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Govt must assure the public of the independent status of the Attorney General

By The Friday Forum

The Friday Forum is an informal gathering of public spirited persons wishing to contribute to the future development of Sri Lanka within a framework of democracy, social justice and pluralism.

The Forum brings together a diversity of expertise and viewpoints reflecting its membership consisting of academics, various professionals, retired diplomats and civil servants, educationists, leaders of civil society organizations and leading personalities from the private sector. Furthermore, our membership reflects the diverse ethnic and religious composition of Sri Lankan society. The forum meets regularly to discuss issues of public concern and to make interventions in the public interest.

One of the key areas of concern of the Friday Forum is the preservation of the integrity of independent institutions. It is clear that the proper functioning of those institutions, such as the independent commissions recognized by the Seventeenth Amendment to the Constitution, is essential for democratic governance and to preserve a democratic way of life for the people.

We have noted with concern the current status of the Attorney-General’s Department (AG’s Department) consequent to the Gazette Extraordinary No.1651/20 of April 30, 2010 on the allocation of subjects to various ministries. The AG’s Department, which has traditionally come under the Ministry of Justice, finds no mention in the Gazette notification either under that ministry or elsewhere. The necessary implication under Article 44 (2) of the Constitution is that as an unallocated subject or function the department automatically comes under the purview of the President. So far, the government has neither confirmed that the AG’s Department has come within the purview of the President nor officially disclosed the reasons for changing the long standing convention affiliating the Department with the Ministry of Justice.

That in a democracy, the Attorney-General should not only function but must be seen to function in an independent manner cannot be emphasised more. The Supreme Court of Sri Lanka has, in no uncertain terms, recognized and affirmed the independent role of the AG (Land Reform Commission v. Grand Central Ltd. [1981] Sri LR 147).

The AG is the custodian of the Rule of Law and of the public interest in a democracy. The functions of the AG must always be informed by no other factor or consideration than the upholding of the public interest and the Rule of Law. Even in countries where the Attorney-General is a political appointee, there is an expectation that the holder of that office must act independently of the Executive, especially in prosecutorial functions, because to do so otherwise would negate the preservation of the Rule of Law and the public interest.

If the Attorney-General, in discharging the functions of office, provides legal advice to the government or engages in the prosecutorial function in a non-independent manner, moved more by political and partisan considerations, the Rule of Law is defeated and the public interest stands desecrated.

The AG is also the head of the Bar—not only of the Official Bar as one would think, but of the entire Bar. At ceremonial sittings of the court, the AG sits representing the entire Bar. As such, it is the AG’s duty to protect the integrity of the legal profession. It also follows then that the AG has to ensure the protection of judicial independence which is indispensable to the proper functioning of the Bar. If the office of the AG itself is not independent then those objectives cannot be achieved.

The appointment and removal processes of the AG under the current law confirm the independence of the office of the AG in Sri Lanka . The appointment of the AG falls within the 17th Amendment to the Constitution. The President has to obtain the approval of the Constitutional Council to appoint the preferred nominee. The removal of the AG has to be done under terms of the Removal of Officers (Procedure) Act, No. 5 of 2002. Accordingly, the AG holds office during good behaviour (as opposed to at pleasure) and can be removed only by Parliament on specific grounds after inquiry.

Over the past decades, the politicization of the Office of the Attorney-General has been observed with alarm. We have watched successive Attorneys-General go before international forums and defend the position of the government of the day, even when doing so defeated the rights of the people. We have watched charges against political dissidents expedited and charges against the powerful dropped or delayed.

In this post-war era, where public expectations of the State’s commitment to the Rule of Law are very high, and where the restoration of law and order is viewed as an indispensable element of the development process, it is imperative that the public has confidence in the office of the Attorney-General.

Therefore, we urge the government to assure the public of the independent status of the Attorney-General. At a minimum, we urge that the Department be affiliated with the Ministry of Justice as was the norm. Ideally, now that constitutional reform is again on the political agenda, we propose that the AG’s Department be brought under Article 52 (2) of the Constitution so that it is treated on par with the Departments of the Auditor General and the Elections Commissioner, Offices of the Parliamentary Commissioner for Administration (Ombudsperson), the Secretary-General of Parliament and the Secretary to the Cabinet of Ministers, which means that it is no longer treated as a department of government.

