11.09.09 Media Release
The decision of the Government to release displaced civilians in the welfare camps in the North to relatives willing to house them is a very welcome move. This positive pronouncement follows discussions that President Mahinda Rajapaksa had with leaders of the Tamil National Alliance. There has recently been a heightened concern regarding the conditions in the camp and the inadequate resources available to prepare for the monsoon rains which are imminent. There have been calls for the immediate release of at least one third of the detained population in order to avert a humanitarian catastrophe. The government has taken a commendable step in responding to these concerns, signalling a concern for its Tamil people and taking positive measures towards their future wellbeing.
As a precondition to release, those wishing to leave the camps will go through a rigorous process of screening and identification. The National Peace Council calls upon the government to conduct this procedure quickly and transparently, so as to prevent the additional duress that a protracted process may cause. There are also reports of government plans specifically directed towards elderly persons in the camps who are highly vulnerable to the physical difficulties of life in the camps. The construction of homes for the aged in five regions throughout the North and East is also a positive contribution to their welfare. Through these measures, it is estimated that about one thousand of the elderly civilians who are currently being detained will be able to move out of the camps, and, it is hoped, on to normalized lives ahead.
However, it is imperative that civilians who qualify for housing, but would prefer to remain in the camps with their loved ones should not be forced to leave. We urge the government to ensure that freedom of choice is maintained. The burden of conflict has devastated large areas of the North, leaving many with access to food, schooling and other resources only within the confines of the camps. Those who wish to extend their time in the camps must thus be allowed to stay.
In addition, the process of de-mining and rebuilding areas in the conflict zone must be expedited in order to ensure a quick, safe and sustainable return to all the people. This will ensure that all decisions taken by the currently displaced and detained population will be based on a free choice with a range of improved options. In the meantime we call upon the government to continue with its efforts to improve conditions in the camps and to provide a clear, transparent and accessible timetable of when all the displaced persons will be released.
NPC also urges the government to strengthen the political dialogue with the TNA and those who have obtained a democratic mandate from the Tamil people of the North and East. We urge the Government to use this opportunity to rebuild trust and good relations between itself and the Tamil people, give priority to the needs of the people, and allow them to resume a meaningful existence as soon as it possibly can. Allowing these dispirited civilians the freedom to decide their own future will assure the Tamil population of the government’s respect and concern, and will provide for a peaceful reconciliation in the years ahead.
Governing Council
The National Peace Council is an independent and non partisan organisation that works towards a negotiated political solution to the ethnic conflict in Sri Lanka. It has a vision of a peaceful and prosperous Sri Lanka in which the freedom, human rights and democratic rights of all the communities are respected. The policy of the National Peace Council is determined by its Governing Council of 20 members who are drawn from diverse walks of life and belong to all the main ethnic and religious communities in the country.
September 11, 2009 at 4:25 pm
Sri Lanka Army plans to renovate the historic Jaffna Fort, partially destroyed due to the terrorist activities during the three-decade old war on a directive from the office of the Northern Province Governor.
The fort is to be renovated under the guidance and supervision of Jaffna Commander and 51 Divisional Commander with the assistance of the Northern Province Governor’s office, the Army announced.
The fort, one of the strongest forts in Asia, was originally built by the Portuguese and captured by the Dutch in 1658. It was taken over by the British in 1795.
The buildings of the fort had been in use up till the 1970s for administrative purposes but later, the LTTE rebels have used the fort as a firing ground causing extensive damages.
When the Sri Lankan troops took control of the fort in 1996 under Operation Riviresa, the all the ancient structures within the Fort had been destroyed by the LTTE.
The fort is renovated with the intention of preserving the historic site that can be developed into a major tourist attraction in the Jaffna peninsula.
September 10, 2009 at 12:56 pm
The judgement in the J. S.Tissainayagam case was the talk of the town last week, firstly because Tissainayagam is Tamil, and secondly because he was a journalist and the case had to do with something that he wrote, among other matters…
http://www.island.lk/2009/09/06/politics1.html
September 7, 2009 at 9:20 am
UK Lends Support To Rehabilitation and Reintegration of Ex Combatants Through IOM and MOJ
4 SEPTEMBER 2009
Colombo – On Friday 4 September 2009, The British High Commissioner Dr. Peter Hayes and the Head of International Organization for Migration (IOM), Mr. Mohammed Abdiker signed an agreement for approximately Rs.17 million of UK’s support towards the Rehabilitation and Reintegration of Ex-combatants in the presence of the Minister of Justice, Hon. Milinda Moragoda.
The Minister of Justice welcomed the support provided by the British High Commission to the Government of Sri Lanka. The Ministry of Justice and in particular the Commissioner General for Rehabilitation has been working closely with the International Organization for Migration to develop a community oriented demobilization, rehabilitation and reintegration programme. The programme focuses on strengthening capacity, support to receptor communities and an active involvement of the private sector to build sustainable solutions.
High Commissioner Hayes said, “The UK fully supports efforts to ensure sustainable rehabilitation of former combatants. This will be critical to reconciliation efforts following the end of the war and will underpin a transition to sustainable peace.”
The funding is drawn from the Conflict Prevention Pool (CPP) of the UK government, which is jointly managed by the Department for International Development, the Foreign and Commonwealth Office and Ministry of Defence.
September 4, 2009 at 7:32 pm
Eighteen Nepali workers, bound for South Africa have been stranded in Sri Lanka, following the death of their agent.
Reports said that the Nepali Embassy in Colombo has informed the Nepal foreign ministry to take immediate action to rescue the stranded Nepali workers.
The Embassy said the agent had accommodated them in Ceylon Continental Hotel and had dues of Sri Lankan Rs 270,000 (Nepali Rs 390,000) to the hotel.
The agent accompanying them died after drowning in the sea near Colombo .
September 4, 2009 at 7:28 pm
The Indian Ministry of External Affairs is working with the Sri Lanka government for an agreement on the transfer of sentenced prisoners, the Hindu reported today.
Minister of State for External Affairs Shashi Tharoor said this in a letter to Sunni leader Kanthapuram A.P. Aboobacker Musliyar, who had sought his intervention on the release of Indian prisoners in Sri Lanka.
Dr. Tharoor noted in his letter that the prisoners there were those convicted of serious offences or under trial for serious offences such as drug trafficking and that the Ministry was hopeful of concluding an agreement on the transfer within a reasonable time.
September 3, 2009 at 2:10 pm
The Madurai bench of the Madras High Court on Tuesday issued notice to the Government of India and the Board of Control for Criket in India on a writ petition seeking a bar on the Indian cricket team taking part in the tri-nation tournament taking place in Sri Lanka from Sept 8 to 13.
The first bench, comprising Justice Chitra Venkataraman and Duraisamy, ordered notice to the External Affairs, Home, Sports Ministries as well as the BCCI on the admissibility of a public interest litigation filed by an advocate and posted the case to Sept 4.
The petitioner, Joel Paul Anthony, contended that sending the Indian cricket team to Sri Lanka at this juncture when over three lakh war-hit Tamils were languishing in make-shift camps would set a wrong precedent.
He cited the boycott of South Africa by most of the cricketing nations when it practiced
apartheid.
Accusing Sri Lankan of gross human rights violations, Mr Anthony alleged that even Tamil Nadu Chief Minister M Karunanidhi observed a fast in protest against it.
(It may be recalled that Mr Karunanidhi began the fast in the morning at the height of the war with the LTTE and called it off by noon after Sri Lanka gave an assurance that it would not use heavy caliber offensive weapons in its last-ditch battle with the Tamil Tigers in view of the fact that a large number of civilians were still trapped in the war zone. Critics called it a breakfast-to-lunch fast and a gimmick as it did not bring about a ceasefire as demanded by him.)
The advocate referred to a series of protests in Tamil Nadu in the final phase of the battle and said over 20 persons had committed self-immolation. The Government of India also sent a high-level delegation to Sri Lanka monitored the situation.
Mr Anthony alleged that Sri Lanka has used cluster bombs in scant disregard for international laws on human rights and had barred international media and NGOs from the war zone.
He said housands of Tamils had died in the last 60 years of struggle. Under the circumstances, sending the Indian cricket team to Sri Lanka when the displaced Tamils were yet to be rehabilitated would send a wrong signal, he contended.
Over 500 advocates signed the petition in support of his contentions.
September 3, 2009 at 1:59 pm
I call upon the 22 Tamil National Alliance Parliamentarians to do their duty or to honourably vacate their seats in Parliament. They have fooled enough, the people whom they claim to represent in Parliament, but never championed their cause. Instead they always defended the LTTE at whose mercy they got elected fraudulently to Parliament. They have mis-led the International Community, the people of Tamil Nadu in particular. Tamil Nadu if left alone or properly briefed would have contributed their best towards a workable solution, without earning the dis-pleasure of the people of Sri Lanka and without causing embarrassment to their own Central Government, with un-fair and un-implementable demands. Unfortunately the people of Tamil Nadu got mis-led by the advice given by the TNA Parliamentarians. Without demanding the war to stop, if they had, in a friendly way, agitated for a reasonable settlement of the ethnic problem, they might have succeeded.
I extended my invitation to the Chief Minister of Tamil Nadu Hon. Dr. M. Karunanithy four years back to pay a visit to Sri Lanka. Let us not forget that the President His Excellency Mahinda Rajapakse himself invited the Chief Minister Hon. Dr. M. Karunanithy, a couple of months back when a mass scale agitation was going on in Tamil Nadu, to visit Sri Lanka and would have been very happy, if the Chief Minister had accepted the invitation, came to Sri Lanka and offered to mediate. This is yet another lost opportunity for which the TNA should bear the blame for not making use of this opportunity “What sin have we committed to undergo this agony all these long years, extending to a period of quarter of a century and how long are we to endure this?”, ask the people of Kilinochchi, who are all now displaced and living at Dharmapuram, a small village in the district of Kilinochchi.
I know most of them because I lived with them and represented them in Parliament for many years. Apart from this more than a hundred thousand people men, women and children, including the sick and the toddlers, deprived of their normal life, had been mercilessly driven like cattle into Kilinochchi by the LTTE from the areas under their control in the neighboring districts of Mannar, Vavuniya and Mullaitheevu. They were pushed into Kilinochchi by the withdrawing LTTE cadre, unable to confront the advancing Government Forces. Left alone most of them would have stayed in their homes or could have gone to their respective homes and saved whatever left over after being looted or robbed. Instead they are brought from far off places and squeezed into small villages already over crowded with the locally displaced persons from the Kilinochchi district itself.
The LTTE holds these people to ransom for no fault of theirs, but only for the sole purpose of using them as human shield for their own protection. The distress call of these unfortunate people is not heard in Tamil Nadu.
The International Community which is much concerned of the Human Rights Violations in the LTTE held areas also, is compelled to keep silent, perhaps due to their reluctance to go against the demand of Tamil Nadu for a Cease Fire although it is very obvious that, the demand is more in support of the LTTE, than in the interest of the Tamils trapped in the LTTE areas. It is very unfortunate that Tamil Nadu is refusing and the TNA is ignoring to respond to the distress call of these two hundred and fifty thousand people who are caught up between the LTTE which is compulsorily recruiting men and women only to sacrifice them at the battle front and the deadly snakes that are multiplying in their thousands. Hundreds had been stung by snake and many have died. Leave aside the TNA, even nature is against them. The down pour of rain is so heavy that all areas are flooded and people have to move from place to place in search of highland to camp and to cook their food. Apart from the snake menace the other one is the mosquitoes with the threat of an out-brake of malaria or dengue I dare say that all these sufferings of the people do not seem to be of any concern for the TNA Members of Parliament in Sri Lanka and some leaders of Tamil Nadu, who were in the fore-front of the recent uprising in Tamil Nadu, most of whom take pride in boasting of “umbilicus code relationship”, between the Tamils of Sri Lanka and Tamil Nadu. They least know of the same relationship the Sinhalese have with the Tamils of Madurai in Tamil Nadu. Their only concern seem to be saving the LTTE under the pretext of stopping the war.
A TNA Parliamentarian had said in Parliament recently that 55000 children from 190 schools are not attending school. He did not have the guts to tell the world as to why this has happened?, because of whom? and where? To add to what he said, in the Eastern Province more than 6000 children do not know their alphabet. The MP did not tell how teachers on the Government’s pay roll are fighting in the war front for the LTTE. These MP’s children are quite safe in foreign countries having good education. The irony is a TNA Member of Parliament whose entire family is in Australia, recently referred to me in Parliament as a traitor.
The people in Vanni want the war to continue, because they want the war to end with the LTTE defeated. The forces that had marched forward about 200 miles liberating the people all along, has only a few more miles to go. The people only plead that the forces should avoid civilian targets and night time aerial bombings.
Everyday a few dead bodies of the LTTE fighters are handed over to the ICRC to be delivered to the LTTE. They are young boys and girls, children of poor parents compulsorily recruited by the LTTE and sent to the battle front with hardly any or very little training. One can understand the TNA Members of Parliament remaining silent on this type of matters merely to please the LTTE and to save their seats in Parliament. But one cannot understand as to why Tamil Nadu, which is rich in culture and civilization, God fearing and pious, always sympathetic towards the Sri Lankan Tamils and proudly boast of its “umbilicus code relationship” with them, should remain silent without raising one word of protest against the cruel and uncivilized manner in which the brutal LTTE is treating the innocent Tamils whom they are keeping under compulsion in a pre-dominantly jungle area, infested with snakes and mosquitoes, in chilly weather and pouring rain, without timely food and proper shelter, shifting their temporary abode from place to place off and on like nomads. It is traditional for the LTTE to take away first, all what they need and only what is remaining is distributed to the people. This is happening even today. The TNA Members did not protest when the LTTE ordered all those 8000 students who sat for the G.C.E(O/L) examination held recently, to under-go trainings while the Catholic Church protested against the attempt of the LTTE to take away some orphans from an orphanage run by the church.
“All what is mentioned here is only a minor fraction of the sufferings of our people. Why can’t Tamil Nadu, which is partly responsible for the present situation, wake up from its deep slumber and persuade them or, if unyielding, warn them to release the people to go anywhere they want.
“If Tamil Nadu, adamantly keeps silent or out of fear for a handful of pro-LTTE leaders of Tamil Nadu and also if the TNA Members of Parliament who misled Tamil Nadu and roused the feelings of the people there, fail to move them inspite of all these pleadings, I have to look upon the expatriate Tamils who had largely helped the LTTE to grow, with substantial financial assistance, to intervene and bring pressure on them to free the people detained. The LTTE has lost the war and it is ridiculous for anyone to still believe that they will regain all what they have lost.
“If the LTTE is willing to lay down their arms they can do so and negotiate with the Government for a solution within a united Sri Lanka, wherein all ethnic groups can live as equals, enjoying all rights without any form of discrimination what so ever. Failure to do so, will only pave the way for some unscrupulous elements to takeover, like snakes taking up residence in the anthills built by the labour of infinite number of white-ants. The Government of Sri Lanka and the International Community has a morel duty to see that the Tamils are not allowed to jump from the frying pan into the fire. I assure the TNA Members of Parliament that I sincerely feel that they have failed in their mission and therefore to quit their seats in Parliament. As for me I am not interested in any office but my whole interest is only on the people who are suffering for the last quarter of a century.
