31 July 2018

Screening of peacekeeping personnel from Sri Lanka


By Neville Ladduwahetty

This response is strictly limited to the issue of screening Peace Keeping personnel from Sri Lanka to UN Peacekeeping Operations, and not about the alleged threats by Rear Admiral (Dr.) Sarath Weerasekara to those involved with the process or to the condemnations by academics and prominent members of civil society that followed, because it was the delays associated with the screening that became the primary cause to precipitate these exchanges.
An Inter Press Service report dated April 22, 2018, cites the UN Peacekeeping spokesman Nick Bimback as having stated:
"Compliance with these arrangements will be required before the UN can receive any further requirements or rotations from Sri Lanka … Member States that provide personnel to UN peacekeeping operations have the responsibility to certify that all these personnel have not been involved, by act or omission, in violations of international humanitarian law or human rights law, and not been repatriated on disciplinary grounds from a UN operation".
Mr. Bimback is reported to have also stated: "In the case of Sri Lanka, where there are specific human rights concerns, we put in place additional screening measures in 2016 to help ensure that deployed personnel meet our standards, he said. Prior to their deployment to UNIFIL, the Permanent Mission in Sri Lanka provided an attestation certifying that the contingent had not been involved in any violations".
THE SCREENING PROCESS
During the course of an interview the Chair of the Human Rights Commission of Sri Lanka (HRCSL) is reported to have stated: ‘Vetting (screening) does not come under the HRC mandate, outlined in the parent statute. In 2016, however the Ministry of Foreign Affairs (MFA) wrote to the Commission and requested it to take on the task. Vetting was earlier carried out by the UN. But the MFA said that Sri Lanka was the first to be invited to do it locally’. "The Foreign Ministry’s position was the Human Rights Commission was the obvious choice as it was an independent institution now under the 19Th Amendment and had the credibility to take it on ", Dr. Udagama said’.
The task undertaken by the Commission is that: ‘All Member States that nominate or provide personnel to serve with the UN must screen and certify that such personnel have not committed, or are alleged to have committed, criminal offences and/or violations of international human rights law and international humanitarian law. Those who seek to serve with the UN must attest the same and, where necessary provide relevant information. The processes by which this can be done are outlined in Decision 2012/18 of the UN Secretary General’s Policy Committee’ (IPS, April 22, 2018).
Decision 20112/18 states:
"This policy was approved by the Secretary-General's Policy Committee in Decision 2012/18 on 11 December, 2012. The policy outlines the principles and methodology by which the United Nations will pursue human rights screening of personnel. It outlines processes by which (i) Member States who nominate or provide personnel to serve with the United Nations are requested to screen their personnel and to certify that they have not committed, or are alleged to have committed criminal offences and/or violations of international human rights law and international humanitarian law; (ii) individuals who seek to serve with the United Nations are requested to attest that they have not committed, or are alleged to have committed, criminal offences and/or violations of international human rights law and international humanitarian law and, where necessary, to provide relevant information; and (iii) the United Nations Secretariat will establish an information exchange mechanism, such as a focal point network, and procedures to support the exchange of information on prior human rights conduct of candidates/nominees for the purpose of screening".
ISSUE OF COMPETANCE
Having admitted that the task assigned by the Ministry of Foreign Affairs is beyond the mandate of the HRCSL, which according to Act No. 21 of 1996 that set up the Human Rights Commission, is limited to "rights declared and recognized by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights", the question that arises is whether the HRCSL has the competence to certify that the personnel they clear have not committed, or are alleged to have committed criminal offences and/or violations of international humanitarian law, and if they do not, how credible would be their clearance?
The context in which the HRCSL should conduct its screening/vetting should be clearly understood. The conflict in Sri Lanka was an armed conflict that was conducted under conditions of a declared emergency. Therefore, the applicable law is international humanitarian law; a fact acknowledged by the UN Secretary General’s Panel of Experts and the Office of the High Commissioner for Human Rights in Geneva. Consequently, human rights are derogated except for laws that are recognized by the International Covenant on Civil and Political Rights which are Articles 6 - right to life, Article 7 - prohibition of torture and Article 8 - slavery. Therefore, the issue is whether HRCSL has the competence to evaluate whether humanitarian law violations were committed during the armed conflict and thereafter until normalcy was restored.
It is because of a perception that Sri Lanka does not have the competency to evaluate violations of international humanitarian law that Paragraph 6 of the UNHRC Resolution 30/1 calls for the "Government of Sri Lanka to establish a judicial mechanism with special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable…" . The Consultation Task Force on Reconciliation Mechanisms also recommended a hybrid court to investigate violations committed during the armed conflict in Sri Lanka, despite the fact that complying with the provision for a hybrid court amounts to a violation of the constitution, which perhaps is the primary reason why the accountability process has stalled.
In such a background, is it realistically possible for the HRCSL to all of a sudden acquire a competence to evaluate whether violations of international humanitarian law were committed by the prospective peacekeeping personnel whom they screen on a case by case basis, when they are structured and organized to deal only with human rights violations? And, if it had acquired the skills needed to address humanitarian law violations, the HRCSL should undertake the entire exercise of addressing issues relating to accountability nationally, and relating to international humanitarian law violations by any of the security forces associated with the conflict, instead of limiting its activities only to screening the peacekeepers.
CREDIBILITY of the SCREENING PROCESS
This brings up the question of credibility of the screening processes; a fact that has been the source for angst among the prospective peacekeeping personnel and others associated with their welfare. The process of screening has to begin with a list of peacekeepers forwarded by the security establishment. The process would then involve ascertaining whether there are any allegations against any of the names in the list. This means having to identify each individual by name and rank with details of what offence was committed and when, including the circumstances relating to the incident. Such acts should then be considered as violations under provisions of international humanitarian law committed during an armed conflict under emergency conditions and not human rights law. If the HRCSL does not have the competency or the resources to make a judgment the screening process would be arbitrary and cause a grave violation of the human rights of the person concerned because he/she would be branded for life without an opportunity for defense.
Such arbitrariness could be avoided if the list of names submitted does not contain any names of individuals who were involved directly with the armed conflict. Such an approach would be an act of discrimination against those who participated in the armed conflict, because it would deny them from any benefits, however clean their records. Furthermore, it would arbitrarily brand each and every combatant who actively participated in the conflict as a violator of international humanitarian law. In addition, by limiting peacekeeping only to those who did not see active service, the UN Missions would be denied experienced personnel to make their operations effective.
CONCLUSION
In the background that it was this Ministry of Foreign Affairs (MFA) that co-sponsored the UNHRC Resolution 30/1, one cannot hope to expect any better from it other than to cave in and accept "additional screening measures" to become the "first nation to be granted the opportunity to vet military personnel for peacekeeping operations by a national Human Rights Commission" (IPS report cited above). Having committed itself to undertake an unpleasant task ,the MFA appears to have passed the buck to the HRCSL. The fact that the HRCSL did not have the courage to exercise its independence and state that it was not equipped to handle international humanitarian law certifications due to lack of skills and resources, and because of these limitations would bring into question the credibility of certifications by the HRCSL. Does this not bring into question standards of personal integrity?

