Categories
Domestic

Sri Lanka Peace Chief responds to New York Times

The Editor
The New York Times
620 Eighth Avenue
New York, NY 10018
U.S.A

Dear Sir,

My attention has been drawn to a recent article by Warren Hoge which, in talking about the R2P concept, asserts that:

“Next month, a research and advocacy center dedicated to moving the principle of responsibility to protect into practice is being inaugurated at the Ralph Bunche Institute for International Studies at the Graduate Center of the City University of New York. Similar offices are being set up in Australia, Sri Lanka and Thailand.”

As Secretary General of the Peace Secretariat, I was accordingly asked by a concerned citizen ‘what action you contemplate in this regard, if the UN actually intends to establish such an office in our country.’

I pointed out that this was not a UN initiative. However, the article is also in error in claiming that an office dedicated to moving the principle into practice is being set up in Sri Lanka.

There was an attempt to make the International Centre for Ethnic Studies in Colombo an Associated Centre of the New York Global Centre for the Responsibility to Protect. This was an initiative (perhaps not entirely unilateral, but certainly not official) of Dr. Rama Mani, the former Executive Director of ICES-C. Earlier this month she was dismissed, mainly for a lack of transparency and accountability with regard to a financial crisis that has affected the office, and for a contentious relationship with many senior researches at ICES-C.

It was only after her dismissal, and the surreptitious removal of material from the office, that the ICES Chairman realized that ICES-C appeared on the website of the Global Centre, with the objective indicated in your article. Dr Mani had only officially referred to the matter previously in a paragraph in her report on ICES activities in which she mentioned that ‘we have been requested to serve as a Southern affiliated centre’.

It was decided last week that ICES should be immediately disassociated from involvement with the Global Centre. This was intimated to all members of the Board on January 24th and, as if by magic, the following morning the Global Centre had removed reference to ICES from its website.

I am concerned about this because I have been asked by the Ministry of Constitutional Affairs and National Integration, with which ICES has a Memorandum of Understanding, to assist in monitoring of a Project for which ICES has secured funding from the World Bank. The Ministry had no idea that ICES was contemplating an association with the Global Centre, nor that it had led to action which misled Mr. Hoge amongst others.

Meanwhile it transpires that Dr Mani, and her predecessor Radhika Coomaraswamy, currently an Under Secretary General at the United Nations, are both on the Advisory Board of the Global Centre, which is headed by Gareth Evans. Last year Dr. Mani invited Dr. Evans to deliver a lecture in Colombo to create what she termed much needed waves. She succeeded, because the lecture was full of inaccuracies, which Dr. Evans was unable to defend in discussion with me at this office, following which he alleged that Sri Lanka was heading for a situation in which R2P should be invoked. Though he suggested I send him further details as to what he had got wrong, he has not as yet responded.

It is not the business of a research organization to create dissension in a country, and the whole business suggests that Dr. Mani was involved in an agenda that she did not share with her employers. More worryingly, it would seem that Ms. Coomaraswamy, whilst an employee of the United Nations, has also been furthering this agenda. Though she was required to resign from Board positions in Sri Lanka when she took up the UN appointment, she has continued to attempt to influence matters at ICES, in particular with threatening and cajoling e-mails as to the reinstatement of Dr. Mani. It seems that she also attended the Board meeting at which Dr. Mani was appointed.

Though she had resigned by then, this was as a substitute for Bradman Weerakoon, Secretary to the former Prime Minister, with whom Ms. Coomaraswamy has sadly allowed herself to be associated. Ms. Coomaraswamy was responsible for advancing Mr. Weerakoon into a position of authority at ICES and, though she claims that this was purely for administrative purposes, Mr. Weerakoon has countermanded the order of his Chairman and sent a letter formally reinstating Dr Mani.

Since there is little doubt that there has been much financial mismanagement – Ms. Coomaraswamy has confessed that she signed anything put in front of her by the Financial Controller who she now says was not competent – the excesses engaged in by her and Mr. Weerakoon to have Dr. Mani reinstated suggest improprieties that need thorough investigation. Dr. Mani complained to the Indian High Commission, and following a press conference it was alleged in a website connected to the opposition that a police raid had been prevented by the Indian High Commission contacting the Inspector General of Police, and the Ministries of Defence and Foreign Affairs. This is not true, and the Indian High Commission has assured me that Dr. Mani is not an Indian citizen.

The episode seems designed to obfuscate where Dr. Mani’s allegiances lie. She is currently a French national, but it seems unlikely that she serves French interests. Certainly she has not acted on behalf of ICES, and the list of those with whom she shared her correspondence with Gareth Evans suggests a very different perspective.

Similarly, there is no doubt that Ms. Coomaraswamy is not acting on behalf of the United Nations, and the Secretary General may need to investigate as to whether there has been a conflict of interests. While she is certainly not acting in the interests of Sri Lanka, her continuing association with the opposition may lead the UN to decide that she is not fit to exercise her current responsibilities. She has suggested that Dr. Mani needed protection from a leading opposition lawyer and propagandist when questioned by the police, an action she has described as performed by the ‘strong arm of the state – the police, SCOPP’ (ie, this Secretariat).

Meanwhile there is evidence that, while claiming she encouraged Sri Lankan staff at ICES to apply for the position of Executive Director, she had in fact decided that they were not fit, and assiduously promoted the cause of Dr. Mani.

What I had initially thought was simply a Valentine’s Day gift to the leader of the Sri Lankan opposition, the unveiling of ICES as a partner of the Global Centre when it was launched on February 14th now seems part of a deeper design. The undiplomatic intervention of the Canadian High Commissioner, highlighted in a newspaper yesterday (www.nation.lk – under news features), drawing in as it did other Heads of Mission in Colombo, indicates that further investigation is required. Meanwhile I would be grateful if you published this letter to explain the strange circumstances under which your columnist and his readers were misled.

Yours sincerely

Prof Rajiva Wijesinha
Secretary General
Secretariat for Coordinating the Peace Process

Categories
Business

Thai Hotel Chains eye Sri Lanka’s tourist industry

The rapidly growing Sri Lankan tourist industry has become a focal point for foreign hoteliers to invest in Sri Lanka. Thailand’s two main hotel chains are the new prospective investors to invest in the Sri Lankan hotel industry.

These Thai hotel chains include Minor International, popularly known as MINT and Centara Hotels and Resorts.

MINT is to invest Thai Bhat 10 billion to open 42 hotels and food outlets in domestic and internationals including Sri Lanka, while Centara Hotels and Resorts, plan to form a joint venture with one of the biggest European tour and airline operators in a strategic move to expand the group’s mid-range hotels in Asia.

Other countries that include in MINT chain, Anantara Sanya Resort and Spa’s expansions plan are China, India and U.A.E.

The Centara Hotels and Resort’s expansion plan, other than Sri Lanka, include establishments of hotels and resorts in Maldives, Egypt, India, the Philippines Vietnam., Bahrain, Malaysia and Indonesia. (niz)

Categories
Business

Sri Lanka Port Handles Record Four Million Containers

Colombo port volumes hit a new record of four million containers Tuesday supported by strong growth in both transshipment and import-export cargo, the Sri Lanka Ports Authority (SLPA) said in a statement.

The number of twenty-foot equivalent units (TEUs) of containers handled by the port is up 20 percent so far this year from a year ago.
It is also up 11 percent compared with the total of 3.68 million TEUs done in 2008, the highest-ever performance by the port before recession hit global trade.

SLPA managing director Nihal Keppetipola said efficiency improvements and removal of security restrictions with the end of a war had helped increase cargo volumes and reinforce Colombo’s status as south Asia’s hub port.

The number of import-export containers handed by Colombo is up 25 percent this year compared with last year while transshipment cargo has increased by 18 percent, the SLPA said.

The state-run Jaya Container Terminal (JCT) handling its highest-ever monthly volume of 201,217 TEUs in August this year.

Keppetipola said a new computerised terminal operating system at the JCT costing 800 million rupees helped integrate all terminal operation and plan and optimize rapid movement of containers between the gate and the quay.

This reduced dwell times for containers and turnaround times for vessels, Keppetipola said.

A satellite-based communication system was also added to monitor container stacking

“Last year we reopened the northern entrance, which had been closed for ten years due to security reasons, to facilitate smoother maritime transportation and to increase productivity in the port,: he said.

“This move put an end to the navigation restrictions that have caused congestion at the port causing delays in cargo handling and turn-around times of vessels.”

Sri Lanka’s 30-year ethnic war ended in May 2009, resulting in the withdrawal of war risk insurance surcharges and accelerating economic growth.
The JCT has handled 2.1 million TEUs this year with the remaining 1.9 million TEUs handled by the privately-owned South Asia Gateway Terminals in which Sri Lankan conglomerate John Keells Holdings has a 42 percent stake.

