Wednesday, 27 September 2017

Why Geneva wants new Constitution to address accountability issues?



By Shamindra Ferdinando

President Maithripala Sirisena’s meeting with UN High Commissioner for Human Rights, Zeid bin Ra’ad Zeid-Hussein, on Sept 22, 2017, on the sidelines of the 72 United Nations General Assembly (UNGA), underscored Sri Lanka’s pathetic failure to counter a high profile propaganda project that brought about Geneva Resolution 30/1, on Oct 1, 2015.

Sri Lanka created history by co-sponsoring a resolution against itself in spite of it being severely inimical to its interests. The unprecedented resolution has paved the way for a new Constitution, in addition to implementing four specific measures meant to address accountability issues, namely (1) a judicial mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international human rights law (2) A Commission for truth, justice, reconciliation and non-recurrence (3) An Office for Missing Persons (OMP) and finally (4) An Office for reparations.

In support of the OMP, that has been established, the government intended to introduce the Enforced Disappearances Bill, though President Sirisena, before leaving for UNGA, stayed it from being debated in parliament, on Sept 21.

Had Sri Lanka succeeded in thwarting the Geneva project, President Sirisena wouldn’t have had to meet Zeid-Hussein in New York. The Geneva Resolution facilitated the Western powers’ led project meant to undermine post-war stability in Sri Lanka. Sadly, our political parties hadn’t realized how Western powers and India had set in motion a mega political project to change Sri Lanka’s Constitution in response to still unproven war crimes allegations.

Although war crimes allegations hadn’t been at least verified let alone proved, Geneva has prescribed a change of Constitution as the remedy. Perhaps, their intention has been to bring about far reaching constitutional changes to achieve what Velupillai Prabhakaran couldn’t accomplish through terrorism. It seems unsubstantiated war crimes allegations have been propagated to justify Constitutional changes. It would be pertinent to mention that the change of the Constitution, in response to war crimes allegations, would also justify LTTE’s terrorism, on the basis that the group, too, sought the same.

Sri Lanka brought the war to a successful conclusion, in May, 2009. During the conflict, various interested parties, as well as the LTTE, proposed different arrangements to bring the war to an end.

Perhaps those who had been propagating lies regarding massive human rights violations, during the last phase of Eelam War IV, never really expected a war crimes probe to take place. Instead, what they had been really craving for is a new Constitution which could weaken parliament, vis-a-vis provincial administrations.

The much hyped 19 Amendment to the Constitution that had facilitated the UNP-SLFP marriage, in 2015, is meant to keep the two major parties together to ensure the implementation of the project. Their decision to put off Local Government polls, as well as the Provincial Councils polls, should be examined against the backdrop of the implementation of a far bigger political project to bring in constitutional changes. The UNP-SLFP coalition cannot suffer a political setback, at any level, amidst the project to bring in a new Constitution.

Last week, the ruling coalition overlooked the Supreme Court ruling in respect of the proposed 20 Amendment to the Constitution as it put off scheduled PC polls through other means.

The day before President Sirisena met Zeid-Hussein, in New York, Prime Minister Ranil Wickremesinghe submitted the Interim Report of the Steering Committee, tasked with framing a new Constitution to the Constitutional Assembly. Unfortunately, the Joint Opposition (JO), loyal to former President Mahinda Rajapaksa, still remains involved in the constitutional making process though Wimal Weerawansa, MP, pulled his five-member parliamentary group out of what he called a mechanism to divide the country.

Zeid-Hussein, at the 32 session of the Geneva sessions, on June 28, 2016, dealt extensively with Sri Lanka. The former Jordanian career diplomat, in a statement headlined ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, explained, in no uncertain terms, what Geneva expected Sri Lanka to do.

 The 30/1 should be examined along with Zeid-Hussein’s statement, on June 28, 2016, and the findings and conclusion of the so-called comprehensive investigation undertaken by the Office of the United Nations High Commissioner for Human Rights (OHCHR).  Zeid-Hussein wanted Sri Lanka to implement recommendations contained therein. He also wanted other countries to abide by the recommendations, in line with Zeid-Hussein’s request, Australia, several months ago, denied a visa to Maj. Gen. Chagi Gallage, Director General of Infantry. They found fault with the Gajaba Regiment veteran for commanding a fighting formation, on the Vanni east front, during the last phase of the offensive. 

 The bottom line is that Zeid-Hussein unveiled a political agenda meant to transform the country, at the expense of its unitary status. Western powers, at the onset of 2015, caused the change of government to enable the intended transformation. Sri Lanka’s triumph over terrorism, in May 2009, had been used as a rallying point, twice; against the war-winning President on the basis his armed forces committed war crimes. Although the first project, in which they used General Sarath Fonseka, had failed, in January 2010, the second attempt succeeded. Maithripala Sirisena’s election was meant to ensure political transformation. Last Thursday’s handing over of the Interim Report of the Steering Committee, tasked with framing a new Constitution, to the Constitutional Assembly, by Premier Wickremesinghe, marked an important step towards achieving overall political objective, namely a brand new Constitution.

Although, the Geneva project has been delayed, obviously, it is on track.

Let me reproduce verbatim what Zeid-Hussein stated in his June 28, 2016, address in Geneva:

* Significant momentum has been achieved in the process of constitutional reform. On 10 March 2016, Parliament adopted a resolution establishing a constitutional assembly to draft and approve a new constitution or amendments by the end of 2016, which would then be put to a referendum in 2017. The drafting process has benefited from an inclusive public consultation process overseen by a Public Representations Committee that received submissions and held district level consultations in the first quarter of 2016.

* From a human rights perspective, the constitutional reform process presents an important opportunity to rectify structural deficiencies that contributed to human rights violations and abuses in the past and reinforce guarantees of non-recurrence. These could include a more comprehensive Bill of Rights, stronger institutional checks and balances, enhanced constitutional review, improved guarantees for the independence of the judiciary, effective individual complaints mechanisms and greater direct enforceability of international human rights treaty. Also, as demonstrated by other countries’ experience, is the strengthening of civilian oversight over the military in the form of multiple oversight and accountability mechanisms over defense policy, discipline and promotion, budgeting and procurement. The new Constitution will also be important in facilitating the establishment of the transitional justice mechanisms envisaged by the Government, for instance the criminalization of international crimes in national law or allowing for the involvement of international judicial personnel. At the same time, the High Commissioner hopes that the political process of adopting constitutional changes will not involve tradeoffs and compromises on core issues of accountability, transitional justice and human rights.

