Antony pooh-poohs Peiris comment on TN politicians

NEW DELHI, January 24, 2013 | The Hindu

Special Correspondent

Defence Minister A.K. Antony on Wednesday pooh-poohed visiting Sri Lanka Foreign Minister G.L. Peiris’ comment that Tamil Nadu politicians were cynical in raising objections over training of Lankan security personnel in India by stating that “sentiments of the people of the State [TN] have to be respected.”

Mr. Antony told journalists here: “I don’t subscribe to the view that objections or sentiments raised by TN leaders are cynical. Even now, the relief and rehabilitation [in Tamil areas of Lanka] is not going at the expected speed even though they are taking certain actions. There are sentiments in TN and we have to respect that.”

Lanka was India’s close neighbour and the latter had to maintain close relations with them. “There are military institutions in many parts of India and outside Tamil Nadu also. On one side, we will respect sentiments of TN and we will avoid that area. At the same time, in other institutions, we will complete the training [of Lankans] as per our commitment,” he said.

Mr. Peiris had earlier commented that objections by Tamil Nadu politicians over training of Lankan security personnel in India did not matter as no training had been changed.

http://www.thehindu.com/news/national/antony-poohpoohs-peiris-comment-on-tn-politicians/article4337949.ece

Jailed fishermen in Sri Lanka yearning for release

RAMANATHAPURAM, January 24, 2013 | The Hindu

D. J. Walter Scott

The prospects of early release of five Thangachimadam fishermen, incarcerated in Welikada prison in Sri Lanka for more than a year, look bleak as the Colombo High court has adjourned the hearing to March 12 for examination of witnesses.

When the case came up for hearing before Justice Soorasena in the fourth court of Colombo High Court, the judge fixed March 12, 14, 15, 22 and April 3 for examination of 12 witnesses in the case, according to U. Arulanandam, president of the Alliance for Release of Innocent Fishermen (ARIF), fighting for the release of the fishermen.

Mr. Arulanandam, based in Pamban near here and has been championing the cause of both Indian and Sri Lankan fishermen, was present in the Colombo High court, when the case came up for hearing. He had also met the five fishermen, languishing in the Welikada prison after they were arrested by the Sri Lankan Navy on November 29, 2011.

“It is pathetic to see the five fishermen under severe mental stress. Emarson, one of them, had even been hospitalised for two weeks for depression,” Mr. Arulanandam said. Emarson would not talk to others and refuse to take food, he said.

Emarson broke down, when he was shown the photograph of his new born daughter. His wife was pregnant when he was apprehended and he is yet to see the child, Mr. Arulanandam said. He is unaware that his younger brother, Zion (22) was killed in a train accident in Chennai in March last.

The fishermen expressed their dismay that the Indian government could not secure their release through diplomatic channels, Mr Arulanandam said. They looked dejected, when he explained that the High Court had to decide their case, he added.

Mr. Arulanandam said M.A. Sumanthiran, a prominent Sri Lankan human rights lawyer, had helped him to engage S. Anil Silva, former government lawyer, and Thamusan, a Tamil lawyer, to fight the case.

“The fishermen are innocent and I am confident that court would set them at liberty,” he told The Hindu. Mr Arunandam met the District Collector, K. Nanthakumar, here on Wednesday and briefed him of his Colombo visit. The Collector showed keen interest in helping the fishermen and offered to arrange for financial assistance towards meeting the legal expenses, he said.

The Neduntivu police had registered a case against the five fishermen under Sections 54 A and B of the Opium and Dangerous Drugs Ordinance Act, 1984, read with section 218 of the Code of Procedure. After almost 12 months of incarceration, the charge sheet was filed on November 20, 2012.

Moved by the plights of the families of the five fishermen, Chief Minister Jayalalithaa had recently presented solatium of Rs. 2 lakh each to the five families.

The government was also providing a daily assistance of Rs.250 each to their families. It had also sanctioned Rs.2 lakh towards payment of legal fee.

http://www.thehindu.com/news/states/tamil-nadu/jailed-fishermen-in-sri-lanka-yearning-for-release/article4336974.ece

Army war probe report soon: Sri Lankan Commander

COLOMBO, January 24, 2013 | The Hindu

R. K. Radhakrishnan

A Court of Inquiry [CoI], set up to probe if Sri Lankan forces committed any excesses during the last stages of the war, will submit its report “in a few days”.

Army Commander Lieutenant General Jagath Jayasuriya said here the report was almost ready and would take “a few more days”.

