Govt. in dilemma over anti-terrorism law:

 SPECIAL REPORT : Part 391

Published

  2021/10/27

Tamil speaking people protest in Batticaloa on Feb 23, 2019 against the PTA (Prevention of Terrorism Act) and the proposed CTA (Counter Terrorism Act). They demanded the abolition of anti-terrorism laws.

No letup in Int’l, civil society pressure

By Shamindra Ferdinando

Under any circumstances, post-war Sri Lanka cannot ignore international concerns as regards the Prevention of Terrorism (Temporary Provisions) Act (No 48 of 79).

A section of the international community wants Sri Lanka to amend the PTA without further delay. The civil society organisation, One-Text Initiative (OTI) has pointed out repealing the PTA is a necessity underscored by the European Union and the Geneva-based United Nations Human Rights Council (UNHRC) as well as by Western-funded civil rights organisations and international agencies. It would be pertinent to mention that the OTI came into being in 2003 in the wake of the Norway arranged Ceasefire Agreement (CFA). The CFA, too, made reference to the PTA. The following is the relevant section 2.12: The parties agree that search operations and arrests under the Prevention of Terrorism Act shall not take place. Arrests shall be conducted under due process of law in accordance with the Criminal Procedure Code. Therefore, the public should know the PTA had been an issue for the LTTE, too.

Following the 5th Meeting of the European Union – Sri Lanka Working Group on Good Governance, Rule of Law and Human Rights on Sept. 29, 2021, they issued a comprehensive statement.

Let me reproduce the relevant section verbatim: “Sri Lanka provided an update on the action in process to review the Prevention of Terrorism Act, and reiterated its commitment to bring it in line with international norms and standards within a time bound process. The EU and Sri Lanka agreed to take stock of the progress in this regard by the next meeting of the EU-Sri Lanka Joint Commission in early 2022. The need to uphold international norms and standards of human rights while countering terrorism and violent extremism was also underlined.”

OTI last Monday (25) arranged a discussion on the PTA and its impact with the participation of lawyer Chrishmal Warnasuriya, Dr Paikiasothy Sarawanamuttu, UK-based Amal Abeywardene and the writer. Harindra B Dassanayake moderated the two-hour discussion. All agreed with Dr. Sarawanamuttu’s call for a moratorium of the PTA until the government and those engaged in discussions on the future of the security law reached a consensus. The civil society guru also suggested until consensus could be reached on the issue at hand, the Attorney General should be authorised to facilitate bail to those held under the PTA. That proposal, too, should be seriously considered. OTI raised specific issues relating to the PTA. Why does the reforming/ repealing of PTA matter? , What is the situation now, and what is likely to happen? Are there options for Sri Lanka, and with what consequences? What hinders change? And what paths and steps are recommended? The OTI initiative should be appreciated.

Western powers are eternally interested in accountability issues and related matters here. However, there is no such enthusiasm to correct far worse continuing wrongs in places like Egypt, Israel or for that matter the continuing genocide in Yemen, thanks to Saudi Arabia and UAE or against international drug rings freely operating from capitalist citadels, like Dubai!

Since the end of the war in May 2009, the GoSL (Government of Sri Lanka) has been under tremendous pressure to either abolish the PTA or amend it in line with laws in place in other parts of the world. Do we need anti-terrorism laws? Do they serve any purpose or strengthen Sri Lanka’s response to terrorist challenge? Sri Lanka should have examined how PTA facilitated the country’s overall response to terrorism.

Unfortunately, successive governments conveniently failed to do so just to appease the West fearing a greater orchestrated outcry against the country, thereby contributed to some international efforts to discredit the Sri Lankan military as well as the law enforcement apparatus.

The country experienced two terrorist campaigns in the South in 1971 and 1987-1990 and the 30-year-old war spearheaded by the LTTE. Sri Lanka defeated all three attempts through military means. The country had no option but to deal militarily with terrorism and conventional military challenge, regardless of opposition. Some sections of the international community oppose the PTA. But no one talks about draconian anti-terror laws in place for example in the USA or the UK since 9/11 and thereafter.

They always boast about a rules-based order followed by the international community. What is this international community? It is nothing but a self-appointed handful of countries in the West that earlier plundered much of the world at their will.

Interestingly, almost all those countries demanding abolition or amendments to the PTA provide refuge to those who should have been dealt with in terms of anti-terrorism laws. Those countries swiftly accept accusations that the PTA is used widely and indiscriminately at the expense of public freedom and also against political opponents.

Focus on PTA cases

Let me briefly refer to four recent cases that had attracted international attention due to some of those involved being arrested in terms of the PTA, as well as accusations relating to Sri Lankans seeking political refuge overseas: (i) Arrest of Attorney-at-Law Hejaaz Hizbullah in April 2020 over his alleged involvement in the 2019 Easter Sunday carnage (ii) the recent Inter-Parliamentary Union (IPU) statement on the arrest and the subsequent release of All Ceylon Makkal Congress (ACMC) leader and MP representing the Samagi Jana Balavegaya (SJB) Rishad Bathiudeen. The MP was also taken into custody in terms of the PTA over the Easter Sunday attacks blamed on National Thowheed Jamaat. It would be pertinent to mention that the IPU represents altogether nearly 180 Parliaments all over the world (iii) New Zealand police killing Ahamed Adhil Mohamed Samsudeen, 31, who had secured political asylum therein in Dec 2013 on the basis of him being under threat in Sri Lanka. No less a person than New Zealand Prime Minister Jacinda Ardern has admitted how the man from Kattankudy, who knifed several persons in an Auckland shopping mall received inspiration from ISIS (iv) New Zealand granting political asylum to a Sri Lankan wanted in connection with the Easter Sunday attacks. The suspect also wanted under the PTA received New Zealand protection soon after the mayhem in the shopping mall.

Hizbullah’s arrest was also taken up by the UK-led Sri Lanka Core Group at the UNHRC as well as by HRC Michelle Bachelet. In spite of Hizbullah personally knowing two of the Easter bombers and their father, Mohammad Yusuf Ibrahim, he should be considered innocent until found guilty in a court of law.