Categories
Foreign Affairs

Government And Ethics

carlo_fonseka

Prof. Carlo Fonseka

Lately my friend RMB Senanayake has been severely critical of the present government for what he calls “unethical behaviour.” He judges that the government is “following only the Machiavellian ethics of politics which boil down to no ethics at all” (The Island 5 July). As a member of a party (LSSP) which is a constituent part of the government, I feel impelled to examine the validity of his judgment. I may be asked why? The answer is that RMBS is an honorable man whose opinions I respect. If his charge that the present government conducts itself with “no ethics at all” is true, then as a senior citizen first and a party political animal afterwards, I ought to do what I can to replace it with a better one. It is to help me to think through this grave problem that I go to the trouble of responding to RMBS publicly. The Editor of The Island merits high praise for promoting free and open discussion on such matters. Public discussions like this must be the sort of activity which Amartya Sen, the Indian philosopher and Nobel Laureate in economics, calls “democracy as public reason”. He regards “public reasoning” as an essential ingredient of participatory democracy.

Machiavellian Ethics

The very fact that RMBS has invoked the political ethics of Niccolo Machiavelli (1469-1527) to characterize the nature of the present government implies that there have been other governments in history which governed with “no ethics at all”. Machiavelli based his ethics of politics mainly on his observations of the actual political behavior of successful rulers of his time such as Ceasar Borgia in Roman Catholic Italy. In Machiavelli’s view ensuring the territorial integrity of Italy which was divided into many warring principalities, had to be the prime objective of rulers. It was to achieve this objective that he formulated his ethics of politics. When reading about the context in which his ethics came to be worked out, the thought occurred to me that in their view of the best interests of their states, all successful rulers of states whose territorial integrity was threatened, must have been compelled by circumstances at least occasionally to behave unethically. From this speculation, it was only a small step to the hypothesis that because all rulers aspire to be successful, they will if necessary tend to behave more or less unethically. At this point a sweeping generalization became irresistible: “All rulers tend to be unethical but some tend to be more unethical than others.”(Readers familiar with George Orwell’s novel Animal Farm (1945) will remember his famous aphorism: “All animals are equal but some animals are more equal than others”.

Biological Philosophy

Biology being the only subject I have studied in some depth, I tried to figure out in biological terms why rulers of nations if necessary tend to behave unethically, in the best interests of their states. A plausible evolutionary explanation suggested itself. A nation is simply an expanded tribe (or super-tribe) engaged in the struggle for existence in the natural world. The imperative objective of a nation is survival by any means, at all costs. Biologically, first comes survival then comes ethics. (Bertolt Brecht’s memorable line “fodder comes first, then comes morality” comes to mind). In order to buttress this biological explanation with an input from political science, I appealed to the most erudite political scientist I know, Dr. Dayan Jayatilleka through the columns of The Island (12 July). If my appeal caught his eye he ignored it perhaps on the (sensible) ground that the political education of an old medical fogey is not one of his priorities. Fortunately, illuminating insights into the problem came from other authorities.

Friday Forum

Voicing the opinion of the formidable Friday Forum, Sri Lanka’s most distinguished diplomat Jayantha Dhanapala spoke learnedly about the importance of “a balanced and principled foreign policy” for our country. He asserted that in the “globalized multi-polar world we now live in, we have to interact pragmatically with other states”. Pragmatism is popularly understood as the theory of dealing with problems in a practical way without resorting to abstract principles. In my mind, however, pragmatism is associated with the great American medic, psychologist and philosopher William James and his definition of “truth”. In his History of Western Philosophy, Bertrand Russell quotes pragmatist William James as follows: “…an idea is “true” so long as to believe it is profitable to our lives…the true is only the expedient in our thinking…our obligation to seek truth is part of our general obligation to do what pays…”. Russell mercilessly lampoons this definition of truth and ever since then for me pragmatism has been in bad odour. If William James’s definition of pragmatic truth is valid, a pragmatic foreign policy will boil down to doing “what pays”. It can be argued that such a pragmatic foreign policy is precisely what the present government has been carrying out according to its best lights. And no doubt all other governments too, must be pragmatic in their foreign policies. Predictably conflicts of interest are inevitable, producing the international mess the world is in.

Pragmatism in Practice

In a critique of Jayantha Dhanapala’s piece, K. Godage, perhaps our most experienced career diplomat, says that after the defeat of the LTTE in 2009, the Tamil diaspora succeeded in obtaining the support of the US, Britain and France to continue their pitch for Eelam. He then poses this question which helps to expose the real nature of a “pragmatic” foreign policy: “Would they (Britain and US) have supported the LTTE to destabilize this country had Britain continued to own plantations in this country or would the US have moved against Sri Lanka had Motorola, Harris and three other computer chip manufacturers setup their factories here?” In the considered evidence-based judgment of our most senior and respected diplomat, “those two countries would have stood by this country if they had such interests here”. (Sunday Island 25 August). That’s pragmatism for you, the obligation to do “what pays”! First comes capital, then comes ethics! Thus, my dear RMBS, it is not ethics but the antithesis of it, namely, naked economic self-interest that governs the relations between nations. And it can be cogently argued that in reason times Sri Lanka has been acting pragmatically i.e. doing what pays. By so doing Sri Lanka has succeeded in decisively defeating militarily the LTTE, the most blood-thirsty, murderous terrorist organization in recent world history. Though defeated militarily, the LTTE-inspired Eelam project continues unabated and the threat to the territorial integrity of Sri Lanka remains a real one. On the 24th of July this year I had the occasion to sit next to President Mahinda Rajapaksa at the same (marriage registrar’s) table. I took the opportunity to ask him a straight question: “Sir, why don’t you aspire to be a Dammasoka instead of remaining a Chandasoka? His unblinking instant reply was: “How can I try to do that when the TNA has not budged at all from the LTTE – Eelam project?” My only response was to ask in disbelief whether that is really so. The conversation ended abruptly at that point. The Defense Secretary, Gotabhaya Rajapaksa, who just escaped being blown to smithereens during the internecine conflict, is now in the position best equipped to judge the magnitude of the separatist threat. Understandably, the defense establishment is loath to run any risks and reacts – perhaps over-reacts – to perceived threats with no compunction. Equally understandably, RMBS of austere ethical propriety, finds the political behavior of the government

ethically reprehensible and morally repugnant. He asks whether “a state is free to ignore all moral values in the conduct of its business”. The rulers claim that they are in fact conducting state in accordance with their own moral imperatives, especially the need to counter decisively present and future threats to the territorial integrity of the state. RMBS indicts the government of practising Machiavellian ethics of politics forgetting that Niccolo Machiavelli formulated his ethics of politics, specifically with the aim of preserving the integrity of the Italian state of his time. Thus, there is an irreconcilable difference of opinion between RMBS and the rulers of the state duly elected to govern it. In this situation let me put the crucial question that arises in the starkest possible terms: Why should the government conduct its business in the way RMBS prescribes that it ought to? In other words, what is the authority on which RMBS bases his ethics?

Authority in Ethics

This raises a very fundamental question: What is the basis of authority in ethics? It so happens that “Authority in Ethics” is the title of a chapter in Bertrand Russell’s book called Human Society in Ethics and Politics published in 1952 when he was 80. He identifies four (overlapping) sources of authority in ethics: human authority, divine authority, the authority of truth and the authority of conscience. Given the absolutist tone of RMBS’s ethics, it is likely that his ethics derive from a divine source. A secular humanist has no argument to counter such a stance and the matter must end there. But a humanist could point out that if ethics are based on a human authority, then the only sanction known to ethics in a given society, is the assent of the majority in that society. In order to ascertain the thoughts and feelings of the people on a particular matter in a given society it is necessary to ask them, that is to say, to conduct an opinion poll. Conducting an opinion poll is essentially a political process. Thus, in the end ethics leads to politics. That no doubt is why the great Greek philosopher Aristotle regarded ethics as a branch of politics. In practice what the majority in a given society sanctions will constitute the ethics of the society at that point in time. If RMBS’s thoughts and feelings are not in consonance with those of the majority then his opinion (however ennobling it might be) becomes irrelevant. There is no other way to conduct public affairs in a democratic state. RMBS knows Churchill’s celebrated definition of democracy: “It is the worst form of government except all those other forms that have been tried…” On the same analogy the present government may well be the worst one in living memory except for all the others. If RMBS considers matters dispassionately, the thoroughly amoral and unethical behavior of the US – which he seems to regard as the temple of democracy, the guardian of liberty, the dispenser of global justice, the citadel of free enterprise and the God-fearing secular state – in relation to Iraq, Libiya and Siriya, he must surely become less judgmental about the government in his own country. Let us not forget that this country endured a mortal threat to its existence from the worst expression of terrorism the world has seen in recent times. In this context, I will continue to support this government until my friend RMBS comes up with a specific named alternative to replace it. He must recommend it strongly, rationally and cogently instead of preaching transcendental ethics. I insist that he must name his recommended choice because in political matters nothing is easier to do than to indulge in unrelenting criticism of others and do nothing constructive.

Conclusion

A concluding relevant thought may be in order. As member of the LSSP, I stand firmly for the abolition of Sri Lanka’s version of the executive presidency which was criticized to death by Dr. N.M. Perera, the founding leader of the LSSP. I should strongly support every movement to abolish it. Venerable Maduluwawe Sobitha Thero whom I greatly respect knows how much I approve of his powerful campaign to abolish the executive presidency. President Mahinda Rajapaksa is the only one who has the power to do it. If he has the courage and wisdom to do it his name will shine in Sri Lanka’s history like a mighty star.

