Grave secrets: Behind the skeletal excavations in Mannar

Grave secrets: Behind the skeletal excavations in Mannar

Forensic archeologist at work
Forensic archeologist at work
HomeSunday Observer journalists visit a grave excavation in Mannar, where forensic investigators are hard at work, painstakingly unearthing human skeleton after skeleton, determined that this time, the investigation into the suspected mass grave site will not be compromised- politically or scientifically

MANNAR: The site is tucked into the corner of two busy streets, fenced by metal; the entrance hidden from view. Blue tarpaulin covers the entire site, shielding it from the scorching midday, when excavators are at their busiest. Through a narrow opening, visitors must walk single file to reach the excavation site before the bones become visible.

Human skulls, femurs, hands, feet and entire skeletons protrude through the soil about 1.5 meters below the entrance to the dig. They appear to be strewn, some turned sideways, others, piled up haphazardly.

A female forensic archeologist hovers over a tiny skeleton, a proportionately small set of tools in her hand – a brush with soft bristles, a toothbrush and a few other instruments that resemble those on a surgical table. Painstakingly, she brushes sand off each piece of tiny bone, pouring tiny drops of water to remove stubborn pieces of dirt and handling the remains like a mother would handle an infant. As she works, part by part, the human skeleton begins to emerge and take shape.

Dr Saminda Rajapaksa stretches out a hand to stop visitors to the site from going any further. Chief Investigator of the excavation site and Judicial Medical Officer, Dr Rajapaksa says by Magistrate’s order, those with permission may walk up to the edge of the excavation, but no further. Only forensic specialists and investigators will handle the remains, in order to protect the integrity of the bones ahead of carbon dating and possible DNA testing.

On March 25 this year, a complaint was lodged with the Mannar Police, when human bones were discovered at a construction site on the CWE (Sathosa) premises. Investigation of the site began under the supervision of Mannar Magistrate T.G. Prabhakaran. Excavations began on May 28, after investigators determined that the area contained undisturbed skeletons. The excavation team comprises consultant JMOs, Prof. Raj Somadeva, a forensic archeologist, officers from the Government Analyst’s Department, police, Survey Department and staff from the Mannar Municipal Council. Police Scene of Crime Officers are in charge of photographic recording of the site.

Each time multiple human remains are discovered in Sri Lanka, they bring up old questions. Tens of thousands of people are still recorded as missing from two insurgencies and a 26 year civil war. Mass grave sites have been discovered all over the country – Matale, Sooriyakanda in Embilipitiya, Chemmani in Jaffna, and even in another location in Mannar four years ago, when 30 skulls emerged fuelling speculation that the site could provide answers about thousands who went missing during the war. Nearly every time, the discovery of bones has led to prolonged excavations and shipping thym off for carbon dating and other tests. Every time, the investigations reached no firm conclusions.
This time, Dr Rajapaksa is hoping, will be different.

If the chain of custody was not strictly maintained in previous suspected mass grave investigations, anyone could raise questions and make allegations. I am committed to finishing this investigation without raising such doubts. If necessary, I will accompany the bone samples to a lab overseas personally, to ensure authenticity and the integrity of the remains are not compromised,” Dr Rajapaksa told Sunday Observer, during the dig last week.

If there are mistakes linked to previous investigations, the scientists had to ensure they did not happen here, he insisted.

Bone samples are scheduled to be sent for testing at the Beta Analytic Radio Carbon Dating Lab in Florida USA for carbon dating. However, results of the carbon dating tests of the Matale mass grave conducted at the Beta Analytic Radio Carbon Dating Lab in Florida USA, was criticised by forensic experts. Lawyers and civil society groups in Mannaralso stopped the move to send samples of the Thirukethiswaram mass grave site to the same lab. But according to DrRajapaksa, these doubts could be cleared by ensuring the chain of custody is undisturbed.

On Friday, August 10th, the excavation had reached the 52nd day. Investigators had identified 81 skeletons, with 72 completed skeletons already excavated. Seven skeletons identified as children have been excavated so far. Adult males, females and adolescent remains have also been unearthed.
The work ongoing at the site is monumental, and deeply significant in a country in which a long internal conflict has cast long shadows and deep scarring. But according to investigators like Dr Rajapaksa, time is also of the essence. The forensic specialists begin work at 7AM every day, and sometimes continue till after dark, using bright electric floodlights to illuminate their work space.

Investigators say that at this juncture, dating of the find is of paramount importance as it will be key to future decisions about investigations at the site. The sooner the samples are sent for carbon dating, the better. The excavation crew is awaiting financial allocations for this purpose from the Ministry of Justice.

The reason for this urgency is because skeletons that had been underground for so long would damage easily when exposed. “The skeletons were found about a foot above the sea level and it seems some are below the sea level. Water seeps into part of the site, where human bones were first found as it is below sea level. Two pumps are used to keep the water away 24 hours. Even algae could threaten the remains. However, we try to minimise the threats and carry out the investigation scientifically and as close to international standards as possible,” one investigator told Sunday Observer.