We urge the incumbent Attorney-General to heed public concerns and take every possible measure to demonstrate to the public that he is guided only by the Rule of Law and the public interest.

We make this earnest appeal in a spirit of constructive engagement having as our sole objective the interests of the country.

Signed,

Bishop Duleep Chickera,
Jayantha Dhanapala,
Prof. Arjuna Aluvihare,
Prof. Gananath Obeysekere,
Harin Malwatte,
Dr. Anura Ekanayake,
Prof. Savithri Goonesekere,
Chandra Jayaratne,
Dr. Jayampathy Wickramaratne,
Dr. Nimal Sanderatne,
Dr. Devanesan Nesiah,
Dr. A.C. Visvalingam,
Ranjit Fernando,
Dr. Selvy Thiruchandran,
Manouri Muttetuwegama,
Sithie Tiruchelvam,
Lanka Nesiah,
Dr. Ranjini Obeysekere,
Jezima Ismail,
Shanthi Dias,
Dr. Stewart Motha,
Damaris Wickremesekera,
J.C. Weliamune,
Ahilan Kadirgamar,
Dr. Camena Gunaratne,
Prashan de Visser,
Dr. Deepika Udagama

Benefits could accrue if Sri Lanka responds positively to EU demands instead of rejecting them

Full Text of Press Release ~ National Peace Council

The Sri Lankan government has said it is rejecting the 15 conditions set out by the European Union in relation to extending the benefits of the GSP Plus tariff concession since such demands constitute a violation of our national sovereignty.

The government has also announced that it will deny visas to the three members of the panel of experts appointed by UN Secretary General Ban Ki Moon to advise him on human rights issues pertaining to Sri Lanka’s recently concluded civil war. The Sri Lankan government’s position is that both the EU and UN Secretary General are interfering in the affairs of a sovereign state and that this is unacceptable.

As a democratic country which has subscribed to the UN Declarations on Human Rights and the Geneva Conventions, Sri Lanka is obliged to comply with their obligations. Similarly the requirements of the EU are in accordance with our Constitution which we are all morally obliged to uphold. Safeguarding our national sovereignty also needs to go hand in hand with upholding human rights and Humanitarian Laws.

There are sections of the international community that believe Sri Lanka violated them in recent years and during the last phase of the war. The government will have to make all efforts to convince the world that we did not do so. It was due to the violation of the laws of war during the Second World War as shown in such incidents as the carpet bombing of Dresden and the atomic bombing of Hiroshima and Nagasaki that there was an outcry against such violations that the UN was set up after the war and the Universal Declaration of Human Rights was drawn up by a team that included eminent men drawn from all major religions with Buddhism being represented by U Thant.

We believe that the government has taken the right step in setting up the Commission on the Lessons of the Conflict. Unfortunately and based on earlier experiences the composition of the Commission and the Terms of Reference appear not to have convinced the UN that its rightful concerns will be fully addressed. Under the circumstances, the NPC believes the Government can engage itself with the UN and seek to broaden the mandate of our own Commission in return for not appointing a separate UN Commission.

As for the 15 conditions being put forward by the EU they are aimed at addressing some of the general problems of internal governance and human rights within Sri Lanka in accordance with international covenants that Sri Lanka has already signed. In addition, the issues raised by the EU have also been raised by the democratic opposition and civil society groups within Sri Lanka itself.

The National Peace Council believes that instead of outright rejection of the EU’s conditions, the Sri Lankan government ought to respond to them in a positive manner. The response made by Sri Lanka’s Ministry of External Affairs, pointing out the inapplicability of some of the EU requirements, could provide a model for a continuing dialogue with the EU on the need to modify its requirements.

If there are some conditions that the government feels it cannot accede to for good reasons that are in the country’s national interests, these could be explained and the EU will need to be open minded in seeing the Sri Lankan government’s point of view.

There are two benefits that could accrue to Sri Lanka by responding positively to the EU. This can be done in a phased manner and according to a road map that is reasonable following discussions and agreement with the EU. First it can retain the GSP Plus concession which is of major importance to the Sri Lankan economy and to its working people.