For some strange reason, the previous government steadfastly refused to make representations on behalf of Sri Lanka. In fact, their refusal facilitated the UN project.

Zeid-Hussein’s predecessor, Navanethem Pillay, gave the former government an opportunity to cooperate with the investigation or face the consequences. Obviously, the then government wasn’t in a mood to defend Sri Lanka at that time, having decided to advance presidential polls by two years. President Maithripala is on record as having said that his predecessor called early polls as he couldn’t face accusations in respect of war crimes and tackle a deepening economic crisis. The government certainly believed that it could exploit the battle with the UN to its political advantage whereas the UNP-led campaign warned of international sanctions in case President Rajapaksa secured a third term.


 Further to a meeting between the Permanent Mission of Sri Lanka and my staff in Geneva, on 30 May, 2014, I am writing to Inform you about the steps we have taken in setting up the comprehensive investigation into alleged serious violation and abuses of human rights and related crimes committed by both parties in Sri Lanka, as mandated by the Human Rights Council resolution 25/1.

I am in the process of forming a dedicated investigation team composed of OHCHR staff. I am pleased to convey that, after a competitive and thorough selection process, I have appointed Ms. Sandra Beidas as the Coordinator of the Investigation team, and she will be shortly assuming this position. Ms. Beidas is a senior staff member with more than 20 years of experience in the field and extensive expertise to conducting human rights investigations. We will introduce Ms. Beidas to the Permanent Representative and his colleagues in Geneva as soon as she commences duty. The selection of other members of the Investigation Team is currently underway, and is expected to be finalized soon.

In accordance with the resolution, I have also decided to appoint senior external experts who would advise and support the investigation team. Some of the experts I have approached are former Heads of State or of major international organizations, or specialists in international human rights and humanitarian law. The experts would play a supportive and advisory role to the investigations team, and would not lead the investigation. Their purpose would be to provide expert advice and guidance to the investigation, but also to accompany the process and provide an Independent verification of the investigation. I am currently reaching out to these senior experts to ascertain their availability and interest. Once confirmed and accepted by them, I will convey their names and titles to the Government of Sri Lanka. I will also be encouraging relevant Special Procedure mandate holders to provide inputs to the process in accordance with the resolution.

The budget for the Investigation has now been cleared by the Advisory Committee on Administrative and Budgetary Questions of the United Nations Secretariat in New York. The Investigation Team will be operational for a period of 10 months, from mid-June 2014, and will be based in Geneva. The first meeting of the investigation team with the senior experts is expected to be held in Geneva in July 2014, and this will be an early opportunity for the Government of Sri Lanka to establish formal contact with the investigation team. The investigation team hopes to undertake field visits to Sri Lanka and one or two other locations where information is available between July and November 2014.

Considering the public and media interest in the Investigation, the Office will prepare a facts sheet for public information purposes about the commencement of the investigation. As requested by resolution 25/1, the High Commissioner will provide an oral update to the 27th HRC session in September 2014, and a comprehensive final report to the 28th session in March 2015.

As per usual practice, my Office will ensure that the Government of Sri Lanka has the opportunity to provide comments on both the oral and comprehensive report before they are issued.

I sincerely hope that the Government of Sri Lanka will cooperate fully with the investigation, including by providing the investigation team with regular access to the country, and by sharing information and interacting regularly with the team in Geneva. In this context, I encourage you to appoint a focal point on the Government side.

I would like to take this opportunity to once again encourage the Government of Sri Lanka to conduct an Independent and credible domestic investigation into allegations of violations of international human rights and humanitarian law. OHCHR will continue to assess the progress made in national accountability processes, and the next High Commissioner will report accordingly to the Human Rights Council, in accordance with resolution 25/1.

I trust that the Government of Sri Lanka will take all necessary measures to ensure the safety and security of witnesses, victims and other individuals who may come forward to share information as well as to prevent any reprisals against those who cooperate with the international and national investigation.

Please accept, Excellency, the assurances of my highest consideration.

 Navanethem Pillay,

High Commissioner for Human Rights


 (A) GoSL ordered UN/INGOs to quit Kilinochchi in early September, 2008, to facilitate an all-out attack. British media outfit Channel 4 News alleged the government wanted to conduct a war without witnesses.

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

(C) Coordinated mortar/artillery/MBRL attacks on civilian population. Channel 4 News alleged that the Secretary Defence and the then Army Commander executed the project. GOSL allowed the use of cluster bombs.

(D) At least 40,000 civilians killed.

(E) Rape of combatants/civilians. Subsequently, the military was accused of abusing men.


The Lessons Learnt and Reconciliation Commission (LLRC) didn’t directly address the above mentioned allegations. The LLRC didn’t counter specific allegations. The LLRC made a series of important recommendations to promote post-war national reconciliation, though it failed to tackle specific accountability issues.

The Paranagama Commission, subsequently, appointed, didn’t address the main allegations. The Commission simply ignored evidence and various statements which could have been used in Sri Lanka’s defence.

If not for the former President Mahinda Rajapaksa’s much delayed decision to expand the scope of the Paranagama Commission, on July 15, 2014, to accommodate a team of international legal and military experts, to assist the domestic mechanism, Sri Lanka would never have received the benefit of Wiki leaks revelations. The team comprised Sir Desmond de Silva, QC, Chairman of the legal advisory council (UK), Professor Sir Geoffrey Nice QC. (UK), and Professor David M. Crane (USA). They were backed by Rodney Dixon, QC. (UK/ South Africa), Professor Michael Newton (USA), Commander William Fenrick (Canada), Professor Nina Jorgensen and Major General John Holmes, DSO, OBE, MC (UK) former Commanding Officer of the Special Air Service (SAS) Regiment, Paul Mylvaganam (UK) and Victoria de Silva and Delarney Uyangodage.

The expanded Paranagama Commission, too, overlooked some critically important developments, such as wartime US Defence Advisor in Colombo Lt. Col. Lawrence Smith’s comment on war crimes allegations, including white flag executions.

