Tuesday, 23 February 2016

Judiciary faces tough test amidst calls for foreign judges in war crimes court

SC moved against SF



War winning Army Chief the then Gen. Sarath Fonseka pictured outside Welikada prison in May 2012 soon after his release.

By Shamindra Ferdinando

Against the backdrop of the UN expressing serious doubts over quality of Sri Lanka’s judges, and judicial impartiality, the Centre for Policy Alternatives (CPA) moved the Supreme Court against the leader of the Democratic Party (DP) Field Marshal Sarath Fonseka’s appointment as a UNP National List.

The war veteran contested the August 17 parliamentary polls on the DP ticket. The DP failed to secure a single seat though Fonseka is on record as having said, in the run up to the election, that his party would win at least 15 seats.

The CPA, on February 18, filed a fundamental rights application challenging the appointment of the war - winning Army Chief to fill the vacancy created by the death of M.K.A.D.S. Gunawardana. The SC was moved in terms of Article 99A of the Constitution.

"The CPA’s position is that in terms of Article 99A of the Constitution, only a person whose name was included in the district nomination papers or the National List, submitted by the relevant political party, is entitled to be nominated to fill such a vacancy," the NGO said in a statement.

Among the respondents are UNP General Secretary, Kabir Hashim, Speaker Karu Jayasuriya, Secretary General of Parliament Dhammika Dassanayake, Attorney General Jayantha Jayasuriya, and members of the National Election Commission, namely Mahinda Deshapriya, Dr. Nalin Abeysekera and Professor Ratnajeevan Hoole.

The CPA stated in its petition, that the appointment of a person, as a Member of Parliament, contrary to the provisions of the Constitution, violated several rights guaranteed under the Constitution and, in particular, the franchise which is part of the sovereignty of the people. The CPA argued that any attempt to interpret legislation, in a manner contrary to the provisions of the Constitution would imperil the supremacy of the Constitution, which is the cornerstone of constitutional democracy.

The CPA called for the abolishing of an extraordinary gazette notification, dated February 16, 2016, in respect of Field Marshal Fonseka’s appointment. The NGO also prayed that the Field Marshal be prevented from functioning as a member of Parliament, as well as holding any portfolio, until the conclusion of the case.

The CPA went ahead with its move though it had been initially reluctant to move Supreme Court in line with its long-standing position against appointing persons ‘not included in the National List published under Article 99A of the Constitution’ in respect of the Field Marshal.

The move against Field Marshal Fonseka should be examined against the backdrop of UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein castigating the Sri Lankan judiciary, at the conclusion of his four-day visit here. Reiterating the pivotal importance of having foreign participation in the proposed judicial mechanism, to inquire into alleged war crimes during the eelam war IV, Prince Hussein said: "Sri Lanka has many excellent judges, lawyers, and law enforcement officials. But, over the years, the system they depended on, and which depends on them, became highly politicized, unbalanced, unreliable. The country’s history, over the past few decades, is littered with judicial failures. Virtually all Sri Lankans recognize this, and the Prime Minister commented on it at great length, and with admirable candour, during a 27 January debate in Parliament. Virtually every week provides a new story of a failed investigation, a mob storming a court-room, or another example of a crime going unpunished. Sexual violence and harassment against women and girls is particularly poorly handled by the relevant State institutions — especially when the alleged perpetrators are members of the military or security services — and, as a result, it remains all too widespread."

Interestingly, Pivithuru Hela Urumaya (PHU), too, has sought the judicial intervention over the appointment of Jayantha Jayasuriya as the new Attorney General. Whatever the merits of PHU leader and UPFA MP Udaya Gammanpila’s move, it can not have taken place at a worse time for the country. On the one hand MP Gammanpila, on behalf of the Joint Opposition, is pushing for a domestic inquiry into alleged atrocities committed during the eelam war IV but on the other hand questions the appointment of the AG. Certainly, a pathetic development. Geneva will exploit the situation. The February 9 statement, issued by Prince Hussein, referred to Sri Lankan judiciary in a disparaging way. MP Gammanpila is on record as having castigated the government in respect of the appointment of the Auditor General. The MP alleged that there were procedural flaws in the appointment of the Attorney General and the Auditor General. The MP’s argument will certainly strengthen those who had been demanding foreign judges in a judicial mechanism to inquire into alleged atrcities committed during the war.

Addressing the media recently, MP Gammanpila said the process of the appointment is flawed and the same would set a bad precedent and also affect the independence of the Attorney General.

"According to Section 41 (f) 6 of the Constitution, the Constitutional Council has to formulate the criteria and gazette them and present same before Parliament within three months.

"But as a parliamentarian I know neither the criteria has been gazetted nor be presented before Parliament.

"So recommending the appointment of the Attorney General by the Constitutional Council is unconstitutional," he said.

