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International battle ahead; possible questions from Commonwealth
View(s):= Independent media barred from ceremonial sitting to welcome CJ 44, witch-hunt of CJ 43 continues
= Cabinet reshuffle likely tomorrow, PM to continue, President furious over senior minister’s remarks on PM successor
= Army Board issues report, contradicting LLRC recommendations; new National Oil Company to handle exploration and production
By Our Political Editor
Armed troops and police surrounded the superior courts complex, the citadel of the country’s judicial system in Hulftsdorp last Wednesday, for the second time in two weeks. Last week they kept protesting lawyers at bay as the newly appointed Chief Justice Peter Mohan Maithree Peiris drove in through the back entrance to the premises to assume office. Their only task this time was to keep the private media away from covering Peiris formally assuming duties as Sri Lanka’s 44th Chief Justice.
There were neither protests nor demonstrations outside the complex this time; just a formal boycott by the Bar Association. Journalists from the private media, photographers, video cameramen, reporters and foreign correspondents were stopped at the gates. Whilst they waited, a court security official walked up to the entrance of the Supreme Court and shouted “who is the cameraman from ITN?” He was identified. He waved him to come forward and the gates opened. He was asked why the others were being debarred. The reply came in double quick time. The Marshal of the Courts had given instructions. Moments later, a camera unit of the state television broadcaster Rupavahini drove in one of their vehicles after the gates were opened wide for them.
A lawyer appeals to enter Court Premises and debarred, Private Media look on. A police bus is on stand-by. Pic by M.A. Pushpakumara
For the first time in the country’s legal history, there was censorship on a ceremonial event held to make a nation learn that a new Chief Justice was being ceremonially welcomed. A photographer from the Government Department of Information was taken in and the office later distributed one photograph of a select group of judges from both, the Supreme Court and the Court of Appeal seemingly enjoying a chat with Chief Justice 44 Mohan Peiris. They included Justice Shirani Thilakawardene, Satya Hettige Eva Wanasundera and Rohini Marasinghe. Significantly, there was no group photograph of Peiris with the rest of the Justices of the Supreme Court as is customary.
This is whilst Shirani Bandaranayake, who maintains she is still the Chief Justice, was busy trying to meet another challenge, this time from a fresh front. The Department of Inland Revenue has gone into top gear this week to raise a number of queries from her on monetary transactions mentioned during the impeachment resolution passed by Parliament. This is on the basis that she had not disclosed large amounts of money from certain transactions. She is to tell them that no millions of rupees were received. “The witch hunt continues,” remarked a legal counsel representing her. “The lightning speed at which tax people have reacted shows there is more to come,” he warned speaking on grounds of anonymity.
The government said it was right in introducing the impeachment resolution obtaining Parliament approval with more than a two thirds majority. It also insisted it was right in sacking Chief Justice 43 Bandaranayake. These events received wide publicity in the private and even the state-run media. Yet, the move to shut out the private media from the ceremonial sitting last Monday by deploying hundreds of troops and armed policemen could not prevent what transpired in the Supreme Courts complex from becoming public. The only exception perhaps was the photo opportunities, which raises the question whether armed deployment was really necessary for that little “cover up”.
Troops and policemen in their hundreds could not hide the fact that last Wednesday’s ceremonial sitting was in breach of hallowed tradition. It was devoid of any formal involvement by the Bar Association of Sri Lanka. For well over 200 years, arranging a ceremonial sitting to welcome a Chief Justice has remained a prerogative of the Bar Association of Sri Lanka (BASL). The Association makes a written official request to a new incumbent in office to attend the ceremony. Some of its members still argue that without the BASL formal request there could not be a ceremonial sitting.
This is because such a sitting, they say, involves two traditional addresses. One is by the President of the BASL in his capacity as head of the unofficial bar welcoming the new Chief Justice. The other is by the Attorney General (as head of the official bar). Since the BASL had resolved that it would not take part in any ceremony to welcome a new Chief Justice, its officials and most members kept away. This is significant in view of the fact that all attorneys including those in the Attorney General’s Department are also members of the BASL.