According to the Human Rights Commission Act, the Chair is nominated by the President. The president is also the Commander-in-Chief of the forces who are being subjected to "additional screening measures". Is this another instance of confused leadership, or what? 
Sri Lanka take lessons from failed federal solutions!

Only about 15% of the world’s countries are federal. The notion that the UN or the International Community have fixed templates for conflicts has proved an absolute sham. All of the countries the UN & international community have been involved in & helped deliver mechanisms for what they deem to be ‘the best solution to conflicts often created or aggravated by their interference” have all failed. All of the newly independent states they helped create are in chaos including Iraq, Afghanistan, Libya, Kosovo & South Sudan. In all of these countries the solution has been federal resulting no single national policy but a plethora of conflicting regional policies, conflicts & new chaos. In all of these instances what we have seen is a bunch of people who have no clue as to what the ordinary people think or want or careless about their needs, but believe that they have the right to decide on behalf of them what type of system they should adopt and after creating the foundation for future chaos they nicely depart to do the same or worse damage in another country. These individuals & their organizations should not be allowed to ruin countries as they have presenting all types of ridiculous blueprints that lead to secession & conflicts & so many loss of lives.

Ethnic federalism was introduced to former Yemen, Yugoslav independent states, South Sudan & more recently Nepal & have shown no signs of being a success.

The idea of one ethnic group living in a designated area is preposterous in the 21st century when at the other extreme another lot of people promote multiculturalism & multiethnic communities! When colonial British partitioned British India they created Pakistan along ethnic-federal lines. The West has done the same for former Yugoslavia & Sudan as well as the recent example of Nepal. It is another means of ‘divide & rule’ by ethnicity. It is without doubt that ethnic federalism accentuates ethnic conflicts, facilitates secession, and eventually leads to the disintegration of countries.


USA (example of failure of confederal constitution)
Population: 325million
Area: 9.8 million km2
US is 3 times bigger than India & 17 times larger than Sri Lanka

The Articles of Confederation for 13 states were first proposed in 1777 in Philadelphia. It took 2 years for 12 states to approve it, the last state (Maryland) approving it 4 years later in 1781. The constitution was designed to make the central government very weak within a UNION of states. Agreement of only 9 of the 13 states was required to pass laws resulting in further operational issues. Amendments required unanimous consent creating further chaos. The centre had no control over the confederates conducting their own foreign policies & international relations & own money systems with no common currency.
US experiment with Confederacy ended on 4 March 1789 when the Articles of Confederation were replaced by the present US Constitution.
Confederation features that give independent & unmonitored powers to the states/provinces as seen in the US example is a failure & should not even be considered as an option in Sri Lanka.

Ethiopia (example of failure of Ethnic Federalism)
Population: 102.4 million
Area: 1,104,300 km2
(United States is about 9 times bigger than Ethiopia. India is 3 times bigger than Ethiopia)
Ethiopia has over 80 ethno-linguistic groups

Only 2 countries in the African continent remained untouched by colonial rulers – Ethiopia & Liberia.
In 1995 Ethiopia departed from its unitary constitution to adopt a federation of nine ethno-linguistically divided regional states. Parliament comprised House of People’s Representatives & House of Federation. The President became ceremonial & executive powers were with the Prime Minister & his Council of Ministers (hmm)

Many Ethiopians have asked the question – If federalism is to be the solution for Ethiopia, why should it be ‘ethnic federalism’? They wanted to know why their country should be divided on ethnic lines, who deemed the historical provinces as faulty & why? Why couldn’t the original provinces remain as they were? Africa’s countries are all created from artificial borders & these artificially created nations dividing people, tribes, families & telling them you are a citizen in this area, you are a citizen in another area is the main cause of the tribal conflicts plaguing Africa.
According to Article 39(1) of the Ethiopian constitution says, every ethno-territorial community has "an unconditional right to self-determination, including the right to secession". The right to ethno-national self-determination granted by ethnic federalism provides the opportunity to appoint local government officials from their own ethnic – another hara kiri.
Kosovo’s Ethno-Religious Federalism fails
Population: 1,895,250
Area: 10,908 km2