The former government failed to bring up the following at the correct forum:

(A) Although the UN vacated Kilinochchi, in September 2008, the ICRC was allowed to continue in the Vanni east for many more months. UN international staff was also allowed to accompany food convoys to the Vanni east. Some of them remained there, even in early part of 2009. GoSL also allowed an Indian medical team, at Pulmoddai, in the early part of 2009. The Indian team remained there until the very end. When overland movements weren’t possible, GoSL allowed ICRC to operate ships between Pulmoddai and Puthumathalan (Feb 10, 2009, to May 9, 2009 -16 movements/14,000 wounded and their relatives evacuated). Although ICRC staff left the rapidly shrinking LTTE held area on Feb 10, 2009, they returned and stayed onshore several hours each time ICRC-chartered ships came back.

Having completed its assignment at Pulmoddai, the Indian team moved to Menik farm, the main displaced camp.

Would a government, hell-bent on genocide, give a foreign medical team access to people arriving from the LTTE held area? Would it permit ICRC and WFP to move supplies to the war zone? Would it engage in deliberate massacre of people knowing that those trying to arrange a ceasefire had the wherewithal to closely monitor what was happening on the ground?

Norwegian government (Pawns of Peace: Evaluation of Norwegian peace efforts in Sri Lanka-released in September, 2011) acknowledged that Sri Lanka was under surveillance by both Indian Intelligence as well as NATO (page 100). International powers had the means to monitor deployment of weapons.

(B) The ICRC and WFP can reveal data as regards the amount of food, medicine and other items moved overland, and by ships, to Vanni east since Oct 2008 until May 9, 2009. The war ended 10 days later. Sri Lanka never deprived civilian population of food and medicine. In fact, the GoSL launched food ships to Jaffna peninsula, way back in 1990, after having lost the Kandy-Jaffna A9 road. Except during on and off peace talks, the road remained closed until the SLA regained full control, in January 2009.

(C) and (D) Unsubstantiated claim of over 40,000 civilians’ deaths during the final phase of the assault was blamed on mortar/artillery/MBRL attacks as well as the use of cluster bombs. According to The Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, it had received altogether over 4,000 submissions from 2,300 persons (page 5/point 17).

But the UN report released on March 31, 2011 declared that the identities of those who had made submissions wouldn’t be revealed for two decades. Even after two decades, information cannot be released without a declassification review (page 6/point 23)

How could such allegations be accepted without verification? Even four years after the release of the UN report, the issue hadn’t been resolved.

In the backdrop of the UN Panel of Experts’ directing that ‘sources’ wouldn’t be released for two decades (March, 2031), various claims as regards the number of civilians killed should be examined. Unfortunately, the government never highlighted the discrepancy in various figures quoted by interested parties.

* British Labour Party MP Siobhan McDonagh (Mitcham and Morden-Labour) told the House of Commons, in September, 2011, that 60,000 LTTE cadres and 40,000 Tamils perished during the period January-May 2009. She made the only specific reference to the number of LTTE cadres killed during a certain period. Obviously the British MP categorized the January-May 2009 period as the final phase of the conflict. The British High Commission declined to comment on the MP’s claim. She didn’t even respond to The Island queries. The UK-based Global Tamil Forum (GTF) asserted that it couldn’t force the MP to respond to The Island queries.

* Special Amnesty International report, titled "When will they get justice: Failures of Sri Lanka’s Lessons Learnt and Reconciliation Commission", also issued in September 2011 estimated the number of civilian deaths at 10,000. From the Amnesty International Report: Amnesty International’s conclusions, derived independently from eyewitnesses’ testimony and information from aid workers, are at least 10,000 civilians." According to London headquartered Amnesty International report, thousands died in the final months, though the figure couldn’t be more than 10,000 (page six).

* Western powers, international human rights organizations and the Panel of Experts continue to ignore a confidential report prepared by The United Nations Country Team during the conflict. The report that dealt with the ground situation from August 2008 to May 13, 2009 placed the number of dead (including LTTE combatants) at 7,721. The report estimated the number of wounded at 18,479. (War ended less than a week after the UN stopped collecting data due to the intensity of fighting. point number 134/page 40 of the Panel of Experts report).

Sri Lanka should push the UN to release the report/make it available to UN investigators. Important to remember, the UN report was based on information provided by those who had been trapped in the war zone and even today further verification could be made. Very surprisingly the UN Panel of Experts refused to accept the report. Why? The UN’s own report can easily contradict the exaggerations of its own investigation.

Except for the British MP’s foolish claim that 60,000 LTTE cadres killed during January-May 2009, all those wanting to haul Sri Lanka up before an international war crimes tribunal remain silent on losses suffered by the LTTE. As the Army headquarters admitted losing 2,350 officers and men during January-May 2009 period on the Vanni east front, the government should make every effort to establish the number of LTTEers killed during the same period.

Tuesday, 19 September 2017

A dossier on corrupt deals



Lalith Weeratunga leaving Dharmayathanaya after receiving dossier on corrupt deals from Ven Elle Gunawansa, chiefincumbent of the temple on June 21, 2006.

By Shamindra Ferdinando

On the late afternoon of June 21, 2006, Presidential Secretary, Lalith Weeratunga, arrived at the Dharmayathanaya, situated close to the BMICH, on the invitation of its chief incumbent, Ven. Elle Gunawansa. The writer was one of the few journalists invited by Ven. Gunawansa, on that day, to report what the outspoken monk called a significant intervention made by a group of civil society activists. Staff photographer, Jude Denzil Pathiraja, accompanied the writer to cover Ven. Gunawansa handing over a dossier that dealt with a spate of corrupt deals to Weeratunga (Dossier on fraudulent deals handed over to President’s Secy, The Island, Thursday June 22, 2006).

 A smiling Weeratunga accepted the report that dealt with corruption, involving the previous SLFP-led People’s Alliance (PA) politicians and officials, assuring the outspoken monk that President Rajapaksa would take tangible measures to tackle waste, corruption and irregularities. Weeratunga promised to make representations to President Rajapaksa on their behalf.

 Weeratunga also acknowledged corruption within the defence services. Although, Weeratunga assured Ven. Gunawansa that the dossier, furnished by the Ven. Thera, would be investigated by the Special Presidential Investigation Unit, and then cases handed over to the Criminal Investigation Department (CID), the Rajapaksa administration simply forgot the promise given. 