Second, and as important if not more important, it can send a message to the larger international community that the Sri Lankan government is genuinely responsive to concerns about good governance and human rights as it affects its own people, and also is prepared to live up to its international commitments.

If the EU requirements are met after further negotiations by a responsive Sri Lankan government, this would help to address the issues raised by the UN Secretary General and rally greater support from the larger international community to the Sri Lankan government’s own concerns. The net result will be an upliftment of the political, economic and social status of all Sri Lankans.

According to a press release by International Federation of Red Cross and Red Crescent Societies (IFRC), upto 93,000 displaced people still remain in camps in Sri Lanka North.

As the houses of the war affected destroyed and livelihoods lost, IFRC has launched for 3.4 million US dollars (or 2.5 million euros) emergency appeal to support as many as 25,000 internally displaced people.

Destruction of public infrastructure and lack of medical facilities too are making the situation difficult, according to IFRC.

Full Text of the IFRC Press Release:

Sri Lanka: Red Cross Red Crescent launches appeal to support displaced people

The Sri Lanka Red Cross Society and the International Federation of the Red Cross and Red Crescent Societies (IFRC) have launched an emergency appeal for 3.6 million Swiss francs (3.4 million US dollars or 2.5 million euros) to support as many as 25,000 internally displaced people following decades of conflict in the north of Sri Lanka.

Many of the communities and displaced people were also affected by the Indian Ocean Tsunami of 2004. The appeal is part of a broader 5.8 million Swiss francs (5.4 million US dollars or 4 million euros) effort to assist the reconstruction of communities and to help the displaced rebuild their lives and livelihoods.

The IFRC appeal will focus on families returning to north-eastern Sri Lanka. The money will be used to help them construct 200 houses and repair 950 damaged houses. In addition, health and care services will be supported. The funds will also help to restart livelihoods and to build community resilience over the next two years.

It has been observed that most of the houses where IDPs are to be resettled are damaged, with about 75 per cent of houses needing repair works and 25 per cent of permanent houses needing reconstruction. “We at the Red Cross highly value an owner driven housing construction concept which gives people the opportunity to rebuild their lives in the places they lived before,” said Jagath Abeysighe, the chairman of the Sri Lanka Red Cross Society, recognizing the need to provide urgent support for the returning people.

During the conflict in Sri Lanka, the Sri Lanka Red Cross was at the forefront of humanitarian action, providing services to survivors and assisting vulnerable people in a coordinated operation led by the International Committee of the Red Cross (ICRC). The activities were supported by the IFRC and Red Cross Red Crescent partners around the world.

“There is a long way to go. This is the time for all of us to get together and support people who have been battered by several decades of war and conflict,” says Dr. Mahesh Gunasekara, health coordinator for the IFRC in South Asia.

“Schools have started functioning, but it is sad to see kids sitting on the floor of classrooms without roofs; no chairs to sit on or tables to keep their books on and write. Most of the local houses are damaged or destroyed. People who have returned home have started to repair their houses, but in the meantime most people are living in sheds.”

As of March 2010, nearly 93,000 people remain in temporary camps in several parts of the North. It is estimated that another 185,000 people have made their way home. A combination of destroyed public infrastructure, the lack of adequate medical services, and limited livelihoods, shelter and access to basic services is making this situation very difficult.

President Mahinda Rajapaksa’s winning UPFA coalition is being urged to take urgent action on “mounting Tamil concerns”.

Pointing out of several recent “missed opportunities” by the President Mahinda Rajapaksa, The Tamil American Peace Initiative (TAPI), a group formed by a group of Tamil Americans to help bring lasting peace, justice, democracy, good governance and economic development to Sri Lanka has urged the President to work “towards reconciliation” and “win back the peoples confidence”.

Tamil Camp detainees ~ Art by Shan Sundaram ~ Free-Tamils

Full Text of TAPI Press Release as follows:

Tamil American Peace Initiative Responds to Sri Lankas Parliamentary Elections

Noting the disappointing results of the April 8th Parliamentary Elections in Sri Lanka, the Tamil American Peace Initiative (TAPI) called on the winning party, the United Peoples Freedom Alliance (UPFA), to immediately start working towards reconciliation between all religious and ethnic groups on the Island. TAPI admonished the UPFA and President Mahinda Rajapaksa for missing so many opportunities in recent months to heal the countrys wounds. The group called on the president, his party and the government to take urgent action to address mounting Tamil concerns, and it urged the international community to become more engaged.