Kosovo was controversially created into an independent state in 2008 separating from Serbia following NATO’s illegal intervention of Yugoslavia in 1999. It was a new country created on ethno-lingual lines & it has become another of West’s failures.
Kosovo may be independent but it hasn’t even been given an international country code even EU has not included Kosovo to its membership! Another takeaway from Kosovo for Sri Lanka is the artificial façade of peace & stability that the International Community presents to promote themselves as being the architects of Kosovo’s success story – the same seen happening in Sri Lanka. To represent Kosovo as a ‘multi-ethnic society’ its official flag is externally imposed – blue background, gold map of Kosovo around 6 white stars to convey Kosovo is European. Kosovo’s national anthem is titled ‘Europa’ with no lyrics to avoid nationalistic language disputes. Sri Lanka take note of the same arguments being used here! Kosovo’s constitution is also imposed by foreigners which has turned a blind eye to the corruptions & criminal syndicates operating from Kosovo by the KLA (equivalent to the LTTE). The international community continues to prop up the KLA despite increase in drug trafficking, people smuggling, all types of rackets, political assassinations & organ smuggling. UN Special Envoy Martti Ahtisaar helped create Kosovo Independence (the same person picked by UNHRC to conduct investigation on Sri Lanka) but his plan for Kosovo was rejected by the very countries that backed the Kosovo independence leaving Kosovo in a stalemate situation. The Western-sponsored ‘political’ project of Kosovo which cost $40 billion (from 2000 to 2010) has failed.
Clinton said “What we have done in Kosovo is something we can be proud of for decades”!
further reading

South Sudans’s Ethno-Religious Federalism fails
Population: 12.23 million
Area: 619,745 km²

Sudan was the biggest country in Africa, and Algeria is the 2nd; Now Algeria is the biggest and Sudan split into 2 countries. Sudan is about 2 times bigger than South Africa. South Sudan is roughly the size of Texas

Roots to Sudan’s conflict not surprisingly is the British. Since 1899, Sudan was ruled by the Anglo-Egyptian Condominium but Egypt can little say. Divide & Rule policies meant Sudanese were taught to distrust, fear & fight each other. The British divided Sudan into two – majority Christian South Sudan was not developed & tribal rule encouraged (Southern Policy) but North Sudan occupied by Arabs was modernized & Islamization was encouraged. The distrust sown by the British resulted in North-South Sudan going into armed conflict in 1950s.
South Sudan gained independence from Sudan on 9 July 2011 as the outcome of a 2005 agreement that ended Africa's longest-running civil war. In 2013, civil war broke out but in spite of this South Sudan was made federal in 2014. Not surprisingly a peace deal brokered by the US and the international community collapsed in July 2016. More than 1 million people have now fled to Uganda the largest exodus since 1994 Rwanda. All this with 12,000 UN peace keepers in South Sudan. The notion that setting up a UN office in conflict-torn countries is NO solution was also proved in a report by Medicines Sans Frontiers claiming the United Nations Mission in South Sudan (UNMISS) failed in its duty to safeguard the people. https://www.msf.org/south-sudan-report-details-uns-failures-protecting-civilians-malakal


Nepal’s Federal failure
Population: 28.98 million
Area: 147,181km2

Nepal is twice bigger than UAE, Jordan or Ireland. Nepal is approximately 53 times smaller than Australia. United States is about 67 times bigger than Nepal. Nepal is about 211 times bigger than Singapore.

400 years of monarch ended King Gyanendra's direct rule in 2006. Indian & Western influence in Nepal has increased over the years. The Nepali blockade resulted in India stopping all imports (food, medicines, fuel etc) to Nepal through India’s borders resulting in a major humanitarian catastrophe all because Nepal refused to change clauses in its new constitution as per India’s wishes! There are over 100 officially recognised ethnic groups in Nepal but all geographically dispersed. Nepal’s constitution adopted in 2015 replaced its unitary structure by creating 7 federal provinces. India’s interest in federal demarcation became an open secret during the economic blockade. The division of the provinces many believe more suited for India’s designs than for Nepal’s benefit, an issue that the 13a in Sri Lanka continues to be of concern to the Sri Lankan citizenry. India is playing fiddle with the Nepali Madheshis as it is doing with the Sri Lankan Tamils and in both cases the dangers of secessionism looks imminent. The confusions are many - https://www.spotlightnepal.com/2018/03/05/federal-governance-no-one-size-fits-all/

Yemen (example of failure of externally promoted federal constitution creating chaos)
Population: 27.58 million (2016) 
Area: 527,968 km²

United States is about 19 times bigger than Yemen. Bangladesh is about 4 times smaller than Yemen.
Yemen was forced into a federal constitution which has aggravated the conflict in Yemen. In 2013, the United Nations sponsored a National Dialogue Conference (NDC) to create a new constitution. Constitution Drafting Committee (CDC) was created to draft a new constitution based on the recommendations of the NDC (an astonishing 1800). A draft constitution of 73 pages was presented on 15 January 2015. Yemen was to be split into 6 federal regions. The proposals did not reflect the ethos of Yemen it left out the Houthis & Al-Hiraak, the group that represents South Yemen no different to the manner the place of Buddhism is being craftily removed from the new constitution. In the case of the Houthis they were denied access to the seaports & natural resources which set the stage for the coup & ensuing conflict. What the NDC promised the people, the NDC proposals did not deliver. Yemenis were left with a lack of electricity, no viable economy, no security, and no rule of law. Yemen’s constitution declared separation of powers but not what was to be separated! Article 15 says ‘free social economy’ but no explanation on how the economy was to work. Article 18 says each region will have a role in regional economic development but what the role is, is not included.
Any new constitution must also have stable institutions. However, with the present Sri Lankan government selling strategic areas/resources including airports & ports to foreign governments/foreign corporates while also opening provision for them to buy lands anywhere in Sri Lanka, how equipped are provinces with their own political issues & themselves heavily influenced by foreign factors to handle these power players virtually operating inside their regions as the centre will be powerless to take action in the event of a national crisis. Moreover, while all these chaos are being subtly rolled out even the military & police are being pruned & diluted in other ways to cripple their ability to function in national interest as well. In all other areas the influence of money has influenced people to silence! Only a handful are striving to salvage Sri Lanka from the abyss it has fallen into mainly as a result of the shortsightedness of Sri Lanka’s voters.