V. Anandasangaree,
President – TULF.
January 13, 2009 at 9:40 am
TULF CALLS UPON THE TNA TO SAVE THE INNOCENT TAMILS TRAPPED IN VANNI OR TO QUIT PARLIAMENT.
I call upon the 22 Tamil National Alliance Parliamentarians to do their duty or to honourably vacate their seats in Parliament. They have fooled enough, the people whom they claim to represent in Parliament, but never championed their cause. Instead they always defended the LTTE at whose mercy they got elected fraudulently to Parliament. They have mis-led the International Community, the people of Tamil Nadu in particular. Tamil Nadu if left alone or properly briefed would have contributed their best towards a workable solution, without earning the dis-pleasure of the people of Sri Lanka and without causing embarrassment to their own Central Government, with un-fair and un-implementable demands. Unfortunately the people of Tamil Nadu got mis-led by the advice given by the TNA Parliamentarians. Without demanding the war to stop, if they had, in a friendly way, agitated for a reasonable settlement of the ethnic problem, they might have succeeded. I extended my invitation to the Chief Minister of Tamil Nadu Hon. Dr. M. Karunanithy four years back to pay a visit to Sri Lanka.
Let us not forget that the President His Excellency Mahinda Rajapakse himself invited the Chief Minister Hon. Dr. M. Karunanithy, a couple of months back when a mass scale agitation was going on in Tamil Nadu, to visit Sri Lanka and would have been very happy, if the Chief Minister had accepted the invitation, came to Sri Lanka and offered to mediate. This is yet another lost opportunity for which the TNA should bear the blame for not making use of this opportunity.
“What sin have we committed to undergo this agony all these long years, extending to a period of quarter of a century and how long are we to endure this?”, ask the people of Kilinochchi, who are all now displaced and living at Dharmapuram, a small village in the district of Kilinochchi. I know most of them because I lived with them and represented them in Parliament for many years. Apart from this more than a hundred thousand people men, women and children, including the sick and the toddlers, deprived of their normal life, had been mercilessly driven like cattle into Kilinochchi by the LTTE from the areas under their control in the neighboring districts of Mannar, Vavuniya and Mullaitheevu. They were pushed into Kilinochchi by the withdrawing LTTE cadre, unable to confront the advancing Government Forces. Left alone most of them would have stayed in their homes or could have gone to their respective homes and saved whatever left over after being looted or robbed. Instead they are brought from far off places and squeezed into small villages already over crowded with the locally displaced persons from the Kilinochchi district itself. The LTTE holds these people to ransom for no fault of theirs, but only for the sole purpose of using them as human shield for their own protection. The distress call of these unfortunate people is not heard in Tamil Nadu.
“The International Community which is much concerned of the Human Rights Violations in the LTTE held areas also, is compelled to keep silent, perhaps due to their reluctance to go against the demand of Tamil Nadu for a Cease Fire although it is very obvious that, the demand is more in support of the LTTE, than in the interest of the Tamils trapped in the LTTE areas. It is very unfortunate that Tamil Nadu is refusing and the TNA is ignoring to respond to the distress call of these two hundred and fifty thousand people who are caught up between the LTTE which is compulsorily recruiting men and women only to sacrifice them at the battle front and the deadly snakes that are multiplying in their thousands. Hundreds had been stung by snake and many have died. Leave aside the TNA, even nature is against them. The down pour of rain is so heavy that all areas are flooded and people have to move from place to place in search of highland to camp and to cook their food.
Apart from the snake menace the other one is the mosquitoes with the threat of an out-brake of malaria or dengue. I dare say that all these sufferings of the people do not seem to be of any concern for the TNA Members of Parliament in Sri Lanka and some leaders of Tamil Nadu, who were in the fore-front of the recent uprising in Tamil Nadu, most of whom take pride in boasting of “umbilicus code relationship”, between the Tamils of Sri Lanka and Tamil Nadu. They least know of the same relationship the Sinhalese have with the Tamils of Madurai in Tamil Nadu. Their only concern seem to be saving the LTTE under the pretext of stopping the war. A TNA Parliamentarian had said in Parliament recently that 55000 children from 190 schools are not attending school. He did not have the guts to tell the world as to why this has happened?, because of whom? and where? To add to what he said, in the Eastern Province more than 6000 children do not know their alphabet.
The MP did not tell how teachers on the Government’s pay roll are fighting in the war front for the LTTE. These MP’s children are quite safe in foreign countries having good education.The irony is a TNA Member of Parliament whose entire family is in Australia, recently referred to me in Parliament as a traitor.
The people in Vanni want the war to continue, because they want the war to end with the LTTE defeated. The forces that had marched forward about 200 miles liberating the people all along, has only a few more miles to go. The people only plead that the forces should avoid civilian targets and night time aerial bombings.
“Everyday a few dead bodies of the LTTE fighters are handed over to the ICRC to be delivered to the LTTE. They are young boys and girls, children of poor parents compulsorily recruited by the LTTE and sent to the battle front with hardly any or very little training. One can understand the TNA Members of Parliament remaining silent on this type of matters merely to please the LTTE and to save their seats in Parliament. But one cannot understand as to why Tamil Nadu, which is rich in culture and civilization, God fearing and pious, always sympathetic towards the Sri Lankan Tamils and proudly boast of its “umbilicus code relationship” with them, should remain silent without raising one word of protest against the cruel and uncivilized manner in which the brutal LTTE is treating the innocent Tamils whom they are keeping under compulsion in a pre-dominantly jungle area, infested with snakes and mosquitoes, in chilly weather and pouring rain, without timely food and proper shelter, shifting their temporary abode from place to place off and on like nomads. It is traditional for the LTTE to take away first, all what they need and only what is remaining is distributed to the people. This is happening even today. The TNA Members did not protest when the LTTE ordered all those 8000 students who sat for the G.C.E(O/L) examination held recently, to under-go trainings while the Catholic Church protested against the attempt of the LTTE to take away some orphans from an orphanage run by the church.
“All what is mentioned here is only a minor fraction of the sufferings of our people. Why can’t Tamil Nadu, which is partly responsible for the present situation, wake up from its deep slumber and persuade them or, if unyielding, warn them to release the people to go anywhere they want.
“If Tamil Nadu, adamantly keeps silent or out of fear for a handful of pro-LTTE leaders of Tamil Nadu and also if the TNA Members of Parliament who misled Tamil Nadu and roused the feelings of the people there, fail to move them inspite of all these pleadings, I have to look upon the expatriate Tamils who had largely helped the LTTE to grow, with substantial financial assistance, to intervene and bring pressure on them to free the people detained. The LTTE has lost the war and it is ridiculous for anyone to still believe that they will regain all what they have lost.
“If the LTTE is willing to lay down their arms they can do so and negotiate with the Government for a solution within a united Sri Lanka, wherein all ethnic groups can live as equals, enjoying all rights without any form of discrimination what so ever. Failure to do so, will only pave the way for some unscrupulous elements to takeover, like snakes taking up residence in the anthills built by the labour of infinite number of white-ants. The Government of Sri Lanka and the International Community has a morel duty to see that the Tamils are not allowed to jump from the frying pan into the fire. I assure the TNA Members of Parliament that I sincerely feel that they have failed in their mission and therefore to quit their seats in Parliament. As for me I am not interested in any office but my whole interest is only on the people who are suffering for the last quarter of a century.
V. Anandasangaree, President – TULF.
January 12, 2009 at 11:30 am
Speech delivered by Mr.R.Sampanthan, Member of Parliament, Trincomalee District, and Parliamentary Group Leader, Illankai Tamil Arsau Kadchi (TNA), on the December 2008 in the Sri Lanka Parliament during the Committee stage of the Budget Debate on the Defence vote.
Mr. Chairman, I hope I will be able to, at least to some extent, change the environment that has prevailed in this House during about the past half an hour and I also do hope that we can have a more sensible debate in regard to the important questions that are before this House at the present moment.
When one looks at the situation of a nation, Sir, it may not be quite correct to look at it from only the present time, what is happening in the country during the current period. It may be necessary, Sir, to also look at the past to be in a position to ascertain what happened in the past and what effect, in fact, those events that happened in the past have had on the events that take place at present. Otherwise, you would not be taking, in my view, a full view, a sensible view of the events that happened in the course of a nation’s history.
Most Hon. Members in this House talk on the basis that the only problem this country has is the LTTE and the violence that it unleashes. I do not dispute the fact that the LTTE unleashes violence. I do not dispute the fact that the LTTE does many things which are unacceptable. I do not dispute the fact that the LTTE is sometimes guilty of brinkmanship, but I do not think you can claim that all that is happening in this country or that the present position in this country is attributable only to the LTTE or to the violence that the LTTE unleashes.
We need to look at the past, Sir. When did violence start in this country? Violence in this country started in 1956, long before the LTTE came into being. When my leaders, my much respected leader Mr. S.J.V. Chelvanayakam and the other leaders, performed a “Sathyagraha” on the Galle Face Green in front of the old Parliament House, they were attacked. Dr. E.M.V. Naganathan, a much respected Member of Parliament and a citizen of this country, had to run into the Galle Face Hotel in his underwear. Mr. Amirthalingam entered the Chambers that evening after the “Sathyagraha” with a bandage around his head. We had violence in 1956; we had violence in 1958; we had violence in 1961, when we performed a “sathyagraha” in the Northern and Eastern Provinces and when we were arrested and locked up in the Panagoda army camp. We were, in fact, the first occupants of the Panagoda army camp. I happened to be there myself as a young lawyer. We had violence in the mid-1970s, when there was a Tamil Research Conference in Jaffna. We had violence in 1977; we had violence in 1981. We had enormous violence which shook the conscience of the world in 1983, and in all of these bouts of violence – they were all anti- Tamil pogroms against the Tamil people living in this country – the only victims were the Tamil people.
The only victims of these several bouts of violence were the Tamil people. No other community in this country was ever the victims of violence that happened on all these several occasions that I have referred to. That is something, Sir, which must be remembered. Why was this violence being committed against the Tamil people? They were merely wanting a change in the structure of the Constitution. They wanted the unitary character of the Constitution to be changed into a federal arrangement in keeping with patterns that prevail the world over where society is multilingual, multicultural, plural in character to be in a position to cater to the aspirations of the distinct peoples who inhabit this country. They never carried arms. There was no violence from the Tamil side. Our campaign was non-violent, on the Ghandian model of Ahimsa . We performed “Sathyagraha” in front of the Kachcheri and recited religious hymns. We prayed to the God that there be peace in this country. We fasted and we were thrashed for doing that. That is what happened in this country for a long period of time and this is something, Sir, which cannot be denied by anybody.
In fact, I must say the first act of political assassination in this country was when Mr. S.W.R.D. Bandaranaike was assassinated in 1959. He paid obeisance to a Buddhist monk. He greeted the Buddhist monk by bowing before him and worshipping him when the monk shot him. That was the first act of political assassination in this country, the assassination of Mr. S.W.R.D. Bandaranaike in 1959. If Mr. Bandaranaike had not been assassinated, on the contrary, if Mr. Bandaranaike had been allowed to implement the Bandaranaike-Chelvanayagam Pact, a pact which had far reaching implications, this country would not be in the position in which it is today. So, Prabhakaran was not the man who commenced violence in this country. Violence was started in this country by the majority community and the first act of political assassination of this country was committed – I do not take any pleasure in saying this, I have much respect for the Buddhist clergy. I have in fact offered them dana on a number of occasions when I was a little child, but it was committed by a Buddhist monk and what is more is that the high priest-Thank you Rev. Sir, and what is more important is that not merely that monk, the Rev. Somarama Thero was convicted of murder, the assassination of the Prime Minister, but even the high priest of a Raja Maha Vihara in this country Rev. Bhudda Rakkitha Thero was convicted of conspiracy to commit murder. That is the history of this country. That does not mean, Sir, that I say that all acts of violence by the LTTE must be condoned. I very clearly stated that at the commencement of my speech. Sometimes the acts of violence by the LTTE are totally unacceptable. I must say at the same time, quite frankly, that it was the Sri Lankan State which pushed the LTTE into an armed struggle. It was the failure to accommodate legitimate Tamil political aspirations put forward by the moderate Tamil leadership and the successive racial pogroms against the Tamil people without the State giving the Tamil people adequate protection that led to the emergence of the LTTE and the commencement of the armed struggle.
This is not something, Sir, which anybody can dispute. In fact, I remember, Sir, the speech made by the late President J.R. Jayewardene on the Vote of Condolence on Mr. S.J.V. Chelvanayakam’s demise in the old Parliament. Mr. Jayewardene said that one did not have to obtain anything from Mr. Chelvanayakam in writing – that is, if Mr. Chelvanayakam gave his word, one could depend entirely on his word and there was no need for anything in writing – that he was such as honourable person. You had every opportunity of resolving the Tamil question with leadership of that calibre, but, you did not do so.
Therefore, Sir, it would be my submission that the phenomenon of the LTTE cannot be dismissed as a purely terrorist phenomenon, certainly not, or as a phenomenon which emerged for no valid reason. That would be unacceptable. There have been aberrations; there have been distortions – acts which are totally unacceptable and cannot be justified. But, these cannot completely undo the context in which the LTTE was born. It was the intransigence of the Sri Lankan State in regard to political accommodation of legitimate Tamil political aspirations and the successive racial pogroms against the Tamil people which were either condoned by the Sri Lankan State, or in which the Sri Lankan State latterly connived, and even more latterly, sponsored by the Sri Lankan State that constituted the foundation for the emergence of the LTTE and its armed struggle. This must be very clearly understood, Sir. This is not to say that one stands up in this House and defends the LTTE in respect of all its acts. I am certainly not in that position. I am certainly not engaged in any such thing. But, it must be clearly understood that the LTTE and the armed struggle it has carried out in this country emerged in the context of a certain situation that developed in this country consequent to the dismal failure of the Sri Lankan State to meet the legitimate political aspirations of the Tamil people over a long period of time, when moderate political leadership was prepared to be sober and compromise on a reasonable basis and when there were successive racial pogroms against the Tamil people, it was in that context that the LTTE and its armed struggle emerged.
Various countries the world over, Sir, may have had different reasons for banning the LTTE under their respective laws relating to terrorism in their own countries. But, these facts do not and cannot exculpate the Sri Lankan State for its acts of omission and commission which were responsible for the emergence of the LTTE and its armed struggle and the Sri Lankan State, I respectfully submit, Sir, must accept responsibility for the emergence of the LTTE and its armed struggle.
I want to state, Sir, very clearly on the Floor of this House, that there is a justifiable political dimension to the emergence of the LTTE- however unacceptable some of its latter actions may have been- I do not think, Sir, that there is any guerilla or insurgent movement the world over which can be said to be wholly free from all such blame. I think, Sir, I need to say this, to put on record the correct position as I see it.