The investigation of this suspected mass grave site, are conducted at two levels – excavation and analysis. The present stage is excavation. Already, DrRajapaksa says, forensics specialists have discovered two kinds of burials at the site – formal and informal. “The informal burial site is where skeletons were found overlapping, irregular, and in multiple layers of skeletons, so these take priority in further investigations,” the Chief Investigator explained.

According to forensic archeologist, Professor Raj Somadeva, the suspected mass grave is marked by the lack of evidence of ritualistic burial. “The arrangement of the skeletons is not of a ritualistic burial site. When a Hindu person dies, they perform rituals building a fire and breaking a water pot. There was no evidence of ritual objects such as pot shards or charcoal that tends to mark ritual Hindu burial sites,” Prof. Somadeva pointed out.

Prof. Somadeva says the artifacts found at the grave site belong to three different periods. While some date back to 5th or 6th century AD, others belong to the Dutch era and the rest to the modern period. “The assemblage of artifacts provides a complicated picture representing different time zones. We are interested in sorting out the three phases clearly. Therefore, a relative date could not be stated until we finish the report,” he explained.

The site of the discovery of bones itself is complicated. There are no records relating to the building that was torn down. The Mannar Magistrate has ordered authorities to hand over building plans, but investigators have not yet received them. According to residents in the area, the property was always owned by the Marketing Department or the CWE.

Investigators explain that photographs and the diagrams being meticulously recorded will help reconstruct the situation layer by layer. “We would try to depict it as a 3D image in the final report as this grave is of national and international interest. This could be the first mass grave investigation where 3D view is enabled. The documentation would help identify levels, the position of each bone and skeleton in relation to the rest,” he explained.

Open graves and excavations have begun with great enthusiasm and interest in the past, but have almost always led to disappointment and more questions than answers. Virtually, in every case – Sooriyakanda, Matale and Chemmani – the final reports were suspected to have been compromised and questionable. For families of the missing, scattered across this tiny island nation, every discovered mass gravesite, each unearthing of bones, brings fresh torment and fear.

Perhaps it is for this reason that the permanent Office of Missing Persons, set up by an Act of Parliament in 2016, has stepped in to supervise the current excavations in Mannar. In its first attempt to fulfill part of its mandate to trace the missing, the OMP decided to fund and facilitate logistics of the forensic investigation at the Sathosa premises in Mannar earlier this month. This would include food and transport facilities for investigators among other logistical support.

According to OMP Chairman Saliya Pieris, once investigations and carbon dating is complete, the Office may look into matching DNA of the discovered bones with DNA samples obtained from families of the missing, particularly in the Northern Province.

V.S. Niranjan, a lawyer representing families of the disappeared in Mannar, said the victim families would have preferred it if the excavation was being overseen by international experts. Niranjan says over 300 families who have lost loved ones believe the Mannar CWE remains could be linked to their cases. “We are going to file affidavits. That’s the next step. Of course, we have to go through several institutions to do that, so it’s a long process,” the lawyer explained. The legal battle waged by families of missing persons on the suspected mass grave site found in Mannar in 2014 is still not settled says Niranjan. “It is difficult to make them understand their loved ones may never come back. Some are still clinging to the last threads of hope.”

But all this is far removed from the forensic investigators, who must apply patience and meticulous rigour to their work on the bones. Sitting beside skeletons for hours, with small tools and brushes, investigators wash, dry and arduously prepare the bones for storage. Once the skeleton appears, it is photographed and the position of each bone is sketched, and an in-situ forensic description is made as part of the analysis and for the records. Thereafter, the skeleton is removed section by section, each bone is washed, dried labelled and placed in an airtight bag. A full set of bones belonging to each skeleton is placed in a cardboard box, labelled and stored. For security reasons, the remains are stored at the Magistrate’s Court in Mannar.

Dr Rajapaksa says that at their pace, the investigators are only able to remove one or two skeletons a day. This must be done with great care, he says, causing no damage whatsoever to the bones. “It’s time consuming, but we want to do this as scientifically and transparently as possible.”

