewing coat and trousers only, at Slave Island. He was a staunch UNP er. His young son in the mid eighties became  a naval officer and was at  the battle front. He served as an engineering officer of the first Dora craft. The LTTE suicide squad attacked the Dora craft and sank it off the sea of Eastern province. 
The youth’s body was not found. The old couple for over 20 years entertained the belief that their son was captured by the LTTE , and were nursing hopes he would return. They cleaned the room of their son and kept the bed neat and ready daily thinking the son would return that day or next. Every new year they painted his room and adorned it with new curtains hoping he would at least arrive on the new year day. As the LTTE was getting defeated day by day , their hopes too began to grow that  their son would suddenly make his appearance. Finally the LTTE was fully  defeated , yet their son  did not return. Even today the old couple even for a moment does not think their son died.

That was a Sinhalese son who went  missing.  This elderly couple is of the opinion that KP who is now among the living is responsible for the disappearance of their son. Hence the  pronouncement made by P.M. recently only creates the impression in the minds of the citizens that  not only the Rajapakse criminals but even the LTTE criminals are being  protected. 
The new government should not  seek to go on its political journey after sweeping all these under the rug. Instead of that , the government must show  greater sympathy  and sincerity towards  the  citizens. If the government is not probing into the disappearances of the past , at least it should expeditiously fulfill the other  promises it made  on behalf of the victims.

There is nothing barring the government from paying compensation to the victims which was promised by it. There is nothing impeding the implementation of  the truth Commission it promised. By those actions at least the bitter feelings and abysmal  sufferings of those who are grieving can be minimized. Yet , it seems the government is only interested in doing lip service without trying to practically do something on their behalf. 
The pledges made by the government during the presidential elections in its 100 days program  were as follows :
29. A special protection scheme to those belonging to   all  sections of the people   who became  widows  consequent upon the war ,  and their dependents
93. As Sri Lanka has not signed the Rome covenant which  established the International court for war crimes , if there are war crime charges , those shall be tried by an independent court in SL with a view to administer justice (   a new country in 100 days – 2014-12-19)  . 
The pledges made by the government in this connection at the General elections…
 ‘The war which  commenced in 1983 ended  in 2009. Yet we have still failed as a country to establish true reconciliation. Hence the new government shall without any delay act to expunge the animosities    , and mete out justice to those who   suffered by finding solutions to their woes (UNP manifesto – reconciliation – 2015 07-23).’ 
Sadly ,  all these are wordy promises only  not translated to deed. According to the recent revelation of the Commission relating to the missing persons established belatedly or on the pressures of international community, no relief had been provided to any citizen .

Wheels are in motion but train is on wrong track !

After a government is installed in power it is bound to fulfill the aspirations of those forces that propelled it to victory. Sadly that is precisely what the good governance government has not done.  The government while  marginalizing its own agenda , is kowtowing to  the people discarded Rajapakses and their threats, and acting in a manner that is serving  their needs.

Owing to this effeminate and cowardly conduct , the good governance government is being roundly castigated not by the opponents but by the very forces  which elected it to power.
Leaders Maithripala Sirisena and Ranil Wickremesinghe may be of the view that the train they are in is moving ,simply because the wheels are in motion , while the train is on the wrong track.   Whereas we who are watching from the platform  can notice  the derailment much better. Both the leaders who got on  the train are unaware  that they are only  moving off the track .The more they think they are travelling ahead , the more  they are moving away from the original destination.

When Maithri and Ranil say , ‘only those who go missing in the future’ will be considered  ignoring their solemn pledges made to the people , it is only their political future that is missing  the target .  This is because that enunciation is hurting the feelings of the minorities most viciously, and is being  most rejected by them.
It is the leaders of the dominant race who by not fulfilling the hopes of the minorities from time to time paved the way for the 30 years old guerilla war . What Dudley and Bandaranaike did to Chelvanayagam then,  Maithri and Ranil are doing  today to Sampanthan which means the future is going to be bleak.
One truth stands out  pertaining to the measures taken by the two  leaders to investigate the missing persons. If the description  ‘consensual government’ is a synonym for ingratitude , certainly  that is the best description befitting this government. We say this because we were also victims  who suffered from the disappearance syndrome. 