It must also be remembered, Sir, that following the incidents of 09/11 in the United States of America, the attack on the Twin Towers there, the international community took a rather simplistic definition of terrorism and it was following the attacks of 09/11 and in the context of the international community having taken this rather simplistic definition of terrorism, the LTTE came to be banned in several countries the world over. But this cannot, Sir, as I said before, free the Sri Lankan State from its own culpability for creating the justification, for creating the situation in which it was inevitable that an organization like the LTTE would have to emerge and commence an armed struggle against the State in view of the failure of the State to both deliver politically and not protect from violence a distinct segment of this country’s population with a distinct identity.
Having said that, Sir, I want to speak a few words on the war that is presently going on in this country. The war is being fought against the LTTE as if you are fighting an alien enemy. The LTTE is also a part and parcel of this country. Please do not forget that. If you say that they are not a part and parcel of this country, they would like to say, “good bye” to you and you might have to leave them alone. In this war that is being fought as if you are fighting against an alien enemy, Tamil non-combatant civilians in the main continue to be the victims of the war - be it aerial bombardment, be it multi-barrel rocket launcher fire or be it attacks by deep penetration units. Only a few days ago in this House, I referred to media reports that a refugee camp had been bombed in the Vanni at 1.30 in the morning and a number of persons killed and a number of persons injured including women and children, and it is indisputable, Reverent Presiding Member, that people are being killed or injured in very substantial numbers. Hundreds of thousands of Tamil civilians; men, women and children are being displaced. Their plantations have been destroyed; their movable and immovable assets are being destroyed; their animal husbandry is being destroyed; their livelihood opportunities are being destroyed and what is happening is that a process of genocide of the Tamil people is occurring at present in the Vanni.
I have with me, Sir, a media report that appeared in “ The Sudar Oli” newspaper of 3rd December 2008 where they say - I will not read the Tamil version – that 56,552 houses in the Kilinochchi District have been destroyed as a result of the war as per statistics collected by the Kilinochchi official authorities. It is not a small number. The report goes on to say that these were all houses built by the Tamil people in the Kilinochchi District during the several years when there was no war with their savings and at much cost. This happened all over the Eastern Province . In some parts of the Eastern Province , places like Sampur, Koonithivu and Chudakkuda which have now been declared a High Security Zone - not merely were the houses destroyed in the course of the war, after the LTTE had been evicted, houses were deliberately destroyed and there is, in those areas, today, not a single house.
Sir, this is not humanitarian action on behalf of the Tamil people. This is not the liberation of the Tamil people as is sometimes cynically claimed by sections of the Government. This is clearly genocide of the Tamil people and I consider it my duty, on behalf of the Tamil people, to state that very clearly on the Floor of this House. This situation, Sir, is clearly unacceptable. This situation demands that the war must be brought to an end. The only way in which the genocide of the Tamil people can be stopped is by stopping the war. There is no other way. If the war continues the Tamil people will be destroyed. The only other way for the Tamil people to avoid destruction is to flee the country which is happening, with large numbers of Tamil people fleeing the country in several ways. It is my submission, Sir, that the Government’s thinking that the war can be fought to a finish expeditiously is a serious mistake. The war will be prolonged, its duration would be indefinite. If the war continues the Tamil non-combatant civilian population would continue to be the main victims and the process of genocide of the Tamil people would be a continuing process. It is my duty to appeal to the Government and to the world at large that this should not happen. It must not be forgotten also most tragically that many young people on both sides, on the Sinhala side the army personnel and of the Tamil side, LTTE cadres are being killed in combat. I do not think, Sir, this can be a continuing process. It is something which is causing immense harm to this country as a whole.
Sir, I do not agree with the contention that is sometimes made on behalf of the Government that the Government is only fighting against the LTTE. Statements made by important personalities, political personalities, and also military personalities within the Government, clearly suggest that this Government takes the view that all minorities who live in this country, in particular, the Tamil people are second class people, are inferior people who have to be kept in their place, that they must not talk too much, they must not ask for too much, there is a place meant for them in this country and that they must confine themselves to that place which has been earmarked for them. I do not wish to quote those statements. That is very clear from the statements that these personalities have made.
For several decades you have been carrying on racial pogroms against the Tamil people in order to demonstrate to them that there was a place that was defined for them, that was demarcated for them, a place where they were second class citizens. You tried to suppress them through racial pogroms and today, through the instrumentality of the armed forces, the present Government, in my submission, is engaged in a war which wants to clearly demonstrate to the Tamil people that they must confine themselves to that second class position which had been demarcated for them as spoken about by various spokesmen on behalf of the Government, both within the political and the military arms of Government, and it is not merely a war against the LTTE, it is primarily a war against the Tamil people. It is our submission that when we are killed by aerial bombardment, when we are killed by multibarrel rocket launcher fire, when we are killed by the deep penetration units attacks, and when statements are made by Government personalities trying to confine us to a certain position in this country, this Government can no longer with any sense of honesty claim that this is not a war against the Tamil people. It is a war primarily meant to demonstrate to the Tamil people the place meant for them in this country. This is why we say that this cannot continue. And as the war continues, it is inevitable that there can be only one conclusion and that conclusion is that the Government is committed to a process of genocide against the Tamil people. It cannot be disputed by anyone with any regard for truth, that it is in the main the Tamil people who are the victims of this war and not anybody else.
Venerable Sir, before I conclude, I must refer to just one or two other matters. I think the Government is engaged in this war primarily because it is unable to come up with an acceptable political solution to the Tamil question. And, in the context of the Government’s inability to come up with an acceptable political solution to the Tamil question, the Government thinks that it must prosecute the war against the LTTE and totally marginalize the LTTE, if they can, and thereafter when they can claim a military victory, thrust a solution upon the Tamil people. That is not ever going to happen.
That cannot happen. I say Sir that, that is also a clear indication that the objective of the war is not merely the marginalization of the LTTE but also to ensure that the Tamil people are clearly made to understand what their political status in this country is. We also have the fear that whatever the Government may say, that this war that is being prosecuted is also alienating the Tamil people in such a way that they probably will never be redeemed. Therefore Sir, when people are rendered destitute in this way, when people are reduced to a state of penury, when people are impoverished, when people who have led reasonably respectable lives generating their own incomes are compelled to live like beggars, live under trees, live under a piece of sack tied to branches of trees, when they are killed, when they are maimed, when they are injured, everything they owned in this world is destroyed, Government may think that they are liberating people but the people are being alienated and in that sense by the alienation of the Tamil people, I think, much damage is being caused to this country.
I was reading recently an article in the “Time” magazine and would like to just mention what was stated there. Mr. Barack Obama, when he was yet the Democratic candidate happened to meet the Military Commander of the US who was in charge of the war in Iraq . The Military Commander gave him a very detailed explanation, a vast explanation in regard to how the war was being fought, so on and so forth, and in regard to why the war should continue to be fought. Mr. Barack Obama listened to him and told him, “Commander, if I was in your position, I would probably take the same line. But I do not want to look at this question through the prism of a military victory. I want to look at this question through the prism of what would be best in the national interest and I do not think that this war should continue. If I become your Commander in Chief, maybe we will have to meet again and discuss how this war can be defused and how we can take back our soldiers home.” That was Mr. Barack Obama’s position.
You know Venerable Sir, there must be a moral justification for the prosecution of a war of this magnitude, and in the absence of the Sri Lankan Government putting on the table an acceptable political solution to the Tamil question, it is my submission that that moral justification is totally lacking, it is not there. The United States went into Iraq on the basis that there were weapons of mass destruction there. Mr. Tony Blair, one of the most popular Prime Ministers in the UK , supported that position. In fact, he stated that he was in agreement with the US that there were weapons of mass destruction in Iraq and the war was justified. Eventually, when no evidence could be produced that there were weapons of mass destruction in Iraq, and when Mr. Tony Blair, one of UK’s popular Prime Ministers, returned thrice over successively, had to admit that, he had to bow out of office and withdraw from his position because he could no longer justify his earlier position that his joining the war with the US against Iraq was on the ground that there were weapons of mass destruction. If that is the position in which the Government is – the Government today prosecutes the war, in my submission, primarily because it is unable to come up with an acceptable political solution to the Tamil question and I do not think you will ever do that. I saw some questions being raised in the morning by the JVP Parliamentary Group Leader, the Hon. Anura Dissanayake in regard to the Thirteenth Amendment to the Constitution and the Hon.Prime Minister responded to that. The Thirteenth Amendment to the Constitution had been rejected by the major political party of the Tamil people, the TULF, in 1987 – 1988 no sooner it was enacted.
In fact, the TULF did not participate in the provincial council elections based on the Thirteenth Amendment because we had rejected the Thirteenth Amendment. The Indo-Sri Lanka Accord was a different document. The Thirteenth Amendment must not be confused with the Indo-Sri Lanka Accord. The Indo-Sri Lanka Accord achieved certain things for the minorities in this country, that there were distinct people who lived in this country, the Sinhalese, the Tamils and the Muslims, each one of whom had a distinct culture which have to be nurtured and preserved, quite contrary to the statements made by some of your Government spokesmen. The Indo-Sri Lanka Accord acknowledged that the Northern and the Eastern Provinces were the areas of historical habitation of the Tamil-speaking people and those two provinces were merged on that basis. The Thirteenth Amendment was not in consonance with the Indo-Sri Lanka Accord. There must be no assumption that the Thirteenth Amendment which was enacted by the Sri Lankan Parliament without Indian involvement, was in consonance with the Indo-Sri Lanka Accord and that is why, Venerable Sir, we who realized that,- in fact-, we were responsible for the genesis of the Thirteenth Amendment -it was we of the TULF who had discussions with the then Government, the J. R. Jayewardene Government, in regard to the Thirteenth Amendment- that we rejected it. The major Tamil political party of the Tamil people, the Illankai Tamil Arasu Kadchi, which has in this Parliament 22 Tamil Members elected from the North-East, out of a total of 23 Tamil members unequivocally rejects the Thirteenth Amendment and states that the Thirteenth Amendment can never be a solution to the Tamil question. In fact Sir, this is something which had been accepted by successive governments, the Premadasa Government, the Chandrika Bandaranaike Kumaratunga Government, and even the present Government when it commenced the APRC, talked in terms of solutions that went far beyond the Thirteenth Amendment. The present Government appointed a Committee of Experts comprising of 16 people to come up with recommendations and 11 of them came up with a recommendation. Where is that? Why has that been thrown into the dustbin? Sir, even the Premadasa Government, the Chandrika Bandaranaike Kumaratunga Government and the Mahinda Rajapaksa Government, at the commencement of its term, accepted that the Thirteenth Amendment was inadequate and wanted the arrangements to resolve the Tamil question to go far beyond the Thirteenth Amendment.
The Hon. Prime Minister answering the question raised by the Hon. Anura Kumara Dissanayake said, “We will fight the war to a finish.” Probably another fifty years to end, I mean, there will be no Tamils left in this country at that point of time if you continue with the war and then you will think about the Thirteenth Amendment. The Thirteenth Amendment has no land powers. That is my view. The Bandaranaike-Chelvanayakam Pact clearly stipulated that the land powers in the North East be vested with the regional councils. The Bandaranaike-Chelvanayakam Pact clearly stated that the alienation of State land in the North East will be under the control of the regions. Only the regions will be able to alienate State land; only the regions will be able to even decide who will work in the different land development schemes in the Northern and the Eastern Provinces . The Thirteenth Amendment does not come anywhere close to that. This is what the founder of the SLFP, Mr. S. W. R. D. Bandaranaike, was prepared to concede way back in 1957, fifty one years ago, that the regional councils in the Northern and Eastern Province will be in control of State land and only they would decide on the alienation of State land.
Only they would decide who would work on land development schemes in the Northern and Eastern Provinces . No one is prepared to concede that today. The Prime Minister says that he will finish the war and think about it. Of course, I also heard the statement made by the Hon. John Amaratunga this morning that they will not vote against the defence vote. That is the prerogative of your party. I do not wish to get into that area. But I do think that in recent times, we have observed the UNP blowing hot and cold. I do not want to comment on that now. That again is a matter for you, but I do not think taking up positions purely for reasons of political expediency or with the elections in mind, can be a course of action, that would be for the ultimate good of this country. If you want this country to prosper, if you want this problem to be resolved in this country, I think it is necessary that political parties which are prepared to think and act soberly, must be prepared to come together and work together in a constructive way. Because if we cannot find a solution to this question in such an acceptable way, then you might have to face all types of other consequences.
The Prime Minister also talked about the ceasefire agreement. I do not have to say very much about it. I am not talking of the ceasefire agreement. I am only saying that if this war continues, the process of genocide against the Tamil people will be a continuing process. If genocide against the Tamil people is to come to an end, there is no alternative, but to stop this war.
Thank you
January 12, 2009 at 11:03 am
“Since my birth I lived here. Due to LTTE violence we were displaced as refugees. However I returned with others here last month. Unfortunately no body come and cares about our resettlement yet. No facilities, even a pot for cooking” this is rumble voice of 70 years old women of Rugam resettlement village.
I got this comment during my recent visit to the border village of Rugam in the district of Batticaloa, about 12miles from Chenkaladi town at Chenkaladi-Badulla Road . In the Batticaloa District, Chankaladi-Badulla road since 1983, over 12 Agrarian villages with people from Muslim community were destroyed or villagers were displaced due to the civil war between the LTTE and government. Villages, which were in LTTE-controlled area as well as on the borderline, were affected. Rugam is one of them. Thick jungle, destroyed infrastructures; indicated the LTTE activities.
The Rural Development Society (RDS) president Mahroof: “this village established on 1912 close by Rugam Tank; build on 1818. Early in 1972 348 families were lived. Most of them displaced follow the ethnic issues in 1985. 158 families’ were evocated in 1990. 09 people of among them stayed adamantly. Finally the LTTE killed them.
I asked few others regarding past experience of Rugam Village . What they wanted to highlight was that the village was wealthy and its members were satisfied with the environment within it. A middle-aged framer said “They were covered most of Batticaloa people’s vegetable and fruits need before 90’s. It had been fruit garden, vegetable garden, paddy field etc.
I could be seen; men and women both are worked together and reconstruct the boral way. One of them said they got together to help each other during times of disaster, common events as well as common celebrations. For example floods, strom, religious celebrations etc, they told me. A teacher from this village told me “this village officially not declared by the government in the resettlement village name list yet .when we asked regarding this matter with Minister of Resettlement said : now we are consider recent Tamil displaced people’s issues. Will consider regarding Muslim’s issues in future”.
In the situation of 143 families resettled them selves currently. No basic facilities. Casimbawa Ibrahim, 70years old says “I have Maintain 3Acre paddy land and vegetable garden. I have to go 500m far from my paddy land to take water for drinking and irrigation in Rugam Pond. Difficult to move at night time due to lack of electricity facilities in this area”. As I delved further into life in the village, a villager said that the people were worried about bias of government responsible officers. “Electricity power supply given till main road of Chenkaladi- Badulla. Only 500m between our village and transformer. Officers don’t take interest to provide supply. It’s happened before 90s’ also. We paid Rs.1 per acre tax for our paddy land. They covered other taxes and levy through the government officers. Unfortunately they failed to provide receipt for the payment most of time. In the same time they didn’t take any efforts to provide died or permit to our lands”. Said Ibrahim.