Shenali D Waduge

25 July 2018

The removal of Chief Justice –  ShiraniB & Mohan Pieris & hypocrisy of NGOs & civil society!

We have had 2 Chief Justices removed in the recent past. There was much fanfare over the removal of the first on the premise of unfair removal while the removal of the second was met with virtually complete silence. Let us take both these examples to highlight some of the hypocrisies that prevail. A country’s chief justice is the 4th citizen of the nation & the 1st non-political citizen.
Anyone who says the impeachment or removal of CJ Shirani is illegal definitely has to explain the logic behind the removal of CJ Mohan Peiris. The only explanation given by both President & Prime Minister was that the impeachment of CJ Shirani was illegal therefore there was no appointment of CJ Mohan Peiris. If CJ Mohan didn’t exist, both President & PM must explain who was the ghost making judgements as CJ from 2013 to 2015.
It is the Speaker & not the President who has the authority to determine & certify that Parliament has followed due procedure & his ruling cannot be questioned in any court of law. Even JR assigned the removal of CJ Neville Samarakoon to Parliament but a precedence was created by President Sirisena in the manner he removed CJ Mohan. The logic used continues to baffle us no less than the silence of all the supposed to be beacons & virtuous authorities speaking for & working towards good governance. If they took up the case of ShiraniB as victim, why have they not taken up the case of MOhanP as victim too.
In the case of ShiraniB there were a series of steps that was followed. In the case of MohanP he was simply declared not having been appointed as CJ even to be removed. Surely, this calls for some people in position to come forward in his defence.
Let us be clear here that we are taking the case of 2 individuals & the manner they were appointed & removed & the justice & fair play in these removals. It should not matter who appointed them or who removed them. What matters is whether they were removed following a process – in the case of ShiraniB, a process was followed but in the case of MohanP no such process was followed. So who really is the real victim?
What is even more ironic was that President Sirisena was the general secretary of the SLFP the key coalition partner of the UPFA government which impeached CJ Shirani B. In fact Maithripala Sirisena was a speaker at the debate & justified the removal of CJ Shirani & even voted for her impeachment. He was one of the 155 MPs that voted in favor of CJ Shirani’s removal. Also voting in favor of her removal were Minsiters Champaka Ranawaka & Rajitha Senaratne who was even a member of the Parliamentary Select Committee selected to investigate 14 charges against CJ ShiraniB.
All the drum beaters of good governance, transparency & preachers of impartial justice please explain why a government should feel forced to remove a CJ simply because some groups since 12 January 2015 had been organizing mass protests demanding a person’s removal? The BASL President is on record for stating that following discussions with lawyers & the PM on 25 January 2015 the President had agreed to remove CJ Peiris. Sovereignty is certainly inalienable & with the people but certainly not in organized street protests where any one can be paid to protest & hold placards & chant slogans. Is this the good governance that people voted for? The media also carried various versions of bargaining for diplomatic postings in exchange for stepping down another method deviously used to bring down the integrity of the judiciary for the PM has no authority to force a CJ to step down by offering diplomatic postings!
Let’s look at the chain of events
·        8 January 2015 – Presidential Elections
·        9 January 2015 – President-elect Maithripala Sirisena takes oath as President NOT before of the Chief Justice as is customary but Justice K Sripavan the next most senior judge of the Supreme Court.
·        17 January 2015 – BASL called for the resignation of Chief Justice Mohan Pieris in order to preserve the honour and integrity of the Judiciary
·        22 January 2015 – CID for the first time grills CJ Mohan Peiris over a complaint filed by Mangala Samaraweera about an alleged plot to hold power by force on election night by the defeated Rajapaksa regime. The first time a sitting CJ is questioned by the police!
·        28 January 2015 – President Sirisena reinstates CJ Shirani Bandaranayake by revoking Mohan Pieris’s appointment as Chief Justice on the basis that Bandaranayake’s removal was unlawful. If this is the case, then every judgement delivered by Mohan Peiris as Chief Justice from January 2013 to January 2015 would have to be considered as unlawful? Why has no one taken up such a serious matter?
·        28 January 2015 – BASL organizes protest against CJ Mohan Peiris following letter sent by President Sirisena that his appointment was considered null & void as the removal of CJ Bandaranayake was null & void. CJ Bandaranayake arrived to greetings of garlands & cheers.
·        28 January 2015 – Chief Justice Mohan peiris has been threatened by former Deputy Mayor of Colombo and Muslim Tamil Unity Alliance Leader Azath Salley
·        29 January 2015 – CJ Shirani enjoying just 24hours back in office resigns! Why would she resign when she had over 8 years more to retire? https://www.youtube.com/watch?v=DGfSbhqKcVQ
·        30 January 2015 – Justice Shri Pavan takes oaths as 44th Chief Justice of Sri Lanka.
·        31 January 2015 – CJ Mohan Peiris issues statement I have not retired, resigned or vacated my office of Chief Justice, but, due to exertions by external forces reinforced by an extra judicial chain of events, find myself displaced from office by an unconstitutional process having functioned continuously in my appointment for over two years.” http://www.sundaytimes.lk/150201/statement.pdf
·        Prime Minister Wickremesinghe’s logic is the same. He says CJ Shirani was never removed therefore CJ Mohan was never appointed! Then what about the judgments CJ Mohann made from 2013 to 2015?