By Sandaruwan Senadheera

Chief editor  - Lanka e News.
Translated by Jeff 
---------------------------
by     (2017-09-20 00:34:40)

Time to bring cultural rights in to the centre of human rights discourse

Time to bring cultural rights in to the centre of human rights discourse

Sep 19, 2017
A speech by Mr. Dharmasiri Bandaranayake published by the Asian Human Rights Commission
 Reaffirm the power of culture over the culture of power - Edward Said. It is a great honour to be invited to participate and speak at the Asian Human Rights Charter Workshop here at Gwangju, South Korea.
A heartfelt thank you to Mr. Basil Fernando & Mr. Bijo Francis of AHRC, Hong Kong and Mr. Kim Yang-rae, and Mrs. Inrae You of the May 18th Memorial Foundation.

Contempt of court case by BASL War path on contempt charges






2017-09-20

Bar Association of Sri Lanka (BASL) is on the war path against the Deputy Minister Ranjan Ramanayaka - an ardent opponent of bribery and corruption who campaigns with a vociferous voice and powerful activism to eradicate Bribery and Corruption. The BASL which is the only professional body of lawyers in Sri Lanka is contemplating filing a case against Ranjan alleging contempt for making derogatory and defamatory statements on the judiciary of bribery and corruption and the lawyers being corrupt and unprofessional.

After the decision by the Bar Association to file action on contempt, Ranjan apparently has intensified his campaign against the alleged corrupt judges and unprofessional conduct of lawyers. Lawyers are well aware of the famous Sinhala saying in villages that Litigation leads to destruction with main beneficiary being lawyers themselves and the legal concept of “locus Sandi”- principle of the legal right to institute proceedings in a given jurisdiction before commencement of any proceedings..

Ranjan has got into further difficulties by attacking Buddhist Clergy on a different issue as a strong and committed Christian in a traditional Christian environment. BASL was incorporated in 1974 amalgamating the traditional Bar Council and Law Society with a history since 1801 with inception of the Supreme Court and legal education being conducted through the Law College managed by the Council of Legal Education headed by the Chief Justice. BASL is armed with far reaching objects on rule of law, law and order, independence of the judiciary, protection of collective and individual human rights with a catalogue of other objects.

Every Judge is a lawyer who is automatically entitled to be a member of the association on the strength of the membership vested on taking oaths as a lawyer and judges and its disciplinary committee conducts inquiries on misbehaviour of the members of the profession. Association was on the wrong track in the past years during the tenures of immediate past presidents actively involved in “Regime Changes” and influencing wrong judicial appointments, (for which they were amply compensated) which is now led by a balance competent President and an able and efficient Secretary - the Chief Executive. It is learnt that the contempt charges are prepared by the Bar Association under Article 105 of the Constitution when there are pitfalls amongst academic and legal unresolved complications in the maze of undecided and uncertain arena, in the absence of certainties of law and procedure on this important aspect of the process acting as a major instrument to protect and maintain the dignity of the Judiciary considered with utmost respect by the litigants ad the legal profession, depending on the Judges chosen for the adjudication of their disputes and conflicts in relation to the State Governance and the Citizen.

There were numerous cross media interviews across all the printed and electronic media on the subject the public is eagerly watching with great interest. “Lord Hardwicke” in his judgement on contempt categorized the ingredients of the offence as scandalizing the Court, abusing parties, prejudicing the mankind against the office and Sri Lanka follows modified form of English system. Whether Ramanayaka is a party to commit these offences is the matter to be resolved through the complex contempt procedure.

Bribery and corruption including Bond scam and Ranjan’s silence 

There is no dispute that Bribery and Corruption is a criminal offence and a menace the citizen is clamouring an demanding to eradicate or at least minimize as it has spread as air and breath in the society bringing Sri Lanka to the 78th in the world index on Bribery and Corruption. Steps taken by successive governments to curb this menace have miserably failed to control which is now in the zenith endangering the life, developments and the economy of the country. Entire Governance and the system including the private sector are stinking with this curse.
Apart from the alleged scams of the previous governments which are rapidly being investigated, the current governance that emerged to clean it up is now immersed in mega scandals including the Bond Scam costing the nation trillions for 30 years in to the future, the alleged scam on the expressway in the public domain in the media and the and the 3.1 billion siphoned illegally from the vehicle permits imported for 100 members of the legislator including the deputy minister himself, who is alleged to have sold the permit with an enormous profit in addition to the continuous supplementary budgets for vehicles, repairs, and other expenditure amongst other parliamentary colleagues with no protest from a single member of the legislature - from the government and the opposition - including the Deputy Minister now immersed in a scandal on a “Quarry in Minuwangoda” and few other alleged scandals.

