Thursday, August 24, 2017

Sri Lanka: New Constitution a Must

Friday Forum points out areas that need to be addressed
( August 23, 2017, Colombo, Sri Lanka Guardian) The peoples’ verdict at the Presidential election of January 2015 reflected the mandate of the people for a new constitution to remedy democratic deficits in Sri Lanka’s governance arrangements, nearly 40 years after the enactment of the current constitution. A year later, after the Parliamentary election of the same year, the process for the enactment of a new constitution was initiated on 9th March 2016 with the passing of the Framework Resolution for the appointment of the Constitutional Assembly. This assembly was a representative body consisting of all 225 members of Parliament sitting as a committee to draft proposals for a new constitution, chaired by the Speaker.

The Constitutional Assembly appointed six sub-committees composed of Parliamentarians to submit draft proposals on the topics – Fundamental Rights, Public Service, Judiciary, Public Finance, Law and Order and Centre Periphery Relations. In contrast with the undertaking of the government in the Framework Resolution, there was very poor public information and engagement about the subsequent process of drafting, raising serious concerns about both its transparency and legitimacy. By end 2016, all six sub-committees had submitted their draft proposals. The Constitutional Assembly also appointed a Steering Committee, chaired by the Prime Minister, which is widely representative of all political parties. The mandate of the Steering Committee was to present a draft proposal for a new constitution to the Constitutional Assembly.
A profoundly important feature of the ongoing constitutional process was the open and participatory process with which it was initiated. Even prior to the passing of the Framework Resolution, a Public Representations Committee for Constitutional Reforms (PRC) was nominated by all political parties and appointed by the cabinet of ministers to seek the views of the people on the contents of a new constitution for Sri Lanka. Members of the public and interested groups were able to make direct representations at the sittings of the PRC in every district of the country and also at the sittings of the sub-committees in Parliament. This open and participatory process is in stark contrast to the passing of the 1972 and 1978 Constitutions, drafted by the political parties which had won election victories, enabling them to enact constitutions of their choosing. The public responded actively to this unprecedented opportunity, and the subsequent report of the PRC and the sub-committee reports did reflect the range of views held by Sri Lankan citizens on key elements of a future constitution. It is very regrettable that following the publication of the PRC report there has been little clarity about how the views of the people of this country have informed the subsequent process.
It is of great concern and disappointment that this process appears to have reached an impasse. The six sub-committee reports were supposed to have been debated by the Constitutional Assembly in January of this year but this was postponed indefinitely. Thereafter little or no progress has been made in resolving the outstanding issues. Developing tensions between the two factions of the so-called National Unity Government also appear to be hampering the process. The initial time frame for the Constitutional Assembly to debate the draft constitutional proposals is long past and no definite deadline has been set for this process. In the meantime some political parties and prominent Buddhist clergy have publicly taken the position that a new constitution is unnecessary. It is extremely disheartening thatthese groups seek to override the will of the people.
Contentious issues to be resolved in the draft constitution include the abolition of the Executive Presidency and the extent of power sharing between the centre and the provinces. There has been a long-standing need to replace the powerful Executive Presidency with a more democratic Parliamentary system that ensures the sovereignty of the people through the undisturbed parallel functioning and the separation of powers of the three pillars of government, i.e. the Executive, the Legislature and the Judiciary. Strengthening the independence of the judiciary is an absolute necessity, and must include provisions on the appointment and dismissal of judges. We also must not overlook the need for an equally independent, fearless and professional public service that must have the capacity to run the country without being subject to the direction, oversight and control of ministers and without interference from them. The powers of the ministers must be limited to policymaking, and implementation of policies must be left to professional public servants. Further, meaningful power sharing and strengthened human rights is critical for rebuilding the political structure of the country, and is long overdue, nearly eight years after the end of the war. The new constitution must fulfill the need to ensure good governance, rule of law, the dignity of every citizen, national unity and meaningful reconciliation. The supremacy of the constitution and the sovereignty of the people must be embedded in its provisions.
A new constitution has been mandated by the people and law makers must give it the highest priority. Any attempt to subvert this process for cheap political gain by those elected by the people, cannot and must not be tolerated. We urge the Prime Minister and members of the Steering Committee to ensure that the draft constitutional proposals are put before the Constitutional Assembly within the next three months at least, and are also made available to the public. We also urge all representatives of the people in Parliament, both in government and the opposition, to consider the proposals positively and in the best interests of all the people of this country. We acknowledge that the task of drafting a new constitution is not an easy one, given the multi-ethnic-religious constituency of the island nation. It is nonetheless imperative that the process is followed through to the end, and the voice of the people, made clear at the last two elections, be heard.
Mr. Priyantha Gamage​​​​​ Bishop Duleep de Chickera
On behalf of the Friday Forum:
Dr. A.C.Visvalingam, Prof. Savitri Goonesekere, Mr. S.C.C.Elankovan, Mr. Faiz-ur.Rahman, Rev. Dr. Jayasiri Peiris, Mr. Danesh Casie-Chetty, Dr. Upatissa Pethiyagoda, Mr. PulasthiHewamanna, Mr. Chandra Jayaratne, Mr. Ananda Galappaththi, Prof. Gameela Samarasinghe, Mr. Javid Yusuf, Prof. ArjunaAluwihare, Mr. Dhammapala Wijayanandana, Mr. Prashan de Visser and Ms. Shanthi Dias

Resentful dependency is killing us, because it is stifling our movement…



“It is not inequality which is the real misfortune, it is dependence.”
- Voltaire

  • Resentful dependency kills man’s free will
  • Critics of present govt. are senior level executives in private sector
  • Country’s economic development has been stalled
2017-08-23

Resentful dependency, a human condition that is borne out of an amalgam of conditions producing resentment of the ultimate product, yet creates an unmistakable and consistent dependency on that resultant condition. It is cruel in inherent nature and the results it produces. It kills man’s free will; it destroys his free movement in the realm of ideas; it deadens intellectual curiosity and it leads to a dull and obsequious existence. That is not a very promising way of living. But that is the way our people have chosen to spend their lives.