The visit to Dharmayathanaya took place close on the heels of the Auditor General’s Department revealing what was then called the country’s biggest tax fraud, amounting to a staggering Rs 360 bn. The detection made by officers, who had been engaged in a confidential inquiry. It sent shock waves through the government. The investigation revealed the alleged involvement of senior officials of the Inland Revenue, Customs and the Department of the Registrar of Motor Vehicles in the scam (Auditors reveal tax fraud of Rs 360 billion-The Island, June 11, 2006).

Obviously, the then President Rajapaksa lacked courage to take punitive measures against those who had been involved. There had been a spate of allegations, directed against the SLFP-led People’s Alliance (PA) since it ousted the UNP, at the Aug 1994 parliamentary polls, and then Chandrika Bandaranaike Kumaratunga secured presidency, in Nov 1994.

Having succeeded Kumaratunga, in Nov 2005, Rajapaksa thwarted an attempt to transfer a massive sum of money fromthe President’s Fund before she gave up office.

 Having strongly stood by the then Premier Rajapaksa, who had been under a cloud over what was dubbed as the Helping Hambantota scam, Weeratunga received appointment as Secretary to the President.

There hadn’t been a previous occasion where a leading monk directly requested the government to tackle corruption, before Ven. Gunawansa stepped in.

 Ven. Gunawansa told the writer that corruption was threatening the entire society and the failure to address the issue could have had a detrimental impact on the war effort as well. Although a full scale Eelam War IV hadn’terupted yet, the government knew it was only a matter of time before the LTTE resumed its offensive.

In July, the LTTE the blocked sluice gates of Mavil-aru, in the Eastern Province, to trigger a large scale conflict. But, an all-out war was still several weeks away. In the second week of Aug, 2006, the LTTE resumed Eelam War IV with simultaneous attacks on the northern and eastern fronts.

The writer raised the failure on the part of the Rajapaksa administration to tackle corruption with Weeratunga, a few days after he received Ven. Gunawansa’s dossier and received an assurance that President Rajapaksa would give the required political backing to investigate corruption accusations (President’s won’t be soft on colleagues, officials-Presidential Secretary, The Island, June 26, 2006).

Obviously, the Rajapaksa administration had no intention to rein in politicians and officials, and financial regulations, at every level, were violated with impunity.

Political project

With the change of government, in January 2015, Weeratunga, who had been Chairman of the Telecommunications Regulatory Commission (TRC), was investigated and subsequently found guilty by the Colombo High Court in respect of transferring Rs 600 mn from the TRC, in late Oct 2014. The HC faulted him for making available funds to distribute sil redi among Buddhists around the country, ahead of the January 8, 2015 presidential polls. At the onset of the investigation, interested parties referred to misappropriation of TRC funds amounting to Rs 600 mn though the allegation was proved wrong.

Obviously, distribution of sil redi, mugs, wall clocks and money, during Dec 2014-Jan 2015, had been all part of a costly project to secure a third term for war-winning President Mahinda Rajapaksa. Distribution of sil redi had been a key part of the Rajapaksa political strategy implemented at the expense of public funds though the then Election Secretariat warned the then government not to go ahead with the project. Those at the helm of the campaign weren’t in a mood to deviate from their strategy.

Weeratunga, obviously had no option but to authorize the massive payment or face the consequences. If Weeratunga was allowed to quit, in early 2010, he wouldn’t have ended up in Welikada. Wouldn’t it be pertinent to examine, urgently, whether cash cow TRC should remain under the executive president in the wake of Colombo HC ruling on the sil redi case. It would be the responsibility of the President and parliament to take remedial measures to thwart future transfers for political purposes.

The Colombo HC found Weeratunga and Director General, TRC, Anusha Palpita, guilty of making available funds for the specific purpose of promoting the candidature of the then President Rajapaksa. The circumstances under which the funds had been transferred weren’t examined.

Had TRC not been under the then President, Weeratunga wouldn’t have had to undergo the humiliation of a prison term. The former President had repeatedly declared that he issued instructions to Weeratunga to release the money therefore he was responsible for the transaction.

Would he have dared to make such a declaration if not for presidential immunity?

Let me briefly discuss the circumstances leading to President Rajapaksa seeking a third term, two years ahead of time. President Rajapaksa called for presidential polls, on the morning of Nov 19, 2014, three weeks after the transfer of the TRC funds. Those who had accused the government of political vendetta on the basis the TRC funds been transferred, before the announcement of the presidential poll, quite conveniently forgot that the then administration was exploring the possibility, since early 2014. No less a person than the then General Secretary of the SLFP Maithripala Sirisena, UPFA MP, in early 2014, officially requested Rajapaksa to drop plans for presidential polls. At that time, Minister Sirisena hadn’t reached an agreement with the UNP though he was seriously unhappy over him being overlooked for the premier’s post.

The Opposition feared the worst when President Rajapaksa forced the UPFA to endorse the 18 Amendment to the Constitution in Sept, 2010. Communist Party Chief Dew Gunasekera, National List MP and Prof. Rajiva Wijesinha, National List MP, declined to vote for the 18 Amendment. But, it was passed in parliament with a majority of 114 votes. The required 2/3 majority was obtained with 161 members voting for it and 17 against it. Six UNP MPs Upeksha Swarnamali, Earl Gunasekara, Abdul Cader, N. Wijesinghe, Lakshman Seneviratne and Manusha Nanayakkara crossed over to the government, in Parliament, during the debate on the 18 Amendment to the Constitution, for obvious reasons. Some of them switched their allegiance to President Sirisena after the Aug 2015 parliamentary polls.

The 18 Amendment to the Constitution removed the two-time limit on executive presidents.

In January 2013, President Rajapaksa impeached Chief Justice 43, Dr. Shirani Bandaranayake to clear the way for his political project.

Today, even the Joint Opposition had been forced to forget how President Rajapaksa’s right hand man weakened the then administration.

Weerawansa’s project

 Many an eyebrow was raised during the second week of July, 2014, when Weerawansa invited the convener of the Movement for Just Society, Ven. Maduluwawe Sobitha thera, to finalise far reaching constitutional reforms, including the abolition of the executive presidency.

The breakaway faction of the JVP caused irreparable damage to President Rajapaksa. Weerawansa, the then Construction, Engineering Services, Housing and Common Amenities Minister, warned the Rajapaksa government to meet his demands or face the consequences. Weerawansa threatened to throw his weight behind Ven. Sobitha’s campaign, unless the SLFP accepted his demands, meant to bring in far reaching constitutional reforms. Weerawansa’s strategy caused mayhem at the Uva PC polls, in late 2014.