Thus, a ceremonial welcome of a new kind played out on Wednesday. If Attorney General Palitha Fernando did deliver the traditional address, taking the place of the President of the BASL to welcome the newly appointed Chief Justice was Razik Zarook, attorney-at-law. It was only a week earlier President Rajapaksa (who is also the Minister of Finance) named Zarook as Chairman of the Bank of Ceylon. Zarook was expelled from serving as Patron of the BASL Matara Branch for not opposing the impeachment resolution against CJ Bandaranayake. He welcomed Chief Justice Peiris on behalf “of those lawyers assembled here today”. He was chosen to speak when some others had refused to do the honours despite Peiris himself urging them to do so. This week, a section of the BASL was canvassing a resolution to suspend him from membership in the premier legal body. A defiant Zarook, one-time Chairman of the CWE and Ambassador under UNP administrations, says he would “not be deterred by the actions of a few.”
Judges of the Supreme Court, Court of Appeal and the High Courts, District Courts and Magistrates were present. Among the notable senior lawyers who took part in the ceremonial welcome for the CJ was former Attorney General Shibly Aziz, a staunch critic of the impeachment move. He is one among senior counsel who wrote to Supreme Court Judges requesting “that Judges of the Supreme Court should refuse to accept an appointment of CJ (or acting CJ) or refuse to recognise any person appointed to the office of the CJ…..” He told colleagues he attended the ceremony since Mohan Peiris was his junior in the Attorney General’s Department. Another is Sanjiva Jayawardena PC who was earlier critical of the impeachment move. Among other lawyers present were Arthur Samarasekera PC, former Sri Lanka Ambassador to Myanmar, Faisz Mustapha PC, one-time High Commissioner to Britain, and Sarath Kongahage, Ambassador to Germany. Legal officers attached to state corporations, armed services and statutory bodies were also asked to attend the event. Some senior police officers manning stations in the Colombo area were also seen in civilian attire when the addresses were made.
A coterie of VIPs also graced the event. They included Presidential Secretary Lalith Weeratunga, Defence Secretary Gotabaya Rajapaksa, and Central Bank Governor Ajith Nivard Cabraal, who is a respondent in a Fundamental Rights Petition relating to the Central Bank purchasing Greek Bonds reportedly suffering staggering financial loss. The case filed by UNP parliamentarian Sujeeva Senasinghe is now pending before the Supreme Court. Among the senior lawyers who did not attend the ceremonial sitting were S.L. Gunaskera, I.S. de Silva and President’s Counsel Wijeyadasa Rajapaksha (President, BASL), Ananda Wijesekera, K. Kanag-Isvaran, Romesh de Silva, Maureen Seneviratne, Jayantha Gunasekera, Srinath Perera, Dr. Jayampathy Wickremeratne, Anil Silva, Rohan Sahabandu, Uditha Egalahewa, Prasanna Jayawardena, Maithree Wickremasinghe, Lakshman Perera, Harsha Amarasekera, Geoffrey Alagaratnam, Ikram Mohamed and Nalin Ladduwehetty.
Protests over the removal of Chief Justice Bandaranayake and the appointment of Peiris as successor continue in different corners of the world. Forty four senior judges and eminent jurists, some retired and others serving, who are members of the International Commission of Jurists (ICJ) said in a statement last Wednesday that “Judicial independence and the separation of powers are the bedrock of the rule of law.” Calling for the reinstatement of Bandaranayake, the three-page statement said, “Sri Lanka’s actions further violate the core values of the Commonwealth of Nations enunciated in the Singapore Declaration 1971, the Harare Declaration 1991 and the Latimer House Principles on the Three Branches of Government 2003. The Latimer House Principles call on member States to uphold the rule of law by protecting judicial independence and maintaining mutual respect and cooperation between Parliament and the Judiciary.” The statement added that “Sri Lanka’s actions run against the regionally applicable standards set out in the Beijing Statement of Principles on the Independence of the Judiciary in the LAWASIA region.”
The Law Society of Upper Canada said it “is deeply concerned about judges in Sri Lanka who, in carrying out their judicial duties, can be subjected to inappropriate processes where their decisions are contrary to the views of public authorities. International Human Rights instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the UN Basic Principles on the Independence of the Judiciary, state that judicial independence and human rights are necessary to advancing the rule of law. “
The Law Society urges the Government of Sri Lanka to, “(a) Take steps to ensure that judges are not subject to politically motivated sanctions as a result of issuing decisions; (b) Publicly recognise the importance, legitimacy and independence of the work of judges and their contributions to the strengthening of democracy and the rule of law; (c) Ensure that all judges can carry out their peaceful and legitimate duties and activities without fear of removal from office; and (d) Ensure in all circumstances respect for human rights and fundamental freedoms in accordance with international human rights standards.