That resentful dependency has taken over the former lackeys and henchmen of the Rajapaksas. The so-called Joint Opposition is made up of all those lackeys and henchmen. These dregs of the political landscape of Sri Lanka are hanging on to the one clear master they had during those dark and deeply diabolical days. Being fully entrenched in a corrupt society which was a creation of their own cabal-driven machinery of state, they were compelled to stay close to their ‘boss’. In the hope that they would be the recipients of the deliberately-thrown residue of ill-gotten wealth, the henchmen and lackeys had one single function. It was to buttress the position of their master. A culture that was so created by this closely-knit society was a clear deviation from the traditional rituals and practices of a historically rich but emotionally not-yet-charged people. That culture was first embraced by the immediate cohorts of the Rajapaksas. Then it dribbled down the societal ladder, convincing the lower rungs that it was the new reality.
Politicians who were invigorated by a dense dose of political Viagra resorted to any and every means to lure the gullible mass of supporters to this new culture and the supporters became willing victims to this magical and nameless lust. That culture consumed a value system that had been based on mutual trust, selfless parental love, ungarnished simplicity and unhesitant sacrifice. In its place is now an unreservedly false system of destructive lifestyle, mistakenly called ‘practical living’. Resentful dependency is cultivating and nurturing this new system everywhere. And the so-called efficient private sector, which should be the driving force of the economy which is reasonably free of stifling regulations and fear of confiscation cum nationalization, is even worse affected by the vagaries of this resentful dependency.
The Foreign Service which was at the service of an uneducated political ruffian during last regime regained its rightful place and status under Mangala Samaraweera
Under the government of Maithripala Sirisena and Ranil Wickremesinghe, mere pretence of possessing free will and see-through postures have come to stay. But economic development has been stalled. The harshest critics of the present government are the senior level executives in the private sector who were the recipients of various bones and partially-consumed financial carcasses. The salivating pukka sahibs of this sector of our economic drivers cannot simply do away with the extra cash that came with the debris of resentful dependency. Their allegiance to the former regime had tangible rewards. Invitations to cocktail parties, wining and dining with visiting foreign dignitaries and being seen with the first family, mattered particularly to the fair spouses of the leaders of the private sector. That is merely an extension of that political allegiance they had for the ruling cabal.

A structure that was based on political allegiance and personal relationship and loyalty began to manifest itself. This structure was more of an emotional and psychological one than a real and physical one. Its existence was more noticeable in the way in which various deals and businesses were consummated. Unsolicited contracts with huge profit margins ascribed to the contractor became the order of the day, especially amongst the Ministers who were eagerly looking forward to a portion of these large profits collected by the contractors. When government contracts were unsolicited, the final prices were invariably inflated and way over and above the estimated prices for such contracts.
A portion of these profits is given to those Ministers who were primarily responsible for the work involved in those contracts.

For instance, a project that would cost, according to the engineer’s estimates, Rs. X, an enormous amount is added far above the usual margins to the costs. That extra amount is distributed among the politicos and officials who are intricately engaged in the workings of those costs and estimates. The tax payer is bearing the burden of those additional costs by way of increased prices on essential items such as food, transport and other facilities that are provided by the government. Costs are added but no real value is ascribed to the projects. Augmented costs are shrouded in in largely inflated prices and articulated by the politicos as a ‘value addition’!

These contractors were seen with their spouses at cocktail parties and banquets hosted by the then President and his relations who were in the same Cabinet. That was considered by these private sector-business vultures as a great benefit that comes their way. It gave them a sense of recognition which they could brag about in the elite gatherings. The spouses went to town on their jewellery and clothing. A vulgar display of wealth and power was visible; an unequivocal expression of political power and proximity to the powers that gave them an artificial elevation to the elites in our society that has already been polluted by deal-makers and merchants of the flesh and other nefarious deeds. Resentful dependency had already been built into these henchmen and cohorts of the Rajapaksas.

It was a sign of a decadent culture whose beginnings were more destructive than the middle and the end, if they materialize.   When the local scholars and pundits write about the emergence of a dynamic and vibrant brand of an elite in society, they ignore these morbid groups of political vultures whose money is ‘new’ and ill-gotten. But when one finds, among these new elites, some usual suspects whose monies could be traced back to a couple of generations prior to them, one wonders where the system failed and being responsible for making these reasonable businessmen into blind and greedy traders of allegiances and relationships.

The system has caught them and entranced them into practices which were once tabooed from their forefathers’ operational demeanour. The new leaders of new elites are now the leaders of our society. They advised the politicos as to what project to undertake and what not to. After being hosted to half a bottle of whiskey and roast chicken by the head of the land, they forgot their beginnings that were bred and born in mediocrity and below average education and learning.

The image of victory over the LTTE has faded. Patriotism has receded to a back seat. National security and empty sloganeering around national security are no longer taken as serious attempts at offering of realistic solutions for real problems the country faces. The Foreign Service which was at the service of an uneducated political ruffian during the last regime regained its rightful place and status under Mangala Samaraweera who, according to our own overseas Civil Servants, as the best Foreign Minister Sri Lanka had. I have no doubt he will do and equally effective job as new Finance Minister. A man, whatever his personal likes and dislikes are, driven by idealism and goal oriented personal philosophy, Mangala Samaraweera is one member of the current Cabinet of Ministers who could deliver the goods.