Hizbullah knew them as he had represented the wealthy family in court and his right as a lawyer to represent anyone should never be questioned whatever the accusations directed at his clients. The UN, foreign government and the civil society, too, should have the right to represent the interests of anyone regardless of the accusations. In the absence of own legal representation or the inability to procure legal services, suspects, whatever the accusations directed at them, reserved the right to obtain legal support from the Attorney General’s Department.

Similarly, the State, in this case the Sri Lanka State shouldn’t give up its right to take security measures deemed necessary to protect the public. The government cannot forfeit its right to defend the public against acts of terrorism. However, every effort should be made to address concerns of the UN and the EU as regards the PTA.

Most importantly, the government should respond to concerns raised by the Tamil National Alliance (TNA) and all other political parties representing the Tamil speaking people as well as the civil society such as the Centre for Policy Alternatives (CPA).

The incumbent government in June this year appointed a high powered committee chaired by Defence Secretary Gen. Kamal Gunaratne to examine the PTA. The Committee has been asked to recommend whether to suitably amend the current law or introduce new counter-terrorism law.

Prez wants PTA examined

President Gotabaya Rajapaksa’s decision to examine the Counter Terrorism Act (CAT) prepared on the instruction of former Premier Ranil Wickremesinghe should be appreciated. Gen. Gunaratne’s committee received specific instructions to study the CAT. The government should be ashamed of its failure to undertake a comprehensive study on the PTA before foreign powers intervened. Having examined the CAT, the writer is quite convinced it addressed concerns of all.

Prepared by the previous government in consultations with the British, French, EU et al, the CAT can be the basis for proposed new law or facilitate required amendments to the existing PTA.

Sri Lanka should seek a guarantee as regards comprehensive cooperation from Western governments to address threats posed by terrorism. They cannot ignore such a request on the basis of their domestic laws. A lot depends on international cooperation to fight terrorism. Western powers no longer can deny their response to terrorism elsewhere, in a way, promoted terrorism on their soil. How many Sri Lankan terrorists received political asylum in those countries, particularly in the UK, Canada and Germany? Sri Lanka cannot forget the fact that Western powers at least do not share information regarding missing persons. How many thousands of those categorised as missing or disappeared Lankans live overseas under different names.

The recent assassination of ruling party British lawmaker David Amess, 69, is a case in point. The police arrested 25-year-old Ali Harbi Ali, British passport holder of Somali origin over the stabbing in a church east of London. Hope the British investigate the circumstances under which the assassin received British nationality. Having declared the MP’s killing an act of terrorism, the British should conduct a no holds barred investigation. The British media reported the suspect has been detained in terms of additional powers under anti-terrorism laws.

In June 2016, another terrorist, who believed in white power, assassinated 41-year-old Jo Cox. She was shot thrice and then stabbed 15 times. The British cannot turn a blind eye to the growing threat posed by terrorism. Perhaps, law enforcement authorities require wider powers to deal with new threats.

Incidents in New Zealand, Norway, France, Germany and other countries must influence governments to take sufficient measures to ensure public protection. The civil society as well as international organisations, such as IPU, too, should be accountable for campaigns they do. They should be mindful of their actions.

The IPU’s right to be concerned over MP Bathiudeen’s detention should be respected. There shouldn’t be any issue over IPU’s response to the Sri Lankan politician’s arrest. Let the IPU closely examine MP Bathiudeen’s case. Perhaps, the IPU should make its position public on the assassination of Sri Lankan Foreign Minister Lakshman Kadirgamar and clandestine meeting the Norwegian government had with the LTTE’s British advisor Anton Balasingham in the UK to discuss ways and means of managing the fallout.

Those who want Sri Lanka to adhere to international standards in the formulation of anti-terrorism laws should be reminded how Commonwealth heavyweight India destabilised Sri Lanka. The transformation of Sri Lanka’s ceremonial armed forces to one of the best fighting forces in the world should be studied against the backdrop of Indian intervention. Sri Lanka needed the PTA as part of the overall measures against terrorism. Can anyone honestly declare that clandestine LTTE operations in Colombo and its suburbs could have been thwarted without the PTA.? Sri Lanka had no option but to fight back. The PTA had been part of the overall defence. The PTA should be discussed taking into account high profile terrorist operations in the South that resulted in political assassinations. Perhaps, the PTA hadn’t been enough to neutralise the LTTE. They succeeded in assassinating President Ranasinghe Premadasa on May Day 1993, made an abortive bid to assassinate Chandrika Bandaranaike Kumaratunga at the final PA rally ahead of the 1999 presidential election, blew up over 50 people, including UNP presidential candidate Gamini Dissanayake in late Oct 1994, suicide attack on the then Lt. Gen. Sarath Fonseka and Defence Secretary Gotabaya Rajapaksa in April 2006 and Oct 2009, respectively. All those responsible for the above-mentioned terrorist attacks came to the South as innocent civilians until the moment they transformed themselves into human bombs.

Those who demand that the government treat terrorist suspects with respect did nothing when the LTTE blasted civilians outside the war zone while mingling with ordinary people. Interestingly, years before the ISIS influenced terrorists, the LTTE inspired Norway’s worst ever terrorist attack. The far–right Norwegian terrorist who massacred 77 people, including dozens of children, is on record as having explained how LTTE terrorism directed at Muslims inspired him.

International interventions

The EU’s strong push against Sri Lanka’s current anti-terrorism law should be examined taking into consideration its demand to do away with the death penalty.

The EU-Sri Lanka joint statement issued following the Sept. 21, 2021 meeting also dealt with the death penalty, even though the death penalty had not been carried out in the country since the mid-’70s. The relevant section is as follows: “The EU reiterated its opposition to the death penalty in all circumstances. Welcoming the continued moratorium, the EU encouraged Sri Lanka to take steps towards the formal abolition of capital punishment.”

How is it that the EU is so concerned about Sri Lanka’s dormant death penalty, but didn’t lift a finger to spare the life of Saddam Hussein or the cold blooded killing of Libyan Leader Muammar Gaddafi, both deaths instigated by the West?