Pix: Thilak Perera

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Behind the protest – Families of the disappeared: Sivasothy

Behind the protest – Families of the disappeared: Sivasothy


Artwork courtesy of Shawmy Thilipkumar 
19Aug 2018
For over 500 days relatives of the forcibly disappeared have been protesting on the streets across the North-East, demanding to know the whereabouts of their loved ones. Despite years, sometimes decades, of various government mechanisms and pledges, their search for answers continues.
In this series of interviews conducted since May 2017, Tamil Guardian goes behind the protest to the individual stories that make up this unyielding movement of Tamil families of the disappeared.
“What we need now is that our children come home. We have daughters, many mothers have lost their children or have been made disappeared. This government kidnapped them. No one came from foreign countries to take them, did they? The Sri Lankan government must answer to these children. No one else can go outside and expect to find answers for them.”
Nanthabala Sivasothy sits along the roads of Trincomalee to protest with fellow mothers, following the forced disappearance of her daughter on February 10, 2002. Her daughter was kidnapped in a white van on her way home from tuition. Sivasothy recalls chasing the van as fast as she could as it sped off. Her daughter was only 15 years old at the time. She was a studious child, always eager to learn and very loving. Sivasothy weeps, knowing that those would have been the last moments she would see her daughter again. Now she joins the mothers of Trincomalee, demanding justice and accountability from the Sri Lankan state.
Kidnappings, forced abductions and disappearances were a common occurrence throughout the armed conflict Sivasothy recounts.
“Soldiers would come into our grounds with their faces covered, their foreheads and mouths covered so we could only see their eyes, and take groups of people away. They would also come into our homes at night and have forcibly taken some people away under the false pretence of a short investigation.”
In one attempted abduction of a young boy in the Puchivellai district, Sivasothy recalls how she and other village women intercepted a van that had kidnapped him. A group of ten women surrounded the van, opened the doors and dragged the young boy out of the sack of chillies he was tied in to, before they all fled together.
To Sivasothy, alongside finding her child and bringing the abductors to justice, it is as important to recognise how the Sri Lankan government protects and encourages perpetrators.
The protest only followed her and the other mothers’ multiple attempts at seeking alternative avenues to find their children, including approaching the UNHCR, the Senthoorai organization and Red Cross to file assistance reports. Sri Lankan police officers had turned her away and instead accused her of letting her child be kidnapped by the LTTE. But she knows that state forces took her and stresses the importance of acknowledging the role the Sri Lankan government plays in denying mothers the right to know the whereabouts of their children. “What has the government done thus far?” she asks, “It has prolonged the process by two years, making us run here and there.”
It’s not easy for Sivasothy to come out to these protests, as many mothers face threats from Sri Lanka’s CID (Criminal Investigation Department) and stay away out of fear of retaliation. Just last month, a woman serving as an assistant lawyer representing one of the families of disappeared in Jaffna was brutally attacked.
Above right: File photograph of masked members of Sri Lanka’s Special Task Force, who have been accused of carrying out abductions in the North-East
Above: Nanthabala Sivasothy, speaking at the protest site in Trincomalee
It has been a long and arduous struggle. “Even now, we only eat once, rejecting food during the day and having one meal at night,” she says. “What we need is that our children come home.” She is also the sole-supporter of her family since her husband fled, leaving an elderly diabetic mother at home. “It is so difficult, especially without a proper house. If it rains, the water drains into my house. I work as a tea-maker, delivering tea to government officials and make around 10,000 rupees (some 60 USD) salary each month.” Last month, Sivasothy injured her leg in a fall and now works for 10 days a month, making only 5,500 rupees to take home.
Above: Tamil disappearances activists in Trincomalee lead a rally in the town earlier this year.
Her participation in these protests comes at a deep cost for her family, especially for her son who too has suffered at the hands of the state. She proudly describes his past academic achievements and ambitions, “learning three languages – English, Tamil and Sinhala – he was a talented student, like my daughter.” This was before Sri Lankan police officers stormed their home and took her son away claiming he had hidden a firearm. Even after the charges were dropped, Sivasothy recalls the police-inflicted trauma. “They destroyed his ambition to study and grow in life. He didn’t want to pursue his studies and even when school officials asked him to return, he turned them away. It was because of these police officers that my son abandoned his studies.” Now, Sivasothy’s son works back-breaking labour to make ends meet.
Her personal recollections of the suffering her family has endured is indicative of how local Tamils in the region suffered. Throughout the interview she provides brutal accounts of Sri Lankan security forces murdering and raping, providing a glimpse of the overwhelming mental distress that the local community have endured. “You won’t believe the types of cruelty that took place here,” she says.
“I must’ve been 15 years old and forced to hide from the army in a pile of 35 dead bodies when these government forces came around poking our limbs, even cutting through my leg, to check if we were still alive. I stiffened my body and laid there, under a dead body,” Sivasothy says, as she recounts a horrific massacre, before detailing more crimes she has witnessed.
“In front of my eyes, they dragged a woman out from under her feet and raped her right there… A young boy, brought him and killed him like that, slitting his neck and wrists and left him hanging on a tree.”
“I saw that all through my eyes and can never forget it… Those things took place here, in Sri Lanka.”
She doesn’t let any of this derail her determination, as the strength of the women around her inspire her to continue to participate in these protests. Some of the mothers she sits with are also the sole supporters of their families following the forced disappearances of their husbands. Unfortunately, the government’s lack of response to their pleadings makes their daily lives a constant struggle. “We are seeking an end, not only for us but for all of the mothers. Everyone needs an answer. But the government, some higher officials come along, and never do anything.”
And that is why she believes the diaspora plays a vital role in voicing the mother’s angst. “Even if our own government doesn’t care for us, through our diaspora Tamil peoples we need to find an end to this trauma,” she says. “Only we know the pain of losing our children,” she says adding that telling her story to the world “gives us hope”.
Her sheer will to continue to resist is indicative of what these mothers are capable of. “There are many problems like this,” she says.
“But, until the very end we will be here protesting.”
Above: Photographs of some of the forcibly disappeared loved ones these mothers are searching for.
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What do ‘Human Rights’ mean for politicians in the South..?