The CPA’s action against the National Election Commission will certainly divide those who had backed the January 2015 revolution which brought Maithripala Sirisena into power. Defeated presidential candidate, Fonseka, played a significant role in the common Opposition campaign, strongly supported by Western powers. Members of the National Election Commission had been made respondents in respect of a National List appointment for the first time since the parliament adopted the 19th Amendment to the Constitution with an overwhelming majority, in late April, 2015.

The yahapalana government has repeatedly vowed to abide by the 19th Amendment.

The legislation envisages the dilution of many powers of Executive Presidency, which had been in force since 1978.

At a marathon sitting that lasted over 12 hours, the 225-strong Parliament cleared the Bill, with 212 members voting in favour of the legislation. Ten members were absent. While one voted against the Bill (retired Rear Admiral Sarath Weerasekera), another member abstained from the voting. The 14-member Tamil National Alliance (TNA) also supported the Bill. It would be pertinent to keep in mind that the majority of those now identified as members of the Joint Opposition voted for the 19th Amendment.

Among the important features of the Bill are: the reduction in the terms of President and Parliament from six years to five years; re-introduction of a two-term limit that a person can have as President; the power of President to dissolve Parliament only after four and a half years]; the revival of Constitutional Council and the establishment of independent commissions. The National Election Commission is one of those Commissions established in accordance with 19th Amendment.

Those who had voted for the 19th Amendment will find it difficult to support Fonseka’s efforts to retain the National List slot given to him. The former Chief of Defence Staff (CDS) took oaths as an MP before Speaker Karu Jayasuriya on February 9. The Joint Opposition is wary of Fonseka’s appointment with former President Mahinda Rajapaksa himself commenting on the former Army Chief’s re-entry into parliament.

The UNP-SLFP coalition accommodated Fonseka in parliament, through the UNP National List, in conformity with an understanding between President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe. Defeated Colombo District candidate Rosy Senanayake (Colombo District) publicly expressed disappointment over the party not giving her an opportunity to re-enter parliament. Justice Minister Wijeyadasa Rajapakshe, also a Colombo District representative, privately told the leadership that Fonseka’s appointment was contrary to the Constitution.

In the run-up to Fonseka’s appointment receiving the endorsement by the UNP Working Committee, Leader of the House and Kandy District MP Lakshman Kiriella revealed that President Maithripala Sirisena and PM Wickremesinghe agreed on the move. They also promoted Fonseka to the rank of Field Marshal, on March 22, 2015, in recognition of services rendered to the nation. There had never been an instance of the two major political parties agreeing on a National List appointment. Obviously, Field Marshal Fonseka’s appointment had been made in accordance with the overall objectives of yahapalana administration.

The CPA’s decision to move Supreme Court over Field Marshal Fonseka’s appointment will certainly test the judiciary, amidst the UN push for participation of foreign judges in the proposed war crimes investigating mechanism. The CPA’s move has placed the grouping, which campaigned for the then President Rajapaksa’s defeat at the January 2015 presidential poll, in a difficult position. The Joint Opposition loyal to former President and Kurunegala District MP Mahinda Rajapaksa (in spite of its differences with the CPA over the issue of accountability) will not speak on behalf of the war - winning Army Chief, It is certainly an unfortunate situation.

Had it not been for the Sinha Regiment veteran, the war could never have been brought to a successful conclusion, in May, 2009. The triumph over terrorism would never have been a reality if not for team effort, with the former President Rajapaksa, providing the much required political leadership, and former Defence Secretary, Gotabhaya Rajapaksa, coordinating the overall anti-LTTE project. The Navy and the Air Force, under the leadership of Vice Admiral Wasantha Karannagoda, and Air Marshal Roshan Gooetileke, achieved success. Had one of them failed, or the then President gave into Western pressure, the LTTE could have survived and secured an agreement to retain what was left of its conventional military power.

On the eve of January, 2010, presidential election, the then US Ambassador, Patricia Butenis alleged that both common candidate retired Gen. Sarath Fonseka and President Mahinda Rajapaksa were responsible for war crimes. In a confidential diplomatic cable, originating from Colombo, dated January 15, 2010, Butenis alleged that one of the reasons for lack of progress towards a genuine Sri Lankan inquiry into the killings was that the Pthe resident and the former army commander, Sarath Fonseka, were largely responsible. "There are no examples we know of a regime undertaking wholesale investigations of its own troops or senior officials for war crimes while that regime or government remained in power," Butenis noted. But, that didn’t deter the US from backing Fonseka’s candidature. The US went to the extent in suggesting to the Illankai Tamil Arasu Kadchi led Tamil National Alliance (TNA) to throw its weight behind Fonseka. In spite of reservations, the TNA leadership backed Fonseka’s bid to the hilt. Fonseka comfortably secured all predominately Tamil speaking electoral districts in Nothern and Eastern Provinces as well as Nuwara Eliya, though he couldn’t defeat President Rajapaksa.