Courtesy The Island

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Categories
General

Defence Seminar 2013: Secretary Defence Mr. Gotabaya Rajapaksa’s vision for Sri Lanka

Making the keynote address at the 3rd consecutive Sri Lanka Army organized ‘Defence Seminar-2013 on the theme ‘Post-Conflict Sri Lanka: Challenges and Regional Stability’, held from 3rd to 5th September at the Galadari Hotel, Colombo, Secretary Defence Mr. Gotabaya Rajapaksa delivered a spectacular and visonary speech to the more than 300 participants including 66 foreign delegates from 29 countries.
The 1st Defence Seminar focused on Lessons Learnt by the Sri Lankan Defence establishment in defeating LTTE terrorism.
The 2nd Defence Seminar focused on Post-war efforts to create lasting peace and stability examining steps under 5 areas of Reconstruction, Resettlement, Rehabilitation, Reintegration and Reconciliation.  
Secretary Defence on Sri Lanka’s immediate post-war challenge successes  
1.         Accommodating and ensuring the welfare of nearly 300,000 Internally Displaced Persons
2.         Demining and Reconstruction of Infrastructure/facilities – nearly 5000sq.km of land demined. 
3.         Resettling the IDPs in their places of origin (All IDPs in welfare camps were resettled from October 2009 – August 2012) inclusive of other displaced persons. This achievement took 3 years and 3 months after elimination of LTTE.
4.         Rehabilitating nearly 12,000 ex-LTTE cadres and
5.         Reintegrating them to society.
Independent Surveys 1:
UNHCR survey confirmed Sri Lanka’s resettlement success (Nov 2012-Mar 2013) assessing Sri Lanka against global standard of Inter Agency Standing Committee Framework for Durable Solutions for Internally Displaced Persons – Sri Lanka is mentioned under–
a) access to personal and other documentation without discrimination
b) family reunification
c) access to effective remedies and justice
d) safety and security
e) access to livelihoods
f) participation in public affairs
Note: Only 29% of respondents had negative views on military presence.
Independent Surveys 2:
United Nations Office for the Coordination of Humanitarian Affairs (OCHA) Field Mission survey (May-June 2013)
§  ‘remarkable improvement in infrastructure development in many sectors including transportation, communication, roads, railways and health facilities’
§  Survey observed that there was no visible presence of armed military personnel in uniforms that military support was primarily for ‘immediate and development needs of the population’ (building houses, shelter, water, sanitation, scholarships for schools and children, vocational training, organizing tours for people of North to visit other parts of Sri Lanka) – efforts to help civilians return to normal life.
Independent Surveys 3: Foreign Researchers/Dr. Kruglanski & Dr. Gelfland of the University of Maryland
§  LTTE cadres showed reduction in support for violence after rehabilitation program
Other successfully completed post-war challenges:
§  Setting up Livelihood Assistance programs
§  Material Assistance programs – donation of fishing gear, utilities for farming, provision of livestock and seeds for agriculture
Secretary Defence on shifting military from combat with terrorists to cooperation with civilians/society:
§  Gradual reduction of military camps/troops but military will remain for strategic security reasons.
§  Engineering battalions engaged in reconstruction and national development programs
§  Redrawing internal security policies and procedures and expanding intelligence units
§  Handing over to police the maintenance of law and order – establishment of more police stations and recruitment of Tamil speaking police personnel
§  Helping restore civil administration mechanism
§  Disarming former armed groups
§  Civilian properties in the process of being handed over once legal proof of ownership is established.
§  Removing restrictions previously placed for security reasons (movement in high security zones, limitation to fishing, restrictions in trade of classified items) Palaly cantonment is open to all with free access to airport and Kankasanthurai harbour.
§  Releasing detainees for involvement in LTTE activities while a handful remains in detention for prosecution. Database of all detainees available with police. Lawyers, family, Human Rights Commission and ICRC given access to them
§  Repealing of Emergency Regulations in August 2011
Secretary Defence responds to allegations against Military : Number of Civilian Casualties
Number of civilian casualties (during final stage of war) ranged from 7000 to more than 40,000. The allegations were all guestimates without sources and ignored independent and credible sources (Dept of Census & Statistics/UNICEF/LLRC).

If LTTE had 30,000 approximate cadres at the start of the Humanitarian Operation and nearly 12,000 surrendered to the Armed Forces either the remaining had been killed, they are posing as civilians or have fled the country.

It must be also noted that Sri Lanka lost nearly 6000 of its personnel in combat while 20,000 or so were injured. Such a number of casualties in the army could not have happened if the enemy was not engaged in intense battle with the Sri Lankan military during the final stages of the war.

Department of Census and Statistics ‘Enumeration of Vital Events’ in Northern Province (June-Aug 2011) field data collected in July 2011 by 2500 Tamil and Muslim Government servants from North. Report revealed:
a.  7896 deaths due to unnatural causes (Jan-May 2009) included LTTE cadres killed in action,
b.  2635 persons reported as untraceable (parents/next of kin had not recovered their bodies or knew their whereabouts)
c.   Of 2360 cases investigations reveal that 1625 persons had been forcibly recruited by the LTTE.
d.  Only 26 instances of people reported by the next of kin who had surrendered to the Security Forces and subsequently disappeared.
Secretary Defence on reasons for civilian deaths/missing  
§  civilians killed by LTTE trying to escape to Govt controlled areas,
§  civilians detained and killed by LTTE for other reasons
§  civilian deaths from being forcefully used in combat by LTTE
§  civilians deaths from crossfire
§  civilians reported dead but likely to have escaped or illegally migrated overseas. An unknown number of persons have left Sri Lanka and are now living overseas. The countries hosting them have not revealed their details to the Government of Sri Lanka.
§  deaths not occurring during Humanitarian Operation but reported to claim compensation
§  false reporting
UNICEF with Probation and Child Care Commission of North and Government Agent of Vavuniya – Family Reunification Project (confirms and corroborates with Sri Lanka’s findings)
§  2564 tracing applications received by July 2011
§  1888 applications related to missing adults
§  676 applications related to missing children
§  64% parents of missing children claimed LTTE had recruited their children.

Those making allegations against the Sri Lankan military may like to explain how any military should confront a non-state actor using asymmetric warfare strategies with no compunctions to safeguard civilian lives and oft times using civilians as human shields in order to attract external intervention and to once again gain themselves breathing space?

Those throwing stones at the Sri Lankan military may also like to explain why LTTE would deliberately and repeatedly launch artillery and mortar attacks at the military from No Fire Zones/ civilian installations like hospitals and churches which were created for the civilians and not for LTTE to place their weapons and ammunition or take refuge amongst the Tamil civilians?