Colombo’s Anglican Bishop the Reverend Dhiloraj Canagasabey said in a statement, “This is a time for us as Church to take an honest look at ourselves, where we have shamelessly compromised our loyalty to God. We need to repent of ways in which we, as individuals as well as collectively, have;
= Been silent when we should have spoken
= Allowed ourselves (thoughtlessly or out of fear) to be used by those in authority to speak lies or commit wrong and unjust acts
= Consciously received benefits for ourselves through acts of injustice committed against others
“I as your Bishop call the Church to a period of lament together for the terrible state of our nation today, and repentance for our failing as a Church to “love mercy, to seek justice and to walk humbly with the Lord” (Micah 6:8).
I therefore propose that
(a) Sunday 3rd February 2013 be observed in all parishes within our Diocese as a Day of Lament. All services should have an extended time of silence, prayer and intercessions, to grieve over the state of our country today. Please encourage all parishioners to wear white and to fast wherever possible.
(b) We as a diocese will congregate on 4th February 2013 at 9 a.m., dressed in white, for a service to continue our Time of Lament. Those who are unable to be present at the Cathedral for this service are encouraged to gather in their own churches at this time.
(c) I further propose that all parishes in our Diocese have a series of Bible studies, reflections and discussions during Lent, which is traditionally a period of self-examination and penitence, to reflect on what it means to live as a faithful disciple-community of Jesus in the context of our nation today.”
For President Mahinda Rajapaksa, the Chief Justice affair seems to be a thing of the past. With the appointment of Mohan Peiris, he has begun to focus on a number of other issues. Yet a few of the measures he was originally billed to carry out being put on hold seems no surprise.
Perhaps he does not want to rock his political boat too much and face new issues. However, it is likely that there will be a cabinet reshuffle tomorrow (Monday). UPFA sources say “a few changes are possible.” There will also be no change of the Prime Minister. The present incumbent D.M. Jayaratne is to be allowed to continue. Rajapaksa was livid with a senior minister, a known aspirant to prime ministerial office, over remarks he had reportedly made on a successor.
At the weekly cabinet meeting on Thursday, Rajapaksa cautioned his ministers to be careful when they visit other countries and hold talks with dignitaries or officials. Some polite denials have been construed by the host countries as having agreed to their requests, he pointed out. He revealed that External Affairs Ministry Secretary Karunatilleke Amunugama has brought this to his attention on Thursday morning, just ahead of the cabinet meeting. However, Rajapaksa did not reveal which Minister or the name of the country where the incident reportedly occurred. Some Ministers wondered whether this in any way related to the visit to India by External Affairs Minister, G.L. Peiris.
At the same cabinet meeting, Rajapaksa won approval for a major change in the laws governing petroleum exploration. The Government Information Department said this was “with the view to meeting the required legal standards of global expectations of the petroleum industry as well as to introduce the principles of good governance into Sri Lanka’s Oil and Gas Industry.” However, there was more. The task of exploring oil deposits is to be vested in the hands of a National Oil Company, the Sri Lankan partner in all future foreign deals. This will mean the Ceylon Petroleum Corporation (CPC) will have no role once the new laws are enacted.
The copy of the cabinet memorandum from President Rajapaksa, titled “Amendments to the Petroleum Resources Act No 26 of 2003″ hinted that the “global oil industry has started showing a keen interest in oil exploration projects in Sri Lanka.” Here is the full text:
“The Petroleum Resources Act No. 26 of 2003 is the only governing legislation for exploration and recovery of petroleum resources in Sri Lanka. Following the hydrocarbon discoveries in the Mannar Basin by Cairn and their public notification of commercial interest, the global oil industry started showing a keen interest in investing inexploration projects in Sri Lanka. To enter into the global oil industry and to work on par with international standards, the importance and necessity of having a comprehensive strong enforceable legislation has become a crucial issue.
“This prime requirement was discussed at the Petroleum Resources Development Committee (PRDC) meeting held on January 18, 2012, and while agreeing to the above requirement, it was further emphasised at the meeting the necessity of having a strong regulatory framework in Sri Lanka, and for that purpose to make the Petroleum Resources Development Secretariat an independent corporate body with the mandate to efficiently manage and regulate upstream petroleum operations.
“Taking these facts into consideration, with the view to meeting the required standards of the global expectations of the petroleum industry as well as to introduce the principles of good governance into Sri Lanka’s upstream oil and gas industry, the Petroleum Resources Development Secretariat (PRDS), with advice of its consultants suggests amendments to the Petroleum Resource Act in the following areas:
(i) Widening the scope of the Act by clearly describing the objectives of the Act.