In early Oct, 2014, Dew Gunasekera requested President Rajapaksa drop plans for early polls. Gunasekera’s appeal was supported by his Socialist Alliance (SA) colleagues, Vasudeva Nanayakkara and Prof. Tissa Vitharana. Gunasekera told the writer at the time: "Calling for either presidential or parliamentary polls, nearly two years ahead of the scheduled dates, can cause a catastrophe. As the last presidential and parliamentary polls were held in January and April, 2010, there is absolutely no need to engage in a risky political venture now." (Dew makes strong case against snap national polls with strap line calls for thorough examination of ground realities before holding elections two years ahead of scheduled, The Island, Oct 4, 2014).

The SA subsequently, urged the SLFP to abandon its plans for an early presidential poll (SLFP told early presidential poll not required, The Island, Oct 8, 2014).

Their sound advice was simply ignored. The SLFP’s chief strategist Basil Rajapaksa firmly believed his elder brother could secure a third term.

The Island was the only print media to report it whereas the electronic media refrained from giving coverage. However, the writer exercised his franchise for President Rajapaksa at the presidential poll.

Prof Wijesinha was certainly the only UPFA MP who had guts to write letters to President Rajapaksa, the then UPFA General Secretary Susil Premjayantha, as well as Chief Government Whip Dinesh Gunawardena. Premajantha switched his allegiance to President Sirisena after the last parliamentary polls, in Aug 2015. Dinesh Gunawardena functions as the leader of the JO.

Prof. Wijesinha is one of the few politicians to take on corrupt politicians, regardless of who perpetrated fraud. His criticism in respect of the Central Bank bond scams, involving primary dealer, Perpetual Treasuries Limited (PTL), is an example to all those in parliament, and outside.

Prof. Wijesinha, who had played a pivotal role as the wartime administration’s Peace Secretariat Chief, told the writer recently that the previous government could have had taken advantage if Northern PC was held soon after the conclusion of the war in May 2009. The wartime Defence Secretary Rajapaksa had subscribed to that view whereas Basil Rajapaksa thought differently.

Northern PC poll was finally held in Sept. 2013.

Prof. Wijesinha’s letters

Let me reproduce Prof. Wijesinha’s letter addressed to President Rajapaksa: "At the last meeting of the Executive Committee of the Liberal Party, it was decided, as requested by them, to support the request of the Left Parties (Dew, Vasu and Tissa) that national elections not be held in the short term. We, too, feel that it would be better, instead, to embark on the reforms that have been pledged in Your Excellency’s manifesto, as well as in other contexts.

These reforms should be based on the vision Your Excellency used to express, regarding bringing government closer to the people, and ensuring greater responsiveness and accountability in respect of local needs. The need for devolution is something the Liberal Party has always stressed, but we have also been conscious of the need for national security. However, as we have often pointed out, giving greater responsibility to the people, and to local communities, for matters that affect them closely, on the principle of subsidiarity, is quite feasible, whilst also ensuring the security of the nation.

But devolution must also be accompanied by empowerment. So we also need to move towards developing a technologically competent younger generation, and pay much greater attention than now to maximizing human resources.

In this regard Bills that need to be expedited include the following, which are pledged or planned

a) A new Universities Act that provides meaningful training that promotes employability free to those who need it, whilst facilitating the establishment of other centres of excellence through private/ public partnerships

b) A new Education Act that ensures holistic education, with greater stress of skills and competencies that are developed through extra-curricular activities such as Sports and Social Service and Cultural Activities

c) A new Local Government Act that increases the power of local authorities in specific fields whilst also entrenching consultation mechanisms with provision for feedback

d) An Act to change the Electoral system so as to enhance the accountability to specific electorates of Members of Parliament, whilst also preserving proportional representation without the distortions of the current system

We must also revise Administrative and Financial Regulations, as has been agreed is essential in response to strictures made by the Committee on Public Enterprises on which I have had the honour to serve. Such Regulations should establish consultation mechanisms such as the Jana Sabhas you mentioned, but these must be vehicles for the people, not tools for politicians. The initial steps taken by the Ministry of Public Administration in this regard should be strengthened.

It would also help to fast forward action on the National Human Rights Action Plan, as well as on the LLRC Recommendations, all of which have been approved by Cabinet. I believe the position of the government would also be immeasurably improved if the National Policy on Reconciliation were adopted.

Without such measures the decline in popularity that we have recently witnessed will continue. A hasty election will be seen as evidence of panic, and this can be easily exploited. On the other hand, unless there is evidence of change, the people will have no reason to continue to vote for this government, since the economics and social benefits of peace that were anticipated are no longer evident.

It would be tragic if the tremendous achievement of 2009 were to be squandered. Though it may be claimed that the Liberal Party is not in touch with electoral reality, it must also be recognized that our analyses of political developments, based on wide knowledge and established principles, have generally been accurate. Given our initial contribution to the international dimensions of the victories of 2009, we too have reason to argue for measures that will allow us to build positively on that foundation, rather than stand back and see it destroyed.

Yours sincerely."

The following is the text of hitherto unpublished Prof. Wijesinha’s letter to then UPFA General SecretaryPremjayantha: "Thank you for your letter of 10th Octoberregarding offices for any forthcoming national election.

The Liberal Party is deeply appreciative of the UPFA having appointed a representative of the party to Parliament on the National List. We take pride in the success of the war against terrorism during the preceding Parliament, and the speed with which the government engaged in resettlement and rehabilitation thereafter. We will continue to support the government for the term of this Parliament, and trust the government will move on these matters even more effectively before its mandate is concluded.

However we have taken a decision to urge the President to engage in reforms before holding any national election. If reforms do not occur, we may not be able to support his candidature. We continue to wish the UPFA, and the SLFP and its traditional allies, well for the future in fulfillment of the Middle Path of the late S W R D Bandaranaike which accords with the liberal philosophy."

The same letter was also copied to then Chief Government Whip Dinesh Gunawardena.

The decision to utilize TRC funds, at the expense of Weeratunga, should be examined against the backdrop of above mentioned events and the pathetic failure to thwart organized violence directed at the Muslim community at Aluthgama and neighbouring areas in June 2014. Had President Rajapaksa triumphed, TRC would have been at the mercy of the executive.