Chief Justice Shirani Bandaranayake (CJ 43)
Shirani Bandaranayake was appointed 43rd Chief Justice of Sri Lanka o 18 May 2011.
In 1996 (30 Oct) she was controversially appointed by President Chandrika Bandaranaike to the Supreme Court becoming the first female judge (she was a qualified lawyer but had never practiced law & she had never served as a judge)
In January 2013 she was impeached as Chief Justice.
In January 2015 (28th) her impeachment was declared unlawful while her successor Mohan Peiris’s appointment was declared void Ab Initio.
She was reappointed on 29th January 2015 & resigned the same day!
1 November 2012 – an impeachment motion against CJ ShiraniB was signed by 117 UPFA MPs with 14 charges http://www.sundaytimes.lk/121111/columns/cj-decides-to-stay-on-and-fight-20090.html
An 11 member Parliament Select Committee consisting 7 ruling UPFA MPs (RajithaS, Nimal Siripala, Dilan Perera, Wimal Weerawansa, Neomal Perera, Anura Priyadarshana Yahapa, Susil Premajayantha) & 4 Opposition MPs (Johan Amaratunga, Lakshman Kiriella)
Impeachment hearings were held on 23 Nov 2012, 4 December 2012, 6 December 2012.
The Parliament Steering Committee report was presented to Parliament on 8 December 2012 declaring 3 of the 5 charges found her guilty & warranted removal from office.
The impeachment motion was debated by Parliament on 10-11 January 2013 & motion was passed with 155 MPs voting for & 49 MPs voting against it. Any MP who is one of the 155 MPs that voted in favor of the impeachment have no right to contest the validity of the impeachment.
President Rajapakse ratified the impeachment motion passed by Parliament
Chief Justice Mohan Peiris (CJ 44)
Mohan Peiris was called to the bar on 19 June 1975. In 1978 he became a Solicitor of the Courts of England & Wales.
In 1981 he joined the Attorney General’s Department in Sri Lanka as a State Counsel.
18 December 2008 appointed Attorney General.
15 January 2013 appointed Chief Justice following impeachment of CJ ShiraniB
It is interesting that the good governance government & all the 50 civil society groups that campaigned to bring them to power did not wish to continue with ShiraniB as CJ after using her for their campaign against the previous government.
If it is a Rajapakase appointee” the whole world clamors to denounce him/her but if it the appointee is anti-Rajapakse” everything is honky dory. This was clearly seen by the manner that the former UNHRC head Pillay denounced the appointment of CJ MohanP but kept mum on the manner he was removed. The International Commission of Jurists condemned Peiris’ appointment too, describing it as a “further assault on the independence of the judiciary”. But why did the International Commission of Jurists not condemn the manner Peiris was removed?
This is very strange actions coming from individuals who are paid handsomely to be unbiased!
When CJ Bandaranayake was impeached Lawyers, accountants, engineers, architects and various other professionals slammed the Rajapakse government claiming the impeachment unfair. BT Options even ran a poll with 90% claiming she did not get a fair trial. http://www.sundaytimes.lk/130120/business-times/no-fair-trial-for-shirani-b-bt-poll-reveals-28818.html
Now the question is, if lawyers, accountants, engineers, architects etc claimed CJ ShiraniB did not have a fair trial are they saying that CJ Mohan Peiris got a fair trial?
In the case of ShiraniB the previous government followed a process before impeaching her (whether it is right or wrong) but in the case of Mohan Peiris he was simply not allowed to enter his chambers and there was no BT poll organized to ask from the people whether this action was right? Was the removal of CJ Mohan Peiris following a due process or procedure because from 2013 to 2015 he was after all the Chief Justice of Sri Lanka!
Why is it that the entities that took the side of CJ Shirani claiming her to be unfairly dismissed not do the same for CJ Mohan Pieris because his removal was one of the most bizarre removals in judicial history, for he was simply not allowed to enter his Chambers & that was the end of his tenure of CJ. Not a buzz came from all the NGOs, international rights groups that wailed about the need to have transparency & good governance.
Can these NGOs, rights groups & civil society decide who is a victim & who is not? Shouldn’t a victim be a victim if unfairly treated. Should it matter whether it is ShiraniB or MohanP? If either was unfairly treated shouldn’t these unbiased & unpartisan NGOs, civil society & rights groups take up both their cases EQUALLY? Why did they take to the streets for ShiraniB and not for MohanP?
It’s not a question of whether Article 125, Article 107 or Standing Order 78A was followed because while it was so in the case of CJ ShiraniB (for right or wrong) nothing of the sort was followed in the removal of CJ Mohan Peiris. If those who claimed the removal of CJ Shirani B to be wrong, shouldn’t they have set an example & applied the legal due process for the removal of CJ Mohan Peiris to show the world that they were after all following the good governance principles that brought them to power?
Over to you for your thoughts & opinion!


Shenali D Waduge

19 July 2018

Good-for-nothings Rats & Rodents have started to
Chew Again - Focus on Sri Lanka
Kanthar Balanathan
DipEE (UK), GradCert (RelEng-Monash), DipBus&Adm (Finance-Massey), CEng. MIEE

Going back to pre-independence and post-independence, we all know that Tamils have been oppressing the lower caste Tamils and kept them under their arms to carry out mean & unkind work and obey them. Ponnambalam Ramanathan and Arunachalam advocated removing voting rights for the low caste Tamils (LCT). This boils down to disfranchising N&E Tamils. They advocated that the LCT should not engage in Politics and no education. This is the most malicious, vindictive, and felonious act by the Vellalars of SL. To add the Dutch when they invaded SL, they supported this cause of oppression and supported the Thesavalamai law.