The dead silence of the Deputy Minister on the Bond and other mega scams raises eyebrows of the citizen expecting the whistle blowers to be impartial effective and not to be selective. The Bond Scam is said to be planned by the heads of pyramids and the toothless/powerless commissions are set up by them to distract the attention or sheer uneducated nature or ignorance of the top are a million dollar questions unresolved. The Deputy Minister is fiercely and vigorously criticizing the professional negligence of lawyers and integrity of judges naming and shaming them in public. Deputy Minister’s defamatory statements are in the public domain while it is an uphill task for the BASL to proceed with the complex cases towards convictions due to the complexity of the law and procedure of the subject matter which is discussed by the academics and professionals worldwide.

It looks as if the lawyers in glass houses are trying to stone outsiders when they should be whiter than white in the conduct on disciplinary, finance, and professional standards and good practice and whether they live up to the expectations are questioned by the Deputy Minister. Are most lawyers and judges compatible with international standards on knowledge service and conduct is a sensible question posed by many.

Charges against the Deputy Minister is disobedience and acts of discourtesy towards the court of law/judiciary disregarding the laws and wilfully failing the course of justice are some components of the offences now faced by Dr. Anura Padeniya of GMOA on a complaint by Sarath Wijesiriya and Gamini Uyangoda under 105(3) of the Constitution which are pending. There are a series of serious judgements by the most controversial Chief Justice on summary justice in cases of Tony Fernando, S. B. Dissanayake, are landmark cases in the field of Contempt charges alleged to be miscarriage of Justice in the absence of a procedure has led to criticism here and abroad demanding a proper procedure adopted by the Supreme Court which has the power to draw up rules with the inherent powers and relevant Articles in the Constitution.

Allegations and counter allegations 

Let us now look into the justifications, gravity and impact of the complaints alleging bribery and corruption of some members of the Judiciary and the behaviour unbecoming of members of the legal profession consisting of 8000 members based on the definition of bribery and corruption which involves offers gratifications or acceptance by a Judicial officer S 14 (a) (b) Public Servant S17, Government Contractor S18, punishable by penal code imported as far back as 1883, on state officers and not the private sector. Commission to investigate allegation of bribery and corruption (act no 4 of 1958) deals with this subject in detail the concept, definition and the procedure of the entire process.
One wonders whether Ranjan Ramanayaka has made the controversial and irresponsible statements with no knowledge on the subject matter or understanding the gravity for media attention, or in the capacity of a genuine social reformer and self-appointed activist against bribery and corruption which is rampant and all over the society as a cancer is a doubtful question faced by the citizen. Now that the matter is in the hands of the BASL unanimously backed by its membership, it is advisable for Ranjan to be ready for the defence to be adjudicated by a lawyer turned Judge and prosecuted and defended by lawyers unless he appears in court in person.

Ranjan enjoys all the privileges given to a member of the legislature not popular among the constituency on overspending by way of continuous additional/supplementary requests who sold his car permit which is illegal irregular and unbecoming of an activist expected to be clean as ever. His allegations against the judiciary and lawyers are yet to be proved as those are generalized statements left to the public and court to decide. Conducting of disciplinary inquiries and compelling judges to resign in lieu of dismissal on scams is a common scenario in any judicial system consisting of human beings with weaknesses. These are matters to be weighed before the legislature and the court of law in future litigation/s.