The abolition of the PTA or enactment of new anti-terrorism law should be discussed with push for a new Constitution. The successful conclusion of the war over 12 years ago opened up a new front. The Geneva Human Rights Council got involved with the move to draft a new constitution here. Premier Wickremesinghe spearheaded that effort, too, the way he had handled unfinished project to introduce new anti-terrorism law. In fact, co-sponsorship of the 2015 Geneva resolution had been in line with the overall game plan that brought Maithripala Sirisena into power in January 2015. Following the August 2015 general election, Wickremesinghe enjoyed a commanding position in Parliament with which he could have had achieved major political objectives if not for the Treasury bond scams perpetrated in Feb 2015 and March 2016. That is the undeniable truth.

Having lambasted the UNP, both in and outside Parliament, for planning to do away with the PTA at the behest of Western powers, the SLPP is working with the same lot to either amend or introduce new anti-terrorism laws.

The government seems incapable of at least presenting Sri Lanka’s case before the international community properly. Sri Lanka should discuss application of anti-terrorism laws during the deployment of the IPKF (Indian Peace Keeping Force). Did the world care about what really happened in Sri Lanka’s Northern and Eastern provinces during the IPKF deployment? Having destabilised Sri Lanka, India forced the then government to ‘accept’ the IPKF in terms of the Indo-Lanka accord signed on July 29, 1987.

Those who had been detained by the IPKF on suspicion were not handed over to Sri Lanka police for investigations. Therefore, the PTA didn’t matter. The IPKF hadn’t been accountable at all in respect of operations conducted here and those who want Sri Lanka hauled up before foreign judges over alleged war crimes /accountability issues are conveniently silent on the period India had been responsible for Northern and Eastern districts.

Easter Sunday carnage

If not for the Easter Sunday carnage, the UNHRC and the EU would have definitely demanded the abrogation of the PTA. The Western funded civil society, too, would have pushed for the same. Sri Lanka would have found it extremely difficult to justify the need for continuation of anti-terrorism laws. However, the Easter Sunday massacre proved that a country cannot take security for granted. Sri Lanka’s failure to deal with specific intelligence provided by India pertaining to impending terrorist attack, too, should be dealt in terms of the PTA.

Accusations that the Sri Lanka Podujana Peramuna (SLPP) benefited at the presidential and parliamentary polls, respectively, as a result of the Easter attacks cannot be ignored. No less a person than Malcolm Cardinal Ranjith has repeatedly raised that issue against the backdrop of the incumbent government’s failure to implement recommendations of the Presidential Commission of Inquiry (PCoI) that inquired into the Easter attacks.

Interestingly, the then Premier Ranil Wickremesinghe used the Easter attacks to justify his government’s bid to replace the PTA with a new counter-terrorism law.

Indo-Lanka relations: The ‘Quad’ factor

 SPECIAL REPORT : Part 390

Published

  2021/10/20

General Naravane and wife, Veena, arrive in Trincomalee where Naravane served with the Indian Army. Major General Channa Weerasuriya, the Commander Security Forces – East, together with Mrs Dhanusha Weerasuriya, welcome them on their arrival at the SLAF Base, China Bay.

By Shamindra Ferdinando

Against the backdrop of escalating tensions between the US and China, Chief of Army Staff General Manoj Mukund Naravane arrived in Colombo on Oct 12 on a five-day visit. The Indian Army website announced the visit on Oct 12. The announcement headlined ‘CHIEF OF ARMY STAFF PROCEEDS ON A VISIT TO SRI LANKA’ dealt with the former IPKF (Indian Peace Keeping Force) member’s first visit here as the Chief of Army Staff.

General Naravane’s visit coincided with the second phase of Malabar exercise in the Bay of Bengal off Visakhapatnam. The 25th edition of the exercise involved navies of the US, India, Japan and Australia. It was the 25th edition of the naval exercise, which began as a bilateral exercise between India and the U.S. way back in 1992, two years after the IPKF quit Sri Lanka. The first phase of Malabar exercise was held in August near Guam. The US Navy hosted it. Japan joined the Malabar exercise in 2015 and Australia followed in 2020.

 Quadrilateral Security Dialogue aka Quad consists of those countries participating in the Malabar exercise. It would be pertinent to mention that Quad suffered quite a serious setback at the beginning. Australia quit the alliance during Premier Kevin Rudd’s tenure (Dec 2007 to June 2010) though Australia returned to the US-led grouping with the change of government in 2010. Australia joined the Malabar exercise much later.

General Naravane’s visit here should be studied taking into consideration Quad alliance’s overall interest in Sri Lanka vis-a-vis much stronger China-Sri Lanka relations. In spite of Sri Lanka repeatedly vowing neutrality in its foreign policy, the Quad is seriously concerned about Chinese intentions here. Chinese strategy remains on track regardless of hindrance caused by the yahapalana administration. The finalisation of 99-year-lease on the Hambantota port in 2017 at the expense of Sri Lanka’s national interest underscored the Chinese capacity to turn even die- hard pro-western governments.

 Mahinda Samarasinghe, who signed the controversial agreement on the Hambantota port, in his then capacity as Ports and Shipping Minister (SLFP) on behalf of the then yahapalana government recently received appointment as the country’s top envoy in Washington.

Samarasinghe gave up his Kalutara district parliamentary seat to replace career diplomat Ravinatha Aryasinghe, who retired from service. Samarasinghe’s predecessor, Arjuna Ranatunge quit the ministerial post as he didn’t want to sign the Hambantota agreement which he called a sellout. Interestingly, another former minister Milinda Moragoda recently received appointment as Sri Lanka’s High Commissioner in New Delhi. President Gotabaya Rajapaksa went ahead with Moragoda’s appointment with a rather unusual ministerial rank, regardless of strong opposition from some of those who had backed him and the SLPP at the 2019 and 2020 presidential and parliamentary polls, respectively. Some of those opposed to Moragoda went to the extent of complaining to the Parliamentary High Posts Committee chaired by Speaker Mahinda Yapa Abeywardena. Their protests were ignored. Moragoda, who had served both Presidents Chandrika Bandaranaike Kumaratunga and Mahinda Rajapaksa governments as a Cabinet minister, entered active politics from the UNP.