On one end of the political spectrum are these new elite of culture vultures and on the other are the politicos who are owned by these culture vultures. In the middle are the mass of people whose ideas and ideals have been destroyed by this double-edged culture. The people have been steadily watching this spectacle played out behind the curtains of slogans and pseudo-patriotic rhetoric. They waited for ten years to oust that clan and their indefensible greedy acts. Now the eyes and ears are in the duo of Maithripala Sirisena and Ranil Wickremasinghe. Corruption and misdeeds are being exposed and some have been convicted, whatever the judicial findings and verdict would be, by the public court of opinion. Such openness was not in existence in the realm of government during the last regime.

Yet the tragic feature of the system is, it is increasingly becoming susceptible to the offerings of the new elite whose greed is beyond any limits. Indulgences in extra-civil activities, spending funded by casino-winnings and unsolicited contract profits, the new leaders of resentful dependency culture are oriented towards digging further down into the pit. The system has become more corrupting than corrupt. In such a tortuous context how can the masses extricate themselves from the system? The answer is evasive and not yet apparent on the horizon. A resentful people have become victims of their own making and neglect. Utterly unaware of the consequences, their plea of ignorance is no excuse for breaking the law.

Environmental Degradation In North Of Sri Lanka

Dr Noel Nadesan
logoHistory shows that many ancient cities were abandoned by people due to environmental degradation. It happed in many ancient civilisations. There were several reasons for this. In those times the global population was not so dense. Nor were there strict borders to control the movement of populations. Besides, plenty of land was available mass migration. Now we do not have that luxury any more.
I was surprised to learn that in the 16th century there was only three large cities with a population of hundred thousand people. They were Beijing, Cairo and the Aztec in Mexico. This last mentioned city was destroyed by the Spanish and the New Mexico city has now been built over the old city.
The current European big cities of Paris and London were built in the 17th and 18th centuries. People who had cultivated the common lands in the country areas lost their lands to the nobles and industrial owners, and the landless people migrated to big cities. Urbanisation increased all over the world. If we visit India, South Africa and Brazil you can see the chaotic process. Even in China where some urbanisation is taking place in some orderly fashion the impact of industrialisation is felt heavily.
Even Europeans had gone through the difficult process. The dirt and dust of London streets of 18th century can be seen in the novels of Charles Dickens.
The main task of the city administration is to provide the food and water and remove the waste in that comes out of urbanization. If you are wealthy It can provide you with money for food and water, but sewage and garbage is out of your control. It goes into the hands of city fathers. For instance, India’s richest man, Ambani, too is dependent on the Bombay municipality.
When I went to see the cultural remains of the Mayan peoples in the Yucatan Peninsula (Mexico), I thought I was learning something new in my old age.
The Yucatan Peninsula of Mexico was under the sea before two million years ago. Peninsula landscape was made of lime rocks and It was created from coral reef from the Atlantic ocean. These lime rocks came up with sea level changes due to the environment. However, the rains seeped through the ground and created many underground river systems. As a tourist I walked the rivers along a few kilometres. I could see how the water was running into the river and running for several kilo Meters. In those caves I saw the minerals were seeping through the lime rock roof and sediment as spikes. That scenery reminded me of Jaffna. As I was from Jaffna where most of the earth made from limestone which were a part of the coral reef in Palk Strait in geological times. This creates problems for the urbanised population. The Jaffna city does not have any common sewage system. However, every small plot of land has a water well and toilet and they are not far apart. So the water used for daily consumption gets polluted. Lime stone earth where heavy metal and minerals and agricultural chemical can diffuse more faster in the ground water system with global warming
I witnessed that people were burning plastic bottles polythene papers and old newspapers
Restaurants were serving hot lunch on plastic paper on top of the plates. They do not have to wash those plates.
Though I heard Government banned spitting in public, Lankan transport bus that I travelled Jaffna -Kandy was not following the law. The bus driver was spitting his red betel saliva out of his side window to the road. Though he had acquired the skill in spitting outside, I was worried because I was sitting behind him and the any chances of wind changing its direction was great. The bacteria flying in my direction was a real possibility and it went unchecked throughout the journey.
Speaking about the garbage mountain tragedy in Colombo, the informed source said to me, “When a German company came ready to recycle the garbage in Colombo, they backed away put off by heavy demands for by bribes.”
In conclusion, it is clear that corruption has become a primary source for environmental pollution. Add to this, the ignorance, and the incompetence of the politicians – some of whom in the North are bogged down in fighting each other — then you have a bad problem growing into a worse situation daily.
I wish to bring to notice of the public some of my observations.

Read More

Mangala explains the New tax scheme amended 111 times - a great boon for the country ! (video)


LEN logo(Lanka-e-News - 23.Aug.2017, 5.40PM)   The new Inland revenue tax bill dispenses with the indirect imposition of tax  on the ordinary people that had been  the cause of escalation of  the cost of living , and aims at directly taxing those who are earning  high incomes , is to be tabled in parliament on the 25 th . 
After the bill was first tabled in parliament , 111 amendments including those made by  the Supreme court  have been incorporated in it, minister of finance Mangala Samaraweera  revealed at a media briefing on 21st

In Sri Lanka , it is only as small as  20 % is direct taxation and is on   the government revenue  while the balance 80 % is constituted of indirect taxes collected from consumer goods of people . However in Malaysia it is the converse. There, indirect tax is 20 % and direct tax of 80 % is collected from those generating income. In India too it is  similar. Under the proposed new tax scheme those generating an income of Rs. 1.2 million per year are exempt from tax , while the rest have to pay direct taxes. By that the indirect taxation on the people can be dispensed with . 
This taxation is a great boon to the country . . Hence everybody  who shows true concern for the proletariat will not oppose this scheme. But , if this scheme is still opposed , it is only money launderers who will do that , the minister asserted. 
Deputy foreign minister Eran Wickremeratne also participated in this media conference.