Secretary Defence on Lessons Learnt and Reconciliation Commission Report  
§  LLRC concluded that there was No DELIBERATE targeting of civilians by Sri Lankan Military
§  LTTE responsible for violations of international humanitarian law
Secretary Defence on International Commentaries on Post-Conflict
§  Negative feedback on Reconciliation – lacked holistic perspective did not consider ground realities as reconciliation is a process and takes time to accomplish and cannot give overnight results.
§  Negative feedback ignored type of rule under LTTE – people of the North and parts of East had no democratic freedoms – no room for dissent, no alternate views, everyone disagreeing with LTTE were silenced. People living amongst LTTE were taught to hate the Sinhalese and the State. Removing 30 years of indoctrination inspite of resettlement, reconstruction and even rehabilitation is not easy.
Secretary Defence on Democratic Process in Sri Lanka (contrary to the statement by Navi Pillai claiming Sri Lanka was heading towards an Authoritarian rule)
§  Provincial Council elections held in Eastern Province in 2008 before the Humanitarian Operation ended
§  Local Authority elections for Jaffna Municipal Council / Vavuniya Urban Council in August 2009
§  Presidential Election held in 2010
§  General Elections held in 2010
§  Local authority elections held island-wide in 2011
§  Provincial Council elections to be held in September 2013 – the 1st after 1989 elections of merged North-East province through 13th amendment. North-East demerged in 2006.
Secretary Defence on LTTE-fronts continuing to pose threat to Sri Lanka
§  LTTE’s extensive international network remains intact and their propaganda needs to be effectively countered.
§  Extremist elements within Tamil expat community part of this network
§  Their intent is to divide Sri Lanka
§  Strategies used include winning international opinion for separatist cause, increasing international pressure on Sri Lanka, undermining Government efforts for reconciliation and economic development, attempting to resume conflict by reorganizing local militant activities
§  These LTTE-linked groups influence foreign NGOs, foreign parliamentarians and even fund local groups masquerading as democratic
§  The LTTE international network comprises
a.    Tamil Coordinating Committee based in Norway led by Nediyawan
b.    Transnational Government of Tamil Eelam in US led by Rudrakumaran
c.    LTTE headquarter group in France led by Vinayagam
d.    Global Tamil Forum led by Father Emmanuel who coordinates all above groups.
§  Foreign Service and Foreign Ministry despite lack of resources need to counter by communicating the true picture globally.
Secretary Defence on Threats from Extremist Groups (including those involved in previous insurgencies)
§  Groups attempting to mobilize people to take up extreme left wing causes
§  Groups radicalizing students / the public and encouraging them to take to the streets in protest
§  Increase in communalism amongst ethnic groups – increased insularity of ethnic groups may lead to fragmentation of the Sri Lankan identity into ethno-religious lines
§  Some in the Tamil community who identify more with Tamil Nadu than with fellow Sri Lankans.
§  Some foreign groups encouraging Sri Lankan Muslims to identify themselves with global Muslim community distancing them from integrating with other communities
§  Muslim fundamentalism spreading all over the world and in Asia and concerns Sri Lanka’s Law Enforcement agencies and Security Forces.
§  Extremist groups have been in transit in Sri Lanka and may promote Muslim extremism in Sri Lanka
§  Consequence of increasing narrow-mindedness of minority ethnic groups is emergence of hardline groups within majority community which will lead to further tensions and a vicious cycle affecting overall unity.
Secretary Defence on Organized Crime
§  Rise of terrorism and insurrection required state to procure arms and ammunition some of which have fallen into criminal hands.
§  Rise of underworld engaged in organized crime – drugs, armed robberies, kidnappings for ransom, financial frauds, seizing land illegally are a handful of activities that need to be tackled.
Secretary Defence on Media Freedom
§   Legitimate media channels, newspapers, websites freely operate in Sri Lanka
§   Some illegal sources also engage in false propaganda to damage the country’s image internationally.
§   Negative image campaigning will impact on tourism, foreign investment and even trade
§   Media organizations (every citizen and political group) must exercise their democratic freedoms with responsibility – they should not engage in unlawful activity under the guise of exercising their freedoms.
Secretary Defence on India and Sri Lanka’s strategic geographical location in South Asia
§   Continued inter-linking domestic issues between Sri Lanka and India (India’s sensitivity to events in Sri Lanka due to influence of Tamil Nadu state on Tamil issues especially at times of elections)
§   Bilateral issues – increasing incidents of illegal fishing by Tamil Nadu fishermen on Sri Lankan waters
§   India is the most important and powerful country in South Asia, but Sri Lanka is a completely independent sovereign nation which India is aware of
§   Critical that both India and Sri Lanka retain a meaningful and close relationship despite issues arising between them
Secretary Defence on Sri Lanka’s relationship with China
§  China’s involvement in Sri Lanka is purely diplomatic and economic
§  China has been one of Sri Lanka’s foremost development partners contributing richly to key economic development projects.
§  Sri Lanka’s relationship with China should not be regarded as a threat by any other nation.
Secretary Defence on Regional Issues Sri Lanka faces due to Sri Lanka’s geo-strategic position
§  Asian region becoming increasingly important in global affairs
§  India and China increasing economic and military development bring Asian region into global focus
§  Western Governments may attempt to influence Sri Lanka to align to their interests in the Asian region
§  Power politics between nations will affect Sri Lanka’s relations with these nations.
Secretary Defence on Maritime Security
§   Sri Lanka does not have land borders
§   Sri Lanka does need to protect its maritime security and prevent transnational crimes – drugs, smuggling, arms smuggling and human trafficking, maritime assets within Exclusive Economic Zone, safeguarding Sea Lines of Communication against piracy.
Secretary Defence on National Economy
§   War suppressed economic potential and held back Sri Lanka’s growth
§   History reveals that majority of problems were fundamentally economic (insurrections of 1970s, 1980s even LTTE manipulated economic aspect along ethnic /racial lines)
§   Post-war needs to address unequal development / rural underdevelopment and uplift standard of living in rural areas to standards enjoyed in cities.
§   Establishing highways to connect distant cities – reduce travel time.
§   Rural masses must not feel marginalized or feel economic compulsion to move to cities (education, healthcare, meaningful employment without leaving their places of origin)
§   Need to promote tourism, foreign direct investment, industrial development, value addition in agriculture, service economy
§   Retain talented young people and encourage them to remain in Sri Lanka.
§   Keeping with our traditional way of living develop our agriculture, animal husbandry and seek self-sufficiency.
§   Adapt 5-hub strategy to develop Sri Lanka as a Knowledge Hub, Commercial Hub, Naval and Maritime Hub, Aviation Hub and Energy Hub.
§   Hambantota Port and Mattala Airport is a long term plan to derive economic potential to maximize on volume of ships that pass through the sea lines making the Hambantota region as an industrial and transhipment cargo hub.
Secretary Defence on Sri Lanka’s Future
§  Being able to navigate present issues (national security, geo-politics etc) will determine Sri Lanka’s destiny.
§  Looking ahead positively and confidently without focusing on issues inherited from the past
§  People need to develop mentality beyond that of a developing nation shedding Third World Mentality.
§  All Sri Lankans must accept challenge and move forward together into a shared future as one Sri Lankan nation.
Secretary Defence on Safeguarding Democracy
§  Handling subversive elements from using modern communication technology (internet, global news media, mobile phones etc) to attempting to disseminate wrong information and arouse people negatively.
Secretary Defence on future challenges:
1.    Preventing the re-emergence of terrorism
2.    Establishing effective methods to project Sri Lanka to the international community
3.    Suppressing the emergence of other extremist groups
4.    Preventing further ethnic divisions and communal violence
5.    Challenges of maritime security and border control
6.    Curtailing the growth of organised crime, and
7.    New challenges in safeguarding a just and wholesome democracy.
Secretary Defence on way forward:
§  Secretary Defence on a Government obligations:
o   Ensure national reconciliation is achieved
o   Move Sri Lanka into the future together as one nation without fragmentation into groups based on ethnicity, religion, caste or place of origin.
o   Ensure all Sri Lankans have same opportunities and unobstructed access to state services
o   Ensure Sri Lanka is a peaceful, stable and rapidly development democracy.
o   Holding elections after restoring normalcy to North and East provinces
o   Issues delayed due to terrorism must be attended to
o   Economic issues as a result of global economic conditions need to be solved gradually instead of using them as political slogans.
§  Secretary Defence on People’s obligations:
o   People must move forward as a nation – united by what we have in common.
o   People must not stay locked in a post-conflict mentality
o   People must remove from ‘Third-World Mentality’
o   People must understand freedoms guaranteed through democracy must be exercised with responsibility. Ex: right to public assembly – freedom to demonstrate on issues that they feel are important does not give freedom to engage in violent protest, incite violence or act in other undemocratic ways. Then they would have exploited and abused their democratic freedoms. When this happens other people with vested interests use this to turn the situation to their advantage and project a negative image of the country internationally as well as amongst the locals themselves.
§  Secretary Defence  on Politicians/political Party’s obligations:
o   
Political parties must promote the interests of the nation without focusing on one group
o   Political parties must bring all ethnicities and cultures together into one Sri Lankan identity so that the nation can progress.
o   Main political parties must stop politicizing divisive issues for petty political gain
A fine picture of Sri Lanka’s future was articulated in the key note address by the Secretary Defence covering the immediate post-war challenges, the achievements of the armed forces in their new role of capacity building in cooperation with civilians and society. It has heralded a distinctly unique partnership one that combines the value-added logistical capabilities and discipline of the armed forces with the new challenges that face a Sri Lanka journeying towards a future without terrorism and ushering a new chapter in uniting nations of the Asian continent for regional stability, economic growth and overall a shared future.

Shenali D Waduge

Categories
Foreign Affairs

The Fires Within

Dharisha B

Dharisha Bastians

Four years after the war ended, development and reconstruction showcases are eclipsed by raw human suffering during Navi Pillay’s visit to Sri Lanka

Rajeswari Ganesan, mother of a 28 year old Vavuniya prison inmate who died under suspicious circumstances in June last year, sobbed out her grief to visiting UN Human Rights Commissioner Navanethem Pillay in the North last Tuesday. This past year, Rajeswari’s grief over the death of her only son, who authorities claim died of a heart attack but she believes was killed in custody, has been a terrible thing to see. Navi Pillay may not have been able to understand Rajeswari’s representation made in Tamil, but overcome with empathy, the UN Envoy put her arms around the weeping mother and held her.

Navi Pillay was the most senior UN official to have visited Sri Lanka’s embattled north and east since the UN Secretary General, Ban Ki Moon toured the region soon after the war ended in May 2009.  For hundreds of families living in the former war zone, whose personal tragedies have been ignored for years, the fact that a high ranking person of international influence was finally close enough to hear their cries for help, was undoubtedly an electrifying experience. “I have never experienced so many people weeping and crying. I have never seen this level of uncontrollable grief,” Pillay was to tell The Sunday Leader three days later in an interview.

Steps in the right direction

In anticipation of her visit, the Government made several strides in the right direction. Whether superficial attempts to pacify the visiting UN Envoy and temper her report ahead of the Commonwealth Heads of Government Meeting (CHOGM) scheduled for November or not, the Rajapaksa Administration set up a Commission on Disappearances, appointed credible commissioners, returned military acquired land to the people, promised action on the Weliweriya killings and agreed to give Pillay “unfettered access” wherever she chose to go. It was the first time that the regime had opened up the final theatre of war beside the now legendary Nandikadal lagoon to any foreign visitor.