Weeratunga, played a pivotal role as a member of troika comprising Basil Rajapaksa, Gotabhaya Rajapaksa and Weeratunga during the Eelam War IV. The Indian ‘troika’ member Shivshanker Menon, the then Indian Foreign Secretary in his memoirs Choices: Inside the Making of India’s Foreign Policy referred to Weeratunga’s role.

Let political parties take immediate measures to deprive politicians’ power to exercise power over funds at the expense of parliament, where the ultimate responsibility for public funds lies.

Sunday, 17 September 2017

A challenging task for Gotabhaya




By Shamindra Ferdinando

The high profile launch of Eliya (light) by wartime Defence Secretary, Gotabhaya Rajapaksa underscored Sri Lanka’s PATHETIC failure to counter unsubstantiated war crimes allegations, directed by a section of the international community, since the conclusion of the war, in May 2009.

Sri Lanka paid a very heavy price for its failure and the previous government can never absolve itself of the responsibility for the situation.

Lt. Gen. Sarath Fonseka’s Army brought the war to a successful conclusion, on the banks of the Nanthikadal lagoon, on the morning of May 19, 2009, when heavy caliber ammunition penetrated LTTE leader Velupillai’s Prabhakaran’s forehead. The Sri Lanka Army (SLA) has credited the Fourth Battalion of the Vijayabahu Infantry Regiment (4 VIR) for Prabhakaran’s killing. A not so celebrated infantry battalion was fortunate to secure unprecedented recognition.

The SLA would never have succeeded in pursuing Prabhakaran, successfully, if the Sri Lanka Navy and the Sri Lanka Air Force had failed to achieve their strategic objectives during Eelam War IV (Aug 2006-May 2009). Vice Admiral Wasantha Karannagoda and Air Marshal Roshan Gunatilleke provided legendary leadership to the SLN and SLAF, respectively, whereas Defence Secretary Rajapaksa ensured an unstoppable offensive, over a period of three years, until the LTTE was brought to its knees. His role, in Sri Lanka’s victory over terrorism, can never be challenged or disputed.

But the failure on the part of the Rajapaksa administration to counter unsubstantiated war crimes allegations, certainly helped those who had been propagating war crimes allegations as well as accusations in respect of post-war incidents, leading to the change of government, in January, 2015.

The US, EU and India spearheaded the 2015 project in collaboration with the four-party Tamil National Alliance (TNA), one-time political arm of the LTTE.

Although a US led project failed, in January 2010, to oust President Rajapaksa, an identical mission succeeded in January 2015. On both occasions, they used those who had been close to President Rajapaksa, namely the then Gen. Sarath Fonseka and Minister Maithripala Sirisena as battering rams, in 2010 and 2015, respectively.

President Mahinda Rajapaksa facilitated the enemy project by calling presidential polls two years ahead of scheduled time. Among those who had officially requested President Rajapaksa not to do so were then SLFP General Secretary Maithripala Sirisena in April 2014 and D.E.W. Gunasekera, Vasudeva Nanayakkara and Prof. Tissa Vitharana in Oct 2014. President Rajapaksa ignored their sensible advice.

Gajaba Regiment veteran Rajapaksa launched the Eliya project on Sept. 6, 2017, amidst the latest simmering dispute over war-winning Army Chief the then Lt. Gen. Sarath Fonseka accusing the then Vanni Security Forces Commander Maj. Gen. Jagath Jayasuriya of atrocities.

The Eliya project, meant to thwart the ongoing bid to bring in a new Constitution, in accordance with Geneva Resolution 30/1, co-sponsored by the UNP-SLFP government, on Oct 1, 2015, received the backing of the civil society. Among them were distinguished non-career diplomats, Dayan Jayatilleka, who calls himself a Sri Lankan patriot, and also an internationalist, and Tamara Kunanayakam. Jayatilleka and Kunanayakam made brief presentations on behalf of Eliya. It would be pertinent to mention that the Rajapaksa administration unceremoniously removed both Jayatilleka and Kunanayakam, at the expense of Sri Lanka’s defence overseas. Now they are back, along with former MP Prof. Rajiva Wijesinghe, who switched his allegiance to Maithripala Sirisena at the onset of the operation against President Rajapaksa, in late 2014. Prof. Wijesinghe was also present at the launch of Eliya.

Among those who had been present at the launch of Gotabhaya Rajapaksa’s initiative, were twice President Mahinda Rajapaksa and brother Basil Rajapaksa accused of war crimes. They were among four leaders of the war-winning Rajapaksa team blamed by the then US Ambassador in Colombo Patricia Butenis for war crimes. The other accused are Gotabhaya Rajapaksa, on the podium, and now Field Marshal Sarath Fonseka, Regional Development Minister in the UNP-SLFP coalition.

Fonseka’s entry into politics, in late 2009, triggered an unprecedented crisis and, unfortunately, divided the war-winning team. But, whatever political disputes, Sarath Fonseka had been a key member of the war-winning team, and his contribution to Sri Lanka’s war against terrorism can never be challenged. That is the undeniable truth. In fact, Sri Lanka’s triumph over terrorism or resultant war crimes allegations cannot be discussed, under any circumstances, without taking the Fonseka factor into consideration.

Those who had flayed Fonseka for accusations, directed at Jayasuriya, must not forget the Sinha Regiment veteran is also part of the solution, regardless of his political affiliations now.

The writer had an opportunity to take up a range of issues, pertaining to accountability issues, during Balaya, a weekly live programme, hosted by Sudewa Hettiarachchi, Director News, Hiru, on Sept 7, 2017, the day after the launch of ‘Eliya.’ The timing of Balaya couldn’t have been better with naval veteran Rear Admiral Sarath Weerasekera (former Deputy Minister, UPFA), who had addressed the gathering at the ‘Eliya’ launch on the previous, on the ‘Balaya’ panel. The writer teamed up with Weerasekera, whereas the opposing team comprised Gamini Viyangoda of Purawesi Balaya, an influential civil society organization that had forcefully campaigned for President Rajapaksa’s ouster, and Dr. Jehan Perera, executive Director of the National Peace Council (NPC), the foremost NGO funded by successive Norwegian governments, and the recipient of substantial funding from other foreign ‘sources.’

Perera, accompanied the Sri Lankan delegation to the Geneva Human Rights Council sessions, in March 2017. He backed Sri Lanka’s request for an additional two-year period to implement Resolution 30/1.