SWRD Bandaranaike in 1926 wrote in favour of a Federal-State system for SL. In 1923 the Kandyan National Assembly also requested a Federal System of government. The Kandyan Sinhalese suspicious of the low country Sinhalese, formed the Kandyan Association to assert the distinctiveness of “Kandyan Nationality”. On one side the Tamil elites wanted to assert the distinctiveness of their race, as “Tamils”, while in the Central region the Kandyan Sinhalese asserted the Kandyan Symbol. Even today the TNA joins hands with UNP, however, they are forcefully opposed to the other party (SLFP). History quotes that Kandyans are “Malabar”, although they speak Sinhalese, their dress, habits are similar to Kerala (Malabar). Quote: “Birds of the same feather flock together”. The last king of Kandy Rajasinhe was a Malabar Nayakiya.

It may be in the culture of the Indian Tamils that when the French asked for contract manual labour to the Reunion Island, Tamils from Tamil Nadu (TN) went to work in farms. When the British wanted labour Tamils from TN to work in Seychelles and Mauritius Islands Tamils agreed in several thousands. In the same way, Tamils from TN were shifted to South Africa, Fiji Island, Kenya, Uganda, and several other islands. It may be the poor living conditions, caste discrimination and the greediness made them shift from their birthplace to these islands looking for greener pasture. The same way Tamils from TN were shifted to SL by the British. Beginning in 1839, the British shifted Tamils from TN to work in the Tea, Rubber estates in SL. Telugu workers were shifted for sanitary work. Megha in the 13th century brought Malabar and people from the South as Labour (Contract). In both cases people settled in the migrated countries, although it cannot be regarded as migration, but Contract Labour.

Tamil Diaspora, now boast that Tamils are everywhere and that they do not have a country of their own. It is the greediness that shifted Tamils from India and the egoism is making them utter cloudy words. Tamil Nadu is the country for the Tamils and Tamils cannot claim any other as their own country

When British took power in SL, they were so sympathetic to treat all Tamil as equal. To add, the Sinhale also treated all Tamils as equal. They removed the barrier for education, work and gave freedom to everyone in SL. The Sinhale politicians were also sympathetic and they gave freedom to all Tamils. Tamil politicians (Elites) did not like this to happen. Tamil elites were not intelligent, industrious, scientific-minded; hence they observed the caste system of administration. If a lower caste person attends a political meeting, then all were told about the lower caste person and their focus will be on that person to make sure he does not elevate himself in the political arena. This is the dirty mind and the dirty culture of the Tamil elite politicians. Even in social associations in Australia, the dirty Vellalar will manipulate not to allow any lower caste person to head or even being Secretary whom they believe is lower than them. That’s the dirty unscrupulous mind of the Tamils from SL and India.

The writer has worked in an industry (KKS-Cement) where he studied and seen how they treat lower caste workers in the KKS Cement factory. It is absolutely barbarism and dirty minded industry politics. Tamils are a bunch of caste-oriented megalomaniac clowns. For example, a megalomaniac in Australia, in a meeting stated that TNA cannot do anything because lower caste Tamils are more now within the Northern Provincial Council. Tamil elite politicians have noticed that lower caste Tamils have elevated their social status through education, technical know-how, and knowledge. The elites are not happy about this and will not accept. In Jaffna, some people poisoned the water tank because the students at that school were quite intelligent but lower caste.

TNA and the Tamil elite politicians like R. Sampanthan, CV Vigneswaran etc have now developed a strategy to get back to their old style of political governance. I.e. to oppress the lower caste Tamils. This strategy may be to stress the government to grant police and land power. How can this be done?

1.     Similar to the TN politics create Law & Order disobedience.
2.     Advocate separatism.
3.     Organise sword killing culture among the people in Jaffna.
4.     Organise and escalate drug trafficking.
5.     Assaults and stealing from houses.
6.     Organise and escalate smuggling.
7.     Politicians create separate political groups/parties.
8.     Generate theories in favour of Tamils.
9.     Tamil Diaspora and Tamil media always address a Tamil diaspora as “Eelam Tamil”, while they are from SL as Sri Lankan Tamil. This is for the senseless educated/uneducated Tamils to generate a mindset that there is a land called Tamil Eelam.
10.  Vijayakala’ s recent statement on LTTE may be with motive and knowledge. Subramaniam Swamy has stated that one of the top leaders of LTTE is in Italy. It is to be believed that most LTTE cadre may be in Italy. CV Vigneswaran and Vijayakala are on the same path.
11.  It could be that a team from NPC/Jaffna may be working with the Tamil Diaspora developing a strategy to get the police and land power.
12.  The seven prisoners who have been recommended for a death sentence from the Prison are Tamils. Reason: Drug trafficking.
13.  Generate wealth to fill their caste-based power hunger

Why do they want these two?

To maintain the politics and governance under their arms. I.e. Vellalar. Police power will help them to be in power. Land power will help them to maintain settlement based on caste.
SL faced terrorism for 30 years. Right from the first century, the SL people were invaded by the South Indians. The invasion continues with the Tamils playing their dirty politics.
Tamils, hate and are xenophobic against their own Tamils because of their caste status.
Tamils hate the Sinhale because of the Eelam and power mindset.
Tamils have to reform their mind to think that they are Sri Lankan and not Eelam Tamils because there is no Eelam in the Island. All are Sri Lankan.