Yet in the end, none of the Government’s efforts to paint a positive picture of Sri Lanka’s leap forward after the end of the war could mitigate the stark reality of weeping women and children on the streets of Jaffna and Trincomalee. Shiny new roads and railway tracks could not hide fundamental issues in the former battle zones that were obstructing genuine post-conflict healing and reparation. Pillay was confronted with tales of livelihood and land loss, the search for missing family members and justice for senseless death everywhere she went in the north and east. And in the capital, journalists and marginalised groups like the country’s Muslim population made representations to her about the ongoing suppression of fundamental freedoms in post-war Sri Lanka.

When the High Commissioner issued a stinging report of her seven day fact finding mission hours before she left the island, it was clear the representations of ordinary Sri Lankans and civil society groups had made a deep impression. There was no mincing of words or attempt to pacify the host government. Pillay hit back hard at her critics – many of them Government ministers and warned she would report any reprisals against those who had spoken to her during the UN Human Rights Council mandated mission, back to the Council.

Extended boldness

If Pillay’s presence had given ordinary people extraordinary courage to publicly air their grievances even in the heavily garrisoned north and east, her parting words that the UN considered reprisals a very serious matter has only extended this boldness. One day after the UN High Commissioner left Colombo, Fr. Veerasan Yogeswaran who runs a human rights group in Trincomalee that works with families of the missing or detained, told the French Press Agency (AFP) that he had been visited at midnight and again at dawn by half a dozen plainclothes policemen last Wednesday, just hours after his discussions with Pillay. The Jesuit priest told reporters that his concern was that security forces personnel were entering homes at midnight or in the pre-dawn hours and questioning ordinary civilians. Met with complaints by Pillay about the reprisals against the priests, journalists and civil groups, the Government vehemently denied the claim and then demanded the High Commissioner provide proof to allow the administration to commence investigations. It has lapsed into familiar arguments, about vested interests intimidating people in order to cast the Government in a bad light and even claimed the UN Envoy had been misled by mischievous political elements. But in other ways, the Government has already commenced its own public criticism of those who made representations before the UN High Commissioner, calling them out as tale carriers to the international community. Minister Wimal Weerawansa has already accused the Sri Lanka Muslim Congress of “snitching’ to Pillay because the Party handed over a report about violence against the Muslim Community to the visiting Envoy. President Mahinda Rajapaksa has also reportedly had strong words for SLMC Chief and Justice Minister Rauff Hakeem, about the move.

For Government officials heavily involved with organising Pillay’s visit, her final remarks at the end of the week long tour proved a deep disappointment. The sections of the regime that are advocating greater engagement with the UN system, including Ambassador Ravinatha Aryasinha who heads the country’s Geneva mission to the UN,  genuinely believed that given the opportunity to witness the progress in Sri Lanka first hand, the UN High Commissioner’s perception of the human rights situation on the ground would change. Unfortunately these Government elements are at odds with other more powerful sections of the ruling regime, that are willing only to make superficial changes but have no real intention of meeting international obligations to devolve power to the island’s Tamil population or investigate alleged violations in the conflict’s final phase. Unfortunately for the Rajapaksa administration, Navi Pillay was not willing to merely scratch the surface during her visit.

Stinging goodbyes

As for Pillay’s last words in the island, no one is smarting more than President Mahinda Rajapaksa. The explosive statement at the end of her mission, included remarks about the authoritarian direction in which Sri Lanka was headed. Her words continue to rankle power centres in Colombo long after Pillay is gone.

“A dictator is a ruler who does not hold elections,” President Rajapaksa charged at the 62nd SLFP Convention in Kurunegala on Monday, one day after Pillay had left these shores. There had been 11 elections held under his watc, since 2005, he claimed. “What’s more democratic than that?” he asked the SLFP crowd. “What can I do if the Opposition Leader can’t win an election,” he quipped. Under the lighthearted tone however, the rancour is real, Government insiders say.

There is also the question of whether President Rajapaksa was deliberately perpetuating the grotesquely erroneous notion that elections are the sole test of a state’s democratic credentials. Deposed Iraqi Dictator Saddam Hussein, Egypt’s former President Hosni Mubarak, Zimbabwe’s President for life, Robert Mugabe and President Rajapaksa’s brand new best friend in Belarus, the self-proclaimed last dictator of Europe, Alexander Lukashenko all belong on a list of autocratic leaders who regularly take their nations to the polls. Elections held under such regimes are tragically flawed affairs. But even so, democracies are measured not merely by whether a country’s leaders are elected (however fairly or unfairly), but also by how a state and its leaders safeguard and uphold the liberties of individuals. In a state where civil liberties are suppressed, elections only impose majority tyranny on the rest of the populace.

The Government has issued rebuttal after rebuttal to Pillay’s statement. External Affairs Minister G.L. Peiris even addressed the press in London on Monday evening, in order to reply the UN Envoy as soon as possible. Each rebuttal has dealt extensively with Pillay’s remark on increasing authoritarianism, claiming that the comment was a transgression of her mandate and a political statement. Peiris said her concluding remarks showed a “distressing lack of balance” and claimed her observations suggested that Pillay had “formed her views before reaching the shores of the country.”

The floral tribute

The rebuttal of Pillay’s closing remarks from the Department of Government Information went so far as to accuse the High Commissioner of having attempted to pay a floral tribute at Mullivaikal where the LTTE Leader met his death. The UN Delegation it is learnt was notified by the highest levels of Government in Colombo last Tuesday while Pillay was in the North, that the tribute would not be tolerated.

During her press briefing in Colombo, High Commissioner Pillay said she often lays flowers in commemoration of victims of conflict, in most countries she visits. The question of the floral commemoration has become a hot button issue, with Government insiders insisting Pillay had “shown her hand” in no uncertain terms with the attempted ‘commemoration’.

Given the southern political sensitivities regarding the final theatre of battle where the LTTE leadership perished, the UN`s choice of Mullivaikal for a tribute was perhaps a poor one. But as analysts point out, despite the ubiquitous war memorials bearing unmistakably militaristic symbols all over the country, the Sri Lankan Government is yet to construct a memorial for all victims of the war, despite such a conciliatory memorial being strongly advocated even in the Lessons Learnt and Reconciliation Commission.

Nevertheless, for the first time since the High Commissioner’s delegation left Sri Lanka, her Office clarified the issue yesterday.  Spokesman for the High Commissioner, Rupert Colville told Daily FT that the UN considered that the the general area where the war ended after nearly 30 years might be a suitable spot to commemorate all those who died during that conflict. Colville said that the Government had learned Pillay’s team was considering this and made it plain they viewed it in a different light. “We considered their point of view carefully and felt in the end that it might be misinterpreted — as indeed it has been — so decided not to proceed,” Colville said.

Gross misrepresentation

He said it was a gross misrepresentation to pretend that Pillay was planning to honour the LTTE. “She made her views on the LTTE  very clear indeed in her statement,” the High Commissioner’s Spokesman told Daily FT. Colville said that the words High Commissioner Pillay was due to speak in Mullaitivu had been included in her final statement, when she paid her respects to all Sri Lankans around the country who were killed during the three decades of conflict.

He said that the misrepresentation was “just the latest in the pattern of mendacious abuse” Pillay had referred to in her closing remarks.

Needless to say the slurs cast at the visiting High Commissioner became a large part of the narrative, especially after Pillay tackled the issue head on in her closing remarks. According to informed sources, two remarks particularly irked the visiting UN Envoy. Firstly the reference to her by JHU strongman Udaya Gammanpila as a terrorist sympathiser who saw “her husband in every terrorist”. Pillay’s husband was a lawyer and anti-Apartheid activist in South Africa, imprisoned with Nelson Mandela and others on Robben Island, where political prisoners were detained. The second was Minister Mervyn Silva’s offer to marry Pillay to show her what Sri Lanka ‘has to offer.’ The lewd remarks, made worse by allusions to Ravana-Sita folklore drew an apology to the visiting High Commissioner from President Rajapaksa no less, during his meeting with her last Friday. For the 72 year old judge, who has fought relentlessly for women’s rights throughout her career and especially in her present position, Silva’s remarks were not to be borne.

During a meeting with Leader of the House Nimal Siripala De Silva who was briefing Pillay on the recently constituted Parliamentary Select Committee on Devolution proposals, tried to lightheartedly brush off Mervyn Silva’s slurs. “Don’t worry about his remarks,” the congenial De Silva said during the meeting. Pillay was quick on the draw: “It is you that should be worried, Minister” she said.

Making it personal

There is great weight in that brief but powerful sentence. Rajapaksa administration officials repeatedly make a fundamental mistake in its dealings with international diplomats. They attempt, at their own peril, to individualise UN office bearers or diplomatic officials at local missions. Navi Pillay, as far as the Sri Lankan Government is concerned, can be whittled down to a South African Tamil, a sympathiser of the Tamil cause by virtue of her ethnicity and a convenient tool of the West. Similar mistakes were made with her predecessor, Louise Arbour, who was repeatedly vilified by Government officials. Navanethem Pillay, the Government must understand, even at this late stage, is not just one woman to be discredited and ascribed terrorist labels. Pillay is not just a South African or a Tamil, but the holder of the Office of the High Commissioner of Human Rights at the UN, a fixed institution that will continue to advocate and criticise long after Pillay no longer holds the title. When she presents her reports on Sri Lanka following this fact finding mission, that report will not only remain relevant while Pillay remains in office, but even when her successor takes over the reins.