The debate dealt with war crimes allegations in the wake of Fonseka’s latest outburst directed at Jayasuriya.

Essentially, Viyangoda, a member of the Consultation Task Force on Reconciliation Mechanisms (CTFRM) and Perera strongly pushed for a thorough investigation into accountability issues. Viyangoda reiterated his backing for CTFRM recommendation for foreign judges in domestic war crimes court, in line with Resolution 30/1. Perera threw his weight behind Viyangoda, while faulting the previous government for excessive loss of civilian lives during the Vanni offensive and detention of over 300,000 people at the conclusion of the fighting. They asserted that international intervention could have been averted had the Rajapaksa administration swiftly and decisively addressed human rights concerns. They squarely placed the blame on the previous government for the current crisis, while underscoring the responsibility on the part of Sri Lanka to address domestic as well as international concerns in respect of wartime conduct of political and military leaderships.

Weerasekera lucidly explained how the ongoing Geneva project relentlessly undermined Sri Lanka with the focus on immense sacrifices made by the armed forces and the people. The naval veteran also discussed the failure on the part of the international community to intervene and take punitive action against the LTTE at an earlier stage. Weerasekera recalled the atrocities that had been committed by the LTTE over a period of time while explaining their own efforts to protect civilians. Weerasekera cited the rescue of Sea Tiger leader Soosai’s wife and children by the navy on May 16, 2009, as they were fleeing in a boat towards Tamil Nadu as an example of their approach towards non-combatants. Weerasekera proved that Resolution 30/1, that had been co-sponsored by the current government, was based on the report of the OHCHR Investigation on Sri Lanka, aka OISL, though Viyangoda took a contrary view.

Weerasekera strongly opposed foreign judges as well as other foreign personnel in proposed judicial mechanism whereas the writer expressed the opinion that proper defence strategy following fresh reappraisal of the entire gamut of issues will enable Sri Lanka to successfully counter allegations even before foreign judges. It would be pertinent to stress that the responsibility in proving allegations directed at Sri Lanka lies with those pushing for war crimes probe. The writer asserted that foreign judges wouldn’t be an issue if Sri Lanka, forcefully brought out all relevant factors.

The writer raised the following issues with the panelists.

Thamilini’s revelations

The pivotal importance of establishing the circumstances leading to the resumption of war, in Aug 2006. Sivakamy Sivasubramaniyam alias Thamilini, in her memoirs, Thiyuni Asipathaka Sevana Yata (Under the shadow of a sword), launched in May 2016, following her death in Oct 2015, briefly explained how Prabhakaran had wanted to facilitate Mahinda Rajapaksa’s victory, at the Nov 2005 presidential poll, to enable the LTTE to resume war and bring his campaign to a successful end. There cannot be any dispute over Thamilini’s assertions as regards the LTTE creating an environment for resumption of all out war and the assassination of Foreign Minister Lakshman Kadirgamar, in Aug. 2005, on specific orders given by Prabhakaran as Thamilini’s book was launched by artiste, Dharmasiri Bandaranayake, on her husband Jeyakumar’s request. Viyangoda and senior lecturer Swaminadan Wimal had addressed the gathering at the Sri Lanka Foundation Institute (SLFI). Dharmasiri Bandaranayake or Viyangoda wouldn’t have done anything under any circumstances to justify the war against the LTTE, hence the need to seriously examine Thamilini’s revelations.

Victor Ivan’s disclosure

Former Ravaya Editor Victor Ivan, in a special article on ‘Jeyaraj’, published in Sept 2011, in memory of Minister Jeyaraj Fernandopulle, assassinated in April 2008, revealed how President Rajapaksa had sent Seva Lanka chief Harsha Navaratne to reach an understanding with the LTTE soon after Prabhakaran launched claymore attacks in Dec 2005. The then presidential secretary Lalith Weeratunga had accompanied Harsha Kumara Navaratne. President Rajapaksa had sent Harsha Navaratne again with Fernandopulle to make representations to the LTTE, on his behalf, in the wake of the Mavilaru crisis, caused by the LTTE in June/July 2006. According to Victor Ivan, Navaratne had made the revelations a few months after Fernandopulle’s assassination at Dr. Kumar Rupesinghe’s residence. Among those present had been Minister Dr. Rajitha Senaratne (then an influential member of the Rajapaksa cabinet), TNA leader R. Sampanthan and TNA members of parliament, Suresh Premachandran and Mavai Senathirajah. Victor Ivan also quoted Sampanthan as having said that the war couldn’t be called genocide though he wasn’t prepared to admit that publicly. Victor Ivan underscored that Harsha Kumara Navaratne had made the revelation after the TNA accused President Rajapaksa of resorting to war without making an effort to negotiate with the LTTE.

P’karan’s targets

The LTTE realized the requirement to deprive President Rajapaksa of Lt. Gen. Fonseka and Gotabhaya Rajapaksa at a very early stage of eelam war IV. Had Prabhakaran succeeded in eliminating Fonseka, in April 2006, and Rajapaksa, in Oct 2006, the war effort would have failed. Fonseka had the strength to declare that he wouldn’t leave the war to his successor, while Gotabhaya told Norwegians the problem could be definitely settled through military means, according to Pawns of Peace: Evaluation of Norwegian peace efforts in Sri Lanka released in Sept 2011. Let me reproduce verbatim the relevant section: "On April 6, 2006, Norwegian Special Envoy Jon Hanssen-Bauer and Norwegian Ambassador Hans Brattskar have a tense meeting with Defence Secretary Gotabhaya Rajapaksa. In response to a question about whether the ethnic and political problems could be solved by military means Gotabhaya answers, ‘yes.’

Had Prabhakaran succeeded, the outcome of the war could have been different. The split in the Rajapaksa camp obviously delighted those elements wanting to divide the country on ethnic lines.

Denial of ‘white flag’ allegations

Reappraisal of specific allegation in respect of execution of LTTE cadres on the Vanni east front in mid May 2009 against the backdrop of a public statement made by Lt. Col. Lawrence Smith, US defence attache, in Colombo, in June 2011, regarding the allegation. Lt. Col. Smith denied the allegation at the inaugural Defence Seminar organized by the SLA at the Ramada. Interestingly, the US State Department never denied Lt. Col’s statement, though it declared the officer didn’t make that statement on behalf of the US.

