Tuesday, 4 July 2017

Justice Minister strikes a discordant note

Accountability issues



By Shamindra Ferdinando

Justice and Buddha Sasana Minister Dr. Wijeyadasa Rajapakse, PC last week flayed the UN system for propagating lies in respect of the post-war situation in the country.

Rajapakse dealt with the report produced by the Office of the Special Rapporteur on the independence of judges and lawyers following a visit undertaken by Ms Monica Pinto in April-May 2016. Rajapakse didn’t mince his words when he declared Pinto’s report presented by her successor Diego Garcia-Sayan at the recently concluded 35 th session wasn’t acceptable.

Rajapakse was responding to the writer’s observation that his position contradicted the stand taken by Sri Lanka’s Permanent Representative in Geneva Ambassador Ravinatha Aryasinha in respect of Pinto’s report. Arysinha responded to Pinto’s report on June 12, 2017.

The media had an opportunity to take up the Geneva project at a media briefing called by the Justice Ministry on June 30, 2017. Foreign Secretary Esala Weerakoon was among senior officials present. The respected career diplomat is also a member of the high powered seven-member sub committee assigned to assist the ministerial committee. The officials’ committee comprises Secretary to the Prime Minister, Representative of the Secretary to the President, Representative of the Attorney General, Defence Secretary, Foreign Secretary, Justice Secretary and Law and Order Secretary.

Rajapakse criticism of the UN report at the Justice Ministry followed a devastating attack on the same by him in parliament two weeks ago. Rajapakse teared into UN report just days after Premier Wickremesinghe authorized the formation of the ministerial committee.

Rajapakse questioned the very basis of ongoing UN intervention here in the wake of Oct 1, 2015 Geneva Resolution 30/1 which authorized a hybrid judicial mechanism to address accountability issues.

Interestingly, Rajapakse strongly criticized the UN system soon after being appointed to ministerial central coordination monitoring to implement the Geneva Resolution. The prime ministerial committee comprised foreign minister Ravi Karunanayake, Ports and Shipping Minister Mahinda Samarasinghe, Law and Order Minister Sagala Ratnayake, Justice Minister Dr. Wijeyadasa Rajapakse, PC, Development Assignments Minister Tilak Marapone, State Defence Minister Ruwan Wijewardena and Deputy Minister of National Policies and Economic Affairs Dr. Harsha de Silva.

The committee consisted of senior UNP and SLFP representatives. A surprising

Rajapakse is certainly not the only yahapalana spokesperson critical of UN intervention here. However, Rajapakse remains the only minister to take a different stand on Geneva issue publicly much to the discomfort the government. The PC has earned the wrath of the civil society grouping that campaigned for Maithripala Sirisena at the January 2015 presidential poll and backed the UNP at the August 2015 parliamentary election.

Now that the Justice Minister has twice challenged the UN report prepared on the invitation of yahapalana government, it would be pertinent to examine allegations directed during the previous administration leading to Oct 1, 2015 Resolution co-sponsored by Sri Lanka. The Sirisena-Wickremesinghe government in March this year reiterated its commitment to the same controversial resolution. The prime ministerial committee headed by FM Karunanayake is tasked with ensuring the full implementation of the resolution.

In the run-up to presidential poll in January 2015, the electorate was repeatedly warned of the country having to face international sanctions unless a change of government took place. Those wanting to oust the Rajapaksas repeated unsubstantiated war crimes allegations with the UNP and civil society grouping confidently declaring Maithripala Sirisena’s victory would put an end to the Geneva process.

Justice Minister Rajapakse’s attack on the UN system is evidence that the Geneva process is on track.

Exercise Shadow Dance

Over eight years after the successful conclusion of the war against the LTTE, Sri Lanka is still struggling to handle the media coverage of the conflict. The writer was among a small group of journalists, including Colombo correspondent of AFP Amal Jayasinghe invited to participate in stimulated mock media briefings given by foreign army occupying northern part of Sri Lanka and Sri Lankan military struggling to regain the lost territory. The AP, the BBC as well as Reuters were also represented.

Briefings took place at the end of Exercise Shadow Dance on June 30, 2017 at the Defence Services Command and Staff College (DSCSC). The establishment situated at Batalanda, Makola South was formerly called Sri Lanka Army Command and Staff College.