Regarding NGOs working there, they said normally the NGOs also don’t provide any assistance for our community, she said. Only ECARDS currently consider our matter. When I asked about what needs the people in the village had, they said they needed basic facilities, infrastructures, more educational facilities and self economic capacity building. They are need for common well to drinking water. A STF officer in charge in this area has provide three plastic water tank and filling water once a week by bowser. But couldn’t say sustainability.
Rugam GMMS; established on 1942 completely destroyed. No symbol to identify the land. Its’ seems to jungle. 400 Tamil Muslim students were in 1990’s with 6 teachers. Poetry Puratchi Kamaal was Headmaster of school. Temporary shelter, roof made by Gadjan has prepared for Nursery school. “We are going to be starting a nursery school with 40 students. In the same time we don’t have furniture, school bags and books to open school. January has started. A member of provincial council had been assisted 200 Gadjan for each family. We used that Gadjans for viewing roof” said RDS president. The mosque of Rugam not completed yet. Part of Mosque building; which used for Madarasa completely damaged. “Birds spoils inside the mosque at night time due to lack of windows, doors of Mosque” said base imam of the mosque.
Cookery items, agrarian equipments, temporary shed, self employment assistance are essential need for these people.I observed ECARDS office bearers working with these people and chatting with them; Executive Admin Secretary of ECARDS says “over 52 Agrarian Muslim villages displaced from LTTE controlled area before 90s. The challenge is to enroll these villages name in the Resettlement list. We are trying to assist with reconstruction work as well as psycho social work, capacity building and legal advises. We are welcome assistance for our work. If any body feel to help this abandoned could conduct to the following number: 94777246375 or 94776672873 Mail: iso.ecards.org@gmail.com
When I discuss with Tamils working with Muslims; “We don’t have any issues; we are all Tamil Muslims lived peacefully. I request the village president to restart ‘Kanthoory’ (its one of Muslims religious traditional function. providing rice and curry to all people living surrounding area) than I will give a cattle for that” this sentence says beyond every insurgence human being and co-existence never die due to terrorist activities.
January 8, 2009 at 3:37 pm
The resettlement of over 160,000 people displaced in Sri Lanka’s east after 2007 is nearly over and local government is optimistic of returning the remaining 8,460 people to their villages by March 2009.
The harder to tackle issue of 2,500 families displaced before 1990 is, however, simmering in the background – one of the key issues to be addressed between Muslim and Tamil communities in the East, in this writer’s opinion.
TMVP’s MP Karuna Amman told the JNW news service that long-standing land issues did exist and those who had deeds could go to the respective Divisional Secretariats to claim their land.
The Government Agent of Batticaloa Mrs Ketheeswaran also acknowledged the issue.
She said the recent focus was on resettling the large number of internally displaced persons (IDPs) since 2007. “The issue of old IDPs will have to be handled with the coordination of several agencies,” she said.
During a visit to Valaichchennai, I met Azeez a respected member of the Muslim community and a long-term resident of Valaichchennai. Last month, when he visited his paddy fields a few kilometers away, two men carrying guns told him not to come back with the veiled threat of violence if he did so.
Azeez’s family was displaced after the Liberation Tigers of Tamil Eelam (LTTE) took control of the district in 1990. Many land owners and farmers like him have to deal with new occupants and being unable to return after 18 years or longer.
Mushin, a resident following the issue in Valaichchennai, said 250 families in the area of Punani, 50 in Vakaneri and 120 in Akarana are among those unable to go back. In Punani, for example, 75% of the 204 sq km area is disputed, he said.
“It’s mostly Muslims who are affected by this issue.” “When the LTTE occupied the district right up to 2007, Tamil people were able to return to their land, but the Muslims didn’t want to go back,” he said.
Batticaloa district is endowed with miles and miles of lush paddy fields – that are some of the most viable in the island. Around 73% of the 550,000 population in the district are of Tamil ethnicity, 26% Muslim, 0.7% Burgher and 0.2% Sinhalese.
According to Mushin, and a claim voiced by others, Muslims owned 24% of land before 1990, but now they live on 2.4% and restricted to densely populated Muslim areas.
But Muslims aren’t the only ones having trouble reclaiming their land.
RETURN AFTER HARVEST
Haresh, a Tamil farmer, now in his 60s, went to the Divisional Secretariat with documents of ownership and was asked why he didn’t return for 18 years. “It wasn’t safe, that’s why we weren’t able to return,” he said.
When he visited his plot he found members of the TMVP cultivating his land.
They had requested him to wait until the current crop of paddy was harvested in two months time, promising to return it afterwards.
The DS too had advised him to wait until the harvest was over.
“I am still not sure if I will get my land back,” he said.
After decades of conflict, distrust between the Tamil and Muslim communities remains high. Sentiments expressed by Tamil people, according to observations of INFORM and CPA in 2002, include allegations of Muslims owning most of the shops (90% in Valaichchenai, 80% in Batticaloa town) & extensive paddy land and cattle herds and being involved in money lending. Some Tamil producers also accuse Muslims of paying low prices and economic exploitation.
From a Muslim perspective Mushin said the issue gets more complicated.
The north of Batticaloa is divided into five DS divisions. Koralaipattu and Koralaipattu North, West, Central and South. The administration of Korallaipattu North and Korallaipattu South, has been largely by persons of Tamil ethnicity.
Some feel there has been discrimination against Muslims with deeds given to new owners despite previous deeds being in existence. They also claim there is a reluctance to handle and process their claims by the Tamil administrators, who may also be under pressure from armed groups.
Kiran, Vandaramullai, Pasikudah, Meeranaoottu, Karamunai, Poththanai, Kallichchai, Vadamunai, Vahaneri are some of the areas in the Kalkudah electorate and Rugam, Karadianaru, Unichai, Kokkaticholai are areas further south that had Muslims living there, though now they are entirely occupied by Tamil residents, Mushin said.
Tension in the area is evident from incidents in 2002 when 96 shops were burnt in Valaichchennai. 61 were owned by Muslims and 35 by Tamils, according to the CPA report.
The real names of Azeez, Mushin and Haresh have not been mentioned in this article due to their reluctance to speak out and their concerns over armed groups, while community leaders and government officials alike have similar concerns.
AMENDING LEGISLATION
Some occupants of land have lived for the greater part of their lives and close to 18 years in plots abandoned by others. They too claim ownership, and Sri Lankan law usually allows for such claims, weakening the legal recourse available to long-term IDPs.
Researchers says long-term displacement is not restricted to the East but extends from Mannar to the North East and the number of families affected could be between 60,000 to 100,000.
The independent Centre On Housing Rights and Evictions ww.cohre.org/srilanka recommends that sections of the Prescription Ordinance No22 of 1871 be amended so as to allow IDPs to have proper legal recourse. The Registration of Title Act No. 21 of 1998 is the other relevant piece of legislation.
“The Prescription Ordinance could be amended to bring about a solution to some of the crucial land rights issues faced by Internally Displaced Persons … by including the reason of a protracted civil war as ‘a disability’ which stops the clock of prescription from running against the interests of a land owner,” the centre said.
“The benefit of this disability to the land owner could be allowed to be disregarded on the lapse of 30 years as is provided in the proviso to Section 13 of the Prescription Ordinance.”
Note: The word “resettlement” is used to mean persons being returned to their original place of residence, which is common usage in Sri Lanka, though it is not common usage in other countries. “Relocation” is used to refer to the process of settlement in a third location.
References:
COHRE Sri Lanka Newsletter – January-March 2008.
Report of INFORM and CPA fact-finding mission to Valaichchenai and Batticaloa July 24 2002
December 16, 2008 at 1:52 pm
In every healthy music scene in the world there exist venues or gigs which act as melting pots for musicians to interact and create music without the pressures of conforming to commercial norms and popular trends. Irrespective of style and genre, the Colombo music scene seriously lacks either one of these.
A Musicians gig; A regular musical evening to challenge the music lovers’ ears; A musical evening which would encourage and foster new high quality music; An opportunity for all involved to experience the true meaning of artistic expression.
Setting up such an evening has been one of the main goals of recently returned Sri Lankan musicians Eshantha Peiris and Sumudi Suraweera. Both these young musicians have decided to base themselves in their home country for the next few years with an aim of building a musical culture and an appreciation for good music. Eshantha, a pianist, having recently completed a Masters in music composition in New York has already returned, while Sumudi, a drummer, in his last year of completing his Doctorate in Ethnomusicology hopes to return permanently by the middle of next year.
Their idea for a creative music evening was welcomed by the founder of the Punchi Theatre in Borella, Mr Namel Weeramuni.
Creative Music Evenings will be held every other Wednesday at the Punchi Theatre Rooftop (Cotta Road, Borella).
Entrance priced Rs.200 (Rs.100 for students) at the door.
November 13, 2008 at 12:23 pm
IN THE SUPREME COURT OF THE
DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an Application under Article 126 of the Constitution of the Democratic Socialist Republic of Sri Lanka
Vasudeva Nanayakkara
Attorney-at-Law
Advisor to His Excellency the President
Secretary, The Democratic Left Front
49 1/1, Vinayalankara Mawatha
Colombo 10.
Petitioner
SC FR Application No. 158/2007 Vs
1. K.N. Choksy M.P.
President’s Counsel
Former Minister of Finance
23/3, Sir Ernst De Silva Mawatha
Colombo 7.
2. Milinda Moragoda M.P.
Former Minister of Economic Reform
3/2, Allen Methiniyarama Road
Colombo 5.
3. Sripathy Sooriyarachchi M.P.
Attorney-at-Law
Former Minister, Public Enterprise Reforms
22, Niwasa Mawatha
Rilaulla
Kadana.
4. Charitha Ratwatte
Former Secretary to the Treasury
16, Jawatte Road
Colombo 5.
5. Faiz Mohideen
Former Deputy Secretary to the Treasury
5/2, Liberty Plaza Flats
250, R.A. De Mel Mawatha
Colombo 3.
6. N. Pathmanathan
Former Deputy Secretary to the Treasury
16, Gregory’s Place
Dehiwela.
7. P.B. Jayasundera
Secretary to the Treasury / Former Chairman,
Public Enterprises Reform Commission (PERC)
The Secretariat
Colombo 1.
8. Chrisantha Perera
Former Chairman, PERC / Sri Lanka Insurance Corporation Ltd. (SLIC)
40/10, Lake Garden, Off Lake Drive
Rajagiriya.
9. M. Kandasamy
Member of the Steering Committee / General Manager SLIC
“Rakshana Mandiraya”
21, Vauxhall Street
Colombo 2.
10. V. Kanagasabapathy
Chartered Accountant
Member of the Steering Committee /
Former Member of PERC
79/3, W.A Silva Mawatha
Colombo 6.
11. Dayanath Jayasuriya
Member Steering Committee /
Former Director General SEC / Member PERC
Apt. 3/1, Seagull Appartments
12, Melbourne Avenue
Colombo 4.
12. Rani Jayamaha
Member Steering Committee / Deputy Governor Central Bank
30, Janadhipathi Mawatha
Colombo 1.
13. Nihal Sri Ameresekere
Chartered Accountant
Former Chairman, PERC
167/4, Vipulasena Mawatha
Colombo 10.
14. M.D. Bandusena
Chairman, PERC
11-01, West Tower, World Trade Center
Colombo 1.
15. Shamalee Gunawardene
Attorney-at-Law
Former Director Legal, PERC
500/111, Thimbirigasyaya Road
Colombo 5.
16. Aneela De Soysa
Chartered Accountant
Former Director PERC / Later Partner PricewaterhouseCoopers, Sri Lanka
207/22, Dharmapala Mawatha
Colombo 7.
17. PT PricewaterhouseCoopers FAS
Gedung PricewaterhouseCoopers
J1 H.R., Rasuna Said, Kav C – 3
Jakarta 12920
Indonesia.
18. Roger De Montfort
Chartered Accountant
Former Attorney – In Fact
PT PricewaterhouseCoopers FAS
Gedung PricewaterhouseCoopers
J1 H.R., Rasunasaid, Kav C – 3
Jakarta 12920
Indonesia.
19. Devasiri Rodrigo
Chartered Accountant
Former Senior Partner
PricewaterhouseCoopers
42/8, Rosmead Place
Colombo 7.
20. Y. Kanagasabai
Chartered Accountant
Senior Partner
PricewaterhouseCoopers
100, Braybrooke Place
Colombo 2.
21. S. Manoharan
Chartered Accountant
Partner
PricewaterhouseCoopers
100, Braybrooke Place
Colombo 2.
22. Asite Talwatte
Chartered Accountant
Senior Partner
Ernst & Young
201, De Saram Place
Colombo 10.
23. Ruwan Fernando
Chartered Accountant
Partner
Ernst & Young
201, De Saram Place
Colombo 10.
24. Distilleries Company of Sri Lanka Ltd.
110, Norris Canal Road
Colombo 10.
25. Aitken Spence & Company Ltd.
305, Vauxhall Towers
Vauxhall Street
Colombo 2.
26. Aitken Spence Insurance (Pvt) Ltd.
305, Vauxhall Towers
Vauxhall Street
Colombo 2.
27. Sri Lanka Insurance Corporation Ltd.
“Rakshana Mandiraya”
21, Vauxhall Street
Colombo 2.
28. Milford Holdings (Pvt) Ltd.
110, Norris Canal Road
Colombo 10.
29. Greenfield Pacific EM Holdings Ltd.
C/o Asia Box Consultancy Services (Pte) Ltd.,
61, Club Street
Singapore 069436.
30. Channa De Silva
Director General
Securities & Exchange Commission of Sri Lanka (SEC)
Level 11-01, East Tower
World Trade Center
Echelon Square
Colombo 1.
31. President
Institute of Chartered Accountants of Sri Lanka
30 A, Malalasekera Mawatha
Colombo 7.
32. F.H. Puvimanasinghe
Chartered Accountant
Senior Partner,
F.H. Puvimanasinghe & Co.
126-2/1, 2nd Floor, YM.B.A. Building
Sir Baron Jayatilleke Mawatha
Colombo 1.
33. Wijeyadasa Rajapakshe M.P.
President’s Counsel
Chairman, Parliamentary Committee on Public Enterprises (COPE)
17, Wijeba Mawatha
Off Nawala Road
Nugegoda.
34. Inspector General of Police
Police Headquarters
Colombo 1.
35. Deputy Inspector General of Police
Criminal Investigation Department
4th Floor, New Secretariat Building
Colombo 1.
36. Chairman
Commission to Investigate Allegations of Bribery or Corruption
36, Malalasekera Mawatha
Colombo 7.
37. Hon. Attorney General
Attorney General’s Department
Colombo 12.
38. D.H.S. Jayawardhene
C/o Milford Holdings (Pvt) Ltd.
110, Norris Canal Road
Colombo 10.