Above all, TAPI stated, the newly elected Parliament should act to demilitarize and rebuild war-torn regions in the North and East; release detainees from internment camps; resettle displaced Tamils and help them rebuild their homes, schools, hospitals, and businesses; restore rights to fishing and land ownership; invest in infrastructure and industry in Tamil areas; approve a general amnesty for suspected former rebels; compensate war victims and survivors; bring the perpetrators of war crimes to justice; and end programs that seek to change the demographics of Tamil regions in the North and East.

Commenting on the unusually low voter-turnout just 50 percent in the central provinces and less than 20 percent in many Tamil areas — Dr. Karunyan Arulanantham, a TAPI spokesman, said: Low voter turnout across the country shows that the Sri Lankan people have lost faith in the government and the political system. Many Tamils were blocked from voting, and others refused to give their consent to the government by casting ballots. The UPFA must work towards reconciliation if it hopes to win-back the peoples confidence.

About TAPI

The Tamil American Peace Initiative was formed by a group of Tamil Americans to help bring lasting peace, justice, democracy, good governance and economic development to Sri Lanka; to focus attention on the destruction of Tamil communities and culture caused by 30 years of war; and to demand an end to the continuing oppression of Tamils on the island.

Contact L. Kaufman at ustapi2010@gmail.com for additional information or to arrange an interview with Dr. Karunyan Arulanantham.

The Centre for Policy Alternatives in Colombo, in a media release has urged the President of Sri Lanka to relate and fight against authoritarianism, just as he did in the 80’s, as a human rights campaigner.

Full text of the press release as follows:

The Executive Director of CPA Dr. Paikiasothy Saravanamuttu and the Executive Director of Transparency International, Sri Lanka (TISL), J.C. Weliamuna have jointly written to His Excellency President Mahinda Rajapaksa expressing their grave concern over the contents of the above Lanka News Web report of 3rd March 2010 at http://www.lankanewsweb.com/news/EN_2010_03_02_012.html.

According to the report, state intelligence services have placed CPA Executive Director, Dr. Paikiasothy Saravanamuttu “at the top of” this purported list together with Mr. J.C. Weliamuna, Attorney-at-Law and Executive Director of Transparency International, Sri Lanka (TISL). Other members of CPA staff engaged in its programmes on human rights, public interest litigation and citizen journalism initiatives have been mentioned in the report as well. The report further states that persons selected for inclusion in this alleged list, the purpose of which is not clear, have been categorised “according [to] the work they do and a brief description of each individual” on the basis of an unspecified system of points.

CPA cannot independently ascertain the veracity of this report. However, in view of the fact that many of the persons identified in the report have previously been targeted by way of physical violence, death threats and misinformation campaigns, it is impossible not to register our utmost concern, in the broader context of the crisis that Sri Lanka presently faces in respect of democratic freedoms, law and order, and the rule of law.

If the Lanka News Web report is true to the effect that state intelligence agencies have been compiling a list or lists of individuals on the basis of perceived or alleged political allegiances, it is cause for serious concern in a number of ways. Firstly, in the context of the dangers faced by critics of the government including journalists, civil society activists and human rights defenders, there are reasonable grounds for fear about the physical liberty and safety of the individuals concerned. There has been no justice or punishment served by recourse to the criminal justice system in the numerous cases of killings, enforced disappearances and abductions and the entrenched culture of impunity, arbitrariness and the ineffectiveness of law enforcement have only encouraged further abuses.

Secondly, while the legal basis for collecting information on individuals without their consent is unclear, it is an invasion of the privacy of the concerned individuals protected by human rights standards established by international law, and specific conventions such as the International Covenant on Civil and Political Rights (ICCPR) binding on the Sri Lankan state, including its intelligence and security apparatus.

