Use the brains before the tongues

From the Blue Corner

By Paakshikaya

A fortnight ago, I reminded my unseen friend, Viruddha Paakshikaya, not to be like the pot calling the kettle black. That was for trying to chide the PA government for allegedly interfering with the independence of the judiciary.

But Viruddha Paakshikaya does not seem to have taken that lesson to heart. Last week, he made a big din about our ministers being abroad during military operations - while his leader, the honourable Ranil Wickremesinghe was away in Los Angeles raising funds for the UNP, but also having quite a bit of fun, judging by some photographs published in the state media!

Yes, Viruddha Paakshikaya, I might just concede that Her Excellency the President ought to have been here. I also agree with The Sunday Times editorial that it would have been better if we witnessed our Commander-in-Chief visiting injured soldiers and our ministers being galvanized into a war cabinet. That is how wars should be fought and won because the morale of front-line soldier is a sine qua non for victory and that was not seen in this instance.

But, how dare Viruddha Paakshikaya write so haughtily about the lapses of our leaders when his leaders were dancing the baila with some American ladies of obviously dubious repute in attendance at so-called fund-raising dinners in distant lands?

My UNP friends - and I have a lot of them - tell me that Ranil Wikremesinghe, Anura Bandaranaike, John Amaratunga, Pradeep Hapangama, all MPs were in attendance. Party Treasurer Milroy Perera was also there but my UNP friends wonder whether he spent more than he collected!

This Los Angeles fund-raising dinner, my sources say, was organized by people who tried their hand at tendering for the Galle Port. When they failed to clinch the deal, the UNP brought a vote of no-confidence on Minister Ashraff and the vote was spearheaded by Anura Bandaranaike. I must say, this though sadly, young Anura is a good friend and has been so for a long, long time since the days when he was in the SLFP.

Now, though the cat is out of the bag, who is the main sponsor of Anura Bandaranaike's thirty eight (now thirty nine) trips to California? This is the Los Angeles Mafia within the UNP.

Then, to what happened in New York. We heard how they attended a dinner at the luxurious Bombay Palace on Saturday, October three. Crocodile tears about the deaths of our soldiers at Kilinochchi and Mankulam were wiped away, no sooner the bands struck up the strains for one big 'bajaw' session, all in the name of fund-raising. And, Viruddha Paakshikaya has the audacity to admonish General Anuruddha Ratwatte for being at Samanalaweva!

But, to get back to New York, my friends in the UNP branch there say that your leader, Ranil Wickremesinghe was overshadowed by the eloquence of Prof. Ralph Buultjens and Anura Bandaranaike. Was it a conspiracy against your leader, Viruddha Paakshikaya, to have these two heavyweights speak alongside him?

But I'm also told Ranil Wickremesinghe's speech had more substance and more disclosure of facts and policy decisions that the Sri Lankans overseas wanted to hear.

Though they felt Ranil Wickremesinghe has matured "immensely" one criticism was that he is rather reserved and does not exude warmth to people who genuinely want to help him. So they say, he takes things for granted, like the old UNP's ivory tower chieftains.

Probably, my New York friends tell me, the ear infection Ranil suffered may have had much to do with his lack-luster social appeal. But, dear, dear Viruddha Paakshikaya even then he had to consult someone who hosted a grand dinner for President Kumaratunga a fortnight ago in New York when she went there for the United Nations General Assembly sessions - Dr. Anura Rajapakse. This good doctor also hosted President Kumaratunga in 1995 in New York.

I know, Viruddha Paks- hikaya, what you would say: A doctor is always a doctor and medical ethics dictate that he treat patients, irrespective of their party colour (I agree and this doctor did a fine job too. An examination was done at another doctor's dinner party hosted for Ranil Wickremesinghe and the others in the UNP "delegation". Some say Ranil got an earful from the doc but it is this kind of a bi-partisan co-operation that is most urgently required for the country, isn't it. Viruddha Paakshikaya?)