Respondents
TO: HIS LORDSHIP THE CHIEF JUSTICE AND THEIR LORDSHIPS AND LADYSHIPS THE OTHER HONOURABLE JUSTICES OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
WRITTEN SUBMISSIONS OF THE PETITIONER
1. The Petitioner is an Attorney-at-Law and the Secretary, The Democratic Left Front, Advisor to His Excellency the President, Leader of the Opposition, Colombo Municipal Council and former Member of Parliament and filed this Application in the national and public interest representing the rights of the citizens of the country, to enforce the right to equality before the law, which has been denied by unjust, wrongful, unlawful, unreasonable, arbitrary, capricious and mala-fide administrative and executive actions.
2. The Petitioner invoked the jurisdiction of Your Lordships’ Court in terms of Article 126, read with Articles 3, 4 and 17 of the Constitution, to examine the transaction in issue and to make requisite Orders, upholding the Directive Principles of State Policy and Fundamental Duties enshrined in Chapter VI of the Constitution, to protect and safeguard public property that belongs to the People, and which property is held in trust for the People, and any brazen abuse of power to wrongfully alienate or misappropriate the benefit of such public resources, conferring undue and unjust benefit or gain on a privileged few, to the loss and detriment of the People, is an infringement of the fundamental right to equality before the law guaranteed by Articles 12 (1) and 12 (2) of the Constitution, and any such act, if unchecked, uncorrected and not denounced, would render such Constitutional guarantee of equality before the law meaningless.
3. Your Lordships’ Court, in S.C (F.R.) Application No. 503/2005, upheld that good governance and transparency characterise Democracy and the Rule of Law, and where an infringement of equality before the law is alleged by the wrongful and unlawful grant of facilities and benefits at the highest level of the executive, strict rules of pleadings cannot be insisted upon; also citing also “Sed quis custodiet ipsos Custodes ?” i.e. “but who is to guard the guards themselves ?”; and that Cabinet of Ministers were the custodians of public property and public funds, and such property and funds will have to be dealt with according to law for the benefit of the People, and that therefore the law itself is the instrumentality through which custodians are guarded, which is the basic postulate of the Rule of Law.
4. a) The whole process of the privatisation of the SLIC was initiated by the 2nd Respondent by Letter dated 21.1.2002 P1 appointing a Steering Committee.
b) The said Steering Committee, without Cabinet Approval, solicited offers and appointed PWC Indonesia as the Consultants for the Government of Sri Lanka, to provide Investment Banking & Legal Advisory Services at a Fee of around US $ 1.6 million for the Sale of the 90% Shares of SLIC P2.
c) PWC, Indonesia acted through its Attorney, the 18th Respondent, and at all times acted in concert with their local counterparts PWC, Sri Lanka.
d) 16th Respondent, as a Director of PERC and Secretary, Steering Committee, having been involved in the process of privatisation of SLIC, just about one month prior to the execution of the sale Agreement on 11.4.2003, joined PWC, Sri Lanka, as a Partner.
5. a) Having appointed the Steering Committee, 2nd Respondent forwarded a Cabinet Memorandum dated 28.2.2002 P3 and sought Cabinet Approvals to initiate action on the Sale of 90% Shares of SLIC by appointing a Technical Evaluation Committee (TEC) and a Tender Board.
b) The Cabinet on 18.4.2002 P4 approved the above Cabinet Memorandum, subject to a Tender Board being appointed by the Cabinet, itself, and the 2nd Respondent was required to report to the Cabinet on the feasibility of the sale of the ownership of SLIC, retaining a minority Shareholding for the Government.
c) Though Cabinet had not granted approval for the appointment of a Tender Board, disregarding the Cabinet Decision, 6th Respondent by Letter dated 7.8.2002 at the request by Letter dated 29.7.2002, of the 7th Respondent, as then Chairman PERC had appointed a Tender Board, appointing, himself, as its Chairman – P5(a) and 5(b).
d) 6th Respondent could not have so acted in breach of the Cabinet Decision, without the knowledge and approval of the 1st and 4th Respondents, who would have received the Cabinet Decision, where the Cabinet decided to appoint a Tender Board by itself, expressly refusing approval for the Secretary to the Treasury to appoint a Tender Board.
e) In terms of the PERC Act No. 1 of 1996, the 4th Respondent, as the Secretary to the Treasury, was an ex-officio Member of PERC.
f) 6th Respondent by Letter dated 7.8.2002 had appointed a TEC, to handle the evaluation process, drawing specific attention to the Government Tender Procedure Guidelines and Public Finance Circulars.
6. a) Expressions of interests for the Sale of 90% Shares of SLIC were invited from about mid July 2002 on behalf of the Government by the Government’s Consultants PWC, both Indonesia and Sri Lanka, giving the contact names of the 18th Respondent (PWC Indonesia) and 21st Respondent (PWC Sri Lanka).
b) By 23.8.2002, 17 parties had expressed interest in the purchase of 90% Shares of SLIC.
c) On 25.3.2003 the TEC, after an evaluation process, had recommended the 90% Sale of SLIC to a consortium comprising 24th, 25th and 26th Respondents
d) 24th and 25th Respondents were well known, financially strong, listed public companies, whilst the 26th Respondent was to work with Technical Partner, ING Institutional & Government Advisory Services BV, Holland.
e) TEC evaluation has been on ‘ranking’ on a ‘points awarding system’ for factors – ‘operational experience in life and general insurance industry’, ‘financial capacity to operate SLIC’ and ‘business plan to develop future business’ – P7.
7. a) The ‘indicative valuation’ of SLIC by PWC had taken into reckoning both the General Insurance Fund and Life Insurance Fund, and had indicated a value in the range of Rs. 5,102 million to Rs. 5,377 million.
b) The ‘indicative valuation’ had been on the basis of a ‘Net Present Value of a Discounted Cash-flow’. The Net Profits of SLIC for the year ended 31.12.2001 had been around Rs.1,162 million. A ‘price earnings multiple’ of around ‘10’ had been considered, but on an unexplained adjusted annual profit of SLIC of around only Rs.420 million – P8.
c) The ‘net assets value’ of SLIC has been reckoned on historical book values, which disclose the Land, Buildings, Plant and Equipment only at Rs.275 million, as per the SLIC Accounts.
8. On the same day as the TEC Report on 25.3.2003, the Tender Board constituted in violation of the Cabinet Decision, had approved the TEC recommendation - P9.
9. a) 2nd Respondent had forwarded a Cabinet Memorandum dated 27.3.2003, P10, disclosing that 5 parties had been short-listed, recommending the Sale of 90% Shares of SLIC, at a consideration of Rs.6050 million, to the Consortium comprising;
- Distilleries Company of Sri Lanka Ltd., - (24th Respondent)
- Aitken Spence Co. Ltd., - (25th Respondent)
- Aitken Spence Insurance (Pvt) Ltd., - (26th Respondent)
with Technical Partner, ING Institutional &
Government Advisory Services BV (Holland)
b) Cabinet Approval had been granted for the above on 2.4.2003 – P11.
10. a) In blatant violation of the Cabinet Decision, an Agreement P13 structured by PWC and finalised by the 15th Respondent, then Director Legal, PERC, who has also signed as a Witness, for the Sale of 90% Shares of SLIC had been signed on 11.4.2003 on behalf of the Government by the 5th Respondent, as Acting Secretary to the Treasury, not with the above selected and Cabinet approved parties, but with the following new parties, as Purchasers;
- Milford Holdings (Pvt) Ltd., incorporated on 31.3.2003 (28th Respondent)
- Greenfield Pacific EM Holdings Ltd., incorporated in Gibraltar on 28.3.2003. (29th Respondent)
b) Both companies had not been even in existence on the date of the Cabinet Memorandum of 27.3.2003.
c) Distilleries Company of Sri Lanka Ltd., (24th Respondent), Aitken Spence & Co. Ltd., (25th Respondent) and Aitken Spence Insurance (Pvt) Ltd., (26th Respondent) have signed the said Agreement of 11.4.2003, as Guarantors, guaranteeing the payment of the purchase consideration to the Government by the aforesaid Purchasers.
d) D.H.S. Jayawardene (38th Respondent) has signed on behalf of the 2 Purchasers and the 3 Guarantors.
e) P.B. Jayasundera (7th Respondent), who had been Chairman PERC since January 1997, had curiously resigned in or about January 2003 and had continued thereafter as Senior Advisor PERC, in effect de-facto Chairman, whilst G. Hewagama had been Chairman PERC from January 2003.
f) Chrishantha Perera (8th Respondent), Chairman SLIC had been appointed Chairman PERC, after the aforesaid Agreement for the Sale of 90% Shares of SLIC had been signed on 11.4.2003, whilst P.B. Jayasundera (7th Respondent) had continued to be Senior Advisor, PERC until February 2004.
g) Chrishantha Perera (8th Respondent) is now a Director of DFCC, as a nominee of the said D.H.S. Jayawardene / his Companies.
11. a) The two private Companies, Milford Holdings (Pvt) Ltd., (28th Respondent) and Greenfield Pacific EM Holdings Ltd., Gibraltar, (29th Respondent) had never expressed any interest, and therefore had not been evaluated by the TEC.
b) Greenfield Pacific EM Holdings Ltd., Gibraltar (29th Respondent), whose effective owner is Societes General, a Bank whose main area of business activity is in ‘Trust Structures’ has chosen not to disclose to Court who the actual beneficial owners of the money that was invested, raising serious questions as to whether this was also a money laundering exercise..
c) ‘Non-evaluated’ and ‘non-existent parties’, could not be substituted, in place of the duly ‘evaluated and selected parties’, as per Government Tender Procedure Guidelines and Public Finance Circulars, to which the 6th Respondent had specifically drawn attention to by his Letter dated 7.8.2002 [P5(a)] in appointing the Tender Board and TEC.
d) It is grossly in contempt of the norms of government tender evaluation process and a blatant violation of Government tender procedure, to have allowed an ‘unevaluated party’, who had not even expressed interest, to be substituted in place of an ‘evaluated and selected party’, who had been selected and approved by the Cabinet.
e) This is an infringement of the fundamental rights guaranteed under the Constitution of the other parties, who had been evaluated ‘on ranking’ on a ‘point awarding system’ for factors – ‘operational experience in life and general insurance industry’, ‘financial capacity to operate SLIC’ and ‘business plan to develop future business’.
f) Such dubious and surreptitious substitution had made a ‘mockery’ of the entire Government ‘tender evaluation process’, which had been carried out on specific criteria on a ranking system by the TEC.
g) Also, Distilleries Company of Sri Lanka Ltd., (24th Respondent) and Aitken Spence & Co. Ltd. (25th Respondent) both being financially strong listed public companies, had been selected after the above evaluation process.
h) These two listed public companies’ rights and entitlements to purchase 90% Shares of SLIC, as had been selected, had been misappropriated by the said two private Companies, owned and/or controlled by one of the Shareholders of the said two listed public Companies, thereby defrauding the said two listed public Companies and their Shareholders.
i) 30th Respondent, as the Director General, SEC, who is statutorily mandated to protect the interests of public investors, could not have turned a ‘blind eye’ to the investigations before COPE into the transaction in issue carried out by PERC, of which he is an ex-officio Member in terms of PERC Act No. 1 of 1996.
12. a) Audited Accounts of SLIC for the Year Ended 31.12.2001 had been certified by its Auditors, Ernst & Young on 11.6.2002 - P14.
b) Though the Audited Accounts of SLIC as at 31.12.2001 were available on 11.6.2002, the Steering Committee for some ‘mysterious’ reason had required Ernst & Young, Auditors of SLIC, to prepare SLIC Accounts as at 31.3.2002 (to a date just 3 Months after 31.12.2001), which Accounts had been signed by Ernst & Young on 9.8.2002 as un-audited Accounts, containing several comments, expressly stating – “We have not performed an audit, and accordingly do not express an opinion”- P15.
c) Un-audited Accounts of SLIC as at 31.3.2002 dated 9.8.2002 had been held out by Ernst & Young to be Accounts of SLIC, re-presented according to International Accounting Standards.
d) As per Minutes of the Steering Committee, Ernst & Young had sent a proposal to re-state the SLIC Financial Statements, according to International Accounting Standards, and have quoted a fee of around US $ 81,000/- for an IAS Audit. (International Accounting Standards Audit)
e) The above position held out by Ernst & Young that the SLIC Accounts as at 31.3.2002 were in conformity with International Accounting Standards had not been questioned by the Government’s Consultants, PWC, who by their conduct had corroborated such position.
13. a) PWC, as Consultants to the Government, had rendered professional services to carry out the Sale of 90% Shares of SLIC, making necessary arrangements and structuring the Agreement, under the supervision of the Steering Committee in terms of their Contract with the Government (P2).
b) Offers for the Sale of 90% Shares of SLIC had been received, inter-alia, on the basis of the un-audited SLIC Accounts as at 31.3.2002 of Ernst & Young dated 9.8.2002, whilr the audited Accounts of SLIC as at 31.12.2001 dated 11.6.2002 had been available.
c) Whilst the audited Accounts of SLIC as at 31.12.2001, in accordance with accounting policy had shown the Current Assets and Current Liabilities separately on the Balance Sheet, the un-audited Accounts of SLIC as at 31.3.2002 had not shown the Current Assets and Current Liabilities separately on the Balance Sheet or even by a Note thereto, deviating from the accounting policy, which had been followed by SLIC.
d) No explanation had been given on the SLIC un-audited Accounts as at 31.3.2002 of Ernst & Young dated 9.8.2002, as to why there had been a change in the above accounting policy. What had been held out is that the SLIC Accounts as at 31.3.2002 had been re-stated in accordance with International Accounting Standards.
e) It has subsequently been revealed to COPE by the 13th Respondent, that the International Accounting Standards Board had confirmed that Current Assets and Current Liabilities should be shown on the Balance Sheet or disclosed by way of a Note thereto in accordance with International Accounting Standards.
14. a) Agreement P13 dated 11.4.2003 for the Sale of 90% Shares of SLIC structured by PWC had been on the basis of the SLIC un-audited Accounts as at 31.3.2002 dated 9.8.2002.
b) Hence, Clause 4 of the Agreement had provided for an adjustment to the aforesaid purchase consideration of Rs.6050 million for the 90% Shares of SLIC by the increase or decrease in the Net Working Capital between 31.3.2002 and the date of Sale 11.4.2003; Net Working Capital had been defined in Agreement dated 11.4.2003 to be – ‘the Current Assets less Current Liabilities’.
c) For the computation of the aforesaid adjustment to the purchase consideration, in terms of the Agreement P13 structured by PWC, requiring such adjustment to be made to the purchase consideration, the Current Assets and Current Liabilities of SLIC should have been shown on the Balance Sheet as at 31.3.2002 signed by Ernst & Young, on the basis of which 90% Shares of SLIC had been sold.
d) Audited Accounts of SLIC for the year ended 31.12.2002 had been certified by Ernst & Young on 28.11.2003, after the Purchasers had taken over from 11.4.2003 the management of SLIC, once again showing the Current Assets and Current Liabilities of SLIC separately on the Balance Sheet, in conformity with the accounting policy followed by SLIC.
e) The SLIC Balance Sheet as at 31.12.2002 P17, which had shown the comparative figures as at 31.12.2001, had revealed that over Rs.3000 million of Fixed Assets of SLIC had been re-stated as Current Assets retrospectively as at 31.12.2001, without any explanation given therefor; whilst such questionable re-statement had an adverse impact on the New Working Capital increase, for the adjustment to be made to the purchase consideration to be paid to the Government.
f) PERC by Letter dated 9.10.2002 had required SLIC not to commit any material and extra-ordinary transactions, except its ordinarily business, until the finalisation of the re-structuring process underway.
g) PWC in structuring the Agreement for the Sale of 90% Shares of SLIC, as aforesaid, instead of taking into reckoning the increase or decrease of the ‘total Net Assets’, intriguingly had provided for only the increase or decrease in the ‘Net Current Assets’, which is the Net Working Capital.
h) The total investment portfolio under the management and control of SLIC as at 31.12.2002 had been stated to be Rs. 22,616.7 million, as per the SLIC Audited Balance Sheet as at 31.12.2002.