Discrepancy in numbers killed

Requirement to establish the number of civilians killed during the final phase. The UN Panel of Experts (PoE) estimated the number of killed at over 40,000, in March 2011, whereas the Amnesty International, in Sept 2011, placed the number of civilian deaths at 10,000. In Sept. 2011, the British parliament was told of 60,000 civilians and 40,000 LTTE cadres killed during January-May 2009. These vastly different figures should be examined taking into consideration still confidential UN report that placed the number of persons killed in areas under LTTE control during Aug 2008 – May 2009 at 7,721 and 18,479 wounded. The war ended a week after the UN stopped collecting data due to the intensity of the fighting.

TNA’s culpability

Inquire into TNA’s partnership with the LTTE since 2001 when the former came into being. The EU alleged that the TNA secured the lion’s share of electorates/seats in the Northern and Eastern electorates at the April 2004 parliamentary polls, thanks to violence unleashed by the LTTE on those opposed to the TNA and former stuffing ballot boxes of the latter. Having declared the LTTE sole representative of Tamils in 2001, the TNA faithfully served the terrorist group, both in and outside parliament, until the SLA put a bullet through Prabhakaran’s head.

Allegations against the SLA should be probed taking into consideration the TNA support for Fonseka and Maithripala Sirisena at the January 2010, January 2015 presidential polls, respectively. Fonseka had commanded the victorious SLA accused of indiscriminate killings while Maithripala Sirisena held the defence portfolio in the last week of Vanni offensive. The TNA had no qualms in throwing its weight behind them in spite of war crimes allegations. Would Sampanthan have backed them, especially Fonseka, if he really believed in his own accusations?

Wiki leaks revelations

Although, the Paranagama Commission, in its second mandate, referred to Wiki leaks, for some strange reason, the previous government never made use of US diplomatic cables. One such cable, revealed top ICRC official asserting how SLA could have finished off the LTTE quicker if it didn’t take civilian factor into consideration.

The cable, dated July 15, 2009, signed by the then Geneva-based US ambassador, Clint Williamson, cleared the SLA of crimes against humanity during the Vanni offensive. The cable, addressed to the US State Department, was based on a confidential conversation Ambassador Williamson had with the then ICRC head of operations for South Asia, Jacque de Maio on July 9, 2009. Ambassador Williamson wrote: "The army was determined not to let the LTTE escape from its shrinking territory, even though this meant the civilians being kept hostage by the LTTE were at an increasing risk. So, de Maio said, while one could safely say that there were ‘serious, widespread violations of international humanitarian law,’ by the Sri Lankan forces, it didn’t amount to genocide. He could cite examples of where the army had stopped shelling when the ICRC informed them it was killing civilians. In fact, the army actually could have won the military battle faster with higher civilian casualties, yet chose a slower approach which led to a greater number of Sri Lankan military deaths. He concluded however, by asserting that the GoSL failed to recognize its obligation to protect civilians, despite the approach leading to higher military casualties."

SLA lost 2,400 officers and men in 2009 though the war ended in May 2009.

Tamil victims

In response to Viyangoda’s assertion that 90 per cent of victims were Tamils, the writer pointed out the need to inquire into circumstances under which that community suffered since the Indian military intervention in 1980s. A thorough inquiry should examine the deaths due to Indian Army operations in Sri Lanka (1987-1990), fighting among Indian sponsored Tamil groups, sea borne Tamil terrorist raid on the Maldives in Nov 1988, LTTE executing its own for allegedly plotting against its leader and political killings. It wouldn’t be right to restrict investigations into allegations blamed on Sri Lanka. TNA MP Dharmalingham Siddarthan, Chairman of Center-Periphery Relations Sub Committee that recommended far reaching constitutional reforms meant to weaken the 1978 Constitution is on record as having said that two TULF MPs including his father were abducted and executed by Indian sponsored TELO terrorists at the behest of RAW (Research and Analysis Wing) in 1985.

Humanitarian missions

Proposed accountability mechanism should seek clarification from foreign powers and INGOs in respect of supplies that had been moved overland and then by sea to the area under LTTE control up to the second week of May 2009. The previous government lacked even a basic plan to prepare solid defence to counter lies and to cleverly use vital information provided by foreign sources such as the US (Lt Col. Lawrence Smith) and UN (PoE report). Let India inform the proposed accountability mechanism how its personnel, based at Pulmoddai, north of Trincomalee, received wounded men, women and children evacuated by the ICRC. The writer had the opportunity to visit a makeshift Indian medical facility in late April 2009. The evacuation operation allowed nearly 15,000 civilians, both wounded and relatives to reach Pulmoddai. The accusation that Sri Lanka had waged genocidal war should be investigated keeping in mind how the wounded were evacuated even in the second week of May 2009. War ended on the morning of May 19, 2009.

Role for Norway

Proposed accountability mechanism should thoroughly inquire into efforts made by the international community to save civilians. The then MP and presidential advisor, Basil Rajapaksa, received a one-page missive, on Feb. 16, 2009, from then Norwegian ambassador, Tore Hattrem. The Norwegian embassy delivered the letter to Basil Rajapaksa in the wake of Ambassador Hattrem discussing the situation on the Vanni east front with President Rajapaksa’s brother. Basil Rajapaksa had been exploring ways and means of securing the release of the Vanni population, held hostage by the LTTE, and was in touch with Western diplomatic missions in Colombo, in this regard.

Hattrem’s note to Basil Rajapaksa revealed Norway’s serious concern over the LTTE’s refusal to release the civilians. The Island received a copy of the hitherto unknown Norwegian note, headlined ‘Offer/Proposal to the LTTE’, personally signed by Ambassador Hattrem. The Norwegian envoy was writing to Basil Rajapaksa on behalf of those countries trying to negotiate a ceasefire between the government and the LTTE, to facilitate the release of civilians, held hostage by the latter.

The following is the text of Ambassador Hattrem’s letter, addressed to Basil Rajapaksa:

"I refer to our telephone conversation today. The proposal to the LTTE on 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 been, regrettably, no response from the LTTE and it does not seem to be likely that the LTTE will agree with this in the near future."

Those who really want to clear Sri Lanka’s name should face the accusers in a court of law. It would be pertinent to stress that it would be their responsibility and challenge to prove still unproven allegations on which Geneva wanted our Constitution changed to pave the way for a federal structure.