GOSL should punish whoever who is advocating separatism and terrorism, possibly pass a death sentence for people who advocate terrorism and jail terms under PTA. Ignoring on the assumption it is trivial may lead to another set of decades for destruction.

16 July 2018

THE LETTER BY 50 ACADEMICS PROTESTING AGAINST ALLEGED INTIMIDATION BY EX-MILITARY OFFICERS

DHARSHAN WEERASEKERA, Attorney-at-Law

I read with amusement an article in The Island of 12th July 2018 titled, ‘Dons condemn incendiary statements against HRCSL.’ It’s about a letter written by 50 academics condemning the conduct of a number of ex-military officers who had said that academics (or anyone else) found to have supported attempts by certain foreign countries, with the help of the Tamil Diaspora, to compromise the sovereignty of Sri Lanka should be treated as traitors, and if found guilty, hanged.
Today, the sad reality in this country is that academics are doing politics, and when this is pointed out, instead of mending their ways and doing what is traditionally – or perhaps ideally – expected of academics, which is to provide informed and scholarly commentary on issues of national importance, attack the critics, in this case ex-military officers.  As far as I’m concerned, if our fighting-men can’t call a spade a spade, then no one can.
In this article, I shall briefly comment on two key passages in the letter, then explain what I understand by the word ‘treason’ and why in a general sense it may not be entirely wrong for most Sri Lankans, not just ex-military officers, to consider that anyone aiding or abetting the agents of foreign countries to compromise Sri Lanka’s sovereignty ought to be hanged.
POINTS TO CONSIDER IN THE LETTER
I emphasize that, I am relying entirely on the letter as reported in The Island of 12th July 2018.  Here’s the first passage on which I wish to comment.  The letter says:
‘It has been many months now since a certain group of individuals, led by ex-military personnel, proclaimed before the media that individuals who are supportive of a new Constitution ought to be considered as ‘traitors’ acting against the sovereignty and territorial integrity of Sri Lanka.  Such individuals, it was further stated, ought to be held accountable for their ‘traitorous’ acts in a court of law and punished with death and that action will be taken against them at a future date when a new political leadership assumes power.’[1]
In respect of the above, I draw the reader’s attention to the following matters:
If by ‘new Constitution’ the 50 academics mean the process that began on 9th March 2016 with the entire Parliament converting itself into a ‘Constitutional Assembly,’ one must remember that the aforesaid event happened in the backdrop of the Government enjoying a 2/3 majority because 45 SLFP MP’s had joined the UNP to form a ‘National Government,’ something for which the said 45 did not have a mandate from their voters.
Further, Chapter 12 of the Constitution, which sets out the procedure for bringing constitutional amendments does not state anywhere that Parliament can or must turn itself into a ‘Constitutional Assembly’ in order to bring such amendments.
On account of both grounds above, many critics have argued that the constitution-making process launched under the Framework Resolution of 9th March 2016.  These critics have included former Justice Minister Mr. Wijeyadasa Rajapakse and former Chief Justice Sarath N. Silva.
It is reasonable to suppose that, when a former Justice Minister and a former Chief Justice say that there’s a fundamental legal problem with a particular course of action being pursued by the Government, regardless of whether they may be correct in such assessment, a responsible Government would take some steps to obtain a definitive legal opinion on the matter, just to be on the safe side.
The Government has the means to obtain such an opinion, for instance, by getting the President to invoke Article 129 and request the Supreme Court for an Advisory Opinion on the matter in question.
To my knowledge, none of the 50 academics who have condemned a number of our ex-military men for allegedly exceeding the bounds of propriety in criticizing those who support the bid to bring a new Constitution have written an article assessing the legality of the constitution-making process.  Neither have they seen fit to publicly call on the President to invoke Article 129 and obtain a definitive ruling on the matter.
Meanwhile, to turn to the ‘Interim Report’ of the Constitutional Steering Committee which was tabled in September 2017 – the report will be the basis for any final Constitutional Proposal if and when such a proposal is ever tabled – it should be noted that one of the key proposals in that report is to delete the term ‘Unitary State’ in Article 2 of the Constitution and replace it with the term ‘aekiya rajyaya/orumiththa nadu.’
The legal effect of such a change will be to turn Sri Lanka into a confederation of the 9 Provinces, with each Province enjoying inter alia a right to unilateral secession.[2]  In short, it will put in place the legal foundation for a future secession by one or more of the Provinces.
I need hardly mention that, the above is happening while the Government is continuing to postpone Provincial Council elections, the best way since the 10th February Local Government elections for the People to let the Government know what they think of the Government’s performance over the past three years, including the constitution-making process.
Under the circumstances, it would not be surprising if most Sri Lankans, not just ex-military men, consider that persons who support the bid to bring the new Constitution are ‘traitors’ bent on compromising the sovereignty and territorial integrity of this country.   In fact, most Sri Lankans would probably say that hanging is too good for such persons!
The second passage on which I wish to comment is the following.   The letter says:
‘Statements such as the above [i.e. alleged statements by the ex-military men that the Chairperson of the HRCSL Dr. Deepika Udagama is unfairly preventing Sri Lankan military personnel from serving in UN peacekeeping missions] are not only threats directed at the life and liberty of the Chairperson of the HRCSL.  They amount to threats leveled at all public officials, academics and citizens of this country who subscribe to political opinions different from those who utter such statements.  These statements, which are of a hateful and defamatory character, amount to threats that endanger human life and personal safety and are thus punishable under the law.’[3]
In respect of the above, I draw the reader’s attention to the following matters:
If what the ex-military men have done is to ask that the law be applied to persons who may be guilty of treason, such a recommendation by itself cannot be considered a ‘threat that endangers human life and personal safety.’  Whether or not someone is guilty of treason is a question of fact and law that a court must ultimately decide.  Recommending that someone be tried for treason doesn’t mean that the trials will necessarily he held, let alone that anyone will be hanged.  So, no one needs to worry.
I am not sure exactly what the head of the HRCSL may have said or done to get the ex-military men in question annoyed at her, but, the general issue involved, if I’m not mistaken, is that numerous academics and NGO’ists in recent years have been claiming that our armed forces are guilty of war crimes.
Generally speaking, charges of war crimes fall into two types:  those leveled against individual soldiers, and those leveled against an armed force as such and by extension the State, i.e. where ‘command responsibility’ is alleged, which ties a particular offence to the chain of command of an army and ultimately the civilian leadership.  The aforesaid academics and NGO’ists are leveling both of these types of charges.
Whether one accuses a particular soldier or the army collectively of war crimes, it goes without saying that the accuser must be able to first substantiate his or her allegations with sufficient evidence.
To the best of my knowledge, soon after the end of the war in May 2009, the Lessons Learnt and Reconciliation Commission, along with certain reports of the UN Human Rights High Commissioner, recommended that a number of incidents be investigated to see if war crimes had been committed by individual soldiers, and the armed forces promptly launched those investigations. Some of those investigations have now been completed while others may still be continuing.
However, to the best of my knowledge, there are only two reports associated with the UN that leveled a charge of war crimes against the State, i.e. which said that the chain of command of the armed forces plus the civilian leadership that oversaw the war is responsible for such crimes.
The two reports are:  ‘The Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka (POE)’ in 2011; and, ‘The Office of the UN High Commissioner for Human Rights Investigation on Sri Lanka (OISL)’ in 2015.
Of these two, even the UN has now more or less conceded that the POE is of questionable legality.  That leaves the OISL report as the sole basis for the claim that the Sri Lankan armed forces are collectively responsible for war crimes.  Unfortunately, neither the UN nor the Government ever subjected the OISL report to an official assessment in order to find out if its conclusions followed from its evidence.
To my knowledge, no group of Sri Lankan academics, including the 50 who have signed the letter, have ever carried out such an assessment, nor have I seen any letter by them urging the Government to carry out such an assessment.
To digress a moment, in February 2017, a number of private citizens including myself carried out an assessment of the OISL report, and we found the report to be full of lies, obfuscations, contradictions, and also characterized by a total failure to consider exculpatory evidence.
The report of our findings, titled, ‘A Factual Appraisal of the OISL Report:  A Rebuttal to the Allegations against the Armed Forces,’ was handed over to the UN representative in Sri Lanka, along with the Presidential Secretariat, and also forwarded to the Office of the UN High Commissioner for Human Rights.  We have not had any response to the report so far in spite of repeated inquiries.
Therefore, as per the legal maxim, ‘Qui tacit consentire videtur’ (‘He who is silent appears to consent’) we have concluded that the aforesaid institutions have now accepted the analysis an conclusions of our report, and have formally notified them of this.  Hence, as far as I’m aware, there is at present no rational basis for anyone to keep claiming that the Sri Lankan armed forces are collectively responsible for war crimes.
Under the circumstances, if Dr. Udagama or anyone else argues that Sri Lankan armed forces personnel ought not to be given an opportunity to participate in UN peacekeeping missions because of allegations that the armed forces are collectively responsible for war crimes, (I’m not saying this is their argument but if it is) then not just ex-military men but any citizen of Sri Lanka can demand that Udagama et al show evidence for their claims, and if they can’t, hold them accountable for such failure.
TREASON
The constraints of time prevent me from discussing the above topic in the detail it deserves, but in general, ‘treason’ is understood as the waging of war against one’s country or helping the enemies of one’s country to wage war against it.  It is an offence under Section 114 of the Penal Code, and the punishment if found guilty is death.
It is also generally understood that, a person can commit treason only during a time of war, so normally persons who promote or advocate policies that can arguably be helpful to a country’s enemies cannot be considered as having committed treason, unless the aforesaid acts are done during a time of war.
However, when our Penal Code was written in the mid 1880’s, the country had not experienced Tamil Separatism, or the related terrorism.  We also did not have a Constitution that explicitly vests the sovereignty of the country in the People.  In my view, it may be possible given the realities of today that an act that compromises the sovereignty of the country even at a time when the country is not at war can be interpreted as an attack on the People and therefore by definition an act of war.
The whole thing will depend on the courts.  Interested parties can file an experimental case and see what happens.  The point is this.  I doubt that the Sinhalas when they take power will have the time to go after ‘small fry’ academics and NGO’ists for what the latter may have done in the past few years.  The Sinhalas will be too busy pulling the country out of the social, political and constitutional abyss into which the present Government has pushed it since coming to power in 2015.
However, academics and NGO’ists will do well remember that rights always go hand in hand with responsibilities.  If certain academics and NGO’ists have been in the habit of overtly or tacitly helping the cause of the Tamil separatists, and this includes helping to push a new Constitution that seeks to turn Sri Lanka into an ‘orumiththa nadu,’ they must know that they can be asked to account for their actions.
[1] ‘Dons condemn incendiary statements against HRCSL,’ The Island, 12th July 2018
[2] See for instance my articles, ‘The Interim Report of the Constitutional Steering Committee of Sri Lanka:  A Brief Analysis, parts 1, 2 and 3’ published in www.lankaweb.com in early April and May 2018

[3] ‘Dons condemn incendiary statements against HRCSL,’ The Island, 12th July 2018