Quad is determined to keep Sri Lanka under its influence. High level visits from New Delhi are part of their overall strategy. Struggling to cope up with a range of domestic issues, including unprecedented increase in prices of essential items and services, in addition to a serious balance of payments crisis, Sri Lanka is vulnerable to foreign interventions. Recent disclosure of offshore financial dealings of former parliamentarian Nirupama Rajapaksa and her husband, Thirikumar Nadesan, has not made things easier for the Rajapaksa administration.

Visitors from New Delhi

 Indian Foreign Secretary Harsh Vardhan Shringla undertook an official visit to Colombo from Oct 2-5. The Defence Attaché of the German Embassy in New Delhi, accredited to Sri Lanka, Captain Gerald Koch, called on the Commander of the Navy Vice Admiral Nishantha Ulugetenne, at the Navy Headquarters, on Oct 05. Deputy Ambassador of the German Embassy in Colombo, Olaf Malchow, Deputy Defence Attaché of the German Embassy in New Delhi, Lieutenant Colonel Jan Cihar and Political and Protocol Officer at the German Embassy in Colombo Ms. Dharini Daluwatte, accompanied them. The Defence Attaché of the Israeli Embassy in New Delhi, and accredited to Sri Lanka, Colonel Assaf Mahler, called on the Commander of the Navy, VA Ulugetenne at the Navy Headquarters on Oct 06. The Defence Attaché of the French Embassy in New Delhi and accredited to Sri Lanka, Captain Yves LE CORRE paid a courtesy call on Navy Commander Ulugetenne at the Navy Headquarters also on Oct 06. Deputy Head of Mission, Aurélien Maillet at the French Embassy in Colombo, Deputy Defence Attaché of the French Embassy in New Delhi, Group Captain Norbert GAINE, Navy Commissioner, Roberto LEMOS and Mr. Jean Baptiste TROUCHE from the French Ministry of Foreign Affairs and Defence Attachés’ Assistant, Adjutant Cedric FOURNIER were also present on the occasion.

 Two Japanese Maritime Self-Defence Force (JMSDF) ships, helicopter carrier JS Kaga with a planned conversion into an aircraft carrier and destroyer JS Murasame visited the Colombo harbour on their way to join the Malabar exercise in the Bay of Bengal. The statement issued by the Japanese Embassy in Colombo regarding the ship visits didn’t mention their participation in the US-led exercise. The Japanese vessels left Colombo on Oct 4. Since Sri Lanka and Japan entered into a Comprehensive Partnership on Oct 1, 2015, there had been over 30 Japanese ship visits to the Colombo and Trincomalee harbours. Japanese Defence Minister Itsunori Onodera during an unprecedented visit in August 2018, declared in spite of the leasing of Hambantota port there was an agreement that the port remains free of military activities. Onedera was quoted as having said this after meeting President Sirisena and Premier Wickremesinghe. Onedera said he raised the Chinese issue with Sri Lanka. President Gotabaya Rajapaksa held a teleconference with Japanese Defence Minister Kishi Nobuo in July this year.

While Gen Naravane paid floral tribute to the IPKF war memorial at Pelawatte, Battaramulla, and subsequently observed joint exercise ‘Mitra Shakthi VIII’ at the Maduru Oya Special Forces Training School (SFTS) grounds, Chief of Naval Staff, Indian Navy, Admiral Karambir Singh interacted with the US Navy in the Bay of Bengal. Chief of US Naval Operations Admiral Michael Gilday hosted Admiral Karambir Singh and 11 other senior military officials aboard the nuclear-powered Nimitz-class aircraft carrier Carl Vinson in the Bay of Bengal.

“This visit to Carl Vinson during Malabar was an important opportunity to see first-hand the integration between our two navies at-sea,” Adm Gilday said in a statement issued by the U.S. Navy. “By our navies continuing to exercise together, as we are doing right now alongside Japanese and Australian naval forces, there is no doubt our partnership will only continue to grow. Cooperation, when applied with naval power, promotes freedom and peace, and prevents coercion, intimidation and aggression.”

At Maduru Oya an all arms contingent of 120 Jawans and an equal number of Vijayabahu Infantry Regiment concluded the exercise on Oct 15 that commenced on Oct.3

During the deployment of the IPKF (July 1987-March 1990), the then Captain Naravane had served in Trincomalee. The Indian Army website merely stated that Naravane, commissioned in The Sikh Light Infantry Regiment in Jun 1980, had been part of the IPKF in Sri Lanka.

The detections made by the Navy in the seas off Point Pedro and Vettilaikerni during Gen. Naravane’s visit highlighted the problems caused by Indian fishers brazenly invading Sri Lankan waters. The detections led to the arrest of 23 Indian poachers along with two fishing vessels engaged in bottom trawling on Oct 13, the day after General Naravane’s arrival. Quad member India has the wherewithal to thwart large scale crossings across the Indo-Lanka maritime boundary though it continues to turn a blind eye.

The threat posed by Covid-19 gave the Indian fishing fleet an opportunity to poach quite freely in Sri Lankan waters. The Navy apprehended five fishing vessels along with 54 Indian poachers on March 24, 2021. That was the detection made prior to it limiting operations due to the Covid threat.