“They [the CoI] will be handing over the report to me soon. After which, I will hand it over to the Defence Secretary with my comments,” he said.

The United Nations estimated that about 40,000 civilians died in the last stages of the conflict up to May 2009, in Eelam War IV, which obliterated the Tamil Tigers. Multiple reports from international NGOs, and the U.N., have held Sri Lankan forces responsible for shelling the civilian population, and hospitals.

The Army set up the CoI in pursuance of a specific recommendation in a government-commissioned report, the Lessons Learnt and Reconciliation Commission (LLRC), which looked into a whole gamut of issues relating to the war.

In pursuance of another recommendation in the LLRC report, the army had appointed a Board of Enquiry to suggest ways and means to further reconciliatory efforts. “This report has been handed over to me,” said Lt. Gen. Jayasuriya.

“I will hand over the report to the Defence Secretary on Thursday,” he added.

Sixty-four countries have been invited to attend the annual defence seminar to be held from the 3rd to the 5th of September, the theme of which will be ‘Post Conflict Sri Lanka — Challenges and Regional Stability’.

http://www.thehindu.com/news/international/army-war-probe-report-soon-sri-lankan-commander/article4336913.ece

Pillay's statement lacks objectivity, biased, marred by erroneous facts – External Affairs Ministry Acting Secretary

External Affairs Ministry Acting Secretary Kshenuka Seneviratne yesterday accused UN High Commissioner for Human Rights Navaneetham Pillay of acting beyond her mandate and transgressing basic norms which should be observed by a discerning international civil servant by bringing into question the constitutional governance of a sovereign state.
Seneviratne was alluding to the statement delivered by Pillay at the OHCHR press briefing on January 18. External Affairs Ministry Acting Secretary Kshenuka Seneviratne in a letter addressed to Pillay states:

Navanethem Pillay

Ms. Navanethem Pillay,
United Nations High Commissioner for Human Rights,Office of the High Commissioner for Human Rights,Geneva.
Dear High Commissioner,
“The Government of Sri Lanka notes, with deep regret and concern, your statement delivered at the OHCHR Press Briefing on 18th January 2013 where reference has been made to Sri Lanka. At the outset, I wish to reject categorically the contents of this statement, as it lacks any semblance of objectivity, steeped as it is in bias, marred by erroneous facts and further compounded by the inappropriate tenor of its language, all of which are indicative of unequal and invidious treatment of Sri Lanka.
“To me this is reminiscent of the action taken by Mr Hanny Megally following the visit of the OHCHR team to Sri Lanka in September 2012, when he deviated from the accepted practice, by de-briefing third parties, even before briefing you, in your capacity as High Commissioner, or the Permanent Representative of the country concerned. It may also be recalled that when the latter pointed out the impropriety of this unacceptable conduct of Mr. Megally at that juncture, you accepted our Representative's submission. However, your action in resorting to unwarranted comments with a series of innuendos on an issue which is entirely a domestic matter for Sri Lanka, and that too without first engaging with our Permanent Representative or the delegation of Sri Lanka in Geneva, demonstrates yet again the deviation from established procedure, amounting to blatant interference in an issue of a sovereign country.
“With regard to the impeachment of the former Chief Justice, the Government of Sri Lanka as a sovereign country has followed the due procedure that is set out in the Constitution of our country. This procedure is indeed in conformity with principles which govern disciplinary proceedings against judges contained in the Basic Principles on the Independence of the Judiciary endorsed by the UNGA in 1985.
“I wish to point out that it was following submission of the motion signed by 117 (out of 225) Members of Parliament, that the Speaker constituted a Parliamentary Select Committee to examine the issues involved in the allegations made against the former Chief Justice. Subsequently, the Report of the Select Committee was submitted and the matter was debated for two days in Parliament, with the active engagement of Opposition political parties. Thereafter, once the resolution to impeach the former Chief Justice was passed in Parliament with a majority of 106 votes (155 voting for and 49 against) the required address was made as our law requires to H.E. the President. It was only thereafter that the former Chief Justice was dismissed from office.
Following this constitutional act, the former Chief Justice withdrew from her Chambers and official residence on her own accord. Your contention regarding the removal of the former Chief Justice from her Chambers and residence is, therefore, erroneous. It may also be noted that Sri Lanka prides itself on a Parliamentary democratic tradition and a judiciary of the highest standard. Moreover, the Constitution of the country enshrines adequate safeguards to ensure the independence of these vital arms of a functioning democracy, which are upheld by the Government of Sri Lanka.
“The content of your statement sadly demonstrates that neither you nor your office has the understanding of the provisions of Sri Lanka's Constitution, and the related procedures for the removal of judges of the superior courts. These provisions have been applied on several occasions in the past. For your information I annex a copy of the speech made by the Minister of External Affairs, Professor G.L. Peiris, on 10th January 2013 in the Parliament of Sri Lanka which sets out the legal framework within which the impeachment process was carried out and responds to opposing views on its legality.
Your assertion that “Sri Lanka has a long history of abuse of executive power” is offensive to this nation, and is clearly beyond your mandate. In this regard, you have transgressed the basic norms which should be observed by a discerning international civil servant, by bringing into question the constitutional governance of a sovereign State.
“With regard to your reference to the new Chief Justice Hon Mohan Peiris, you are undoubtedly aware that he has been a member of the Sri Lanka delegation to the Human Rights Council sessions, originally in his official capacity as the Attorney General of the country, to handle legal issues required for our engagement in Geneva, which is not an uncommon practice amongst States. Subsequent to Hon Peiris relinquishing the office of Attorney General, based on his experience and expertise in the field, he was appointed Legal Adviser to the Cabinet of Ministers and therefore continued to serve in the Sri Lanka delegations to Geneva.
It was by virtue of the offices he held at the time, which has direct relevance to the issues at hand, that Hon. Peiris served on the Sri Lankan delegation to the Human Rights Council Sessions. “It is most unfortunate that you have chosen to raise concerns about the independence and impartiality of the new Chief Justice just as he commences his term in this high office. In my view, this is reflective of the complete bias and negative mindset manifested and nurtured by parties inimical to Sri Lanka and with vested interests. By such an allegation, you have sought inexcusably to undermine the Office of Chief Justice.
Further, this position articulated by you is a prejudgement on your part, which has been a sustained practice adopted by you, in relation to Sri Lanka. Regrettably, this cavalier statement brings into question the standards of impartiality and equality expected of the UN System.
“With regard to the allegations of death threats and acts of intimidation against lawyers, you may wish to note that any complaints received in this regard by the law enforcement authorities are being and will be investigated. The Government of Sri Lanka is fully committed to upholding the rule of law and has been continuously taking steps to achieve this objective.
“ I wish to state that Sri Lanka has engaged with the UN System consistently and transparently, and therefore expects reciprocity from your office. No doubt you would appreciate that it is imperative to base this engagement on the fundamental right of States to be treated equally. A statement of this palpably biased nature could hurt the engagement between Sri Lanka and the UN System.
“I look forward to our continued engagement in keeping with the principals I have set out in this letter”.

Yours sincerely, Kshenuka Senewiratne, Acting Secretary

Pillay offensive, overeaching– EXTERNAL AFF’S acting SEC.

Sustained bias against Sri Lanka:

External Affairs Ministry Acting Secretary Kshenuka Seneviratne yesterday accused UN Commissioner for Human Rights Navaneetham Pillay of overeaching her mandate and transgressing basic norms which should be observed by a discerning international civil servant, by bringing into question the constitutional governance of a sovereign state. Seneviratne was alluding to the statement delivered by Pillay at the OHCHR press briefing on January 18.
“Your assertion that ‘Sri Lanka has a long history of abuse of executive power’ is offensive to this nation, and is clearly beyond your mandate. In this regard, you have transgressed the basic norms which should be observed by a discerning international civil servant, by bringing into question the constitutional governance of a sovereign state,” she said.
In a letter addressed to Pillay, Seneviratne, Additional Secretary Ministry of External Affairs, also stated it was most unfortunate that she (Pillay) had chosen to raise concerns about the independence and impartiality of the new Chief Justice just as he commences his term in this high office.
“In my view, this is reflective of the complete bias and negative mindset manifested and nurtured by parties inimical to Sri Lanka and with vested interests. By such an allegation, you have sought inexcusably to undermine the Office of Chief Justice. Further, this position articulated by you is a pre - judgement on your part, which has been a sustained practice adopted by you, in relation to Sri Lanka. Regrettably, this cavalier statement brings into question the standards of impartiality and equality expected of the UN System,” Seneviratne said.
“With regard to the impeachment of the former Chief Justice, the government of Sri Lanka as a sovereign country has followed the due procedure that is set out in the Constitution of our country. This procedure is indeed in conformity with principles which govern disciplinary proceedings against judges contained in the Basic Principles on the Independence of the Judiciary endorsed by the UNGA in 1985,” she said.
“The content of your statement sadly demonstrates that neither you nor your office has the understanding of the provisions of Sri Lanka’s constitution, and the related procedures for the removal of judges of the superior courts.
These provisions have been applied on several occasions in the past. For your information I annex a copy of the speech made by External Affairs Minister Professor G L Peiris on January10, 2013 in the Parliament of Sri Lanka which sets out the legal framework within which the impeachment process was carried out and responds to opposing views on its legality.
“I wish to state that Sri Lanka has engaged with the UN system consistently and transparently, and therefore expects reciprocity from your office. No doubt you would appreciate that it is imperative to base this engagement on the fundamental right of states to be treated equally. A statement of this palpably biased nature could hurt the engagement between Sri Lanka and the UN system.”
 