Maj. Gen K.A.D.A. Karunasekara formerly of the Directorate of Military Intelligence (DMI) functions as the Commandant of the DSCSC.

Senior representatives of the two warring forces who had called the media briefings in the wake of ceasefire struggled to cope up with the barrage of questions posed to them.

Questions relating to soldiers posting pictures of executed combatants, nude women killed in operational areas, casualty figures, possible conscription in response to growing battlefield losses and desertions as well as supply of weapons of inferior quality troubled military spokesmen. Under pressure from the media, a spokesperson for Sri Lankan military declared that the briefing had to be curtailed as the presence of the General Officer Commanding (GoC) was required somewhere else.

Veteran journalist Jayasinghe explained ways and means they could improve their presentations and how to handle the media. Jayasinghe briefly discussed pluses and minuses in the media accompanying armies and his own experience in occupied Afghanistan and Iraq.

The writer took advantage of the opportunity to remind those who had been present of the circumstances leading to Sri Lanka co-sponsoring January 2015 Geneva Resolution. Sri Lanka’s failure to effectively counter lies propagated by interested parties with the support of a section of the media, too, was pointed out. The media working with hostile foreign governments, political parties, civil society as well as terrorists was also raised by the writer while underscoring the requirement to take remedial measures.

For want of a cohesive strategy, Sri Lanka allowed those who couldn’t stomach Sri Lanka’s triumph over the LTTE in May 2009 to undermine post-war stability.

Justice Minister Rajapakse’s criticism of Pinto’s report to Geneva that reiterated the participation of foreign judges including those from the Commonwealth, defense lawyers and authorized prosecutors and investigators in a judicial mechanism should have jolted the Joint Opposition. DSCSC officers responses to the media, too, highlighted the urgent need to examine accountability issues afresh. Had the officers been aware of the high profile post-war anti-Sir Lanka project and diverse views expressed in the recent past, they would have had the confidence to face the media confidently.

The JO should take up issues raised by Justice Minister Rajapakse without further delay.

The outfit comprises about 50 members of parliament loyal to former President Mahinda Rajapaksa. Unfortunately, the JO hadn’t been able to address the Geneva issue efficiently.

A plethora of contentious issues

The yahapalana government is obviously unable speak in one voice with policy makers pulling in different directions. The administration has been preoccupied with a range of other issues, including deepening crisis over Iranian funded Uma Oya project now threatening a revolt in Badulla, Meethotamulla garbage crisis, conflict over the South Asian Institute of Technology and Medicine (SAITM), dengue epidemic, stalled deal with China on Hambantota port, rumble in the postal department over move to sell some property, CEB employees threatening strike over salary anomalies, probe on Central Bank-Perpetual Treasuries bond scams in Feb 2015 and March 2016, conflicts between members of the cabinet and failure to make progress on the economic front. In addition to those issues, the government is in crisis over not having sufficient funds to provide short term and permanent solutions to thousands affected by recent devastating floods and earth-slips. Over 300 men, women and children perished due to floods and earth slips last month.

Coalition partners, UNP and the SLFP are under heavy fire over prolonged delay in holding local government polls. Obviously, the SLFP feared to face JO at local government polls against the backdrop of the national economy in a mess due to mismanagement, corruption, waste and irregularities.

Having appointed Presidential Commission to inquire into Central Bank-Perpetual Treasuries fraud now widely subbed Sri Lanka’s biggest robbery, the SLFP now faced the prospect of the Attorney General ordering proceedings on the basis of Presidential Commission report expected to be handed over to President Sirisena at the end of this month.

Yahapalana leaders are also on a collision course with influential civil society grouping with the latter stepping up pressure on the administration to go ahead with proposed constitutional reforms in accordance with the Geneva dictates. Yahapalana government is also clashing with the JVP which played a significant role in the project to oust the Rajapaksa.

Contrary to expectations, much touted 19th Amendment to the Constitution has failed to improve good governance. Instead, the new law has legitimized the appointment of ministers, deputy ministers and state ministers without restriction though the original plan was to curtail the number of ministers and deputies through constitutional means.