What do ‘Human Rights’ mean for politicians in the South..?

LEN logoBy S. V. KIRUPAharan, France
(Lanka e News – 20.Aug.2018, 5.45AM) ‘Human rights’ may be a new phenomenon for many Sinhala Buddhists – SB and for some Tamils including a few members of the diaspora. I have seen many participants in UN human rights forums in Geneva without any basic knowledge of human rights. But to the outside world, they claim to be human rights activists and defenders. This crowd never wanted to educate themselves in human rights nor grasp a wider knowledge by listening to experts and lectures of scholars.
Since the independence of then Ceylon/Sri Lanka and the birth of UN human rights mechanisms, the SB, especially thugs blessed by politicians in the South and the Buddhist clergy, started to violate human rights by physically attacking innocent Tamil politicians in Sri Lanka. Beginning with small scale violence, it ended up in war crimes and genocide. Massacres, mass murders, ethnic cleansing, and the use of rape as a weapon of war against the Tamils became a norm.
As far as literacy rates are concerned, Sri Lanka enjoys a higher ranking than several countries. A crucial question to ask though, is – ‘What are the children in the South taught in school’? As far as Southern Sri Lanka is concerned, other than a small minority population of Christians, Saivites (Hindus) and Muslims, all others are strong SB. Most of these children are taught that anyone other than SB is evil, subhuman and equal to an animal. In other words, they are taught in school that human rights are only for them.
Here I would like to give a few examples. The ‘gun culture’ or the killing culture was started in Sri Lanka by SB in the early 1900s. In 1915 Muslims in Sri Lanka were the first victims, and were physically attacked by them for no reason. Then in the 1970s SB youths known as JVP – Janatha Vimukthi Peramuna (People’s Liberation Front) started an armed revolution to overthrow the government. This started up again, by the same JVP in the late 80s, and horrifying human rights violations took place in the island. As a consequence tens of thousands of youths were ‘disappeared’ in the South – these killings and massacres were carried out by the Sri Lankan security forces.
During this period several SB politicians, especially then Members of Parliament Mahinda Rajapaksa, Mangala Samaraweera and a well-known leftist Vasudeva Nanayakara went abroad including to the then UN Human Rights Commission in Geneva and to the EU in Brussels. They organized meetings and lobbied against Sri Lanka. These political leaders called for international pressure on Sri Lanka. (See the attached notice circulated in 1991)
It is not surprising that the JVP youths who introduced armed culture to Sri Lanka causing bloodshed, attempting to overthrow two governments, were given amnesty within a short period. The JVP’s horrendous human rights violations were well documented – Buddhist monks, academics and others especially in the South were killed by the JVP.
These three SB politicians also requested British people – in their term Suthaas (whites) to help the mothers of those who were disappeared and killed. (See the attached letter, circulated by Mahinda Rajapaksa and Mangala Samaraweera to many British people. They both signed this letter).

North and East

Now I turn to the situation in the North and East of the island of Sri Lanka which has been the homeland or hereditary land of the Tamils for thousands of years. The question of the promised land of the Tamils will be dealt with in detail in a different article.
In 1833, during the British rule then in Ceylon, the independently existing Tamil Kingdom was amalgamated with two Sinhala Kingdoms. This was done under the pretext of facilitating easy administration by the British. Existence of the Tamil Kingdom cannot be disputed by anyone. The colonial masters of Ceylon/Sri Lanka – the Portuguese, the Dutch and then the British were all witnesses to this fact.
Since the final stages of British colonization up to the present day, the Tamils from the North and East have been losing everything – day by day, inch by inch; their political rights, livelihoods, land, economy, etc. After 1948, Tamils demanded their political rights through peaceful, non-violent means, for more than thirty years. Their efforts consistently met with violent reprisals by the State. This multi-layered repression resulted in Tamil youths laying foundations for an armed resistance in the North and East in the late 70s, and eventually the war started in 1983.
Unfortunately, as had happened to the JVP in the South, thousands of Tamil youths were arbitrarily killed and disappeared in the North and East by the Sri Lankan security forces. This eventually ended up in war crimes, ethnic cleansing and genocide of the Tamils for which Sri Lanka is today answerable to the international community via significant resolutions initiated and passed by the UN Human rights Council.
It is worth comparing the atrocities that took place in the South with the atrocities that were carried out in the North and East by the Security forces, with the blessings of the politicians from the South.
When the JVP youths tried to overthrow two governments and mercilessly killed hundreds of Buddhist clergy, academics and others, the above mentioned politicians played a key role in the name of human rights to find justice for those ‘disappeared’ and detained without trial in prisons. When the Tamils in the North and East were in the same situation, the SB leaders who had spoken about human rights and sought financial help for the mother’s front in the South, not only kept silent, but they were the ones who gave full power to the security forces to wipe out the Tamil youths.
The truth is that as far as the SB politicians are concerned, whatever happens to Tamils is justified as dealing with terrorism, so no quarter, bloody-mindedness and no amnesty for those suffering in prisons for decades.