(ii) Allocating the responsibilities of preparing a Government policy on the exploration and production of hydrocarbon resources of Sri Lanka to the PRDC; (sic)
(iii) Making the PRDS an independent corporate body with a mandate to regulate and manage upstream petroleum industry in Sri Lanka efficiently and effectively;
(iv) Introducing the formation of a future National Oil Company defining its role and function as the State participant of the future production activities;
(v) Introducing tax provisions empowering the Minister to decide on the necessary tax concession, so that state tax revenue could be optimised; and
(vi) Including any other improvements to upgrade the Act to international standards.
These developments came as the government appeared to be readying itself for the UN Human Rights Council sessions which begin next month. One strong indication came when Army Commander Jagath Jayasuriya handed over the report of the Board of Officers who studied the implementation of the recommendations made by the Lessons Learnt and Reconciliation Commission to Defence Secretary Gotabaya Rajapaksa.
The board comprised Major General Kamal Gunaratne, Brigadier Senaka Wickramarathne, Brigadier Aruna Wanniarachchi, Brigadier G.V. Ravipriya, Brigadier Suraj Bansajaya and Lieutenant Colonel Piyal Wijesiriwardhane. Their voluminous report was not made public but a three-page note distributed to the media on that occasion gave some selected highlights. It said the task of the board was to “study the LLRC report and identify areas that are relevant to the Army and to formulate a viable Action Plan to address the specific areas so identified.”
The board’s recommendations, made public, projects differing viewpoints to that of the LLRC report. That poses the question whether the Sri Lanka delegation to the UNHRC sessions in Geneva next month would have to make a shift in its approach. Quite apart from the upcoming issues, the Government is yet to decide who will lead Sri Lanka’s delegation to Geneva where the Human Rights Council sessions begin on February 25. President’s Human Rights Special Envoy and Minister Mahinda Samarasinghe, is yet to be named. This week, he was busy preparing an addendum further detailing Sri Lanka’s position on the Universal Periodic Review (UPR) held last year.
The Council report will come up for adoption at next month’s sessions. He has confided to his ministerial colleagues that the External Affairs Ministry has not been keeping him briefed on developments. One such instance, he has pointed out, is when Kshenuka Senewiratne, then acting External Affairs Ministry Secretary (as Amunugama was in New Delhi at the time) had written to Navanethem Pillay, the UN High Commissioner for Human Rights. If he were consulted, he had confessed, the letter would have been more “polite and diplomatic” in content. This is particularly in view of Pillay having to present a report to the Council as a follow up to the US-backed resolution.
One highlight of the Army board’s report notes, “The Board concludes that the Army had taken all precautions to avoid civilian casualties during the humanitarian operation. In order to totally eliminate/minimise disciplines such as infantry tactics, special operations, artillery fire, armour employment, joint operations etc. in relation to Military Operations in Urban Terrain (MOUT) and to formulate new doctrines covering these disciplines.”
Strongly supporting this position was Defence Secretary Rajapaksa. He declared at the handover ceremony, “No one talks of the people who died in action. For the parents they are ‘missing,’ because they were taken forcibly by the Liberation Tigers of Tamil Eelam (LTTE) and put to fight. When they died no one knew what happened to them. You have to understand this issue. There are the people who died in action. According to some of the people nobody had died in action. That cannot happen. How did they control these areas for the past 30 years? The Army lost nearly 6,000 soldiers after the humanitarian operation (the final military campaign to militarily defeat Tiger guerrillas in 2009) started. This was for the last two and half years. Close to 5,800 persons died during this two and half years. We had 20,000 soldiers injured. If we had suffered that amount of casualties, what about the terrorists?
They must have lost more than that.” However, the final report of the Lessons Learnt and Reconciliation Commission (LLRC) notes “…….The Commission is faced with similar difficulties in attempting a re-construction of certain incidents involving the loss of civilian lives which have been brought to the attention of the Commission. Whilst the Commission finds it difficult to determine the precise circumstances under which such incidents occurred the material nevertheless point towards possible implication of the Security Forces for the resulting death or injury to civilians, even though this may not have been with an (sic) intent to cause harm. In these circumstances the Commission stresses that there is a duty on the part of the State to ascertain more fully, the circumstances under which such incidents could have occurred, and if such investigations disclose wrongful conduct, to prosecute and punish the wrong doers. Consideration should also be given to providing appropriate redress to the next of kin of those killed and those injured as a humanitarian gesture that would help the victims to come to terms with personal tragedy, both in relation to the incidents referred to above and any other incidents which further investigations may reveal….”