The UN Envoy said as much during her concluding press briefing last Saturday, when she explained that she and even the UN Secretary General were merely civil servants, bound to uphold the regulations and standards set by 193 member states of the UN. The rules, she said, were set by governments of the world, including Sri Lanka. “If the rules and regulations are violated, that is what the UN points out to Governments. You may call it criticism, but that is what the UN does. When there are gaps, we raise a critical voice, but always with the intention to help,” the High Commissioner told the Sri Lankan press corps. In essence, Navanethem Pillay does not make the rules, any more than Ban Ki Moon, Marzuki Darusman or Arbour does. This fundamental truth that the Sri Lankan Government fails to understand, despite the best efforts of saner counsel within the regime, gravely endangers the country’s international standing at forums such as the UN.

There is little doubt that High Commissioner Pillay’s report on Sri Lanka, to be presented orally in September and in full during the Human Rights Council’s March sessions, will be a bare-naked reading of the human rights situation on the ground. The Government has choices to make as it looks towards Council sessions in Geneva in March 2014, which foreign policy analysts repeatedly warn could herald the beginnings of a fully fledged international inquiry against Sri Lanka unless genuine steps are taken to address accountability issues between now and then.

Costing hearts and minds

Acknowledgement that the need to grant people freedom with dignity, protect human rights and the genuinely necessity to hold people to account for crimes committed against sections of the population not because the international community is demanding it, but for the sake of Sri Lanka’s own soul, could be a starting point, if the political leadership was so inclined. The lack of genuine commitment may have been where everything went wrong for the Government during the Pillay mission, despite all its best efforts to showcase progress. As human rights Chief, Pillay is less concerned with physical reconstruction and more focused on the human condition. The inability to understand that fundamental difference, is costing the Government hearts and minds in the former conflict zones and support in the international arena.

For Navi Pillay, the message came through loud and clear. Everywhere she went in the north and east and sometimes even in Colombo, ordinary people mobbed her with tales of their personal suffering. In the north, observers say, all focus has shifted from the Provincial Council election since Pillay’s visit, with ordinary people convinced again that the UN will successfully advocate on their behalf. Her presence inspired hope for civilians, families of the missing, journalists and human rights activists whose post-war reality has been far from peaceful.

“The fighting may be over, the suffering is not,” Pillay said, as she left Sri Lanka.

If it was paying attention to the more human factors of post-conflict rebuilding, the Government may not have had to endure the embarrassment of having Navi Pillay draw attention to the fact that the peace dividend will elude Sri Lanka as long as a section of its populace remains chained to the suffering wrought by brutal conflict. Sandhya Ekneligoda or Rajeswari Ganesan could have articulated the point with equal eloquence. It would have been apparent in the fear of thousands of ordinary Muslims, worrying that a violent day of reckoning may be in their future. Or in the prostate, uncontrollable grief of Sinnakutty Kanapathipillai from Mullaitivu, who lay on the streets outside the Jaffna Library, asking the UN High Commissioner to find her son who surrendered on 18 May 2009, never to be heard of again.

The compulsion to tell the world of their suffering is a direct consequence of the fact that at home, no one is listening.

Courtesy Daily FT

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General

Tamil ethnic bias and potential conflict of interest disqualifies Navi Pillay from conducting investigations against Sri Lanka

Ms. Navanethem “Navi” Pillay has impressive credentials.  A South African of Indian Tamil origin, she is the United Nations High Commissioner for Human Rights. She was also the first non-white woman on the High Court of South Africa, and she has also served as a judge of the International Criminal Court and President of the International Criminal Tribunal for Rwanda.
She attended Harvard Law School, obtaining an LL.M. in 1982 and a Doctor of Juridical Science (SJD) degree in 1988. Pillay is the first South African to obtain a doctorate in law from Harvard Law School.
Given her notable achievements in the law as a scholar, lawyer and later as a Judge in several jurisdictions she is undoubtedly aware of such important natural justice principles as the –
1)    Conflict of Interests
A conflict of interest exists even if no unethical improper act results. A conflict of interest can create an appearance of impropriety that can undermine confidence in the process of an investigation or inquiry. A conflict of interest could impair an individual’s ability to perform his or her duties and responsibilities objectively. Aconflict of interest (COI) also occurs when an individual is involved in multiple interests, one of which could possibly corrupt the motivation for an act in another.
2)    Nemo iudex in causa sua (or nemo iudex in sua causa) is a Latin phrase that means, literally, no-one should be a judge in their own cause. It is a principle of natural justice that no person can judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none.
3)    “Not only must Justice be done; it must also be seen to be done.”
R v Sussex Justices, Ex parte McCarthy is a leading English case on the impartiality and recusal of judges. It is famous for its precedence in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision.
In a landmark and far-reaching judgment, Lord Hewart CJ said:
“ a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. The ruling is derived from the principle of natural justice.  It has been followed throughout the world in countries that use the English common law system.  It has been applied in many diverse situations, including immigration cases, professional disciplinary inquiries, and in the Pinochet case, where the House of Lords overturned its own decision on the grounds of Lord Hoffman’s ( one of the Judges) conflict of interest.
Pinochet case in the House of Lords
Lord Hoffman was the Chairman and a Director of Amnesty International Charity Limited, a company with close links to the human rights organisation Amnesty International.
Amnesty International had been given permission to take part in the hearing before Lord Hoffmann and four other law lords. Unusually, Amnesty’s barristers were allowed to address them at the hearing.

Though Amnesty’s position was that people responsible for human rights violations in Chile should be brought to justice, there was no suggestion that Lord Hoffmann was actually biased against Gen Pinochet. But he had “an interest in the outcome of the proceedings” (according to Lord Goff) and he was “in effect, acting as a judge in his own cause” (according to Lord Hope).

Lord Hutton said “public confidence in the integrity of the administration of justice would be shaken if his decision were allowed to stand.” The law lords agreed that Lord Hoffmann had sat while disqualified and ordered a fresh hearing.

The Hoffmann affair caused great damage to the international reputation of the English judiciary. Lord Hoffmann never explained and never apologised. Yet irreparable damage was done to England’s standing as a country where a fair trial was possible.
4)    Judicial disqualification
Judicial disqualification, also referred to as recusal, refers to the act of abstaining from participation in an official action such as a legal proceeding or conducting an investigation or inquiry due to a conflict of interest of the presiding court official or administrative officer. The judge or presiding officer must be free from disabling conflicts of interest thus making the fairness of the proceedings or investigation less likely to be questioned.
Racial Prejudice of Juries and convicting Judges
During the 19th and 20th centuries, especially in the civil rights movement era, all-white juries in USA acquitted white defendants accused of murdering blacks, and convicted blacks in a manner totally out of proportion to their numbers in the general community. Such cases were rarely prosecuted at all, and when they were due to outside political pressure, only the minimum effort to go through the motions of a trial was made. 
Navi Pillay’s bias
The UN Human Rights Head on arrival in Sri Lanka claims she comes with an open mind. In this context we cannot overlook the fact that the whole issue facing Sri Lanka whether at a terrorist level or political leads to the aspiration of 72 million Tamils to have a separate Tamil Homeland to call their own (irrespective of whether it is in Sri Lanka’s North or Tamil Nadu).
This then raises the question of how Ms Pillay having emotional, genetic and ethnic ties being a Tamil with roots in Tamil Nadu how she can function with neutrality, impartiality, unbias and be emotionally detached?
When facts speak for themselves and evidence reveals that Ms. Pillay has an axe to grind it stands to reason that before we object to Ms. Pillay’s role in Sri Lanka it is only ethical for her to remove herself from any role relating in Sri Lanka. As the neutrality of judges is a sine quo non in the judicial process so whenever a judge realizes he or she cannot look at a case dispassionately the correct thing to do is to withdraw and arrange for a totally neutral person to take over. This is what Ms. Pillay is morally and ethically obliged to do in respect to her dealings with and in relation to Sri Lanka.
Ethics Guidelines in the UN
The UN itself has its own ethics guidelines and advice and figures a list of conflicts of interest found at the organizational level and personal level.  
An ‘organizational conflict of interest arises where, because of other activities or relationships, an organization is unable to render impartial services’. In other words the objective of the organization gets affected.
A personal conflict of interest is a ‘situation where a person’s private interests – such as outside professional relationships or personal financial assets – interfere or may be perceived to interfere with his/her performance of official duties’.
The UN ethics office advocates that staff should always ‘strive to avoid situations’ – we like to raise this same question to Ms. Pillay. The UN ethics office also says that ‘we need to be aware of how our actions, in the absence of an explanation, may appear to be interpreted by others’ – Ms. Pillay will realize what are concerns are because ‘situations do not necessarily imply wrongdoing’ and we are certainly not questioning Ms. Pillay’s credentials but our concern rests on the primary argument that being personally, emotionally, genetically and ethnically Tamil, that potential conflict of interest stake is very high for an entire country and population to accept given that previous statements and behaviour by Ms. Pillay raises questions about her ability to be neutral.
The UN’s financial disclosure program also stresses on conflict of interest in financial affairs. As such the UN outlines conflicts that may arise from accepting an honor, decoration, favour, gift or remuneration in connection with official duties (either from Governments or Non-Governmental sources without prior approval). There are criterions for official hospitality, favouritism – using office or knowledge gained from work to favour family members or friends. If the UN is to maintain and promote the spirit of openness and transparency, and if the objective is to be efficient and credible to safeguard the interests of the Organization it certainly does raise some credibility issues about Ms. Pillay.
Lack of appearance of Objectivity and Neutrality in Ms. Navy Pillay
So while we question Ms. Pillay on her neutrality based on her genetic, ethnic, emotional and personal connections to the Tamil cause, she may also like to answer why she kept using data supplied by the LTTE news agencies to question a legitimate government and continued to quote from LTTE front organization sources.
This makes her appear as a subversive and seditious international civil servant standing in between a sovereign Government and the UN Human Rights bodyand also raises concerns about how far she can expose all the information sharing to these LTTE fronts that are out to create an Eelam (in either Sri Lanka or Tamil Nadu). While she listens with empathy to spouses of dead LTTE leaders she needs to also travel South and meet the dead of the civilians killed by the LTTE outside combat areas. If she has not made arrangements to meet the families mourning children killed in villages, student monks killed in Arantalawa and over 10,000 other such civilians then she will be seen as blatantly one – sided and biased.
It was on the grounds of biased reporting that Iran has recently refused entry to Ahmed Shaheed the UN Human Rights Official to enter Iran
“ the measures taken by Ahmed Shaheed and the show of interviews launched by him, (displays) he is more of an actor than a rapporteur” and further
‘he has not acted fairly and has played the role of the opposition, and his measures have been outside the purview of a UN Rapporteur…the ground is not prepared for his presence in Iran until this approach is modified’.
Sri Lanka needs to stand up and talk in a spirited manner in the international arena. Display qualities of moral courage and outspokenness. A policy of appeasement, retreat, defeatism, kowtowing and cringing in foreign relations in the last two years has led to loss of national pride, self – respect and dignity, and in turn demoralized a once proud Sri Lankan public.   