The video footage is hereunder 
---------------------------
by     (2017-08-23 12:20:22)

DELAYS IN LEGAL SYSTEM, RULES OF LAW AND GOOD GOVERNANCE

Optimized-overloaded 

2017-08-23

Justice Delayed is Justice Denied

Hon William Gladstone said in the frequently used adage in the legal circle that “Justice Delayed is Justice denied” which is applicable to the justice system worldwide. [We inherited English legal principles of presumption of innocence and application of Rule of Law which means to act according to the existing legal framework, everyone should be treated equally before the law. Some of the main guiding principles of our legal system, the world has rated high despite isolated dark spots which are common worldwide in all jurisdictions].
  • AG’s Dept. is overloaded with work with less staff
  • Some murder cases are dragged for over 20 years!
  • politicos earn Rs. 3.1bn on illegal selling of vehicle permits
The criminal and civil procedure, evidence ordinance and most of the legislation in practice in Sri Lanka are imported from the British and applied with subsequent amendments which are alien archaic and complicated to us using a foreign language. In addition we are muddled with the Sinhala, Tamil and Muslim personal laws and Roman Dutch Law on property matters. Citizen is suffering from the time the foreign legal system is introduced, in which one of the classic examples of miscarriage of justice is the story of “Silindu” in the story “Baddagama” by the historian Leonard Wolf about a case in deep down south “Walasmulla” in which the justice was meted with the foreign language at the cost of the innocent villagers life and freedom which is continuing in everyday in the maize of litigation every day.
Some murder and rape cases have taken decades when a child rape victim gives evidence after 15 years and murder cases take sometimes 20 years when the witnesses are dead and the productions have gone missing
Laws delays are worldwide and common to any jurisdiction. Law Society Gazette in the UK complaints of a backlog of 63,000 appeals pending and Vinod’s case in India of the rape and murder of a 5-year-old child took 22 years with 36 witnesses with ample similar examples in Sri Lanka. In Sri Lanka there are land/partition cases that run to decades and generations. In Sri Lanka the hearing of a rape victim and the murder sometimes takes 15 to 20 years on average. In the history of Bribery cases only a few have been successful so far despite the enormous funds pumped and they are hardly heard in the media. Laws delays are frequent in western jurisdictions despite modern trends and sophisticated equipment with sufficient funds to the mechanism on delivery of justice.

Best mechanism was introduced to Sri Lanka by the act No. 44 of Administration of Justice Act introduced by Felix Dias Bandaraneike who was unpopular among the legal profession for the ground breaking reforms to expedite the justice system that was thrown away by the legal profession headed by the eminent lawyer Dr. H. W. Jayawardna Q. C. brother and the advisor to then President JR Jayewardene continuing the system to benefit the privileged legal profession for exploitation of the litigant directly responsible for laws delays, with other parties concerned mentioned in this article. No short cuts as the solution. The Nation needs drastic legal reforms with honest and genuine legislators. Or perish together.

BRIBERY AND CORRUPTION ENGULFED THE LEGAL SYSTEM AND OTHER BODIES LIKE CANCER

Bribery and corruption are cancerous rampant and all over as breath and air in the system more deep rooted in the administration of justice and the court system where anything is possible with bribe. Some citizens are litigants who had no faith in the legal system, took the law into their hands in resolving disputes. Criminal procedure and the system are still complicated with the dependence of peace officers, statutory bodies such as the departments offering technical support, AG’s Department is overloaded with work with lack of staff and facilities.

It is a known fact that some partition/land/criminal with appeal cases has taken generations despite steps taken to speedy completion. Some murder and rape cases have taken decades. When a child rape victim gives evidence after 15 years and murder cases drag for 20 years, the witnesses are dead and the productions had gone missing. These are not isolated cases as it is the order of the day in the day to day procedure which is in the public domain.

As a test Bribery Commission was rejuvenated by appointing  Dilrukshi Wickramasinghe - an energetic personality with lot of hopes and enthusiasm, and a Commission was appointed to inquire into corruption by the previous government with an honest and experienced secretary in Lacille de Silva. The fate of both officers are still fresh in memory of the citizen who always at the receiving end. This proves what bribery and corruption are to weak governance and inefficiency.
The recent two cases are trivial on two asserts cases of Duminda Silva and Sarana Gunawardena subjected to the fine of Rs 2,000 with no other harm
The recent two cases are trivial on two asserts cases of Duminda Silva and Sarana Gunawardena subjected to the fine of Rs 2,000 with no other harm. Today we have the most corrupt Parliament Mafia working together having forgotten party politics to earn money collectively by illegally selling vehicle permits at enormous profits with the loss of 3.1 billion to the citizen and more to be exposed. Activist lawyer Nagananda Kodittuwakku has filed a case against 100 MPs in the Supreme Courts when Ravi Karunanayaka has resigned for a short while, on the Mahendran/Aloysius scam the citizen is conversant with and continuing.

Now the alleged wealth accumulated by the former President and the Waseem Thadueen murder involving the former’s wife is one of the main issues in the field of Bribery and Corruption. All well known to the public despite the VAT and Bond Scams the highest public robberies from the citizen in the decade which is still not resolved when the culprits are enjoying their accumulated wealth apparently in Dubai.

WHO ARE RESPONSIBLE FOR NOT BRINGING OFFENDERS TO JUSTICE WITHOUT DELAY?