Fisheries Minister Douglas Devananda, during a meeting he had with Indian FS Shringla, raised the contentious issue of large scale destructive poaching on an industrial scale. Interestingly, statements issued by both India and Sri Lanka conveniently refrained from commenting on the issue at hand. However, Fisheries Ministry briefed the media regarding the problem of large scale poaching by Indian fishermen affecting the livelihoods of their counterparts here. Minister Devananda should receive the appreciation of all Sri Lankans for taking up the issue at hand. During his meeting with Shringla, Devananda, who had been among those who received terrorist training, courtesy India in the early 80s, complained about massive continuing destruction caused by the Indian fishing fleet, particularly through bottom trawling, a practice banned world over. Devananda has explained the immeasurable losses caused by destructive methods adopted by the Indian fishing fleet in Sri Lankan territorial waters. In spite of a series of talks between India and Sri Lanka, industrial scale poaching continues unabated much to the disappointment of the Northern and Eastern Province Tamil speaking community. About a week after his meeting with Shringla, Devananda took up the issue with the visiting senior BJP politician Subramanian Swamy. Devananda subsequently told the media Swamy, who serves as a nominated Member of Parliament in Rajya Sabha, the upper house of the Indian Parliament acknowledged the need to curb Indian poaching.

Focus on energy security

 Two other issues that had received much media attention were the future of the Trincomalee oil tank farm, with the Samagi Jana Balavegaya (SJB) and Energy Minister Udaya Gammanpila trading accusations over the status of the strategic assets and the controversial agreement with US-based New Fortress Energy Inc. The company has declared that it struck a deal with Sri Lanka to supply 1.2 million gallons of liquefied natural gas to supply a plant it is planning to buy a stake in and others. In a statement dated Sept 21, New Fortress said they had executed a ‘definitive agreement’ to invest in West Coast Power Ltd, a firm in which the government has a controlling stake, but operations and maintenance is done by a private company.

 Controversy surrounds the Indian role in Trincomalee oil tank farm and the stealthy US investment in the energy sector. Sri Lanka seems to be utterly disorganised in its dealings with foreign powers as well as investors. A glaring case in point is the Trincomalee oil tank farm. Gammanpila insisted that in terms of an agreement the then UNP-led UNF signed on Feb.07, 2003 those 99 oil tanks had been handed over to India, whereas SJB lawmaker Kabir Hashim says only 15 were handed over and they, too, would be returned to Sri Lanka in 2023. The Finance Ministry should set the record straight. Lawmaker Hashim, one-time Chairman of the UNP is on record as having claimed their government only signed a Memorandum of Understanding (MoU) in respect of 15 oil tanks, while Gammanpila demanded in Parliament that MoU be presented. Gammanpila believes Indian agents and their puppets are working overtime to thwart his plans to regain the oil tank farm.

 Shringla, accompanied by Indian High Commissioner in Colombo Gopal Baglay, visited the Lanka IOC facility. It was Baglay’s second visit there this year. Eldos Mathew Punnoose, Head – Press, Information and Development Cooperation at the Indian High Commission in Colombo, dealt with a range of issues taken up during the high profile visit. Referring to Shringla’s visits to Kandy, Trincomalee and Jaffna, signifying their cultural, economic and historical importance, respectively, the Indian HC spokesperson said: “In Kandy, the visiting Foreign Secretary offered prayers at the Sri Dalada Maligawa. In Trincomalee, the Foreign Secretary visited the Oil Tank Farms, a symbol of the potential and strong energy partnership between the two countries, where LIOC briefed him about the development undertaken by it at the Lower Tank Farms and its advantages to Sri Lanka’s economy. During his visit to Jaffna, the Foreign Secretary inspected the Jaffna Cultural Centre and interacted with the Governor of the Northern Province, several Members of Parliament, academicians and business leaders.”

The Federation of National Organisation (FNO) recently complained to the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) against the agreement with New Fortress. The FNO that backed the SLPP at the 2019 presidential and 2020 parliamentary election called for an investigation into the conduct of the Treasury Secretary S.R. Attygalle. The civil society organisation questioned the responsibility on the part of the Cabinet of ministers in signing the agreement with New Fortress. Having lodged a complaint with the CIABOC, FNO convener Dr. Gunadasa Amarasekera told the media, waiting outside, that the US energy deal should be examined against the backdrop of continuing ‘confrontation’ between Quad and China. Malcolm Cardinal Ranjith and Ven Elle Gunawansa moving the Supreme Court against the New Fortress deal must have surprised the government.

US Ambassador to Sri Lanka and the Maldives, Alaina Teplitz in April this year warned Sri Lanka of unplanned consequences of nefarious actors, who may try to misuse a China-funded Colombo Port City’s easy business rules as a permissive money laundering haven amid concerns of tax leaks. Any legislation relating to the Port City has to be considered very carefully for its economic impact, Teplitz told a selected group of journalists in an online discussion. And, of course among those unintended consequences could be creating a haven for money launderers and other sorts of nefarious actors to take advantage of what was perceived as a permissive business environment for activities that would actually be illegal.

In spite of on and off protests/opposition, both in and out of Parliament, India and China have quite successfully pursued their strategies. The recently concluded agreement on the proposed Colombo Port’s Western Container Terminal (WCT) can be cited as an example of the successful Indian strategy. After intense protests derailed previous plans to invest in the East Container Terminal (ECT), India’s Adani Group late last month sealed a deal with the Sri Lanka Ports Authority (SLPA) to build, develop and run the proposed WCT.

 India is the second foreign port operator in Sri Lanka. China secured a terminal at the Colombo port during Mahinda Rajapaksa’s tenure as the President. Colombo International Container Terminals Ltd., (CICT) is a joint venture Company between China Merchants Port Holdings Co., Ltd. (CMPort) and the SLPA. China holds 85% of the partnership whereas the balance 15% is held by SLPA. At the Hambantota port, too, China took 85% while the SLPA retained 15%. Now the agreement with Adani Group, too, has been finalised on the same lines with the SLPA given 15 % while Adani Group and its local agent John Keells Holdings shared the remaining stake 51 % and 34%, respectively.

This should be examined against the backdrop of the SLPA signing a memorandum of cooperation in May 2019 with India and Japan to develop the ECT during the previous Sirisena government. The Colombo Port trade unions opposed that proposal to give investors from India and Japan 49 % stake in the ETC and Sri Lanka to hold 51%. They demanded the ECT to remain 100 percent owned by the SLPA as opposed to the 51 percent. Now, the SLPA has ended up with just 15% at the WCT.