Duty towards citizen/society by legal profession 

Other allegations on the lawyers/legal profession are on incompetency, professional negligence, laws delays, absence of acknowledgement of fees, defects in the disciplinary procedure of the lawyers are matters the lawyers /legal profession should give serious consideration to. How many lawyers follow the Consumer Affairs Authority act no 9 of 2003 and practice rules in Sri Lanka requiring the professional to issue a receipt for the services rendered (S75). How many lawyers issue receipts and declare their high fees charged these days on highly contested commercial disputes running into millions/billions which is rigorously implemented in the UK by the Solicitor’s Regulatory body, and the slow pace and inefficiency in the complaints procedure of the litigants are matters the BASL should take into serious consideration.

It is in the public domain that a vociferous lawyer now dissociated with a wealthy NGO engaged “in regime change” was amply compensated by being retained for an inquiry which has taken a few days who charged nearly Rs. 4 million and not given the breakdown as required by rules in Sri Lankan jurisdictions and which is an offence in the UK and Commonwealth jurisdictions, as alleged in various websites. Nowadays fees are taken in millions monopolising the profession in some areas. In the UK the disciplinary inquiry system is streamlined with laymen too on the inquiry board and removing the solicitors from the roll of solicitors is a common occurrence. Ranjan Ramanayaka may be justified in putting some errant lawyers on the dock on corrupt practices, dishonesty and inefficiency.

Way forward 

These threat and counter threats are eye openers for the legislature and the professionals tarnishing the image of the citizen and themselves with the protection of parliamentary privileges and powers of powerful legal profession/lawyers dominating the Executive and Administrations which requires complete rethinking and overhaul the practice guidelines, conventions good practice, and good governance with no corruption and misuse of public funds.

The BASL has not fulfilled their obligations and duties towards the nation on Constitution-making process which is imminent when local and international invisible forces with different agendas are busy in formulating the process of drafting of constitutions directing, advising and arms twisting in the drafting process of the supreme law of the nation deciding the fate of the future of the nation and future generations!

Author is a former Secretary of the BASL and ex-ambassador takes full responsibility of the contents and could be contacted on sarath7@hotmail.co.uk 

Sarath Fonseka says denied visa to UN due to war crimes allegations

Home
19 Sep  2017
Sarath Fonseka, Sri Lanka’s former army chief, has said he was denied a visa to attend the UN general assembly because of unresolved war crimes allegations against the military.
The war-time commander and now minister of regional development claimed he was due to travel to New York with President Sirisena this week, but was the only member of the Sri Lankan delegation to be denied a visa.
"I was not given a visa because of the war crimes allegations against the military," Fonseka told reporters, according to AFP. "That is why I say they must be investigated."
The ‘excesses’ by a "few" during the final stages of the island's war should not tarnish the image of the Sri Lankan armed forces, Fonseka is reported to have said.
Read more on the Daily Mail.

Is Sri Lanka ready for the 2025 growth agenda?


logoTuesday, 19 September 2017 

Vision 2025 requires strong implementation, which is the issue in Sri Lanka

The other day the President and Prime Minister launched the 2025 vision for Sri Lanka which was incidentally the third policy statement of the Government since coming to power in 2015. My view is that the continuous changes to policy is important and I look at the vision 2025 in a positive manner given that the macroeconomy keeps changing so drastically today.

Moody’s – negative rating

The most recent development from the global market was the rating agency Moody’s downgrading the country’s banking sector from ‘Stable’ to ‘Negative’ due to the increasing exposure on the property sector. Analysts speculate that the NPL will increase from the current 2.57% to around 5% in the backdrop of the imports of construction items that was growing at 8% as at end April 2017 declining to 3.6% with May recording a performance of 0.3% and June at -6.5% which does not augur well for the number one driver of the economy.

The second indicator that is worrying in the slipping numbers of the blue-eyed sector – tourism. The growth as at now is at just 3.6% and the key market China being on a downward growth agenda is not very healthy. The silver lining for the Sri Lankan economy is the export growth of 5.2% in the first half of the year and for the fourth month in succession is demonstrating a positive growth. The performance of the textile and garment sector is not healthy at a -5.2% performance even with the GSP+ concession coming to play which might get corrected with the seasonal orders hitting the export numbers say the specialists.



Vision 2025

The policy statement vision 2025 is based on the theme of Sri Lankan being a rich country by 2025. The strategy being, Sri Lanka to be a hub in the Indian Ocean with a knowledge-based highly-competitive social-market economy. The statement also states that an environment which is positive will lead to higher income and better standard of living. The key actions of ‘empowered Sri Lanka’ also include housing for all and improved quality of life for citizens which are interesting thoughts given that as at now the economy has been moving in the reverse direction.