15. a) Ernst & Young, who were Auditors of SLIC, had been required to prepare the Accounts of SLIC as at date of Sale 11.4.2003, and to afford the computation of the increase or decrease in the Net Working Capital of SLIC between the said two dates 31.3.2002 and 11.4.2003 to make the requisite adjustment to the purchase consideration.
b) Ernst & Young forwarded the SLIC Accounts as at 11.4.2003 signed on 26.3.2004, again as un-audited Accounts expressly stating – “We have not performed an audit, and accordingly do not express an opinion”.
c) As per Clause 4 of the Agreement dated 11.4.2003 the above computation to make adjustment to the purchase consideration had to be completed, not later than 60 days from 11.4.2003, i.e., by 11.6.2003.
d) Ernst & Young having undertaken to forward the foregoing and having requested and obtained 16 extensions, (P19) directly by themselves and/or through SLIC, from June 2003 to October 2004, to carry out the above, and having intimated that they had nearly completed the same, however finally had questionably reneged from discharging their duty and obligation. PWC as Government’s Consultants had been aware of this position.
e) A Government transaction of such large magnitude could never be concluded on the basis of un-audited Accounts.
16. a) In December 2005, 3rd Respondent as Minister of Public Enterprise Reform in charge of PERC, had forwarded a Cabinet Memorandum (P23) on the transaction in issue, setting out the conduct of Ernst & Young and PWC, recommending administrative measures to be taken until the matter is resolved, and legal action against the relevant parties to be expedited by the 37th Respondent, who had already forwarded Letters dated 9.2.2005 and 11.4.2005 to both Ernst & Young and PWC - P21.
b) No action appears to have been taken on the 3rd Respondent’s Cabinet Memorandum of December 2005.
17. Various professionals have acted with very serious conflicts of interest in this transaction as shown below:
a) 19th Respondent, Senior Partner of PWC had been a Member, Steering Committee, which had selected PWC as Consultants to the Government, and had continued thereafter as a Member, Steering Committee, supervising the work of PWC and approving payments to them - P24.
b) 16th Respondent had been a Director, PERC and Secretary, Steering Committee, handling this transaction, as the ‘Transaction Manager’ and had joined PWC as a Partner in March 2003, just prior to the execution on 11.4.2003 of the Agreement to sell 90% Shares of SLIC.
c) Ernst & Young, had been Auditors of SLIC, when the Government was 100% owner, and had continued to be Auditors of SLIC after the Sale of 90% Shares of SLIC to the Purchasers, and thereby had failed and neglected to discharge their duty and responsibility to the Government.
d) 7th Respondent, who had handled this transaction as Chairman / Senior Advisor, PERC, and thereafter as Secretary to the Treasury and ex-officio Member of PERC had been a Senior Policy Advisor to Ernst & Young, and had failed and neglected to take action to protect the interests of the Government.
18. It is respectfully submitted that:
a) The impugned Agreement P13 is a nullity for the reason that the parties with whom it was entered into for and on behalf of the GOSL, are not the parties to whom the Cabinet approved the sale of 90% shares in SLIC.
b) The process employed for the preparation of the ‘indicative valuation’ was totally flawed inasmuch as it did not have any prior authorisation from the Cabinet and was seriously riddled with conflicts of interest as has been demonstrated.
c) Admittedly the ‘indicative valuation’ does not include the value of land and buildings. The valuation said to have been made for same by various persons is obviously a sham prepared for the purpose of these proceedings. Even if one goes by that value, together with PWC’s indicative value of the business, the value of the shares would have been at least Rs.7,500 million. The cabinet has been deliberately misled by stating that the offer of Rs.6,050 million was far in excess of the indicative value.
d) There is no explanation as to how only a figure of Rs.420 million was taken as profit for the calculation of the indicative valuation, when for that very year, the actual profit was at least 3 times that amount.
e) The amateurish actions of the professionals in trying to ‘fudge’ the accounts by preparing two sets of ‘unaudited’ accounts for the crucial two dates, without showing the fixed and current assets and liabilities separately, when that very figure was the one that was necessary for this very purpose, is appalling to say the least!
f) Since the ‘price adjustment’ envisaged in P13 has not taken place, and indeed unable to take place, pleas of prescription of time by various Respondents become irrelevant. The transaction is still open.
g) the conduct and actions of some of the Respondents, in the perpetration of the transaction in issue are executive and administrative actions within the meaning of Article 17, read with Article 126 of the Constitution, which said acts have infringed and continue to infringe the fundamental rights of the Petitioner and the citizens of the country, guaranteed under Articles 12 (1) and 12(2) of the Constitution.
h) the 10th , 13th, 16th ,19th, 20th, 21st, 22nd, 23rd, 31st and 32nd Respondents are Members of the Institute of Chartered Accountants of Sri Lanka, a statutory body established by Act No. 23 of 1959, as amended, and to which said statutory body contributions have been made from the Consolidated Fund. The said Respondents hold Membership of said statutory body and their conduct and actions are governed and regulated by the provisions of said Act and the Regulations gazetted thereunder.
i) from the foregoing facts, it is abundantly clear that the Government had been misled and had been taken for a ride, with deliberate intentional pre-designed misleading misrepresentations, resulting in the frustration of the transaction in issue, and in addition, causing grave loss and damage and mischief to the Government, that is the public, wrongfully and unjustly causing the alienation / alienating and/or unjustly causing misappropriation / misappropriating the property of the public held in trust, with the deliberate intent of conferring unjust, wrongful and unlawful enormous benefit on a privileged few, in blatant violation of the constitutional safeguards.
j) the transaction in issue has caused enormous loss and detriment to the Petitioner and the citizens of the country, and continues to cause enormous loss and detriment, conferring unjust, wrongful and unlawful benefit and enrichment to a privileged few, impoverishing the millions of the poor of the country.
k) This transaction discloses an obnoxious, wrongful and unlawful action, causing enormous loss and detriment to the Government and the public, including the Petitioner, wrongfully and unlawfully brazenly conferring unjust enrichment on a privileged few, violating the Rule of Law, with misuse and abuse of power in breach of the trust of the People.
19. In these circumstances, it is submitted respectfully that Your Lordships’ Court will exercise the just and equitable jurisdiction vested in Your Lordships and grant the reliefs prayed for in the Petition.
September 3, 2008 at 2:58 pm
(The inaugural K.C. Kamalasabayson, PC Memorial Oration organised by the K.C. Kamalasabayson, PC Foundation, was delivered by Supreme Court Justice Saleem Marsoof, PC on the topic “Some Thoughts on the Sovereignty of the People and the Rule of Law“, amidst a distinguished gathering, comprising judges, legal luminaries, civil servants and members of the public, at HNB Towers on 22nd August 2008.)
some thoughts on the sovereignty of the People AND THE RULE OF LAW
The Inaugural K.C. Kamalasabayson, P.C Memorial Oration
delivered by
Justice Saleem Marsoof, P.C.
Judge of the Supreme Court of Sri Lanka
My Lord the Chief Justice Sarath N. Silva P.C., Hon. C.R. de Silva, P.C., Attorney-General of Sri Lanka, Justice Dr. C.G. Weeramantry, Judges of the Superior Courts and other members of the judiciary, Mr. W. Dayaratne, President of the Bar Association of Sri Lanka, Dr. W. D. Rodrigo, Principal, Sri Lanka Law College, Mr. W.P.G Dep, Solicitor General, Mrs. Ramani Kamalasabayson, Miss Vidhya Kamalasabayson and other members of the Kamalasabayson family, President’s Counsel, members of the Attorney-General’s Department, distinguished guests and ladies and gentlemen,
Today we pay tribute to the memory of late Kandappar Chinniah Kamalasabayson, who will be remembered as one of the most distinguished Attorneys-General Sri Lanka ever produced, and who has left a lasting impression in our minds and hearts as a great son of our land. He was snatched away from our midst by the deadliest of all deceases, and his untimely demise was an irreparable loss to our country and to humanity.
Moved by my sense of gratitude towards a man who has been my friend, philosopher and guide, and the passion for justice which I shared with him, I accepted with humility the invitation extended to me by the Kamalasabayson Foundation to make this inaugural oration, but I hesitated very much before saying “yes” to Mrs. Ramani Kamalasabayson, because I feared that I may not be able to do justice to his character and accomplishments or match his professional and intellectual attainments or oratorical skills. Nevertheless, I consider it a privilege and honor to be invited to make this oration before such a large and learned audience, and I take this opportunity to thank the organizers for their kind invitation, and seek your indulgence if I fall short of your expectations.
The late Mr. Kamalasabayson, commenced his education at Hindu Primary School and continued his studies at S. Thomas’ College, Mt. Lavinia from where he entered Ceylon Law College. Both at school and at the Law College, he excelled in studies, oratory and debating. He passed the Final Examination for Admission of Advocates held in November, 1971 with honors and won the gold medal for oratory. He devilled in the Chambers of the late Mr. G.F. Sethukavalar, P.C., and his elder brother the late Mr. K.C. Kamlanathan, and on completion of his apprenticeship, was enrolled as an Advocate of the Supreme Court of Sri Lanka on 23rd June, 1972.
Mr. Kamalasabayson was known as “Kamale” to his schoolmates at S. Thomas College, Mt. Lavinia, and as “Saba” to his colleagues at the Bar, but to me he was always Kamal, and that is how I propose to refer to him in the course of this oration. After taking his oaths, Kamal began practicing under Senior Lawyer Mr. Bala Nadaraja, who commanded a tremendous civil practice. Kamal loved his noble profession, and enjoyed every minute of his work. His sterling qualities made him very popular among his colleagues, and he showed all signs of maturing into a busy practitioner commanding a lucrative legal practice. But that was not to be, as after little more than two years in the Unofficial Bar, he chose to join the Attorney-General’s Department as an Acting State Counsel in August 1974.
Our paths converged when I joined the Department in September 1975, a little more than a year behind Kamal, and this gave me the opportunity to work closely with him and learn from him not only the mundane and sometimes boring aspects of the law, but also exciting things about life. I must say that I took an instant liking to Kamal, and the qualities of Kamal I remember most were his simplicity, sincerity and straightforwardness.
When I first met Kamal, he was a youthful and handsome prince, and I was able to go up the seniority ladder in the Department almost behind him, to occupy positions as Senior State Counsel, Deputy Solicitor General, and Additional Solicitor General until he became the king by reaching the pinnacle of the Official Bar in October 1999, when he was appointed to the exalted office of Attorney-General of Sri Lanka. In my humble view, he was one of the greatest Attorneys-General we ever had.
Let me at this stage digress a little to Kamal’s personal life. Although Kamal was one of the best Counsel in the Official Bar, which naturally would have placed him high on the “marriage market,” he remained a bachelor even after his promotion as Senior State Counsel. Only later did we discover that this was not because he had no heart – indeed, we all knew him as a wonderful human being with a big heart – but there was someone who had stolen his heart, and that was none other than Ramani. When he was yet a school boy attending S. Thomas’ College, Kamal was a great debater, and during one of the inter-college debates he had met Ramani, who debated for her school, Holy Family Convent, Bambalapitiya. It was love at first sight, but fate had its way, and their association sadly did not mature into marriage. Seventeen years later – during which he had almost got used to his bachelorhood – he met Ramani as a young widow. He used to tell us, “I missed her once; I don’t want to miss her again”. He married Ramani in 1986 and gave her a new life and a lovely daughter Vidhya, who is herself following in her father’s footsteps. He, no doubt, was a man with a golden heart, a loving husband and an exemplary father.
Coming back to Kamal’s professional career, which was crowned in June 1996 by the conferment of silk in recognition of his eminence in the Bar, I must say Kamal was a Counsel par excellence. Although he had mastered every conceivable field of law, including even the complexities of custom, tax, corporate, securities and extradition law, it was in the arena of Public law that Kamal left a lasting impression as Counsel. The law reports of the last three decades are studded with cases in which Kamal had appeared, which included a large number of writ applications, election related cases, fundamental rights applications, and constitutionality determinations. Many of the cases in which Kamal appeared are regarded as landmark decisions in Sri Lanka, and more often than not, he has been complimented by the judges who heard the cases for the excellent manner in which he assisted court.
When we pay tribute to a personality of the caliber of Kamal, it is natural that we focus on his favorite theme, which has to be in the area of Public law. This suits me well, as the constitutional issue of governance always intrigued me, although during my school days, Mr. Canakaratne who taught me ‘Government’ at Royal College in the Advanced level class, did not readily agree with my assertion that the best form of government is an enlightened dictatorship. What led me to this belief was the premise that democracy involves the rule of the majority, and in my experience the majority was, more often than not, wrong in its decision making. I must hasten to add that I have since modified my own views on these matters, as I have now come to realize that an informed majority is more likely to be right in its decisions.
Kamal used to say that power corrupts, and absolute power corrupts absolutely. He believed that for proper and effective governance, power should be shared, and it should be shared vertically as well as horizontally. Vertical power transfer can take the form of centralization of power from the periphery to the centre as in the United States, or decentralization of power from the centre to the periphery as in India and in Sri Lanka. Horizontal sharing of power takes place when through the “separation of powers” as advocated by Dicey the concentration of power in one person or body is avoided, and the legislative, executive and judicial functions are vested in different organs of State. Kamal had mastery of these constitutional concepts, and was fully conversant with the provisions of the Constitution contained in the Thirteenth Amendment relating to the devolution of powers to the Provinces. He knew the three lists in the Eighth Schedule to the Constitution inside out, and this helped him to handle all sorts of cases and problems in this very complex area of the law.
In all his work, whether it be advising the government or its agencies, or representing the State in court and other forums, Kamal always respected the concept of ‘Sovereignty of the People’, with its corollary that all governmental power emanate from the people, and that all government agencies, whether legislative, executive or judicial, are answerable to the people and must exercise their power in trust for the people and in accordance with the ‘Rule of Law’. To him, the ‘Rule of Law’ was just one attribute of the ‘Sovereignty of the People’. He was a “people-friendly” Attorney-General who always had the best interest of the people in mind, and his life work can best be summed up with the Latin maxim, salus populi est suprema lex meaning “regard for public welfare is the highest law”. It is therefore appropriate that I focus in my oration on the twin concepts of ‘Sovereignty of the People’ and ‘The Rule of Law’, which were so close to Kamal’s heart.