A question for politicians in the South

Here is my straight-forward question to Mahinda Rajapaksa, Vasutheva Nanayakara, Mangala Samaraweera and a few others who travelled abroad to find justice and financial help to address disappearances that took place in the south. What is your contribution to seeking justice for the disappeared in the North and East and how do you see the struggle of the mothers of the disappeared in the North and East?
Mahinda Rajapaksa was the main culprit who is personally responsible for tens of thousands of disappearances in the North and East. For the human rights community, he is known as a dictator. At the end of the war, he was the one who said, ‘soldiers fought, holding human rights declaration in one hand, and their gun in the other hand’. I advise him to consult a good psychiatrist. Furthermore, we can’t ignore the disappearances that took place during the Presidency of Chandrika Kumaratunga and others.
Vasutheva Nanayakara, has not condemned nor spoken a word about the disappearances in the North and East, either in the parliament or in any public meetings. It is acknowledged that his good friend Mahinda Rajapaksa was the cause of disappearances in the North and East. Those days he was for the right to self-determination of Tamils. Now…..?
Mangala Samaraweera caused and is causing many disasters for the whole Tamil population. He plays a smart diplomacy by using some Tamils who seek name and fame, and have a slave mentality. He used the label of terrorism and caused serious damage to the Tamil struggle for political rights, yet today he pretends to be a man for Tamil rights. Here I recall a Tamil proverb: “as long as there are people who can be fooled, people who fool also exist”.
One of Mangala Samaraweera’s latest achievements is that being the Minister of Information, he has requested certain media to prevent publishing my articles. This is nothing new compared to what he said about me and the late Dr. Jayalath Jayewardene in an interview in 2001. During that period he was the Minister of Information under Chandrika Kumaratunga.
During Chandrika’s period in the late 90s, when late Dr Jayalath Jeyawardena faced serious harassment and death threats, his party the UNP or Ranil Wickremasinge could not help him. We as ‘Tamil Centre for Human Rights – TCHR’ took up his case with the Inter-Parliamentary Union in Geneva and worked on his behalf. Concerning this matter, our archives speak volumes. However our involvement in Dr Jayalath’s fundamental rights issue annoyed Chandrika and her late uncle Ratwatte. Then their Minister of Information Managala Samaraweera held a press conference and spoke utter lies about myself and late Dr Jayalath. (Daily News, 22 November 2001 – “Conspiracy comes out”)
Mr Minister or Good Governance – GG, where are the Tamils’ rights now? When you request the media not to publish my articles where is freedom of expression? GG is no better than dictator Rajapaksa’s white vans and land grabs.
These were the people who told the international community that once ‘terrorism’ was wiped out, they would give all sort of rights including the ‘Thirteen Plus (13+)’ solution to the Tamils. Now, nearly ten years since the ‘end of the war’, nothing positive has happened for the suffering people in the North and East. During these ten years, they have lost even what they had during or before the war.

Foreign Judges and Lawyers were in Sri Lanka

To resume – firstly, for the vast majority of SB, human rights for Tamils don’t exist in their vocabulary. Secondly, if foreigners should come to resolve the disappearances in the South and to help the mothers’ front financially, why can’t they allow the same to find justice for the disappeared in the North and East?
Just to remind everyone in the South – when a Commission of Inquiry was appointed by Sirimavo Bandaranaike in 1963 to inquire into the political aspects of the Bandaranaike assassination, two out of three judges were foreigners. They were Justice Abdel Younis from Egypt and Justice G.C. Mills-Odich from Ghana.
Buddharakitha Thero and H.P. Jayawardene, the first and second accused in the assassination of Bandaranaike were represented in the Supreme Court by Phineas Quass, QC from Britain.
According to the courts, the fourth Prime Minister of Ceylon/Sri Lanka, S.W.R.D. Bandaranaike was assassinated by a Buddhist monk on 25th September 1959.
Read the Commission of Inquiry into the assassination of Bandaranaike, and you will understand how many foreign Judges and Lawyers were involved in this inquiry in Sri Lanka.
Considering the many facts given above, I repeat, when it comes to matters concerning the Tamil people of the North and East, the vast majority of SB looks at everything in an entirely different manner. It’s nothing other than racism.
There are hundreds of reasons why the people of the North and East cannot expect any political rights or justice through any government headed by a SB. They are racist but they play clever diplomacy in their interactions with the international community. The people in the North and East have no hope that someone like P.W. Botha or Frederik W. de Klerk of South Africa will be born among SB in Sri Lanka.