Recusal (act of abstaining from participation)

Officials with a conflict of interest are expected to recuse themselves from (i.e., abstain from) decisions where such a conflict exists. The necessity for recusal varies depending upon the circumstance and profession, either as common sense ethics, codified ethics, or by statute. For example, if the governing board of a government agency is considering hiring a consulting firm for some task, and one firm being considered has, as a partner, a close relative of one of the board’s members, then that board member should not vote on which firm is to be selected. In fact, to minimize any conflict, the board member should not participate in any way in the decision, including discussions.
Judges, investigators or anyone else acting in a quasi – judicial capacity are also expected to recuse themselves from cases when personal conflicts of interest may arise. For example, if a judge has participated in a case previously in some other legal role he/she is not allowed to try that case.
Voluntary withdrawal from an investigation is also expected when one of the investigators in a case might be a close personal friend, or when the outcome of the case might affect the investigator directly, such as whether a car maker is obliged to recall a model that an investigator drives or if the investigator has a sectarian or emotional link to the substance of the matter under inquiry. Recuse is required by law under Continental civil law systems and by the Rome Statute, organic law of the International Criminal Court.
However, if a judge or an investigating official knows when to withdraw considering that the scales are not balanced equally, it is surely for Ms. Pillay to make the call instead of making us raise these questions.
It is up to Ms. Pillay to now decide how best she can remain unbiased. As an ethnic Tamil sharing genetics and emotional attachments to the Tamil cause through family and roots as well as various other bindings that must prevail, surely Ms. Pillay must know she is unsuited to function in any role where Sri Lanka is concerned or for that matter with India given the strident nature of Tamil Nadu calls for separatism and establishment of a greater sovereign Tamil nation with major parts of Sri Lanka annexed to it.  

Shenali D Waduge

Categories
Foreign Affairs

Concentrate On Civilian Policing

basilfernando

Basil Fernando

Within just a few days of the announcement of the new ministry, the Ministry of Law and Order, a rather unusual level of interest has emerged, judging by the many articles that have appeared in response to the government’s move. Though such quick responses are unusual, they are not surprising. If anyone is asked to point out some of the most pressing issues of public importance, the issue of the civilian police would emerge, without doubt. In fact, for several years, this issue has been addressed on an almost daily basis in all media, in all languages.

Therefore, it is worth trying to trace, by way of a brief history, how the issue of civilian policing acquired such importance.

Since the British established a policing system in Sri Lanka, some 147 years back, the idea of establishing a civilian policing system, which would be in charge of the law enforcement in Sri Lanka, gradually became quite a consolidated part of the building of the state in Sri Lanka. The critical point at which the idea of civilian policing came to be challenged is in the aftermath of the 1971 JVP ‘insurrection’. Suddenly, the police, together with the military, was pushed into the executing the idea of ‘exterminating insurgents’. The idea of extermination was in direct contradiction with the ideas of the administration of justice and enforcement of law in the normal sense, anywhere in the world.

Looking back, it is easy to identify the elements of such extermination, as compared with normal law enforcement functions.

Those elements are:

Arresting persons on a large scale, often based on very flimsy information, which the police were not in a position to assess for veracity;
The permitted use of extraordinary forms of torture with the view to discover information about insurgency and those who are involved in it to a greater or lesser degree;
‘Suspension’ of the police departmental orders in dealing with arrest, detention and the welfare of detainees;
Extraordinary forms of permitted secrecy and withholding of information, even from the next of kin of detainees;
‘Suspension’ of the requirement to observe the legal procedures of reporting arrests and detentions to court, as required by the Criminal Procedure Code of Sri Lanka;
‘Suspension’ of the rule relating to the production of suspects before magistrates within 24 hours;
‘Suspension’ of post-mortems in cases of deaths relating to insurgents;
Finally, large-scale killings of persons after arrest and disposal of their bodies.

These aspects of deviation from the normal legal procedure have been well researched and documented, and a considerable body of literature is available. The purpose of reiterating these items here is merely to trace when the beginning of a drastic departure from civilian policing took place in Sri Lanka.

Subsequently, there were other insurgencies, both in the south as well as in the north and east, which continued up to May 2009, during which period these same deviations continued and intensified. As for the south, the commissions appointed for investigation into involuntary disappearances have left a rather lengthy reports of how these practices occurred. Regarding the north and east, there are many reports made by independent observers, as well as, to some extent, recorded in court cases and numerous reports from human rights groups, including those from various UN agencies. However, a thorough, official record is yet to come, as no official investigations have taken place. Such an official recording would have enabled the survivors from such experiences to record their grievances before a state agency.

These deviations was legitimized by Emergecy Regulations and Anti- terrorism laws.

Normative Changes

Besides the deviation from normal practices mentioned above, there was also a significant change in the law itself, by way of constitutional changes. The 1978 Constitution brought all public institutions under the control of the Executive President and thus the structure of the institutions underwent a fundamental change in their normative framework. Again, this aspect is also well-reflected in the massive amount of literature that is available on the constitutional changes. By 2001, the impact of this change in the normative framework on the actual functioning of the police and other institutions was drastically felt. The disturbing impact of institutional failures led to a parliamentary debate and the passing of the 17th Amendment with near unanimity, with the objective of taking some partial corrective measures. There was a short period of experimentation with the 17th Amendment, which did not change the normative framework of the 1978 constitution but attempted to provide some relief in relation to the damage caused to the institutions. As far as the police were concerned, the National Police Commission brought about some significant improvements, though, due to normative problems, it was not possible to correct the situation completely. However, even these limited improvements collided with the normative framework of the 1978 constitution and the new political regime, which was thoroughly interested in restoring the 1978 constitutional framework. Thus, the 18th Amendment was adopted by the Rajapaksha regime, which went beyond mere re-affirmation of the normative framework of the 1978 constitution, but in fact created a situation in which it is almost impossible to bring about change.

In short, what now exists as the policing system is a product of the deviations brought about in practice since 1971, and normatively brought about by the 1978 constitution, reaffirmed and re-strengthened by the 18th Amendment to the constitution.

When the Lessons Learnt and Reconciliation Commission (LLRC) made its recommendations relating to the problems of the rule of law in Sri Lanka and mentioned the need of delinking the police department from the Ministry of Defence, the aim of that recommendation was the reestablishment of civilian policing in the original sense – meaning before the practical transformations since 1971, and the normative changes since the 1978 constitution.

The present move to establish a new ministry, a “Law and Order” Ministry, and the place of the policing system under this new ministry, is announced as a step towards implementing the LLRC recommendation. However, the mere change of ministry will not create a civilian policing system that has the power and capacity to enforce law within the framework of the rule of law as it existed originally, unless the deviation – practically caused since 1971 and normatively caused by the 1978 constitution, reinforced by the 18th Amendment – is deliberately removed.

Such a change requires a change of design, an expression of intent in terms of principles by way of changing the normative framework of the 1978 constitution, as well as the practical steps to overcome the practices that have gotten entrenched since the aftermath of the 1971 insurgency.

The public has only one of two choices; Either to enter into this debate on civilian policing and achieve a decisive change or live in this same miserable situation without state protection, expecting the things to become even worse.