Anyway, illnesses apart, Sri Lankans in New York were all agog by the comings and goings of my leader and your leader. An ASIA group had organized Ranil Wickremesinghe's dinner and fund-raiser and I know one of the biggest SLFP organisers also chipped in. Of course, the ASIA group states they are ever willing to do the same for President Kumaratunga. So your American gimmicks are no big deal, Viruddha Paakshikaya because there is a lot of bi-partisanship (or 'Depath Nayas') in New York, it seems!

That is why, dear Viruddha Paakshikaya, we have also organised our SLFP branches in New York. Party Secretary Dharmasiri Senanayake, Minister Mangala Samaraweera and Advisor Sanath Goonatilleke were all there with President Kumaratunga to whip up support for the SLFP. So, even your US campaign has been checked mate!

Now, to come to things closer to home, Viruddha Paakshikaya last week indulged in a God-given opportunity to wax eloquent about the civil war that has soaked the soil of this country with unnecessarily spilt blood.

Viruddha Paakshikaya sounded almost gleeful that the security forces suffered a setback at Kilinochchi. What could have been done with a finger nail during the UNP regime now requires major surgery and that is why the Kilinochchi debacle occurred. Had the UNP which prosecuted this war for over ten years done it efficiently we in the SLFP will not have to carry this legacy.

Today, Viruddha Paakshikaya conveniently suffers from anaemia. Can he not remember the over-running of Ponneryn camp during their days? How the entire camp was over-run killing 640 soldiers? Then, the over-running of the camp south of Vettilaikerni? Then, what about the 450 policemen who were asked to surrender and then done to death by the LTTE in the Eastern Province? Then has Viruddha Paakshikaya forgotten the Kent and Dollar Farm massacres, the massacres at the Sri Maha Bodhi, Aranthalawa and Moraweva? For God's sake, Viruddha Paakshikaya, wake up!

This, you must realise Viruddha Paakshikaya, is a time to get together. This is not the time to gloat over defeats. The fact that over 1000 soldiers (some say 1700) have lost their lives is surely not a reason to divide the nation! It is also not the time to disillusion the Armed Forces. That would only help the terrorists.

It is indeed sad that the UNP did not condemn the shooting down of a civilian aircraft. They did not condemn the LTTE for using child soldiers. They did not condemn the LTTE for killing Sinhalese soldiers. All your party did, Viruddha Paakshikaya, was to blame the government and the Acting Defence Minister!

Tell me, Viruddha Paakshikaya, why is the UNP now not calling the LTTE a Facist terrorist organisation which is what they called it when they were in power?

As I see it is for two reasons, Viruddha Paakshikaya. Firstly, you are just playing cheap politics without thinking about the nation. Secondly, you are frightened about your own personal security after the LTTE killed your leaders - R. Premadasa, Lalith Athulathmudali, Gamini Dissanayake, G.M. Premachandra, Weerasinghe Mallimarachchi, Dr. Gamini Wijesekera and others.

Your leader, after all being a nephew of JR. Jayewardene, and one who was inducted to politics by him should at least learn from his beloved uncle and give us the support like the UNP did in 1971 to squash the JVP uprising.

There is no need to emphasise the fact that the LTTE must be squashed the same way before it consumes more southern political leaders.

Imagine, Viruddha Paakshikaya, the UNP forming a government today? Who is going to prosecute the war? Is your 'shadow' Defence Minister P. Dayaratne? Or is it Wi. Ja. Moo. Lokubandara? Or is it Rohitha Bogollagama who was briefing your leader about the developments from the Battle Zone? Or is it Tilak Karunaratne or Mano Wijeratne or is it General Lucky Algama? God save Sri Lanka! Or may the Devas protect us all!

So, Viruddha Paakshikaya please ask your leaders to stop playing politics and dividing further an already divided people, making Mr. Velupillai Prabhakaran the ultimate benefactor.