Fingers are pointed at Minister of Justice, Attorney General, Legal Profession, Bribery Commissioner, Legal System, inefficiency of the establishments, lack of political will of the Minister to identify the Bribe takers and punish them outside special procedure by setting up special courts and procedures adopting new and special legislation and special procedure. A group of agitated members of the legislature have made the main accusation to the Minister and AG’s department they believe are inefficient and do not do enough to bring the suspected members of the last regime accused of bribery and corruptions by a group of legislatures of the ruling party. Minister’s response to the agitated colleagues is simple, logical, legal and convincing. He said to the party group and the public that, he is bound to adopt the due process, and to act legally and constitutionally based on the guidelines and articles of the supreme law the citizens are bound to.

Judicial power is exercised through courts Article 4-(c) created and established by law, and all persons are equal before law Article 12(1) and No citizen shall be discriminated against on the grounds of political opinion 12(2) nor can subject to disability, restriction and every person is presumed to be innocent until he is proved guilty. Article 13(5), and the mode of appointments of the judiciary is enshrined in the 1978 Constitution and the 19th Amendment adopted in hurry and haste which requires many changes is in the implementation process.
Today we have the most corrupt Parliament Mafia working together having forgotten party politics to earn money by illegally selling vehicle permits at enormous profits with the loss of 3.1 billion to the citizen and more to be exposed
Chief Justice is the head of the judiciary and the AG is the advisor to the state expected to be independent and impartial towards the citizen depending on justice and fair play. President of the Bar Association is the leader of the “Unofficial Bar” who plays a pivotal role in the process of delivery of justice with the legal profession acting as officers of courts assisting the Judiciary and the citizen. The Ministries and departments supporting the process as necessary appendages of the delivery of justice is expected to be steady, just and impartial.

Delivery of justice is a combined operation/process of all the necessary parties led by the Chief Justice and the judiciary who has control over the management of the Law College, disciplinary actions of the lawyers and the judiciary giving directions to the other judges with the cooperation of the Attorney General and the Minister of Justice which indicates that the process is complicated and the role played by the Minister is merely complementary and facilitation providing resources and assistance with no powers on the main process. Therefore finding fault on the AG and the Minister is illogical.

The writer could be reached on Sarath7@hotmail.co.uk 

Special Situations Demand Special Solutions

Mass Usuf
logoPresident Mandela, referring to the South African legal system had said, “God’s Mill grinds slow they say, the pace of the South African Legal System puts even the God’s Mill to shame.” Is Sri Lanka any better?
All lawyers are aware that a party in default in a tenancy case can remain in possession of the house by prolonging the case for various reasons. This is between two individuals. It is also known that it takes on an average ten years for a criminal case to be concluded. That our legal system grind slowly is not a new discovery. This is a phenomenon that the Hon. Minister of Justice is aware of from his days in the Law College and as a legal practitioner.
Actions which are not normal like embezzlement of enormous amounts of State funds, money laundering, unjust personal enrichment, white collar crime, kidnapping, murder, organized and other sophisticated crimes are special situations. The government should marshal the resources necessary to implement and execute special situation transactions quickly, effectively and smoothly.
Common sense dictates that it is not prudent to burden an already overloaded court with crimes falling into these categories. It becomes the responsibility of the Minister of Justice to effectively and efficaciously respond to this exceptional circumstance.
Resources
At the ceremonial sitting of the Supreme Court to welcome the new Chief Justice Priyasath Dep, His Lordship said, among other things, “There is a need to increase the number of judges and develop the infrastructure by constructing more court houses. There is a backlog of cases in the Supreme Court and in the High Court. There is an urgent need to increase the number of Supreme Court and High Court Judges.
The court management system could be improved using modern technology. Computerisation, office automation and adopting electronic filing system will improve the court management. New methods should be adopted for court and case management. Countries like Singapore and Malaysia were able to reduce the backlog of cases by using modern technology and management systems. The judges should divest the administration functions to registrars or designated officers so that they will have more time for court work. The courts cannot function without an efficient and a competent staff. Supporting staff plays an important role in management of the courts. The quality and the standards of the supporting staff should be improved.”
The Attorney General’s department is no different. If they are short of staff and expertise provide these cadres. Why has the Justice Minister not taken steps expeditiously to remedy this situation? If he claims to have done something over the past two years, then it is clearly inadequate. Without gentlemanly admitting the inadequacy, he seems to evade responsibility by politicising the issue.  He speaks about not taking political revenge or not interfering with the independence of the judiciary. Mr. Minister the public never asked you to take political revenge or interfere with the judiciary.  What they clearly want is for you to do your job as Minister of Justice. What has improving the efficiency of the court system got to do with taking political revenge or with interference with the judiciary?
Clear Alternatives
As a consequence of this failure, the people who are seeking justice for the atrocities, corruption and misappropriation of public funds by certain suspects are becoming restless. Is the government waiting until the people come out to the streets and cause havoc? Why is the Minister of Justice dilly dallying without creating or facilitating the environment for the justice system to work smoothly? 
One of the Four Universal Principles of the rule of law as defined by the World Justice Project is :
“Accessible and Impartial Dispute Resolution: Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve”.
The alternatives are clear. The cases can be handled by:\

Read More

Sri Lanka: Can foreign judges be avoided?

Marapana cannot afford to ignore a fresh review of the contentious matters, including the circumstances under which Resolution 30/1 came to be after Sri Lanka’s Permanent Representative, in Geneva, Ambassador Ravinatha Pandukabhaya Aryasinha, on Sept. 21, 2015, strongly opposed the same at an informal session called by the Core Group pursuing the matter. The group comprised the US, the UK, Montenegro and Macedonia.


by Shamindra Ferdinando-
( August 23, 2017, Colombo, Sri Lanka Guardian) One time Attorney General and newly appointed Foreign Affairs Minister Tilak Marapana, PC, on Friday (Aug 18) declared that the 1978 Constitution wouldn’t permit inclusion of foreign judges in the proposed domestic Judicial Mechanism (JM) under any circumstances.
 