Civil society

According to international norms and standards civil society members should be neutral and not supportive of a government that violates human rights. Indeed, civil society must provide critique of such a government. But civil society in Sri Lanka, especially from the South is blindly supportive of the present so-called GG, under the pretext that, if dictatorial Mahinda Rajapaksa comes to power, no one will have any voice at all. If so, what has this civil society done on accountability and reconciliation to address the suffering of the people in the North and East? The majority of them are doing nothing other than paying lip-service to the GG.
I was told that some Tamil speaking members of civil society in Colombo are closely working with the National Intelligence Bureau – NIB and Terrorist Investigation Division – TID, for gathering information on those working hard to look for their loved ones in the North and East. These activities are not known as ‘human rights’ – they are ‘human wrongs’!
I take this opportunity to ask so-called progressive Sinhalese and Tamils with a slave mentality, to show a single area where this GG or other governments in power have done any good to the people in the North and East.
This reminds me of a story told by the Chief Minister of the Northern province Mr Wigneswaran. He said that during his schools days at Royal College, when as small boys they were playing marbles, senior students came and confiscated all their marbles.
When the small boys begged or pleaded for their marbles, the senior students returned only one or two to please them. But it is clear all the confiscated marbles belonged to the small boys. Today this is the story of Tamil political rights in Sri Lanka in a so-called democratic country. This cannot be understood by virgin Tamil politicians or Tamil political apprentices.
In other words, what the virgin Tamil politicians and political apprentices are trying to achieve from a SB government, is equivalent (to quote a Tamil proverb ‘யானை பசிக்கு சோழப்பொரி’) to getting “Pop-corn for a hungry elephant”.
Accountability and the OMP are in a dilemma. In a few years or months these will come to a standstill. Experts and scholars have written and predicted enough about the shortcomings of the OMP. It has no teeth. This is another bluff like other Commissions and investigations. It will have its own death sooner or later.

Upcoming 40th session of HRC

I take this opportunity to disclose what I heard from some diplomats in Europe. As the Presidential and Parliamentary elections are coming up soon in Sri Lanka, the so-called GG is preparing to withdraw their co-sponsorship of the UN Human Rights Council resolution. This is the habitual tactic of any SB government. They play hide and seek with the international community to buy time. So- called GG had three peaceful years without any pressure from the international community. As usual, now they are going to twist their tongue during the 40th session of the HRC, due in March 2019.
When the resolution was passed with Sri Lanka as co-sponsor, I told many VIPs and spoke in many meetings within the UN, that this type of tactic has been used for more than seventy years (70) by Sri Lanka to buy time. Now they have achieved buying their time. Let’s see what civil society in the South is going to do about it.
However Sri Lanka is answerable to the following resolutions which were adopted by the UN Human Rights Council in the past – 19/2 of 22 March 2012, 22/1 of 21 March 2013, 25/1 of 27 March 2014, 30/1 of 1 October 2015 and 34/1 of 15/03/2017.
The other impending possibility is that Mahinda Rajapaksa’s group or party will win in the next parliamentary election. If everything works in their favour, Rajapaksa may even win with a two third majority. But winning the Presidential election is a difficult one for Rajapaksa’s family because it fully depends on the votes from the North, East and Up-country.
In November 2005 Rajapaksa won the Presidential election because there was a boycott in the North and East, and in January 2010 due to obvious vote-rigging. There were several complaints about the vote-rigging in the 2010 Presidential election which have not been investigated even today by the so-called GG. Where is then Election Commissioner Mr. Dayananda Dissanayake who quit the country soon after the Presidential election in 2010? Will he let the cat out of the bag?
It is believed that Mahinda Rajapaksa’s family has already formed a shadow government with an idea of taking revenge on certain individuals who are serving in the present government or are supportive of the present government. A red list has been prepared by them. Sarath Fonseka, Chandrika Kumaratunga, Mervyn de Silva and many others may end up as life-time jail birds. Some academics supportive of Rajapaksa are waiting like foxes to fill the posts in New York, Brussels, Geneva and Russia.
Soon, the time is coming for the present members of the GG to regret. They have failed to investigate and punish the culprits who played havoc during Rajapaksa’s regime. This includes Rajapaksa’s family as well.
An academic who was a minister in many different governments is working on the legal processes involved in taking revenge. Rajapaksa’s shadow government is preparing to shake the dust off many crime files on which they took no action during Rajapaksa’s presidency from 2005 to 2015. This will pave the way for half of the members in the present GG to seek asylum in foreign countries. (End)