Thirdly, the rationale for the compilation of this list, as the title of the report suggests, is that the selected individuals are perceived by the state intelligence agencies to be “supportive of the opposition”, that is an illegitimate and unconstitutional purpose. There is a fundamental misconception that opposition to specific actions and policies by the Government is equal to support for the opposition. It is not only a fundamental democratic principle but also part of the fundamental rights declared and protected by the Constitution that Sri Lankans are entitled to the freedoms of thought, conscience, opinion, expression, association and occupation. Furthermore the conflation of the interests of the government (i.e., the political party for the time being in power) with that of the state (i.e., the people of Sri Lanka) has proved highly problematic. In the absence of illegal or criminal behaviour, the political opinions of individuals are not a national security concern, and therefore entirely outside the remit of state intelligence agencies.

Finally, we would vigorously reiterate that the CPA was formed on, and continues to function, within the framework of a consistent set of liberal democratic values which we believe to be the bedrock of a democratic, open and decent society, and to which we have been never less than wholly committed. The concept of the political, in our view, involves both inclusive engagement and critical debate in civil society, which includes non-governmental organisations as well as political parties within and without government. As our record of work since 1996 demonstrates, we will work in partnership with any person or institution on the basis of shared values. We firmly believe that it is only authoritarian governments that have reason to fear and resent, and therefore seek to control and repress civil society: a political maxim that President Rajapakse should relate to, given his contribution to the fight against authoritarianism and oppression in the 1980s as an opposition politician, human rights lawyer, and civil society activist.

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The Centre for Policy Alternatives (CPA) was formed in the firm belief that there is an urgent need to strengthen institution- and capacity-building for good governance and conflict transformation in Sri Lanka and that non-partisan civil society groups have an important and constructive contribution to make to this process. The primary role envisaged for the Centre in the field of public policy is a pro-active and interventionary one, aimed at the dissemination and advocacy of policy alternatives for non-violent conflict resolution and democratic governance. Accordingly, the work of the Centre involves a major research component through which the policy alternatives advocated are identified and developed.

For more information, please visit http://www.cpalanka.org

Full text of (United States Tamil Political Action Council) USTPAC Press Release

USTPAC highlights the plight of Tamil Women in North-East Sri Lanka on International Women’s Day

USTPAC joins the world community in celebrating the International Women’s Day on March 8th, but on a sad note, wishes to highlight the continued suffering of Tamil women in North-East Sri Lanka.

“It is no secret that in military conflicts, women suffer unspeakable violence and abuse. The young adult girls and women become easy targets and thus are the most victimized members of the society during the armed conflicts. The Tamil women in North-East Sri Lanka have been at the receiving end of the Government of Sri Lanka (GOSL) sponsored state violence for decades,” said Dr. Ellyn Shander, speaking for USTPAC.

As detailed in a January 2002 report by World Organization Against Torture, Violence against Women in Sri Lanka, “Tamil women are frequently discriminated against by police and members of the armed forces and that this discrimination most often takes the form of rape and other forms of sexual violence”.This violence still continues with impunity; Secretary Clinton highlighted Sri Lanka at the UN last year as a place where “rape has been used as a tactic of war.”

The mono-ethnic Sinhala GOSL military forces have been accused of committing war crimes. Last year, as 300,000 Tamils were held in concentration camps, the young adult Tamil women suffered targeted abuse and violence at the hands of the military personnel assigned to guard the camps. According to Dr. Ellyn Shander, Vice President of USTPAC and a doctor who worked closely with Tamil women while she was in Sri Lanka, the whereabouts of many of the young adult girls who were taken away from the camps by the Sinhala government troops are still not known.

“Many Tamil women are burdened with caring for their families with no access to proper shelter and aid” added Dr. Shander. “On this International Women’s Day, USTPAC stands in solidarity with women around the world in highlighting the need to protect women against violence. USTPAC urges the world community to force the Government of Sri Lanka to STOP the brutal treatment of Tamil women and return them and their families to their homes in their homeland in the North-East of Sri Lanka”, appealed Dr Shander.

“As a measure to put pressure on the Government of Sri Lanka”, said Dr. Shander, “we appeal to the public to boycott all goods made in Sri Lanka, especially apparels, until human rights of Tamil women are restored and respected.” For more information check www.boycottsrilanka.com

Dr Ellyn Shander MD
Vice President of USTPAC