A key point highlighted was the export-oriented approach to economic growth which included connecting the domestic economy to the global supply chain network (GNPs – Global Production Network). Stamping out of corruption as a value system encouraging competition on the proposition of transparency on an inclusive economy is for sure a strategy on the correct path. But sadly once again we see that the current performance is on the absolute reverse agenda which means unless a drastic new approach to governance comes to play the vision 2025 will be a nonstarter just like the last two policy statements made since 2015.


2017 trajectory – worrying 

If we take a ‘as is situational analysis’ as at 2017, we see the quality of life of a Sri Lankan household dropping for the first time in three years. Overall consumption of the FMCG industry at a household level has declined by -3.1% in Q1 to -2.5% in Q2, 2017 as per the latest report by Nielsen. What this means is that either people are moving out of the category or they are reducing the usage of product. This is the base that the Government will have to reverse if we want to improve average Sri Lankans’ quality of life.

On the tourism sector, we see the industry at the crossroads with just 1.21 million visitors in the first seven months of the year (Jan-July) as against the 1.17 million performance last year, registering a marginal growth of 3.6% bringing in a revenue of 2.08 billion dollars into the country. Whilst the above tourism performance can be seen as positive, the fact remains that for the seven months, almost four months have recorded a declining number as against last year. February -0.1%, March-2.5%, May-2.5% and July-1.8%.

The much-talked-about global marketing campaign has yet not taken off ground and we recently heard that the digital communication campaign will break ground only in 2018. The industry voices that this is not what the country expected from a progressive government. In my view it a systemic issue rather than one that is personality driven given the current tender procedure being the biggest blocker to drive aggressive strategy.

If we take the key foreign exchange earner for Sri Lanka, worker remittances, the performance in the first five months is at $ 3.3 billion, registering a decline of 7.2% which once again indicates the changing quality of life on the beneficiary households. This also indicates the challenges of making Sri Lanka a rich country as per the 2025 vision and the implications to increasing the quality of life. This is the reason why top economists say that it is best to drive the internal economic growth agenda rather than expect too much from the troubled global economy.

On the proposition of Sri Lanka being an export-oriented hub we see the current export revenue is at $ 5.3 billion (Jan-June) at a growth of 5.2% vs. last year. However what is worrying is that export revenues from the apparel industry are registering a decline of 5.2% at a performance of $2.3 billion dollars which means that the GSP+ benefits have yet not kicked into the system. The revised Government target of 18 billion dollars performance by 2020 is highly unlikely given the current trajectory. Vision 2025 states a 20 billion export number which in my view is unattainable as we are looking at an annual growth of 15% to achieve this number which is a require serious policy changes on the supply chain side.

Let’s accept it, Sri Lanka’s export challenge is not demand driven. The issue is the constrained supply. The export performance of the FTA with India remains at a low ebb of just 600 odd million whilst the overall balance of trade being skewed to India does not give any positive vibes of how Sri Lanka can be a hub for South Asia.


The hub issue – ETCA with India?

Whilst the above realities needs focused attention to see the 2025 vision of Sri Lanka being an economic hub, the ETCA partnership will be pivotal. However the problem with ECTA is more on a qualitative issue than the logic of comparative advantage.

Since I have worked very closely with Indian companies in my 17-year multinational career, if one draws a parallel on corporate lifestyle, the aggressive behaviour of an Indian – be it driving a car to office or at a typical routine at work – is very different to a corporate executive of Sri Lanka. The typical working time of an Indian ranges between 12-15 hours, where limited time is spent with family or at the gym and the overall objective being ‘getting ahead’.

On the other hand, if we take a typical Sri Lankan corporate lifestyle, we have an approach of being somewhat cautious, laidback, content and wanting to be at the gym by six the latest for that daily exercise routine or being with one’s family, which are typical island mentality work ethics that do not hold ground for a charged-up economy as per the management theorist list Hofstede. We will have to move to an aggressive corporate lifestyle which is more masculine in nature as per the works of Hofstede if we are to make the 2025 vision a reality.