In another chapter, the LRRC report spoke of disappearances.
It says, “Given the complexity and magnitude of the problem and considering the number of persons alleged to have disappeared, and the time consuming nature of the investigations involved, the Commission recommends that a Special Commissioner of Investigations be appointed to investigate alleged disappearances and provide material to the Attorney General to initiate criminal proceedings as appropriate. The office of the Commissioner should be provided with experienced investigators to collect and process information necessary for investigations and prosecution. This mechanism should also devise a centralised system of data collection at the national level, integrating all information with regard to missing persons currently being maintained by different agencies.”
Another recommendation of the Army says, “The Board agree that in many countries the Police do come under the Home Ministry or Provincial Administration. However, the Board notes that such countries do not face widespread internal disorders. Conversely, the Police in some countries that face internal threats have proved to be total failures. Therefore the Board recommends that the Sri Lanka Police be placed under the Ministry of Defence at all times and it proposes that a Ministry of Defence Board should study and make recommendations with regard to the Role of the Police in insurgencies and terrorism.” A reference in the voluminous report itself to this recommendation has the following statement: “Refer this recommendation to the PSC (Parliamentary Select Committee) as it deals with an entirely policy/political issue.”
It is not immediately clear why the Army board chose to make recommendations on a “policy/political” issue. That too on what is evidently not a matter directly within its purview. The LLRC said in its final report that “The Police Department is a civilian institution which is entrusted with the maintenance of law and order. Therefore, it is desirable that the Police Department be de-linked from the institutions dealing with the armed forces which are responsible for the security of the State.”
At last Thursday’s event, Defence Secretary Rajapaksa went on to praise the military for its role in defeating Tiger guerrillas. He said, “Nowhere in the world can you win a war unless you are a professional military. You win the war because you fight the war in a professional manner. Only a professional disciplined military can win a war. Otherwise it goes against the principles of war. If an undisciplined, unprofessional military can win a war that goes against the basic principles of war. So we proved that we defeated a terrorist organisation which even the international military experts were thinking was invincible.”
Commenting on disappearances, Rajapaksa said, “You have to understand that when you say missing, people do not realise that there were people in these areas the LTTE recruited and were fighting a war. If you take the army, there were about 3,000 listed missing during the past 30 years. This is because we could not find the bodies of our soldiers.
“Similarly you know the situation that prevailed at that time.
When they were fighting, obviously there were persons who were killed in the battlefront, people have forgotten that the LTTE recruited people, they were fighting with the armed forces. No one talks of the people who died in action, for the parents they are ‘missing,’, because they were taken forcibly by the LTTE and put to fight and when they die nobody knows what happened to them. According to some of the people nobody had died in action. Q: (not clear)
“Not a single person is missing from those who were handed over to us or surrendered to us. There was a procedure. This is another thing which the people have forgotten. Take the people who were coming from the sea. They first went to the hospital maintained by the Indians. It was manned by the Indian army. They reported to them first and thereafter were handed over to us or sent to welfare camps. Everywhere they surrendered, the ICRC was there, the UNHCR was there. There was procedure to register these people. Not a single person is missing from that list who surrendered to the Army.”
Since the military defeat of Tiger guerrillas more than three years ago, some of the issues arising from it have shifted to the international front. Some of the important battles here will be fought in the coming weeks and months. From the events that have played out so far; there is little doubt that the UN Human Rights Council sessions in Geneva will be unfavorable to Sri Lanka.
Yet, the hype and frenzy that prevailed during weeks before last year’s sessions where the US backed resolution was adopted is absent. There were only a few murmurs at the Ministry of External Affairs where the issue was discussed by officials with Ravinatha Ariyasinha, Sri Lanka’s Ambassador to the UN in Geneva. Of course, as is the practice now, greater failures due to lack of preparations are made up for by the issue of strongly worded statements or letters.
Then, there is the upcoming meeting of the Commonwealth Ministerial Action Group (CMAG) where moves are afoot to suspend Sri Lanka from the Commonwealth. Reports that some member countries are making an attempt to shift the Commonwealth Heads of Government Meeting from Colombo to either Mauritius or Bahamas are reverberating in the corridors of the External Affairs Ministry. The event is scheduled for November this year. These no doubt are serious challenges to the UPFA Government. Statements, name calling or naming and shaming others will not help. It will only draw isolation and condemnation not to mention the other costly damage.
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