New hope with a new Foreign Minister?

By SANJA DE SILVA

JAYATILLEKA- 

The new Foreign Minister has assured us, according to the Daily News, thatResolution 30/1 which was co-sponsored by the Unity Government of Sri Lanka "was in no way harmful to the country…" The Island of 19th August 2017 reports that the new Minister had said that he had "examined" this resolution as member of the cabinet, and that it "was certainly not inimical to Sri Lanka’s interests..."Since he was also the former Attorney General, he must know what he is talking about.

In this context, one would expect that he would have no concerns in facing either the written update at the 37th (March 2018) session of the UNHRCby the UN High Commissioner for Human Rights, Zaid al Hussein, as per the Human Rights Council Resolution 34/L.1,in which it "Requests the Office of the High Commissioner to assess progress on the implementation of its recommendations and other relevant processes related to reconciliation, accountability and human rights in Sri Lanka…", nor the written report to be followed by a discussion on the implementation of 30/1 at the 40th session.

Before the new Foreign Minister examines the High Commissioner’s oral update however, one hopes he resolves certain contradictions between his statement after taking over as Foreign Minister that the Sri Lankan Constitution does not permit foreign judges and the provisions actually contained in the resolution that he describes as "harmless".

Before going any further, it must be pointed out that the "harmless" Resolution 30/1 was not co-sponsored by a single Asian country (other than Sri Lanka).Not even India. Since no vote was taken due to the new practice of co-sponsoring all resolutions on Sri Lanka by the Unity Government, this is the only indication one can glean of the actual support of the Council. The 13 co-sponsors however paint a picture: only 8 voting members of the Human Rights council (Albania, Germany, Latvia, Montenegro, Macedonia, UK, Northern Ireland and USA), while the other 5 were only observers (Australia, Greece, Poland, Romania, and of course Sri Lanka).

Why is this important? When a country co-sponsors a resolution, it is assumed that it is satisfied with the content. And the new Foreign Minister has confirmed that indeed the Govt was. We can assume that he considers it "harmless" then, the operative paragraph 18 of the resolution which requests the High Commissioner to assess progress on his recommendations, which includes his call to all 193 members of the United Nations to use the concept of Universal Jurisdiction to prosecute those whom he has declared with certainty have committed War Crimes. While the Sri Lankan Constitution may not allow foreign judges, Universal Jurisdiction by definition certainly comes under the purview of foreign judges—certainly "foreign" to Sri Lanka

Another example is Operative Paragraph 1 in which it welcomes the OHCHR investigation on Sri Lanka and encourages the GoSL to implement its recommendations. Paragraph 88 of theOHCHR investigation report says:

"The High Commissioner remains convinced that, for accountability to be achieved in Sri Lanka, it will require more than a domestic mechanism. Sri Lanka should draw on the lessons learned and good practices of other States that have succeeded with hybrid special courts, integrating international judges, prosecutors, lawyers and investigators."

They are, for sure,honorable men (and women), in the Unity Government. But would you co-sponsor a resolution on your country which had these paragraphs? And what of the paragraph 6 that welcomes the proposal of the Government of Sri Lanka to "establish a judicial mechanism with a special counsel" and "affirms...the importance of participation of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators" ?

Usually, country specific resolutions are not co-sponsored by the country concerned. The Unity Government set a new trend. If they wanted to do so, why would they not negotiate the text? We can only assume that as declared by the new Foreign Minister, that they were perfectly satisfied with it or at least viewed it as "harmless".

Consider the alternative scenario in which this was contested by the Sri Lankan government. Since our Constitution bars foreign judges etc., it would be perfectly within the bounds of reason to oppose paragraph 6 and to introduce amendments keeping it in line with our Constitution, since we were planning to co-sponsor it. In doing so, it is possible that the other co-sponsors wouldn’t agree to our amendments. If we felt strongly enough, we could try to garner support from the rest of the 39 voting members who did not co-sponsor the resolution to support our amendments. If there was a stand-off, this would go to a vote. If enough voting members supported us, we could get the amendments in.

There was a seriously good chance we could do this. The very next resolution taken at the same sessionof the UNHRC was called "Human rights and unilateral coercive measures", moved by Iran on behalf of the Non-Aligned Movement. A preambular paragraph states:

"Expressing its grave concern that the laws and regulations imposing unilateral coercive measures have, in some instances, an extraterritorial effect not only on targeted countries but also on third countries, in contravention of basic principles of international law, in a manner that will coerce the latter also to apply the unilateral coercive measures."

The operative paragraph 3 states: "Condemns the continued unilateral application and enforcement by certain powers of such measures as tools of political or economic pressure against any country, particularly against developing countries, with a view to preventing these countries from exercising their right to decide, of their own free will, their own political, economic and social systems."

This resolution, moved by Iran on behalf of the Nonaligned Movement, won with a record 33 votes‘for’, zero abstentions, and 14 ‘against’--being the countries of the EU, Japan, South Korea and the USA.

The point I am making is that the Western movers of Resolution 30/1 had no moral hegemony at the Human Rights Council to guarantee a winning vote. It was a chance Sri Lanka could and should have taken, at least to keep it in line with our Constitution as it stands.

But we didn’t even try. The co-sponsoring started as soon as the Unity government assumed power. The texts were not negotiated adequately. Why? Was the Govt. worried that the people of Sri Lanka would see that it didn’t quite have the support of the "international community" that they boasted about, in case it lost a vote? Or was the new government of one mind with the countries that moved the resolution?

One is inclined to think it’s either both or the latter because of the indignity contained in the preambular paragraph in Resolution 30/1 which says "Welcoming the historic free and fair democratic elections in January and August 2015 and the peaceful political transition in Sri Lanka". Historic? Anyone sitting in the Council who wasn’t familiar with Sri Lanka, would not imagine that we had democratic free and fair elections since 1947! And never were they other than peaceful transitions!