As we all know, the pre-Independence Constitutions of Sri Lanka such as the Donoughmore and the Soulbury Constitutions derived their authority from the British Crown, and not from the people of this country. The independence of the Parliament of Ceylon was ensured by the Independence Act enacted by the Parliament of the United Kingdom in 1947. After little more than two decades of independence, it was considered necessary to break away from the past, and have a Constitution of our own which also did away with certain limitations on the legislative power of Parliament which had been imposed by the Soulbury Constitution. Thus, in 1972, the people gave the United Front government a mandate to set up a Constituent Assembly to make and proclaim a new Constitution having no legal links to the then existing Constitution or to any British authority. The representatives of the people met symbolically at Nawarangahala, the auditorium of the Primary Section of Royal College, and not at the House of Representatives which was the legislative assembly created by the Soulbury Constitution, and proclaimed a Republican Constitution which derived its legal validity directly from the people of Sri Lanka. Thus, the Republican Constitution of 1972 was a truly autochthones Constitution, and it categorically stated in Article 3 that “in the Republic of Sri Lanka, sovereignty is in the People and is inalienable.”
Unlike the Republican Constitution of 1972, the Constitution of the Democratic Socialist Republic of Sri Lanka, was enacted in 1978 by the National State Assembly by following the procedure laid down in the 1972 Constitution for repealing and replacing the existing Constitution. To that extent the legal validity of the Constitution of 1978 was derived from the Republican Constitution of 1972. Article 3 of the Constitution of 1978 proclaimed that “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.” Article 4 of the Constitution spelt out in clear terms how the ‘Sovereignty of the People’ is to be exercised by the various organs of State.
When one speaks about ‘Sovereignty of the People’, it is important to realize that this phrase consists of two words namely ‘Sovereignty’ and ‘People’, and both terms to some extent defy definition. For instance, the term “people” can mean different things in different contexts, and the meaning of “sovereignty” could change from time to time and place to place. The notion of ‘Sovereignty of the People’ which also is referred to as “popular sovereignty,” consists of the belief that the legitimacy of the State is created by the will or consent of its people, who are the source of all political power. The idea is closely associated with philosophers such as Thomas Hobbes, John Lock and Jacques Rousseau, who advanced the social contract theory, which assumes that government’s exercise authority only on the basis of the contract with the people who have empowered the government.
The history of medieval England presents us with a dramatic illustration of how power could shift horizontally over time. Prior to the seventeenth century, it was the British King or Queen who had legal authority to govern the people and was in that sense Sovereign. The power of the Crown was absolute and it was claimed that its source was divine. The absolute power of the Crown was challenged by Parliament resulting in a struggle which spanned the seventeenth century. It was during the seventeenth century when the struggle between the King and Parliament was in full swing that the famous Dr. Bonham’s Case, [1610] 8 Co. Rep. 114 was taken up before the Court of Common Pleas. Dr. Thomas Bonham, a graduate of the University of Cambridge in physic medicine, was found practicing medicine in London without a license from the London College of Physicians, who maintained jurisdiction in that city over the practice of medicine. Dr. Bonham was examined by the college censors on aspects of his professional practice, and they found him wanting. As a result, Bonham was determined unfit to practice medicine in this field, and was ordered to desist from such practice in London. When Dr. Bonham was later discovered flouting this order, he was arrested and placed in the custody of the censors, the case came before the Court of Common Pleas when Dr. Bonham claimed that his continued detention by the college amounted to false imprisonment. By way of defense, the London College of Physicians relied on its statute of incorporation, which authorized it to regulate all physicians in London and to punish practitioners not licensed by the College. The statute also entitled the college to one-half of all the fines imposed by it. Honorable Coke C.J., also a Cambridge graduate, held in favor of his fellow alumnus. After singing the praises of their alma mater, Chief Justice Coke argued that because the College censors were entitled to receive a portion of the fine they imposed on Dr. Bonham, the statute made them prosecutor, plaintiff, and judge in the dispute. Coke C.J. ruled that,
The censors cannot be judges, ministers and parties; judges … give sentence or judgment; ministers … make summons; and parties … have moiety [half] of the forfeiture, because no person may be a judge in his own cause … and one cannot be judge and attorney for any of the parties.
Although the parliamentary statute in question clearly contemplated that London College would wear all three of these hats, his Lordship observed as follows:
It appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void. (at 652)
With this ruling, Coke C.J. placed the judiciary in the middle of what was becoming a titanic struggle between the King and Parliament. King James I, thought that if the judiciary were allowed to assert the power to review acts of Parliament, it was only a short step away from passing judgment on actions taken by the Crown. Accordingly, King James removed Chief Justice Coke from the Court of Common Pleas and appointed him Chief Justice of the King’s Bench. The strategy did not work too well for King James, as Justice Coke’s replacement on the Court of Common Pleas, Sir Henry Hobart, in Day v. Savadge, Hob. 84 (K.B. 1614), declared that “an act of parliament made against natural equity, as to make a man judge in his own cause, is void in itself” Justice Hobart attributed his authority to review and invalidate legislation to “that liberty and authority that judges have over laws, especially … statute laws, according to reason and best convenience, to mould them to the truest and best use”. Exasperated by this decision, King James I ordered Chief Justice Coke to “correct” his decision in Dr. Bonham’s Case, and when he refused to accede to the King’s demands, he was removed from the King’s Bench.
We all know that the tussle between the Crown and Parliament was resolved in favor of Parliament towards the end of the seventeenth century. The Glorious Revolution of 1688 subordinated the power of the English Crown and judiciary to Parliamentary Sovereignty. Parliament emerged supreme and omnipotent making Acts of Parliament unquestionable. In 1765, English Jurist Sir William Blackstone described the power of Parliament to make laws in England as “absolute”, “despotic” and “without control”. In 1936, Sir Ivor Jennings, himself a strong adherent of parliamentary supremacy, and no lover of the rule of law, identified the (1) democratic, (2) parliamentary, (3) monarchical and (4) Cabinet-lead features being “implied in the principles of the Constitution” but said that of these features, “the fundamental principle is that of democracy”, which he defined on the basis that it is “carried on in the name of the people according to doctrines freely accepted by or acceptable to the people at a general election”. Dicey, in his Introduction to the Study of the Law of the Constitution considered the sovereignty or supremacy of Parliament to be the prime constitutional principle in England. While the decision in Dr. Bonham’s Case has consistently been subjected to criticism in England, the Chancellor Lord Ellesmere, observed that the said decision –
…..derogateth much from the wisdom and power of the parliament, that when the three estates – the King, the Lords and the Commons – have spent their labours in making a law, then shall three judges on the bench destroy and frustrate all their points because the act agreeth not in their particular sense with common right or reason, whereby [Coke] advanceth the reason of a particular court above the judgment of all the realm.
The American Revolution which began 11 years after Blackstone’s pronouncement of Parliament’s unfettered power was commenced in response to the coercive legislation passed in the colonies by what had become a despotic Parliament. Thomas Jefferson, James Madison and their contemporaries believed that the legislative despot was no better than the monarchical despot. In 1787, the US Constitution established the judiciary as a check on the legislative and executive branches of government, a check that was foreshadowed by Chief Justice Coke’s opinion in Dr. Bonham’s Case, which though not followed in England had inspired the Constitution-makers of the United States to acknowledge the Supremacy of the Constitution, as opposed to the Supremacy of Parliament or Congress. In fact, it was the decision in Dr. Bonham’s Case that spawned the concept of Judicial Review under which the courts in the United States are authorized to invalidate laws enacted by the executive and legislative branches of government. The power of judicial review of legislation, which was first recognized by the U.S. Supreme Court in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, is invoked by courts every day across the United States but has since been rendered obsolete in England as far as the legislative process is concerned. In that landmark case, Chief Justice Marshall observed as follows:-
The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it…
Although the concept of Supremacy of Parliament has survived in the United Kingdom for the last three centuries, the question has now been posed as to whether the relationship between parliamentary sovereignty and the rule of law has changed in recent times. The foundations of the concept of Supremacy of Parliament were shaken when the United Kingdom joined the European Union in 1973 and subjected itself to the control of the European Parliament and the European Court of Justice, and under the Human Rights Act 1998, the courts have the power to declare (though not to invalidate) legislation incompatible with the European Convention on Human Rights.
In the recent case of Jackson v. Atorney-General ([2006] 1 A.C. 262), the House of Lords had the opportunity of reviewing the validity of English Acts of Parliament. The decision is important to those who hunt to hounds, as it involved a challenge to the validity of the Hunting Act of 2004, which had been passed in the House of Commons but not in the House of Lords. Mr. Jackson, Chair of the Countryside Alliance, challenged the validity of the Hunting Act on the ground that the Parliament Act of 1949, which permits a Bill which has not been passed in the House of Lords to become an Act under certain conditions, itself was not validly enacted. A unanimous nine-member House of Lords Appellate Committee agreed with a unanimous Court of Appeal (and before that, Divisional Court) that the 1949 Act was not invalid, and therefore upheld the validity too of the Hunting Act 2004. However, what is significant is that the Attorney-General in Jackson did not oppose the courts entering into judicial review, and the courts justified accepting jurisdiction of the matter by holding that they were not considering the mode of passing Bills but engaging simply in a matter of statutory interpretation, namely, whether the 1949 Act was permitted by the terms of the 1911 Act.
The decision contains interesting obiter dicta impinging on the concept of Supremacy of Parliament. At one end of the spectrum was Lord Bingham, who was not willing to deny Parliament’s sovereignty. He said:
The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament…. Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority.
At the other end of the spectrum was Lord Steyn. He examined the implications of the Attorney-Generals submission that the 1949 Act could be used even to abolish the House of Lords, and whether Parliament could, for example, abolish judicial review. His view was expressed in the following words:
….the European Convention on Human Rights as incorporated into our law by the Human Rights Act, 1998, created a new legal order….it is a legal order in which the United Kingdom assumes obligations to protect fundamental rights, not in relation to other states, but towards all individuals within its jurisdiction. The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism
Lord Hope was similarly critical of the principle of absolute parliamentary sovereignty. Speaking particularly from the perspective of a Scottish Law Lord, he said:
Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer if it ever was, absolute……. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from…. Blackstone is being qualified.
Another significant development in the United Kingdom was the enactment of the Constitutional Reform Act of 2005, which received the Royal Assent on 24th March 2006 upon being passed by both Houses, having been introduced in the House of Lords in February 2004 with the view of avoiding the delaying powers of the House of Lords under the Parliament Acts of 1911 and 1949. The Act guaranteed continued judicial independence, by placing a statutory duty on Ministers of the Crown, and all others involved in the administration of justice, to uphold the continued independence of the judiciary, and barred them from seeking to influence particular judicial decisions through any special access to the judiciary. The Act also provided for the establishment of a Supreme Court, separating the highest appellate court from the House of Lords and thus making it distinct from the legislature. The Act provided for the abolition of the office of Lord Chancellor, together with the associated historic office of Keeper of the Great Seal. The legislation preserved the principle of separation of powers and strengthened the concept of the independence of the judiciary.
These developments clearly show that there is a shift in focus in English law away from ‘Supremacy of Parliament’, and towards the ‘Rule of Law’ and the ‘Independence of the Judiciary’, which in fact will be more conducive to democratic governance. On the other hand, no such shift was necessary in the United States where the decision of Chief Justice Coke in Dr. Benham’s case was well received at the very inception.
Now let us get back to our own country. The popular perception throughout the world, except in countries like Switzerland which enjoys a form of direct democracy, is that the people become sovereign once in five or six years when they are called upon to vote at elections, and thereafter they cease to be sovereign. However, it is noteworthy that the Constitution of 1978 gives the people of Sri Lanka the opportunity of participating directly in the legislative process in two different ways. Firstly, the President of Sri Lanka, who is elected by the people at a Presidential election, may in accordance with Article 85(2) of the Constitution submit to the People by Referendum any Bill (not being a Bill for the repeal, replacement or amendment of the Constitution or any part thereof or which is inconsistent with any provision of the Constitution), which has been rejected by Parliament. This is a form of direct participation by the people in the legislative process. Secondly, in terms of Article 85(1) of the Constitution any Bill which has been certified by the Cabinet of Ministers as being intended to be submitted to the People at a Referendum, or which the Supreme Court has determined as requiring the approval of the People at a Referendum, necessarily have to be approved by the People to be enacted into law. This makes the People the ultimate guardians of the Constitution. These provisions further the ‘Sovereignty of the People’.
However, the people can exercise their sovereignty effectively only if they are well informed. My experience is that in most democracies misinformation and disinformation has become a fine art, and any one in control of the popular media can come into power. It is in such countries that, as I said earlier, the majority is invariably wrong, and the knowing minority has no say. Only an informed public can take the right decisions, whether at elections or Referenda. It is therefore imperative for good governance that the public has access to accurate, complete and timely information so vital for its decisions. Most democracies now have legislation, such as the Freedom of Information Acts of the United States and the United Kingdom or the Right to Information Act of India, providing a mechanism through which the public can have access to information, and the proper implementation of such legislation has in turn resulted in greater transparency and accountability while reducing the level of corruption in these countries. Although corruption is a global phenomenon, it has a greater impact on developing nations such as Sri Lanka than on more affluent countries, because third world corruption results in further impoverishment and the diminishment of dwindling resources. Therefore, some legislative mechanism to give members of the public access to information, is badly needed in our country.
The Sovereignty of the People has also suffered somewhat in Sri Lanka due to the curtailment of judicial review of legislation. Under the Soulbury Constitution it was possible to challenge any legislation enacted by Parliament at any time after its enactment as illustrated by decisions such as The Bribery Commissioner v. Ranasinghe 64 NLR 449 (SC) 66 NLR 73(PC); Jailabdeen v Danina Umma 64 NLR 419 and Liyanage v The Queen 64 NLR 313 (SC) 68 NLR 265 (PC). The ability to challenge enacted legislation, which was first curtailed by the Constitutions of 1972, continues to be limited by Article 80(3) of the Constitution which enacts that-
Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, being endorsed thereon, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever.
The effect of this provision is that we, in Sri Lanka stand between the United States, where there is unlimited judicial review of legislation, and the United Kingdom, where no judicial review of legislation is permissible, so that under our system of what may be called “pre-enactment judicial review” a Bill presented in Parliament may be challenged before the Supreme Court for unconstitutionality in terms of Article 121 of the Constitution “within one week of the Bill being placed on the Order Paper of Parliament” unless it is certified as an urgent Bill with respect to which the procedure for review in Article 122 will be applicable.