Chief justice vs parliament

Jeet H Shroff : Tue Jan 22 2013, 02:50 hrs

Sri Lanka’s predicament reveals the perils of a legislative super-majority

Sri Lanka’s parliament impeached its chief justice, Shirani Bandaranayake, bringing into focus the precarious balance of power between courts and legislatures, a factor that defines the institutional politics of all constitutional democracies. President Rajapaksa’s government, which had previously jailed the country’s army chief, accused Bandaranayake of corruption, based on unproven allegations of disproportionate wealth. The parliament voted, 155 against 49, for the impeachment of the chief justice, ignoring the orders of the Supreme Court, which had invalidated the parliamentary proceedings. The country’s capital is now rife with speculation about an impending showdown between the court and parliament. The developments in Sri Lanka highlight the dangers of super-majorities in parliament.

Constitutional politics usually hinges on issues of legitimacy. The court feels popular governments with standalone majorities command greater legitimacy than minority or coalition governments. As such, the more “legitimate” the government, the less likely the court is to quibble with essential government decisions. With the media focus that defines our times, each of the three institutions that share constitutional power compete for public approval, so that ultimate constitutional power is always in a state of flux. This Montesquieuan state of flux guarantees individual liberty. Because power is never concentrated, its abuse, should it occur, is also limited. Yet, as Sri Lanka’s example shows, when dictatorial tendencies replace democratic propriety, parliamentary super-majorities can threaten this constitutional balance.

First, a super-majority almost always compromises the in-built parliamentary check. In the absence of an effective opposition within parliament, the majority party faces little trouble passing laws and steering debate. A dictatorial ruling party would face little resistance in bringing selfish constitutional changes that could help perpetuate its rule. Indeed, in Sri Lanka’s case, the ruling party used its super-majority to effect a constitutional amendment in 2010 that removed the two-term limit on Sri Lankan presidents.

Second, super-majorities arm the government with an iron-clad mandate. With no opposition to question governmental action, the executive has little to worry about except public perception. Executive decisions then are almost certain to pass parliamentary muster, and the circumspection and cautiousness that must inform government policy may be sacrificed.

Third and most important, a government backed by a parliamentary super-majority has more heft to take on the judiciary. Judicial decisions that invalidate government policy or parliamentary law usually count on voluntary compliance by the elected branches. A judicial decision has no teeth. Its enforcement is dependent on governmental cooperation. And governmental cooperation is usually forthcoming because of the severe reputational sanction the government’s inaction can invite. However, super-majorities can play truant with this rule. A government that is assured the successful passage of a law has the option of ignoring a judicial decision by simply re-enacting the law invalidated by a supreme court decision. As the chief justice’s impeachment demonstrates, a dictatorial ruling party can choose to ignore judicial decisions riding on its sheer strength in numbers. Yet, judicial power can gain popular currency when it is aligned with public discontent. As the stunning reinstatement of Chief Justice Iftikhar Chaudhry in Pakistan showed, a stray act of defiance may inspire simmering discontent to find a voice. In Pakistan’s case, Chaudhry’s house arrest provided a rallying point for the repressed political opposition, an embattled judiciary and the ordinary Pakistani. As Bandaranayake runs out of options, she would no doubt hope that her plight finds sympathy and resonance among Sri Lanka’s populace. Sri Lanka’s fate may well depend on whether the chief justice’s story does enough to rally ordinary citizens.

The writer is pursuing a master’s degree at Harvard Law School

http://www.indianexpress.com/news/chief-justice-vs-parliament/1062892/0