By S. V. KIRUPAharan

19 August 2018
(The General Secretary of the ‘Tamil Centre for Human Rights – TCHR’, established in 1990 in France. (www.tchr.net). While working as a human rights activist/defender, writes articles on the situation in Sri Lanka and also UN Human Rights mechanisms. As member and representative of TCHR, has been attending the UN Human Rights Forums since 1990. Made interventions in the main plenary and spoke in many meetings in the UN.)
by     (2018-08-20 00:38:10)
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Land powers and public finance- New draft constitution – Part 7

Land powers and public finance- New draft constitution – Part 7

by C. A. Chandraprema-August 19, 2018, 10:32 pm

(Continued from last Thursday)

Under the provisions that were introduced to our present Constitution by the 13th Amendment, rights in or over land, land tenure, transfer and alienation of land, land use, land settlement and land improvement, was said to be a subject devolved to the provinces. However, according to Appendix II of the 9th Schedule of the Constitution, State land shall continue to be vested in the Republic and may be disposed of in accordance with the powers vested in the President to dispose of land under the public seal. State land required for the purposes of the government in a Province, in respect of a national or concurrent subject may be utilised by the government after consulting the relevant Provincial Council. The government shall make available to every Provincial Council State land within the Province required by such Council for a Provincial Council subject. The alienation or disposition of the state land within a province to any citizen or to any organisation shall be by the President, on the advice of the relevant Provincial Council, in accordance with the laws governing the matter. There was a degree of ambiguity in the wording of these provisions.

The definitive Supreme Court interpretation in relation to land powers in our present Constitution is contained in the judgment of the 2013 case of Solaimuttu Rasu vs State Plantations Corporation where a three-member Bench held that under the provisions of the 13th Amendment, State land comes under the central government and not the provincial councils. The argument was that the unequivocal opener of Appendix II of the Ninth Schedule of the Constitution -“State Land shall continue to vest in the Republic and may be disposed of, in accordance with Article 33 (d) and written laws governing the matter.” points to the fact that State Land belongs to the Republic and not to the Provinces because Article 33(d) of the constitution (before the 19th Amendment) refers to the president’s exclusive power to dispose of land belonging to the Republic. Furthermore, the list of powers of the government in the Ninth Schedule of the constitution clearly states that “State Lands and Foreshore” comes under the government.

The provincial councils list of powers in the Ninth Schedule of the Constitution specifies that PCs will only have “rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and land improvement”. Furthermore, the government is to make available to every Provincial Council State Land within the Province required for a Provincial Council subject. Only after such land is provided to the provincial council by the government, does the Provincial Council have the power to ‘administer, control and utilize’ such State Land. This implies that a Provincial Council cannot appropriate state land without the government making that land available to it. The 2013 Supreme Court judgment in Solaimuttu Rasu vs State Plantations Corporation is thus the Sri Lankan equivalent of the Indian Supreme Court judgment in the 1962 case of State of West Bengal vs Union of India, which upheld the powers of the Indian Central government over State land in the whole of India.

Provinces to have complete

power over land

What the proposed draft constitution aims to do with regard to powers over land is nothing less than the complete upending of the situation that prevails at present with regard to land powers. If this constitution is implemented, the provincial councils in Sri Lanka will have much greater powers over land than the States in India. According to the proposed changes, all State land within the Province shall be at the disposal of the Provincial Administration for the purposes set out in the Provincial List. The Provincial Administration will exercise rights in or over such land, including land tenure, transfer and alienation of land, land use, land settlement and land improvement. Where the government requires State land in a Province for the purpose of a subject on the National List, they may require the Provincial Administration to make that land available to the government and the Provincial Administration shall comply with such requirement.

Where a Provincial Council does not comply with such requirement, the President shall refer the matter for arbitration to a tribunal consisting of a member appointed by the Prime Minister, a member appointed by the Chief Minister and a Chairman nominated by the two appointed members. If there is no agreement, the Chairman will be appointed by the constitutional council. The decision of such a tribunal may be challenged in the Constitutional Court. Thus the final power over land is with the province and there are various mechanisms including the Constitutional Court to enforce that provision. Even when it comes to land required for security related matters, there is no diminution in the powers of the provinces. Where following consultations between the central government and the Provincial Administration, the President on the advice of the Prime Minister is satisfied that State land in a Province is needed for National Security or Defence, the President may, on the advice of the of the Prime Minister, direct the Provincial Administration to make available that land to the Central Government. A Provincial Council, aggrieved by such decision may appeal to the Constitutional Court.

Under the provisions of the 13th Amendment, the allotment of lands in major irrigation schemes was to be on the basis of the national ethnic ratio. In the distribution according to such ratios, priority will be given to persons who are displaced by the project, landless of the District in which the project is situated and thereafter the landless of the Province. Under the proposed draft constitution, this is to be changed so that priority in land settlement schemes after the commencement of the Constitution shall be accorded to landless persons in the following order – (a) firstly, to persons of any sub-division, recognized by law, of the relevant District, (b) secondly, to persons of the relevant District, (c) thirdly, and to persons of the relevant Province, and (d) fourthly, to other persons.