 It would be relevant to stress that John Keells Holdings is among the consortium of companies that own the successful SAGT (South Asia Gateway Terminal) , the first shipping sector PPP (Public Private Partnership) established in 1999 during the Kumaratunga presidency. The primary stakeholders are Danish A.P. Moller Group and John Keells Holdings. Now, John Keells Holdings has expanded its influence by joining Adani Group in the proposed WCT project. Like at CICT and Hambantota projects, SLPA has received 15% of shares.

Time has come for the country to review the entire gamut of issues in respect of foreign investments and related matters. Examination of existing agreements prove that whoever in power had struck agreements in a way severely inimical to the national interest, but to the benefit of those responsible and accountable for ensuring the country’s best interest. Parliament should wake up.

Gin-Nilwala rip-off and culpability of Parliament

 SPECIAL REPORT : Part 389

Published

   2021/10/13

By Shamindra Ferdinando

The Presidential Media Division (PMD) on the afternoon of Oct. 06, 2021 released a letter (PS/LAD/1/9/2021(iii)) Attorney-at-Law Harigupta Rohanadeera, Director General (Legal) President’s Office has sent to Attorney-at-Law W.K.D. Wijeratne, Director General, Commission to Investigate Allegations of Bribery or Corruption (CIABOC).

The letter requested the CIABOC to submit a report to President Gotabaya Rajapaksa within a month as regards the revelations made by the International Consortium of Investigative Journalists (ICIJ) pertaining to Sri Lankans engaged in controversial offshore transactions. Rohanadeera’s letter didn’t name anyone though by then the media all over the world, on the basis of ICIJ investigations, named former parliamentarian Nirupama Rajapaksa and her husband Thirukumar Nadesan as operators of offshore accounts.

Instructions issued to the CIABOC should be examined against the backdrop of Nadesan’s plea to President Gotabaya Rajapaksa that he preferred a retired judge of the Court of Appeal to inquire into the ‘Pandora Papers’ revelations.

The following is the text of Nadesan’s letter dated Oct 06: “My name and that of my wife have been referred to as having various accounts/assets offshore. These references are in what is referred to as the Pandora Papers.

“It is commonly believed that all persons whose names have been so divulged are in some way guilty of wrongdoing. Several world leaders, including His Excellency Imran Khan have publicly announced that they will investigate anyone whose names appear in Pandora Papers.

“I assure your Excellency that my wife and I are totally innocent and are guilty of no wrong doings. In the circumstances, I humbly request Your Excellency to appoint an independent investigator, preferably a retired appeal court judge, without delay, to investigate this matter so that my name and that of my wife would be cleared.

“I am making this request to Your Excellency because my wife and I have suffered heartache and pain of mind. We have been presumed guilty, the presumption of innocence is reversed. It is in these circumstances that I make this humble request to your Excellency.

“Please forgive me for intruding on your time.”

The one page letter has been sent from Nadesan’s Horton Place residence ‘Montrose’, No 95.

Is the CIABOC capable of investigating Pandora Papers revelations? The CIABOC comprising retired Supreme Court justice Eva Wanasundera, retired Appeals Court justice Deepali Wijesundara and former head of State Intelligence Service (SIS) retired DIG Chandra Nimal Wakista, faces a daunting task in producing a report within a month.

The ICIJ declared: *”In the U.S., lawmakers said they will respond to the Pandora Papers with new legislation targeting financial professionals and other businesses that move dirty money for corrupt clients;

*The European Commission’s head of taxation said the commission will push to crack down on tax avoidance and expand information exchange between countries; and

*Enforcement agencies or leaders in India, Spain, Ireland, Mexico, Germany, Pakistan, Bulgaria, Australia, Brazil, Sri Lanka, Paraguay, Panama and more have vowed to act on the Pandora Papers revelations, as new stories continue to be published and the global response to the investigation continues to grow and evolve.”

CIABOC’s status

The 20th Amendment to the Constitution, enacted in Oct 2020, deprived the CIABOC the power to initiate action. The much-touted move hailed by the ruling Sri Lanka Podujana Peramuna (SLPP) as a measure to restore political stability, obviously weakened the outfit. However, the CIABOC’s performance, even before the enactment of the 20 A, has been questionable though it engaged in some high profile exercises during the yahapalana administration. Its passage with a 2/3 majority in Parliament was followed by the CIABOC giving up on investigations initiated during the yahapalana administration.

The Transparency International Sri Lanka (TISL), the first to demand a thorough domestic investigation into the Pandora Papers has, subsequently lodged a complaint with the CIABOC seeking an investigation. Executive Director TISL Attorney-at-Law Nadishani Perera says the CIABOC has very clear powers and laws to deal with complaints though technically it cannot act on its own as a result of the 20th Amendment.

Having lodged the complaint on Oct 7, the day after President Gotabaya Rajapaksa’s intervention, TISL asserted that the transactions revealed could amount to offences under Section 23A of the Bribery Act hence the need to probe into the Declarations of Assets and Liabilities of Mrs. Nirupama Rajapaksa relating to her tenure as a Member of Parliament. TISL also points out that CIABOC is empowered to take relevant action on acquisitions through unknown sources of wealth or income, under Section 4(1) of the CIABOC Act under the provisions of the Bribery Act or the Declaration of Assets and Liabilities Law. The anti-corruption outfit suggested that investigations could be pursued under Section 70 of the Bribery Act, to investigate whether public funds had been embezzled and laundered through these foreign safe havens.

The contentious issue is whether serving or former parliamentarians or their relatives can be properly investigated without political interference. The CIABOC has conducted successful investigations even on the basis of anonymous complaints. Let me give an example to prove how a successful prosecution has been achieved in the case of a person failing to make an asset declaration.

 The Colombo High Court of No.6, Judge Patabendige on June 12, 2020, convicted a Supply Assistant of Ceylon Electricity Board (CEB) attached to the Ratnapura Branch, Wijekoon Mudiyanselage Sumanasekera, in a case prosecuted by the CIABOC based on an assets investigation conducted on an anonymous complaint received by the Commission.