At the January 2015 presidential poll, the TNA and Fonseka joined the UNP led effort to use the then SLFP Gen. Secy., an irate Maithripala Sirisena, to bring down the curtain on the Rajapaksa administration. The Sirisena-Wickremesinghe administration rewarded Fonseka with prestigious title of Field Marshal and accommodated him in parliament through the UNP National List. The TNA received the Opposition Leader’s post, though the party didn’t reflect sentiments of those opposed to the yahapalana administration at all.

Even after experiencing two major defeats, at national elections last year, former President Rajapaksa is still going places on war victories because of the UNP’s foolish statements during the war. The then main Opposition party ridiculed the military, while the war being waged under extreme conditions, and belittled hard won battlefield victories. The UNP leader pooh-poohed the liberation of the Eastern Province by claiming that Thoppigala was only a jungle patch of no military significance. The military brought major offensive action in the Eastern Province to an end with the capture of the LTTE bastion Thooppigala-Narakkanmulla area. Wickremesinghe also questioned the map reading skills of the then Eastern Commander Maj. Gen. Parakrama Pannipitiya who had wrested control of that terrain. While the troops were forging ahead, smashing Tiger defences, in the Vanni, Lakshman Kiriella boldly declared that any ninny could wage war––ona gonekuta yudda karanna puluwan.

Senior UNP MP Ravi Karunanayake, while speaking in Parliament during a bloody battle for Kilinochchi, ridiculed the then Lt. Gen. Fonseka’s troops by claiming that the army was all at sea and it had mistaken Medawachchi for Kilinochchi and Alimankada (Elephant Pass) for Pamankada! Such deplorable remarks, oozing with contempt, were meant to impress some Colombo-based western diplomats and the INGO/NGO circuit sympathetic to the LTTE. The UNP’s stand certainly antagonized the vast majority of Sri Lankans who loathed terrorism and wanted it crushed at any cost. Thus, the UNP committed political hara-kiri in style.

Another UNP senior, the then Chief Opposition Whip, Joseph Michael Perera, in July, 2008, accused Lt. Gen. Fonseka of carrying out attacks on journalists. The UNP couldn’t stomach stunning battlefield victories achieved by the military. UNP bigwigs stepped up attacks when they realized the army was gaining ground.

MP Joseph Michael Perera told parliament that the attacks were carried out by a "special team" controlled by Lt. Gen. Sarath Fonseka.

Gampaha District MP Perera said the government should arrest the offenders and "immediately bring them to justice".

"We are told by those in the army itself that journalists are abducted and subjected to grievous injury by none other than a special unit, under the army commander," MP Perera, a former parliamentary speaker, said.

Having ruined the war winning Army Chief’s reputation, the then Opposition fielded Fonseka as the common candidate at the January 2010 presidential election. The grouping that supported included the JVP, TNA, SLMC as well as Western powers. Consequent to Fonseka’s defeat, the UNP distanced itself from the war veteran thereby paving the way for the JVP to use him at the April 2010 parliamentary elections as head of the Democratic National Alliance (DNA). Although, the DNA secured seven seats, including two National List slots (Anura Kumara Disanayake and Tiran Alles) it couldn’t sustain the momentum in the wake of Fonseka being deprived of his seat on the findings of a Court Martial. Fonseka was elected from the Colombo District. Fonseka’s vacancy was filled by actor-turned politician Jayantha Ketagoda, who repeatedly pledged to step down as soon as Fonseka walked free and was in a position to regain his seat. The four-member JVP parliamentary group elected on the DNA ticket, too, split with Galle District MP Ajith Kumara pledging his allegiance to Kumar Gunaratnam/Noel Mudalige.

The Democratic Party came into being after the then President Rajapaksa released Fonseka, in May, 2012, in accordance with an understanding reached with his one-time favourite General. Fonseka was behind bars for over two years.

Immediately after Maithripala Sirisena’s victory, Fonseka made a desperate bid to regain his seat. But Ketagoda declined. A furious Fonseka blasted the Attorney General’s department for failing to bring the case to a speedy conclusion. Fonseka couldn’t achieve his objective during President Sirisena’s 100-day project. Fonseka failed again at the August 17 parliamentary polls. Untimely, the death of M.K.A.D.S. Gunawardana paved the way for his return to parliament thanks to President Sirisena and PM Wickremesinghe.

Now, a dejected Fonseka faces another challenge by way of a fundamental rights case filed by the CPA, an NGO at the forefront of tough campaign against President Rajapaksa. The CPA action will have far reaching consequences whatever the outcome may be.