Of course one can’t predict if the restrictions on foreign judges would apply in a new or amended Constitution (endorsed by a new Minister of Justice).

The latest academic work to appear on Sri Lanka, titled ‘Push Back: Sri Lanka’s Dance with Global Governance’ by Judith Large (Zed Press, London Dec 2016), which is scathing in its criticism of the Sri Lanka, refers repeatedly to the Darusman and Petrie Report. At the time the Darusman Report appeared (2011), the then Sri Lankan government decided not to contest its findings, in a convoluted logic which sought to prevent "giving it legitimacy". The result of course is that those two reports are invoked by scholars and resolutions alike. With no immediate refutation by the GoSL, its weak responses later seems to have had no effect. The Marga Institute carried out an excellent study and published a reasoned criticism which the government of the day did not use! Resolution 30/1 refers to all the previous resolutions that were lost by the previous regime, not because it did not oppose them but because it didn’t have the faintest idea how to do so successfully.

That government’s entire strategy and conduct of diplomacy was woefully inadequate to convince the voting members of their case. It however hasthe dubious distinction of having tried, succeeding spectacularly once, then changing the team’s captaincy and losing 3 times after that. Were the selectors to blame? I would think so.

When the previous government lost Resolution 25/1, no Asian country voted for that Resolution either. Russia, China, Pakistan, Cuba, Vietnam, Maldives were among the countries that voted against it. India abstained, with South Africa, Japan, Indonesia and the Philippines among the 12 abstentions. The resolution was won by 23 votes, mostly Western. We fielded the wrong team.

The last resolution on Sri Lanka at the UNHRC recalls the resolutions of March 2012 to March 2014 that Sri Lanka lost, and requests the High Commissioner to assess progress on their recommendations as well as resolution 30/1. This too was co-sponsored by Sri Lanka with Australia, Canada, Germany, Israel, Japan, Montenegro, Norway, Sri Lanka,Macedonia, and United Kingdom of Great Britain and Northern Ireland, United States of America. Again, only 5of the sponsors of the resolution were voting members of the Council.

Wasn’t there a better way? We await a closer (re)examination of the conduct of diplomacy at the UN Human Rights Council by the new Foreign Minister and the State Minister, in the national interest of Sri Lanka and its citizens.

*********************************************************************

[The writer is author of ‘MISSION IMPOSSIBLE-GENEVA: Sri Lanka’s Counter-Hegemonic Asymmetric Diplomacy at the UN Human Rights Council’, to be released by Vijitha Yapa late this month.]

No Justification for Wijeydasa Rajapakshe to Remain in Cabinet

There is no question that the way the discussions were held at the UNP meeting against WR cannot be condoned. In addition to the aggressive manner that he was cornered and questioned, he was not probably given a fair chance to express his views.