At Friday's Emergency Debate in Parliament it seemed the UNP had taken a policy decision to be harsh on General Anuruddha Ratwatte. You have virtually asked him to get out of the way and let the other Generals run this war. Do you really mean it, Viruddha Paakshikaya? Do you really want politicians out of the war? Have you not heard the famous words of the Frenchman, Talleyrand: "War is much too serious a thing to be left to military men?" Believe me, Viruddha Paakshikaya, that will be the first step towards allowing the Generals to run this country. You UNPers are great admirers of Pakistan. Look at what is happening there. How Generals are making comments about the way the country is being run by democratically elected civilians. These comments have sent shivers down the spines of politicians who have had a sufficient dose of Martial Law. So, this is my concluding advice, Viruddha Paakshikaya. Tell your leaders to engage their brains before wagging their tongues, and not to take political mileage out of military debacles. After all, in war, careless talk costs lives!

If the fall of Kilinochchi was the worst debacle in the seventeen-year-old war with the LTTE it will not be a defeat for the SLFP or the PA but the entire country and that includes the UNP - Los Angeles Cabarets and New York Bourbon notwithstanding!

And like the Bourbons of France, the UNP will never learn, will they?

Batalanda Report: what is happening?

A recurring tragi-comedy

By Kishali Pinto Jayawardena

For many, the recent spate of fundamental rights pleas filed by police officers against whom action has been taken in connection with the sittings and the report (yet unpublished, mind you) of the Batalanda Commission is not easy to digest. Alleged torture chambers at Batalanda had, in that classic phrase, been "reasonably established" in the public mind.

That widespread torture did, in fact, occur during that time (what continues to be debated is when, where and by whom) could also be taken as a particularly gruesome given. Grandiose press announcements somewhere early this year that action had been taken with regard to several top cops on the basis of the findings of the report therefore created no great stir.

The logic was irrefutable. Torture had taken place. Cops are known to commit torture. Those cops against whom action had been taken, deserved all they got and more. For all those who preferred this tidy process of reasoning, September 1998 promised a rude shock in store. The month saw an unfamiliar spectacle of police officers appearing en masse in court as petitioners, not as violators. Their arguments were simple.

Action had been taken against them on the basis of the Batalanda report.

They had not seen the report, nor did they know what exactly they were accused of.

They had therefore been treated arbitrarily. Their applications are still being heard, although compulsory leave orders against a number of them have been stayed. What capped the whole however was when on the 21st of September, a three member bench of the Supreme Court comprising Justices Mark Fernando, A.R.B. Amarasinghe and D.P.S. Gunesekera decided that the fundamental rights of eleven police officers arrested and detained in connection with proceedings of the Batalanda Commission had been violated. Rights protection was held available to all, even alleged rights violators.

The language of the Court was, indeed, exceptionally stern.

"It is true that allegations of misconduct against police officers must be dealt with promptly and effectively and that the respondents purported to be acting in order to prevent the subversion of the course of justice before a Commission inquiring into unlawful arrests and unlawful places of detention.

However, it is distressing and disturbing that the entire process of arrest and detention of the petitioners has been contrary to basic constitutional safeguards."

The reasoning of the Supreme Court points in many interesting directions. For starters, the decision marks a final burial (or so, one hopes) of the infamous "balance of convenience" argument.

With regard to the police officers in this particular case, the argument went something like this; the head of the police force had stated that he had reports and information that the petitioners were attempting to disrupt the activities of the Commission etc,

….this was enough to justify the detention orders of these individual police officers, even though that material was not disclosed to court. Otherwise, there would have been a serious crisis if that information had proved to be true and the attempts had been successful.

A "balance of convenience" therefore, required the arrest and preventive detention of the petitioners. This reasoning was brushed aside in no uncertain terms.

" A reasonable suspicion or apprehension of past or future wrongdoing is an essential prerequisite for the deprivation of personal liberty. Such deprivation can never be justified by resorting to an expedient "balance of convenience" which can be made to tilt towards the executive on the purely speculative assumption that something untoward might happen, but without any reasonable basis for thinking that it would" the Court warned.