Sovereignty of the People is impeded in several ways under this system of ‘pre-enactment’ judicial review of legislation. Firstly, the time limit of one week is too short for any citizen to petition the Supreme Court regarding unconstitutionality of a Bill. Secondly, gazetted bills are not readily available, and there have been instances where it has been brought to the notice of court that copies of the gazette have been deliberately withheld from the public. Thirdly, it sometimes takes a fairly long time even for the relevant Ministry, Department or other Authority to begin implementing the enacted law, and not only members of the public but even public officials cannot readily comprehend how the legislation will impinge on the rights of individuals. It is therefore unreasonable to impose a short time-limit for the challenge of such legislation. Fourthly, the procedure of certifying bills as urgent which enables even this limited review mechanism to be by-passed subject to a very scrappy examination of the bill by the Supreme Court for unconstitutionality has not worked too well in this country. Some of these criticisms of the existing system surfaced when the constitutionality of the Inland Revenue (Special Provisions) Act No. 10 of 2003 was challenged by Mr. Nihal Sri Amarasekere some time after the Speaker had endorsed his certificate thereon in terms of Article 80 of the Constitution. Although Mr. Amarasekere had pleaded that the relevant gazette containing the Bill had deliberately been withheld from the public, a possible argument based on ultra vires was not pressed, and consequently the challenge failed in view of the ouster contained in Article 80(3). Subsequently, on a reference by the President, the Supreme Court ruled that the said Act had been enacted in violation of the Constitution, and action was taken to have the Act repealed. The whole episode cost the government a good part of its revenue, and also caused injustice to those who comply with tax laws and allowed some of the tax evaders to go scot-free.
Notwithstanding all these drawbacks, the Constitutional Court set up under the Constitution of 1972 as well as the Supreme Court under the 1978 Constitution have developed a rich jurisprudence of ‘pre-enactment’ judicial review of legislation. The jurisprudence has been surveyed by Dr. J. de Almeda Gunaratne, P.C. in his valuable contribution to In Pursuit of Justice with Heart and Soul which is being launched today under the title: Judicial Response to the Concept of Sovereign Power of the People in Sri Lanka. In view of this publication, I do not have to go into this rich jurisprudence, except to highlight one of Dr. Gunaratne’s concerns. He has pointed out in his paper at page 167-168 that despite the Supreme Court determination in the National Housing (Amendment) Bill case [1978-83] DSCPB 25 that certain provisions of the Bill which sought to confer power to the Commissioner to award compensation for improvements and to confer power on the Minister to hear appeals against the Commissioners orders were inconsistent with Article 4(c) which vested the judicial power of the people expressly in courts, have been enacted by Parliament without making the modifications suggested by the Supreme Court to avoid such inconsistency. He observes at page 168 that-
..….the lack of a procedural mechanism in the Constitution to ensure compliance with directions given or suggestions made by the Supreme Court, is a major drawback of our Constitution.
I learnt a bitter lesson when I assisted the Supreme Court in the Value Added Tax Bill case [1978-83] DSCPB 273. In response to certain submissions made by Mr. J.C. Weliamuna, who appeared for the Petitioner in that case, I gave an undertaking to make an amendment to the draft Bill to overcome the question of unconstitutionality raised by Mr. Weliamuna, and promptly informed the relevant Minister and the Legal Draftsman of the said undertaking. The Minister was not inclined to make the contemplated amendment to the Bill, even after I got Kamal (who was Attorney General at that time) to write personally to the Minister, and the Bill was enacted to law without making the amendment. Since then, I never gave any undertaking to court unless I was certain that the authorities will honor them. There have also been instances of Committee stage amendments being moved in Parliament which are inconsistent with the Constitution and even contrary to Standing Orders of Parliament which limit the scope of such amendments, but these amendments have been enacted into legislation without objection. In circumstances such as these, there is no provision in the Constitution to protect the ‘Sovereignty of the People’ from blatant violations.
Now let me turn to the Rule of Law, which Kamal believed was an aspect of the ‘Sovereignty of the People’. The Rule of Law, in its most basic form, is the principle that no one is above the law. As Thomas Paine noted in his pamphlet Common Sense [1776]: “For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.” As His Lordship the Chief Justice observed in Re the Eighteenth Amendment to the Constitution [1991-2003] VII DSCPB 305-
The rule of law, means briefly the exclusion of the existence of arbitrariness and maintaining equality before the Law. .
There is no doubt that our Constitution seeks to protect and preserve the Rule of Law. It contains many provisions which provide the procedures and norms for good governance and transparency. The Seventeenth Amendment to the Constitution was enacted to enhance these procedural and normative standards. The Constitution as it stood prior to the Amendment vested the President with power to appoint the Chief Justice, Judges of the Supreme Court, the President of the Court of Appeal and other Judges of the Court of Appeal, to make acting appointments to the said offices, and to appoint the members of the Judicial Service Commission and other members of institutions administering justice including the members of the Commission to Investigate Allegations of Bribery or Corruption. The object of the Seventeenth Amendment was to bring greater transparency and legitimacy to this process of appointment.
I am certain that one of the most important achievements of Kamal was the enactment of the Seventeenth Amendment to the Constitution, which has been described as a high water mark in the legislative history of Sri Lanka. I had the privilege of being with him at the State Officers’ Box in the House of Parliament during the Second Reading of that important piece of legislation, and it was through the adoption of a suggestion made by Kamal that it was possible to break the deadlock between the government and the opposition, which paved the way for the successful passage of the Seventeenth Amendment in Parliament. This amendment has been hailed by Anwar Shah in Performance, Accountability and Combating Corruption (Public Sector Governance and Accountability Series, IBRD 2007), at pages 33-35 as “democracy in action”. He describes the legislation as an ‘indigenous initiative’ which came ‘from within’ at “the cost of some loss of local discretion and the increase in bureaucratic delays”(ibid., 34-35) Shaw hints that had the citizens’ voice been “harnessed to create a constituency for the reform, that would have helped it survive.” (ibid., 35). Dean of the Law Faculty, Mr. N. Selvakkumaran, in his essay entitled the Seventeenth Amendment to the Constitution – An Attempt Towards Good Governance at page 313 of In Pursuit of Justice has stressed that the non-appointment of Members of the Constitutional Council “seriously undermines the rule of law, constitutionalism and good governance” and expresses the hope that the Superior Courts would “construe relevant provisions of the Constitution in a manner which will promote harmonious operation.” (ibid., 329)
Sadly, the Seventeenth Amendment to the Constitution has become a dead letter due to the failure to appoint the members of the Constitutional Council, which has, for instance, compelled a fast aging Commissioner of Elections to continue in office ad infinitum and beyond even the compulsory age of retirement. In the absence of a properly constituted Constitutional Council, elections are now held without the salutary oversight of the independent Election Commission sought to be established by the said Amendment, and major appointments to the public service and the judiciary are made without complying with the mandatory provisions of the Constitution. It is therefore essential to bring about changes in polity and attitudes to create the climate for the appointment of the Constitutional Council, so that it can begin to function once again. This is extremely important for the preservation of the Rule of Law.
It is worth noting that the Supreme Court in its determination in Re the Eighteenth Amendment to the Constitution [1991-2003] VII DSCPB 305, required a provision of the Bill which purported to confer on the Constitutional Council the power to make Rules without the approval of Parliament contrary to Article 4(a) of the Constitution, to be approved by the People at a Referendum in addition to obtaining two-thirds majority in Parliament. The Supreme Court also refused to sanction the immunity from suit sought to be conferred on the members Constitutional Council established by the Seventeenth Amendment, and in doing so pointed out that –
The Constitution does not attribute any unfettered discretion or authority to any organ or body established under the constitution. Even the immunity given to the President under Article 35, has been limited in relation to Court proceedings specified in Article 35 (3).
This determination clearly establishes that in Sri Lanka, no one is above the law.
Kamal who appeared in the landmark case Re the Eighteenth Amendment to the Constitution [1991-2003] VII DSCPB 313, in which the issue that the Supreme Court had to deal with related to the curtailment of certain power of the President to dissolve Parliament, drew the attention of the Supreme Court to the following dictum of Bhagawati, J. (later, Chief Justice of India) in the case of Gupta and Others v. Union of India [1982] AIR (SC) 197, where he observed-
If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the Rule of Law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the Rule of Law meaningful and effective.
After citing this passage, the Seven Judge Bench that heard the Eighteenth Amendment case in the course of a well considered determination, stated that –
To sum up the analysis of the balance of power and the checks contained in the Constitution to sustain such balance, we would state that the power of dissolution of Parliament and the process of impeachment being some of the checks put in place, should be exercised, where necessary, in trust for the People only to preserve the sovereignty of the People, and to make it meaningful, effective and beneficial to the People.
The above quoted words not only link the Sovereignty of the People with the Rule of Law but also clearly demonstrate that “the rule of law is the basis of our Constitution”.
Kamal has been a very honest and straightforward public officer. Kamal expected the same standards of honesty and integrity from every public officer, and the only occasion when I heard him using harsh words was when he came a cross a public officer who was wanting in these respects. There were numerous occasions when he refused to defend public officers who had acted with corrupt or sinister motives or had yielded to political pressure in the discharge of their duties. Kamal always did what he thought was correct, totally oblivious of the consequences, and never yielded to political pressure. In fact he admired public officers of the caliber of Mr. Dharmasiri Pieris, who was an exemplary State Officer. In his opening comment on Mr. Pieris’s magnum opus entitled In the Pursuit of Governance, containing his memoirs as a civil servant, Kamal observed as follows-
……the writer with great thoroughness and keen analysis discloses the trials and tribulations faced by a responsible public servant in a politically sensitive system. He conveys an important message to the present day public servant, viz. that it is not difficult for a public servant to be fearless and independent and at the same time, discharge his duties and functions efficiently. He also strikes a warning note to those public servants who serve their political masters for personal gain. To the writer the public service was a pilgrimage, in the course of which he was given with the noble task of serving the public.
It is the failure on the part of an increasingly greater number of public officers to adhere to principles of good governance, that resulted in unfortunate decisions such as the recent judgement of the Supreme Court in Vasudeva Nanayakkara, Attorney-at-Law, vs. K. N. Choksy, P.C. former Minister of Finance and Thirty Others (S.C. Application (F.R.) 209/2007, S.C. Minutes of 21.07.2008) in which all agreements entered into between the Board of Investment and Lanka Marine Services Ltd., for the sale of its shares as part of the process of privatization, were declared null and void. In the course of this judgment, His Lordship S. N. Silva, C.J., stressed the need for transparency in the conduct of public business. His Lordship based his decision on three well-established principles of our Constitution, namely, the Rule of Law, the Public Trust and Equality. His Lordship observed –
That the Rule of Law is the basis of our Constitution as affirmatively laid down in the decision of this Court in Visvalingam vs. Liyanage (1983 1 SLR page 236) and Premachandra vs. Jayawickrema (1994 2 SLR page 9) and consistently followed in several subsequent decisions. The Rule of Law “postulates the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power. It excludes the existence of arbitrariness, of prerogative or wide discretionary authority on the part of the Government” (vide: Law of the Constitution by A. V. Dicey – page 202). In the picturesque language of the famous British Chief Justice Lord Coke whose dicta and writings contributed to the early growth of English Constitutional Law, the principle of legality which underpins the Rule of Law assures that the powers of Government will be exercised in accordance with “the golden, and straight met wand” of law as opposed to the “uncertain and crooked cord of discretion”.
After referring to the decisions of the Supreme Court in Re the Nineteenth Amendment to the Constitution (1991-2003] VII DSCPB 313; [2002] 3 Sri L.R. 85 and Bulankulame and Others vs. Secretary Ministry of Industrial Development [2000] 3 Sri L.R. 243, His Lordship stated that “the resources of the State are the resources of the people and the organs of State are guardians to whom the people have committed the care and preservation of these resources.” His Lordship went on to point out that there is a “positive component in the right to equality” guaranteed by Art. 12 (1) of the Constitution as decided in Senarath vs. Chandrika Bandaranayake Kumaratunga (S.C. Application (F.R.) 503/2005, S.C. Minutes of 03.05.2007) and where the executive acts ultra vires and in derogation of the Peoples’ trust, it is in the public interest to implead such action before Court. The Supreme Court also directed the public officer who was found to be responsible for the loss and whose actions were held to be arbitrary and ultra vires, to pay Rs. 500,000/- as compensation to the State. This decision will no doubt be an eye opener not only to errant public officers, but all members of the public service in general.
Public officers of the caliber of the late Mr. Kamalsabayson are an indispensable ingredient for the building of a temple of justice which will preserve the Rule of Law. I must emphasize that Kamal discharged his responsibilities with unsurpassed distinction and unsullied honor throughout his long career in the Department. Speaking on the occasion of his Kamal’s retirement, Mr. A. Gnanathasan, Additional Solicitor General, who at that time was the President of the Attorney-General’s Department Legal Officers’ Association, referred to Kamal as “an eminent legal luminary and a brilliant Attorney-General of the Republic who has preserved and fostered the greatness of the office.” Expressing similar sentiments, His Lordship S. N. Silva, P.C., Chief Justice of Sri Lanka, whom Kamal had represented in several leading cases, observed that-
Mr. Kamalasabayson had the ideal temperament as a Counsel to represent the cause of the State. He discharged his functions at all times with due courtesy to the members of the Bar and the highest respect to the Bench. He argued his cases with ingenuity and dedication. I am personally indebted to Mr. Kamalasabayson for having represented me in Court when persons purporting to act in the public interest sought to implead my official actions and appointment. The reported judgments in those cases display Mr. Kamalasabayson’s skill and dedication which brought to an end a vicious and malicious trend which I hope would never resurface in this country.
During his tenure as Attorney-General Kamal strove to strike a balance between the rights of the accused and the rights of the victim of a crime, and made every effort to create the necessary public awareness regarding the need to enact legislation to protect victims of crime and witnesses. In his address of 2nd December 2003 he said:
Another important feature that requires consideration is the need for an efficient witness protection scheme that would ensure that witnesses are not intimidated and threatened. No doubt this would involve heavy expenses for the State and amendments to the law. I will only pose a simple question. Is it more important in a civilized society to build roads to match with international standards spending literally millions of dollars rather than to have a peaceful and law abiding society where the rule of law prevails?
Kamal played a major role in promoting the Protection to Victims of Crime and Witnesses Bill, now being debated in Parliament, which seeks to specifically codify, protect and promote the rights and entitlements of victims of crime and witnesses in accordance with international norms and best practices. It is noteworthy that His Excellency Mahinda Rajapaksa, the President of Sri Lanka, in his special condolence message, appreciated Kamal’s services in this connection and observed that he (that is, Kamal) “had a special interest in balancing the rights of the accused with those of the victim in the administration of justice, where he saw a glaring imbalance with the scales tilted more in favor of the accused than the victim.”
Those who knew Kamal closely knew that an important characteristic of Kamal was the “balance” he maintained in the discharge of his official functions. His Excellency, Gopalkrishnan Gandhi, the Governor of West Bengal in his Letter of Appreciation described Kamal as a man of great learning, patience and understanding, who maintained an “Euclidean balance”. Kamal strove with heart and soul – corde et amino – to protect, foster and preserve the ‘Sovereignty of the People’ and the ‘Rule of Law’ for the achievement of justice in all its facets all the time, and succeeded to survive unscathed through the vicissitudes of a public service. May the mission of achieving justice, that marked the lifework of the late Mr. K.C. Kamalasabayson, inspire all men in their pursuit of justice to posterity – esto perpetua!
August 25, 2008 at 10:09 am