The JO’s pathetic failure to address Geneva issues anew, particulaly in the wake of Justice Minister challenging UN report is inexcusable. The JO leadership needs to reexamine the project backed by Western countries that led to the Rajapaksa’s defeat in January 2015. The requirement to study specific allegations cannot be ignored. The JO, the Socialist Alliance (SA) also supportive of the JO as well as other civil society organizations such as Yuthukama and Viyath Maga, too, should scrutinize the Geneva Resolution. Co sponsored by Sri Lanka, the Geneva Resolution 30/1 is meant to introduce a new Constitution. Those responsible for Sri Lanka’s defence should keep in mind the Resolution was based on unsubstantiated allegations propagated by Western powers.

In spite of failures on all fronts, all political parties have obtained perks and priveleges at the expense of taxpayers. They have approved a monthly payment of Rs 100,000 each to members of parliament in addition to massive tax exemptions to secure vehicles. However, the JVP has received Rs 30 mn tax exemptions for six members of parliament, whereas others got as much as over Rs 30 m each. Massive expenditure incurred by taxpayers annually to maintain lavish lifestyles of honourable members of parliament and parliament itself is shocking.

Reappraisal of strategy needed

The ministerial committee headed by FM Karunanayake cannot ignore the facts below.

Main allegations

(A) Sri Lanka ordered UN/INGOs to vacate Kilinochchi in Sept, 2008 to conduct ‘a war without witnesses’.

(B) Vanni east population denied medicine, food and other basic needs.

(C) Coordinated mortar/artillery/MBRL attacks on civilians population.

(D) Massacre over 40,000 civilians.

(E) Rape of combatants/civilians.

(F) The use of cluster bombs

*Primary evidence

Geneva was moved on the basis of about 4,000 submissions received by Darusman Panel. About 2,300 persons furnished information to the panel. But UN directed that these accusations cannot be verified until 2031. Even then, verification has to be approved by the UN.

*Critical failure

Previous government ignored the need to conduct a thorough inquiry into allegations.

*Glaring omissions

The GoSL ignored two critical events (A) In June, 2011 (over two years after the successful conclusion of the war) the then Colombo based US Defence Attache Lt. Colonel Lawrence Smith defended GoSL at a seminar organized by the Army. The seminar dealt with ‘Defeating Terrorism: The Sri Lanka Experience.’ In response to a question regarding the alleged move by some LTTE cadres to surrender during the last few days of the war, the US official denied that possibility, thereby effectively contradicting those propagating massacre of surrendering persons. The US official was responding to a query posed by retired Indian Maj. General Ashok Metha. (Metha served in Sri Lanka during the deployment of the Indian Army in the 80s in accordance with the Indo-Lanka accord).

This is what Lt. Col. Lawrence Smith had to say.: "Hello, may I say something to a couple of questions raised. I’ve been the defense attache here at the US Embassy since June 2008. Regarding the various versions of events that came out in the final hours and days of the conflict-from what I was privileged to hear and to see, the offers to surrender that I am aware of seemed to come from the mouthpieces of the LTTE – Nadesan, KP – people who weren’t and never had really demonstrated any control over the leadership or the combat power of the LTTE.

So their offers were a bit suspect anyway, and they tended to vary in content hour by hour, day by day. I think we need to examine the credibility of those offers before we leap to conclusions that such offers were in fact real.

And I think the same is true for the version of events. It’s not so uncommon in combat operations, in the fog of war, as we all get our reports second, third and fourth hand from various commanders at various levels that the stories don’t seem to all quite match up.

But I can say that the version presented here so far in this is what I heard as I was here during that time. And I think I better leave it at that before I get into trouble."

(B) The GoSL never bothered to take advantage of leaked US diplomatic cables in spite of them being crucial for its defense. One leaked cable dealt with a discussion Geneva-based US Ambassador Clint Williamson had with ICRC Head for Operations for South Asia Jacques de Maio. The US envoy declared on July 15, 2009, that the Army actually could have won the battle faster with higher civilian casualties, yet chosen a slower approach which led to a greater number of Sri Lankan military deaths.