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Debate On ‘Para Dhemalā,’ Ethnic ‘Purity’ And Caste Ideology

Laksiri Fernando

Dr. Laksiri Fernando

When I read Charles Sarvan’s first article “Para Dhemalā,” I didn’t see anything objectionable although I sensed perhaps he was not interpreting Michael Roberts’ views on the subject correctly and also I couldn’t agree with his last paragraph which paraphrased Paul Caspersz saying “if one insists on the label “Indian Tamils,” then one should also speak of “Indian Sinhalese.” The paragraph was simply inaccurate. Otherwise there was much meaning and substance to what Sarvan said about ethnic discrimination and caste ideology.

When I was growing up at Moratuwa, almost at the center of the town, I cannot recollect anybody using the term ‘para demala’ even during the cataclysmic communal riots against the Tamils in 1958. Perhaps I didn’t hear them. I had several Tamil friends at St. Sebastian’s College, where I was initially studying, but even there it was not used to my knowledge. But ‘paraya’ was often used not so much at school but in the area where I lived and it was used as a derogatory term in anger or to spite someone who is not liked by you. It also had the connotation that ‘the other’ is inferior.

But even in our school books I believe the terms ‘para desin’ and ‘parangi’ were there and our teachers explained the meanings respectively as ‘foreign’ and ‘Portuguese’ also emphasizing they are not neutral but pejorative terms. In our area, (Sinhalese) people believed that there were two classes of Tamils, those who were called ‘Jaffna Tamils’ and the others, the ‘Indian Tamils.’ Some considered the first group as more or less equal, but not at all the second. But the majority considered both as ‘alien’ and also ‘inferior.’

Having read EW Adikaram’s “A Communalist is a Psychopath” (Jativadiya Manasika Pisseki) as an early teenager, the distinction or the discrimination worried or puzzled me. My effort is not to say that I have been free from any ethnic prejudice. On the contrary, I wish to admit that as a person brought up and socialized within a particular social context, I may have certain prejudices or biases unconsciously. But in my conscious life, I try my best to be free from biases or prejudices while at the same time not rejecting my given ethnic identity.

But the reason to write this rejoinder is not the above. With all respect to Roberts, I believe that there is something extremely significant in what Sarvan has pointed out in his initial article. That is the connection between ‘ethnic conception and caste ideology.’ This is not the first time I have said this. The following is what Sarvan has said.

“The context in which the word para was used, both at boarding-school, in Colombo and elsewhere; the accompanying tone of voice and facial expression, all indicated contempt, dismissal and rejection. Para was linked to Parayā (low caste) and that sufficed to convey meaning to me.”

What he relates is a personal experience, but what is significant to me is what he says as “the accompanying tone of voice and facial expression, all indicated contempt, dismissal and rejection.”

Where does this come from? My conjecture is that it comes from the age old caste-ideology with the accompanied conceptions of ‘purity’ and ‘pollution.’ This caste-ideology manifests among the majority Sinhalese in one way and among the Tamils in another. I am not saying that both are the same in practical terms, one discriminating the other on equal terms, but the ideological roots are more or less the same while there are other root causes as well.

Have I encountered the ‘contempt, dismissal and rejection’ as a so-called Sinhalese? Yes, something closer to that at least once and seen a similar behavior another time. But if I recollect the way the Sinhalese treat the Tamils or the Muslims, then it is almost uncountable. The different experience may be due to me being a ‘Sinhalese’ and moving primarily among the Sinhalese.

Among the Sinhalese, the influencing ideology remains as a ‘superior caste’ which attempts to subjugate a perceived ‘inferior caste.’ It claims ‘purity’ as a ‘chosen people’ by combining ethnicity with religion (Sinhala Buddhism) and attempts by and large to purge the ‘pollution’ through attempted ethnic cleansing of both the Tamils and the Muslims or even the Sinhalese Christians as outcaste.

Among the Tamils, the influencing ideology remains as a ‘distinct group’ also trying to claim a similar ‘superior status’ aligning with the brethren across the Palk-Strait. It also claims ‘purity’ and attempts to purge ‘pollution’ by cleansing whoever perceived as polluting its purity.

I am not saying, the caste or ‘caste-like’ ideology is the only ideological current among the Sinhalese or the Tamils. But often it becomes dominant and distorts ideological landscape or political thinking of the country. We sometimes patronize ourselves by saying or thinking that the caste system is dead and gone in Sri Lanka. But that is not simply the case. The caste ideology is well and kicking. Those who are most communal minded are probably the ones who are most caste minded.

I was recently writing an essay on human rights and the 1978 constitution and wondered why it is so much difficult for the todays Sri Lankans to accept universal human rights. My observation after some contemplation was that because they are (perhaps unconsciously) strongly caste minded. There is a perennial difficulty for many Sri Lankans to grasp and accept the concept of equality due to caste ideology. This may possibly change with the new generations. But that is not the case yet.

The dilemma that Sri Lanka faces in this connection is a historical one, connected with the state and ethnic formation. Let me quote only one paragraph from what I wrote in 2000 (Human Rights, States and Politics: Burma, Cambodia and Sri Lanka):

It is interesting to examine how the successive migrant communities from India, or other countries in the region, were absorbed into the society after the establishment of the Sinhalese ethnic state. Except in the case of Kshatriya or royal blood, it is evident that others were absorbed at the bottom of the caste hierarchy. At a very early stage of migration, those who came from Madhura in South India were absorbed as the service castes, who were supposed to function as artisans, craftsman, and manual laborers. The origins of several other so-called low castes in the country, e.g. fisherman and cinnamon peelers, can also be traced to the people who came from South India at a later date. What we can see here is a convergence between the ethnic divide and the caste divide.” (p. 59).

During 2002, when I was conducting some field research in the interior of the Kalutara District, I came across a caste called Demala Gaththera. Gaththera caste is one of the oppressed castes in the country, popularly believed a ‘low caste.’ The story was that when some Tamil migrants came to live in the area for some reason, during the early nineteenth century, they were called Demala Gaththera.

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Peaceful Moors, Sinhala Wahabis And The Silver Lining Among ‘Wahabis’

Hameed

Hameed Abdul Karim

Responding to A.R.M. Imtiyaz’s ‘Moors of Sri Lanka are Not Perfectly Peaceful’

For the life of me I cannot imagine why my good e-pal Dr. A.R.M. Imtiyaz Razak would want to write an article feeding on the same thrash that racist bigots in Sri Lanka, under various guises, throw at Muslims to propagate their doomsday scenarios in his article ‘Moors of Sri Lanka are Not Perfectly Peaceful’ that appeared in your popular ‘Colombo Telegraph’.

The usual Wahabbi bait is flung to convince readers there is a looming threat posed by this cult that will somehow swamp all Muslims in Sri Lanka. Whilst it is true there is a Wahabi trend among Muslims, writers tend to exaggerate this tendency to emphasize their points and to propagate their anti-Muslim feelings. Saudi Arabia’s backing of the military coup in Egypt has exposed the rulers there and has brought ‘Wahabi’s’ out in the open claiming the backing of their government for the Egyptian military led government is not in their name or faith. So there is a silver lining among ‘Wahabi’s’ just as much as there is one in Sri Lanka in the form of Buddhist monks who speak of communal harmony and get assaulted by ‘Sinhala Wahabi’s’ for their virtuous deeds.  Besides, there is a resistance among Muslims in Sri Lanka to Wahabism and it’s not like as if their ideology is going unchallenged by ‘traditional’ Muslims.

I am surprised that Dr. Imtiyaz had said Moors are not perfectly peaceful. By making such a statement he implies that they are violent if we are to go by opposites. ‘Moors’ have shown great rectitude in remaining peaceable in the face of grave provocation. The overwhelming majority in the Sinhala community have also shown a strong resistance to the ethno fascists among them knowing only too well there is a political hand behind all the shenanigans of the BBS and their acolyte like the Sinhala Rawaya.

And what’s the proof the good doctor provides for Moors not being peaceful? Why, the same diatribe on Madrasas and hijab and abayas those ethno fascists throw about all day every day to sell their hatred for the other. You can be sure those ethno fascist Sinhala Buddhists who revel in creating disharmony among communities for their political paymasters will grab what Imtiyaz had said and fling it with glee at Muslims at will.  Why should Dr. Imtiyaz peddle the same jingoism beats me, considering that he is an egalitarian. Being an egalitarian imposes on one professing such values the spirit of liberalism and even support for the wishes of those who want to be different. Why, there is a heartwarming article in your ‘Colombo Telegraph’ about non-Muslim women in Sweden donning the hijab in support of a Muslim sister who came under a racist attack for choosing to dress in accordance with her faith.

I take mild exception to Dr. Imtiyazs’ equation of Muslim with Moors knowing very well he did not mean any harm. I am not a Moor, but I am a Muslim. And there are Muslims among all communities here in Sri Lanka. Some are converts to the faith. But let me hasten to add that as a Muslim I cringe with shame and sorrow if I hear my co-religionists have attacked a place of worship belonging to another faith anywhere in the world. That’s how attached I am to my faith which strictly prohibits acts of a violent nature like all faiths, I suppose.

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