The eleven police officers were taken in on a three fold basis; that there were various threats directed at the Presidential Commission investigating the incidents at Batalanda, that there were information that police officers whose names had come up before the Commission were attempting to leave the island and that there is a possibility that these officers could inflict violence on witnesses before the Commission, and, indeed, on the Commissioners themselves. In the opinion of the Court however, no material implicating the petitioners had, in fact, been placed before Court.

The Secretary, Ministry of Defence could not have formed an independent opinion that the arrests and subsequent detention was necessary. Not only was the tenuous material available to him vague and lacking in particulars but it was pure hearsay. Neither before nor after the Petitioners were taken in, did the police have any material to justify their actions. Not even the motions of investigating any threat or wrongdoing had been gone through.

"The First Respondent ( Secretary, Defence ) had been misled into making the impugned orders by means of the exaggerations and distortions of the vague allegations which the police had" the Court ruled.

The whole in fact, seemed quite déjà vu. Just over a year back, similar language had been used by the Court in deciding that the arrest and detention of former UNP Minister Sirisena Cooray was arbitrary and wrong.

The strictures passed down on senior defence officials were actually much harsher. The Secretary, Defence was held to have relied on misleading advice given to him by senior police officers.

"The power of the Secretary given by Emergency Regulation 17 concerns the physical liberty of persons, including those who have not yet, nor ever committed an offence. It is therefore an exceedingly great power, indeed an awesome power that must be exercised with a corresponding degree of responsibility. There is public respect for the independence and impartiality of the Secretary, albeit tinged with latent reverential fear.

The Secretary must fulfill public expectations and be independent and impartial" the Supreme Court observed. In its decision that effectively separated the political from the legal questions in the case, the Court decided that Cooray's arrest was arbitrary and wrong.

The message was loud and clear. In arresting anyone under emergency on a preventive detention order (which means that you are arrested and detained not because you have done anything but on account of what you might do, if left at liberty), the reasons for doing so must clearly justify the arrest . Otherwise, the arresting authorities would be held accountable. Subsequent to the Cooray case, it seemed as if some ripple effect on arrest procedures had been created.

Indeed, it is interesting to see that in their report on the Independence of the Sri Lankan judiciary that was recently released, a three member team from the International Commission of Jurists was assured by the Attorney General, that following the Cooray case, the making of preventive detention orders had been suspended.

They were told that a revised Regulation 17 incorporating the safeguards required by the Cooray decision was being contemplated. The thinking was however that even this might be unnecessary, in view of the fact that ER 17 is now being treated with great circumspection. One hopes that these assurances are, in fact, being realized.

That the mid September decision of the Supreme Court this year will increase pressure on a repealing of Emergency Regulation 17 or at the very least, its drastic revision, both in law and in implementation is obvious.

"What further remains to be said? The obvious springs to mind. Why, oh why, this constant pattern of reports being prepared by Presidential Commissions of Inquiry which are squirreled away in some corner of the Presidential Secretariat to be taken out when the timing is right and appropriate?

Many moons have waned since the Batalanda Commission report was handed over to the executive. Disciplinary action is, in fact, being taken with regard to its findings against individuals.

Yet, the curious processes of governance are that one has not yet seen the report nor has there been even a murmur (official, that is) as to its contents.

Contrast also, the enthusiasm with which these police officers allegedly implicated in committing acts of torture on the basis of this yet unpublished report are being punished while findings of the Supreme Court against individual police officers found to have committed very specific and grave rights violations, are casually dropped by the wayside.

No action is taken against them even though the present status quoits are not so blatant as to promote them as what happened in the past under a more contemptuous executive. Nevertheless, the disinterest shown in taking action against them cannot but be obvious.

Unless, of course, a political dimension is apparent. Then, action taken will not only be swift but clumsily so. This remains the recurring tragicomedy of our times.

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