 The accused, residing at the Millennium City Housing Scheme, No 14, Aturugiriya, has been accused of accumulating Rs.6 mn assets through bribes exceeding his actual income. HC judge Patabendige imposed a five year rigorous imprisonment and a fine of Rs. 5,000/-. In default of fine, further three months simple imprisonment was imposed.

The judge further ordered the official under section 26(b) of the Bribery Act to pay Rs.11,960,093/98 which was twice the amount earned by bribes. In default of payment, the accused was subjected to a term of a further two year rigorous imprisonment.

Judge Patabendige also issued an open warrant on the accused and ordered to inform the Department of Immigration and Emigration in that regard.

Deputy Director General of CIABOC Mrs. Ranjani Senewiratne prosecuted. Investigation was conducted by the OIC of the Assets Investigations Division.

However, the CIABOC will have to work closely with the Central Bank, the Inland Revenue and even the Foreign Ministry in addition to the ICIJ in conducting investigations into the Nadesan affair. Parliament, too, will have to monitor what can be easily declared as the biggest case undertaken by the CIABOC. The issue at hand is whether the assets under the name of Nirupama Rajapaksa and Thirukumar Nadesan had been declared to the relevant authorities.

 Regardless of attempts to depict the questionable transactions as dealings that had taken place during the 1990-2000 period, the Pandora Papers disclosure placed the SLPP in an extremely embarrassing position. There is no point in denying the fact that she represented the SLFP in the PA and UPFA parliamentary groups for a period of 16 years. Most of all she is a blood relative of the Rajapaksas in power. That is the undeniable truth. The revelations couldn’t have happened at a worse time for the government as it struggles to cope up with the deepening economic crisis, primarily brought on by the global pandemic.

 Conduct of parliamentarians

Colombo Chief Magistrate Buddhika Sri Ragala on July 30, 2021 acquitted one-time Deputy Minister Sarana Gunawardena of all bribery cases filed against him.

Assistant Director General of the CIABOC Asitha Anthony told the court that the case had been filed against the former Deputy Minister without the approval of the three commissioners. Attorney-at-Law Niroshan Siriwardena, appearing on behalf of Gunawardena requested that the charges against his client be dropped.

CIABOC had filed eight cases against Gunawardena, accusing him of causing losses to the State by leasing vehicles to the Development Lotteries Board (DLB) during his tenure as its Chairman in 2007.

While serving as the Chairman of DLB, Gunawardena was alleged to have influenced the officers of the DLB to rent three vehicles from his wife by paying Rs 960,000 per each vehicle where the true value per vehicle was only Rs. 635,000.

Gunawardena was convicted for all three charges that were presented against him. The rejected politician was sentenced to a prison sentence of one year on each charge cumulating a prison sentence of three years. Gunawardena was also ordered to pay a fine of Rs 100,000 for each vehicle totaling to a fine of Rs 300,000. In case Gunawardena failed to pay the fine, he was to be subjected to an additional prison sentence of six months for each offence. The prosecution was handled by Assistant Director General Mr. Asitha Athony.

The dismissal of Gunawardena’s proceedings is certainly not an isolated case. When JVP leader Anura Kumara Dissanayake raised the shocking disclosure made by ICIJ in Parliament, Leader of the House and Education Minister Dinesh Gunawardena pointed out that the case was now before court.

Lawmaker Dissanayake was addressing Parliament on Oct 8, the day the CIABOC recorded Nadesan’s statement. Minister Gunawardena was referring to the controversial case pertaining to Malwana house.

SLPP National List MP Jayantha Weerasinghe, PC, challenged Dissanayake’s comments. Declaring that he appeared for Thirukumar Nadesan in court, Weerasinghe emphasised that no one in Parliament represented the businessman’s interests. Weerasinghe said that Nadesan was an accused in that case.

 Dissanayake also raised the controversial Gin-Nilwala project and the transfer of funds to Nadesan’s account by a Chinese company that received a staggering Rs 4,012 mn in two separate transactions from the then Sri Lankan government around the time of the 2015 presidential election. The SLPP repeatedly interrupted MP Dissanayake. A smiling JVPer said that though the SLPP claimed no one in Parliament represented the interests of Thirukumar Nadesan, many spoke on his behalf.

Matara District Communist Party member Weerasumana Weerasinghe was in the chair.

The reference to money received by Nadesan from the Chinese company given the Gin-Nilwala project amounted to USD 5.9 mn. Dissanayake told The Island that the account that had received USD 5.9 mn was a Hong Kong account.

TISL, in its website tweeted that particular section of MP Dissanayake’s parliamentary speech. The social media coverage of Pandora Papers underscored the seriousness of the crisis faced by Sri Lanka.

A dismal track record

Civil society activist Gamini Viyangoda in April this year sought an explanation from the CIABOC and the Attorney General’s Department as regards termination of several high profile cases. Viyangoda questioned the rationale in dropping all charges against former lawmaker and Foreign Ministry Monitoring MP Sajin Vass Gunawardena pertaining to the Mihin Lanka case. That particular case dealt with misappropriation of public funds amounting to Rs 883 mn, Viyangoda declared while referring to recent dismissal of cases involving one-time Eastern Province Chief Minister Sivanesathurai Chandrakanthan alias Pilleyan (now an MP backing the SLPP), Johnston Fernando, Rohitha Abeygunawardena, Basil Rajapaksa, Mahindananda Aluthgamage, Janaka Bandara Tennakoon and former Chief Justice Mohan Peiris. The former CJ received appointment as Sri Lanka’s top representative in New York.

Jayantha Jayasuriya, PC, who served as the AG during the Yahapalana administration is the incumbent Chief Justice.

 What really happened to the money laundering case (HC case No 4648/2009) involving the then parliamentarian Ravi Karunanayake, who subsequently received the appointment as the Minister of Finance during the previous administration. The money had been received from Raj Rajaratnam, given an 11-year prison sentence for insider trading in the US.