Whilst agreeing to a certain extent with the rhetoric that working with Indians is tough and that the Indian mentality never fits into a Sri Lankan culture has some truth, it needs to be taken into account if Sri Lanka is serious about being an economic hub of South Asia. This is especially true given that the unemployment rate is below 5% and we will have no option but to import human capital from countries like India to meet the 18 billion dollar export target, 7.5 billion dollar tourism target and five billion dollar IT/BPO target set by the respective industries.


Risk/corruption balance?

From a policy perspective too, we have a challenge given that public sector institutions prefer to follow Government procedure rather than take risks. This will hold ground more, given the recent three-year RI sentence on the highest-ranking public sector official who just followed orders.

This means that unless serious policy reforms come into play as per the dynamic market environment, we cannot expect the key policy decisions to be implemented that can lead to ensuring the vision 2025 becoming a reality.

On a corporate executive working style, Sri Lanka will have to bring in a culture that is strong and masculine on leadership style based on the ethos of aggressiveness, risk taking, bold and achievement-driven rather than just pleasing the people around. This will require radical changes to the working style of the private sector which is a tough one for the vision 2025 to be a reality.


Vision 2025?

Hence, we see that Sri Lanka will have perform a 360-degree change on most fronts if we are to achieve the vision 2025 rich country proposition. If one does a dip stick evaluation the vision 2025 as at now is only a piece of paper.

A very respected public sector person once said even if Sri Lanka implements the 1960 plans, we can be a rich country !

(The author can be contacted on rohantha.athukorala1@gmail.com. The thoughts are strictly his personal views and not the views of the organisation he serves.)

NUTA Clowning Over Rohingya Mass Tragedy

Shyamon Jayasinghe
Did the Sri Lanka government ever chase away the entire Tamil population because of terrorist pockets within them? This is like giving chemotherapy”
logoA Sri Lanka organisation called, “National University Teachers Association, (NUTA)” under the hand of its spokesperson, Dr Channa Jayasumana, has circulated via internet a letter they are said to have handed over to Myanmar Ambassador in Colombo. The letter is addressed to “His Excellency the President of the Republic of the Union of Myanmar.” As an exercise in self-deception, readers should read the letter and I will bring up the poverty of the NUTA brief for all to see.
I am amused myself that I have had to critique an association of University Teachers. However, an overriding sense of humanity compels me to invade the precincts of academia.
My comments will follow the letter, which I reproduce as follows:
“13th September 2017  at Colombo
Mr. Htin Kyaw
His Excellency the President of the Republic of the Union of Myanmar.
Your Excellency,
National University Teachers Association (NUTA) Sri Lanka condemns international campaign against Myanmar Buddhists
Sri Lanka and Myanmar has been maintaining a close cultural, political and economic relationship over a millennium. Both are two of the last remaining Theravada Buddhist countries.
We are closely monitoring the situation in Rakhine State, Myanmar over the last couple of weeks. We understood that pro-western media are intentionally distributing fabricated news and incorrectly captioning pictures to purposely dis-inform the international community about Myanmar Buddhists. We are concerned that the majority Buddhist Myanmar is getting an unfair and biased media coverage.
Further we have noticed fake news posted on social media of events purporting to have occurred in Myanmar but actually happening in other places, which are now circulating via the internet. These intentionally fabricated news and photos are being used by international media, international human rights organizations, certain governments and anti Buddhist groups in an attempt to cause misunderstanding about Myanmar Buddhists.
Current situation in Rakhine is very much similar to the situation in late 1970s and early 1980s in northern part of the Sri Lanka where LTTE terrorists started their activities with the blessing of India, western governments and NGOs. Interestingly British are accountable for the unfolding tragedy in both countries through their divide and rule policies. 
As a responsible Association representing university academics in Sri Lanka, the National University Teachers’ Association unequivocally condemns attempt to ostracize the Myanmar government and Myanmar Buddhists. We stand in solidarity with the people of Myanmar in support of protecting Theravada Buddhism, sovereignty, territorial integrity and cultural identity of Myanmar.
May triple gem bless you,
On behalf of National University Teachers’ Association, Sri Lanka
Dr Channa Jayasumana
General Secretary” 

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