by Laksiri Fernando-
( August 23, 2017, Sydney, Sri Lanka Guardian) It is becoming extremely difficult to trust politicians whether it is Ravi Karunanayake, Tilak Marapana, Wijeydasa Rajapakshe (WR) or Rajitha Senaratne. The latter is stuck to SAITM, while others have exposed various other abusive business links. Many other dubious characters from the SLFP side are at present lying low as they don’t hold much of the reins of the present government. Among all the issues, the present key one is undoubtedly about WR.
There is no question that the way the discussions were held at the UNP meeting against WR cannot be condoned. In addition to the aggressive manner that he was cornered and questioned, he was not probably given a fair chance to express his views. The Deputy Minister Ajith Perera should take the main blame for this hostile behaviour as reported in many newspapers. If he is incapable of controlling his temper he himself should leave politics. He has demonstrated this character many times in open TV forums before. What is at issue here is internal democracy of political parties without coercion.
No Confidence
However, in view of the no-confidence resolution unanimously passed at the UNP Working Committee and its parliamentary group, there is no justification for the Minister WR to remain in the Cabinet any longer. He is in the Cabinet only as a member of the UNP in the national unity government. If the party does not have confidence in him, more so is the country or the people. Only some members in the Joint Opposition would like to keep him there to create trouble to the government. On many of the current issues in the country, his views have become very close to or supportive of the ousted Mahinda Rajapaksa regime.
WJ has been a controversial minister for some time now. His major business implication was related to the Avant Garde affair, along with Tilak Marapana, who was the law and order minister of that time. Marapana resigned but WJ didn’t, although Marapana is now appointed as the Minister of Foreign Affairs. Although WJ denied any connection to Avant Garde chairman, Nissanka Senadhipathi, there were many reports confirming his close relationship with the person and possibly the company.
WJ earned some popularity and liking being the Chairman of the parliamentary watchdog COPE. However, even that time there were some criticisms that he was rather soft peddling on some issues while pursing others. Nevertheless, his resignation from the Mahinda Rajapaksa government in 2006 and his support for Shirani Bandaranayake against the impeachment in 2012 earned him a reputation as a rebel politician. During that time, he was also serving as the President of the Sri Lanka Bar Association. In that capacity, he was instrumental in mobilizing the public opinion, among other civil society organizations, which culminated finally in the dramatic political change in 2015 that is popularly named as ‘yahapalanaya’ both truly and sarcastically.
As a Minister
After he was appointed as the Minister of Justice and Buddhist Affairs, he became controversial as he advocated the reimplementation of capital punishment as a deterrent against increasing crime in the country. While occasionally the President himself had expressed similar views, WR’s views were more vociferous and consistent in insisting the implementation. On this and many other matters, his views were quite conservative and detrimental to the internationally accepted norms on human rights and justice issues.
He was vociferously clamouring against crime, but not against corruption. Similarly, he was soft peddling on torture. It is true that the issues of torture, administered particularly by the police, came directly under the Minister for Law and Order. However, as the Minister of Justice, the cases against torture could have been expedited under his supervision or advice, and not interference. This is a matter that he has expressed a strange ‘hands-off’ attitude which effectively makes him redundant as the Minister of Justice.
WJ has recently revealed that he is still a practicing lawyer apart from his duties as a minister. This is a matter which is not acceptable for good governance. Apart from conflicting priorities and time constraints, there can be serious conflict of interest. A minister should be full time, and not part time or pastime.
It is possible that he has done a good service as the Minister for Buddha Sasana. That could be one reason why many monks are behind him even on the present controversy. This is apart from the most political Asgiriya prelates. WR has had a habit of making most of his controversial pronouncements before the Mahanayakes. It is because of these close links that one could suspect that even the recent Sangha reaction against a New Constitution is something that he has instigated.
Corruption Investigations
It is a well-known fact that corruption investigations against the persons in the last government are unnecessarily delayed. A similar situation exists in respect of major crime investigations such as Lasantha Wickrematunge assassination or Thajudeen killing. It is difficult to say who was intentionally delaying these investigations and there can be many reasons for the delays. Obviously, the Attorney General’s Department is overwhelmed by many complicated cases and prosecutions in addition to the High Courts. The Department also can be under resourced.
There have been accusations that the present government is also not very keen in pursuing these cases for various reasons. There are ministers who were members of the last government who could be directly or indirectly complicit in some of these corruption cases or abuses. There are accusations even against the Prime Minister, according to reports, who do not like to completely discredit the Rajapaksas both for personal and political reasons. He would, it is alleged, like to keep the rift between the SLFP alive for his own political benefit by the next elections.
But from a citizen’s point of view, WR’s utterances and role as the Minister of Justice on corruption matters have been quite dubious. There was no reason otherwise for him to repeatedly say that ‘the President, the Prime Minister or him as the Minister of Justice cannot ‘interfere’ with the independence of the Judiciary or the Attorney General’s Department.’ No one has been asking him or the government to interfere with the judiciary. That is completely out of the question.
However, he is the Minister who is supposed to oversee the AG’s Department. If there were new laws required, he should have been the person who should have initiated them. In Australia, the title Attorney General itself for the Minister. In both Australia and Sri Lanka, AG is the chief legal officer to the government. As the website of the Department (in Sri Lanka) explains, “The Attorney General is the Chief Legal Advisor to the Government.…He conducts prosecutions in criminal cases and appears on behalf of the Government.”
Of course, under Section 111C (1) and (2) of the Constitution, interference with the judiciary is an offense. Independence of the judiciary is also guaranteed by Section 107. However, AG’s Department is not the judiciary. Even there is no special place given in the Constitution for the Attorney General, like for the Auditor General. This is said without any prejudice to the present AG or his Department. What the country wanted was a reasonably speedy procedure for the corruption cases and it was up to the Minister of Justice to look into the matter.
There were constructive ways that this could have been done, or still could be done. The Attorney General’s Department is structured with several divisions and units. Some of the divisions are on civil, criminal, supreme court, state attorney’s etc. Similarly, there are units on public petitions and child protection. What the Minister could have ‘persuaded’ the Department (if he was so concerned about interference!) was to open a division or at least a unit for corruption cases and expedited the matters. He has not done so. Instead he has been politicking on the subject quite detrimental to the public expectations.
Hambantota Issue and WR’s Future
It is possible that the stand that WR took on the Hambantota port issue, after an agreement was signed between the Sri Lanka Ports Authority and the Chinese company, approved by the Cabinet, was completely a ‘goodbye’ to the government. On this matter, he came very close to the Joint Opposition and the other Rajapaksas.
There is no question that the Hambantota port has been a controversial issue not only under the present government but during the past government as well. It was obvious that when the port was constructed, its main rationale was placed within the ‘one belt one road’ project of China. There is nothing principally wrong in Sri Lanka linking up its development efforts with both China and India. The concern however should be not to undermine the country’s interests to the interests of foreign countries or companies. Mutual benefit or a ‘win-win’ situation should be the objective. Foreign investments or projects should be in a moderate fashion and to the benefit of the country and the people. If someone is arguing that Sri Lanka should develop itself without any outside assistance, investments, aid or trade, that is quite primitive to say the least.
I have not seen WR expressing his views when the deal was being discussed in the country quite openly. The mistake on the part of the promoters was both conceptual and factual. When it was said that it is a ‘debt-equity swap,’ it was conceptually wrong. Based on that mistaken premise, when over 50 percent shares were given to the Chinese company for 99 years, it was practically disadvantageous. However, these are matters that there should be some bipartisan policies as much as possible.
As the agreement is now signed, what the country should try to achieve is the best possible outcomes through the present deal pragmatically. It could be hoped that the newly appointed National Economic Council could look into this and similar other matters. Therefore, in that context even WR’s opposition to the Hambantota deal cannot be considered genuine or beneficial to the country. To oppose or sabotage the Hambantota project would be against the interests of the country and the people.
WR has openly stated that he knows many of the ministers in the present government indulging in corruption. Therefore, he is duty bound to expose them for the benefit of the country and good governance. If he has left or rebelled against the government on that basis, he could have come out of the government as a people’s hero or as a progressive. However, his record has been to undermine the corruption investigations and not to promote them. Therefore, he remains extremely an unreliable political character.
As his party, the UNP, has resolved no confidence in him, as an appointee of the UNP in the national unity Cabinet, he should gracefully resign. He has no other (birth) right to remain in his ministerial position. Otherwise, he would be making a mockery of democracy. Only if he is stubbornly refusing to do so, the President would be compelled to remove him.