The case that had been initially taken up at the HC No 01 was subsequently (May 2015) transferred to High Court No 4 before HC Judge Iranganee Perera who was about to be retired. On the basis of what was called a defective indictment Judge Perera discharged Karunanayake while making specific legal right of the Attorney General to serve an indictment afresh to the accused Ravi Karunanayake. Obviously, that was conveniently ignored. Yuvanjana Wijayatilake served as the AG at that time.

Attorney-at-Law and public interest litigation Activist Nagananda Kodituwakku in an affidavit submitted to the CIABOC in March 2017 sought an investigation in respect of the failure on the part of the AG’s Department to act on the advice given by HC judge Perera. Kodituwakku asserted that the alleged offence committed could have been dealt with under Section 70 of the Bribery Act.

A monument for ICIJ

 A no-holds-barred investigation is required to examine high profile corruption allegations. So far, the CIABOC hasn’t been able to bring at least one of the cases involving politicians to a successful conclusion. It would be pertinent to mention incumbent Speaker Mahinda Yapa Abeywardena’s response to waste, corruption and irregularities.

Speaker Abeywardena said contentious matters pertaining to financial responsibility on the part of Parliament should be dealt with only by the enactment of a new Constitution.

The SLPP MP said so in response to Prof. Charitha Herath, Chairman of the Committee on Public Enterprises (COPE) alleging serious hindrance of parliamentary supervision by a section of state enterprises. Prof. Herath explained the daunting challenges faced by COPE at the time he tabled the first COPE report at the outfit’s ninth session.

Proceedings of parliamentary watchdog committees, COPE, COPA (Committee on Public Accounts) and COPF (Committee on Public Finance) depict a frightening picture.

Unfortunately, Parliament has conveniently failed to take tangible measures though the three watchdog committees reported rampant criminal waste of public funds, corruption, irregularities involving the revenue collection mechanism and negligence at every level of successive administrations.

Have those responsible for ensuring financial discipline forgotten the primary responsibilities of Parliament. The two major responsibilities are financial discipline and enactment of laws. Let people judge whether our political parties have lived up to their much repeated pledges to restore financial discipline. Examination of proceedings of the watchdog committees revealed how the public and private sectors exploited the national economy. Fighting corruption appears to be a just a political slogan propagated by both those in power and the Opposition.

 The Joint Opposition (JO registered themselves as SLPP) in the run up to 2019 presidential election conducted a major campaign against what it called ‘Top 10 Kamba Horu.’ Incumbent Agriculture Minister Mahindananda Aluthgamage spearheaded the project. The JO printed a 750-page book that dealt with 10 major corrupt deals that took place between January 8, 2015 and Dec 31, 2015. The JO alleged that the CIABOC never initiated investigations into complaints lodged by the JO. The SLPP owed an explanation regarding the current status of the complaints lodged by them because the party returned to power, nearly two years ago.

 According to the JO publication, in the public domain, complaints were lodged against Ranil Wickremesinghe, MP, pertaining to the Treasury bond scams, on Oct 29, 2016 (Rs 26 bn fraud/complainant Vasudeva Nanayakkara, MP), ex-MP Ravi Karunanayake pertaining to importation of vehicles, on Nov 09, 2016 (Rs 10 bn fraud/complainant Dr. Romesh Pathirana, MP), ex-MP Malik Samarawickrema pertaining to Mahapola Fund, on Nov 22, 2016 (Rs 1 bn fraud/complainant Sisira Jayakody, MP), Thalatha Atukorala, MP, pertaining to fraud in an insurance scheme for those working in the Middle East, on Dec 07, 2016 (Rs 1.5 bn fraud/complainant ex-MP Niroshan Premaratne), Ranil Wickremesinghe pertaining to 99-year-lease on Hanbantota port, on January 4, 2017 (Rs 15 bn/complainant Mahinda Yapa Abeywardena, MP, Speaker), Kabir Hashim, MP, pertaining to cancellation of aircraft ordered by SriLankan Airlines, on January 18, 2017 (Rs 54 bn fraud/complainant Kanaka Herath, MP), P. Harrison pertaining to releasing of paddy to a selected group of companies, on Feb 01, 2017 (Rs 10 bn fraud/complainant Jayantha Samaraweera), ex-MP Ravi Karunanayake pertaining to vehicle racket, on Feb 15, 2017 (Rs 15 bn fraud/complainant Udaya Gammanpila, MP), Dr. Rajitha Senaratne MP pertaining to leasing of Modera fisheries harbour and issuance of licenses to eight vessels for fishing in Sri Lankan waters, on Feb 28, 2017 (Rs 1 bn fraud/complainant the late MP Ranjith de Zoysa) , Dr. Rajitha Senaratne pertaining to irregularities in the purchase of medicines, on Feb 28, 2017 (Rs 1.5 bn fraud/complainant the late Ranjith de Zoysa) and Ranil Wickremesinghe, MP pertaining to procurement of coal for the Norochcholai coal-fired power plant, on March 16, 2017 (Rs 5 bn fraud/complainant Vidura Wickremanayake, MP).

 The JO declared the above mentioned frauds cost the country a staggering Rs 131.5 bn.

Parliament, as an institution, at least now should respond to corruption. In the wake of Pandora Papers disclosures, social media posted a speech made by SLPP Polonnaruwa District MP Maihripala Sirisena, in his capacity as the President. Sirisena dealt with the Gin-Nilwala project. What Sirisena, who contested the last general election in Aug 2015 on the SLPP ticket, said was astonishing. The government transferred Rs 1,000 mn to a Chinese company in 2012 for the implementation of the Gin-Nilwala project and another Rs 3,012 mn on January 7, 2015 to thereby bringing the total amount paid to Rs 4,012 mn. Sirisena questioned how such a transfer could have taken place on the day before the presidential election? Who authorised such a transfer and why absolutely no work was done regardless of the payments. Lawmaker Sirisena owed an explanation during his five-year tenure as President what he did to investigate the Gin-Nilwala project. Perhaps, the Gin-Nilwala link disclosed by Pandora Papers, if properly investigated, can cause such devastation to the current political setup, the public can consider putting up a monument to ICIJ.