Other developments

advantageous to GoSL

(A) Deployment of Indian medical team at Pulmoddai, north of Trincomalee to receive the wounded transferred from Puthumathalan under ICRC supervision. The Indian team remained there until the conclusion of the war. The Indian team received several thousand wounded civilians during February-May, 2009 via sea. The government commenced transferring war wounded by sea soon after fighting blocked overland routes to and from Vanni east. The vessels deployed to evacuate the wounded transported several thousands of essential supplies to Puthumathalan. Foreign relief workers were also allowed to go ashore.

Allegations in respect of Vanni population denied medicine, food and other basic needs should be probed against the backdrop of supplies made available to Puthumathalan until the second week of May, 2009. The war ended in the following week.

India and ICRC, too, should be requested to explain their roles in the operation. The World Food Programme (WFP) can establish the amount of supplies moved to the area held by the LTTE during Feb-May 2009 period.

*Contradictory claims in respect of civilians killed

The GoSL never sought an explanation from Geneva in respect of the number of civilians perished during the eelam war IV. Those who had been strongly opposed to foreign intervention, too, failed to take it up.

I British Labor Party MP Siobhan McDonagh (Mitcham and Morden-Labour) told House of Commons in September, 2011 that 60,000 LTTE cadres and

II 40,000 Tamils perished during January-May 2009. The MP made the only specific reference to the number of LTTE cadres killed during a certain period.

III Special Amnesty International report titled When will they get justice: Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission also released in September 2011 estimated the number of civilian deaths at 10,000.

IV A confidential UN report placed the number of dead and the wounded, including LTTE combatants at 7,721 and 18,479, respectively. The report dealt with

the situation in the Vanni from August 2008 to May 13, 2009. The War ended a week after the UN stopped collecting data due to intensity of fighting.

US Defence Advisor confirms Norwegian assessment

Wartime Norwegian Ambassador in Colombo Tore Hattrem on February 16, 2009 asserted that the LTTE was unlikely to release civilians held on the Vanni east front. The following is the text of the Norwegian’s missive addressed to the then presidential advisor Basil Rajapaksa: "I refer to our telephone conversation today. The proposal to the LTTE to how to release the civilian population now trapped in the LTTE controlled area has been transmitted to the LTTE through several channels. So far there has regrettably been no response from the LTTE and it does not seem to be likely that the LTTE will agree to this in the near future."

The US Defence attache in June 2011 (over two years after the war) confirmed there had never been an agreement or an understanding regarding organized surrenderbetween the GoSL and the LTTE through the intervention of the UN or Western governments. GoSL never sought to use available information on the Geneva front

UN role in LTTE human shields

The UN remained silent and engaged in secret negotiations with the LTTE even after the group detained Tamil UN workers for helping Tamils to leave Vanni west in early 2007. The LTTE made its move in the wake of the GoSL opening up a new front in the Vanni (west of Kandy-Jaffna A9 road).

Co-Chairs to Sri Lanka Peace Process knew what was happening. They, too, remained silent. The UN mission in Colombo kept UN headquarters in the dark. The UN Colombo never contradicted exclusive The Island reports in this regard. Other print and electronic media ignored the issue. However, UN New York confirmed The Island reports.

Response to UN accusation that Vanni population denied food and medicine

The minutes of Consultative Committee on Humanitarian Assistance (CCHA) meetings can prove UN and Western governments never complained about food and medicine shortage. The then President Rajapaksa set up CCHA in Oct 2006 to ensure essential supplies to the Northern Province. I have the entire set of CCHA documents. CCHA included UN, US, UK and all key international NGOs operating in Sri Lanka at that time.

Office for Missing Persons

ICRC, Foreign Ministry, Paranagama Commission have furnished vastly different numbers with regard to missing persons. UN, too, discusses the issue.

They ignore the issue of thousands of Sri Lankans living overseas though being listed missing. A comprehensive investigation will expose those hiding overseas. Let me highlight three cases (A) Front line Socialist Party leader Kumar Gunaratnam received Australian passport bearing the name Noel Mudalige (B) The Army was accused of killing wartime Vanni Tech Director Thayapararajah in Sept. 2009. Thayapararajah was asrrested along with wife and children in Tamil Nadu in May, 2014 ( C ) ex-LTTE cadre Anthonythasan declared missing since early 90s appeared in an award winning French move Dheepan last year. The media quoted the ex-Tiger as having said: "I came to France because at the time I was able to only find a fake French passport and not a fake British or Canadian passport."