Our present constitution has provision for a National Land Commission which will be responsible for the formulation of national policy with regard to the use of State land. The Commission is to include representatives of all Provincial Councils in the Island. The National policy on land use will be based on technical aspects having regard to soil, climate, rainfall, soil erosion, forest cover, environmental factors, economic viability etc. In the exercise of the powers devolved on them, the Provincial Councils will have due regard to the national policy formulated by the National Land Commission. Thus, under the present constitution, land use policy is firmly in the hands of the government and the provincial councils are mandatorily required to abide by the directives of the National Land Commission. What is envisaged in terms of the National land Commission under the proposed draft constitution, is very different.

The proposed draft constitution envisages the setting up of a National Land Commission with equal representation for the government and the Provinces. This body is to formulate national land use policy, taking into account standards relating to the appropriate amount of forest cover, exploitation of natural resources, the quality of the environment and other relevant matters. In formulating such policy the National Land Commission shall afford ‘a margin of appreciation’ within which the Central Government or Provincial Administrations may pursue their respective policies. Where, after affording the Central Government or the Provincial Administration an opportunity to be heard, the Commission forms the opinion that the Central Government or a Provincial Administration is acting in deliberate non-compliance with guidelines or directions made by the Commission, the Commission may refer the matter to the Constitutional Court.

These provisions indicate quite clearly that the authority that the present Land Commission has, is to be whittled down under the proposed draft constitution. The Constitutional Court may, where it is of the view that it is necessary to do so, make permanent or interim orders directing the Central Government or the Provincial Administration (or specified officers / authorities thereof) to comply with such guidelines or directions or such parts thereof, as the Constitutional Court may direct. Where the Provincial Administration acts in contravention of a permanent or interim order made by the Constitutional Court, the Constitutional Court may make order that the Central Government shall assume control over such extent of specified land as necessary to ensure compliance, for a specified period. What these provisions are meant to look like safeguards are actually meant to allow the provinces to dance circles around the central government in terms of land use policy. Ecologically, how feasible is it for a country like Sri Lanka to NOT have a centrally planned and administered land policy?

Public Finance

Under the provisions of our present Constitution, Parliament has unequivocal control over public finance. Article 148 of the Constitution clearly states that “No tax, rate or any other levy shall be imposed by any local authority or any other public authority, except by or under the authority of a law passed by Parliament or of any existing law.” As has been made clear in previous instalments of this series, aim of the proposed draft constitution is to have a weak centre and very powerful quasi-independent provinces and the provisions relating to public finance are also to be changed appropriately. For example, the present Article 148 of the Constitution is to be amended to read as follows: “No tax, rate, or any other levy shall be imposed by Parliament, Provincial Councils, Local Authorities or by any public authority, except by or under the authority of an Act or Statute passed in accordance with the Constitution.” It will be noted that authority over public finance is thus to be shared between the centre and the provinces.

Under the present Constitution, there is a Consolidated Fund to which is paid the produce of all taxes, imposts, rates and duties and all other revenues and receipts of the Republic not allocated to specific purposes. Withdrawals from the Consolidated Fund will be by the Minister of Finance on the basis of a resolution of Parliament allocating the money for that purpose. Under the proposed draft constitution, the exclusive powers of Parliament over public finance is to be diluted by enabling both Parliament and the Provincial Councils to withdraw money from the Consolidated Fund and to impose taxes. The PCs are also to have their equivalent of the Consolidated Fund in the form of ‘provincial funds’ to which revenues raised and all fees accruing to the Provincial Council, all loans raised by such Council and all other monies received by such Council will be credited. Furthermore, Provincial Councils are also to have Contingency Funds on the same model as the Contingency Fund of the central government.

According to Article 154R of the present Constitution the Finance Commission consists of the Governor of the Central Bank, the Secretary to the Treasury and three other members appointed by the President on the recommendation of the Constitutional Council, to represent the three major communities. The task of the Finance Commission is to make recommendations on allocations to meet the needs of the provinces. In making such recommendations, the Commission is to take into account – (a) the population of each Province (b) the per capita income of each Province; (c) the need to progressively reduce social and economic disparities ; and (d) the need to progressively reduce the difference in the per capita incomes of the Provinces. Under the proposed Constitution, the Finance Commission is to be expanded and consist of the Governor of the Central Bank of Sri Lanka, the Secretary to the Treasury, five distinguished financial experts, appointed by the President on the recommendation of the Constitutional Council, three members to represent the Provinces, and one member to represent local government institutions.

The task of the Commission will be to make recommendations to the government on the allocation of finances to the National, Provincial and Local spheres of government and allocation of funds to individual Provinces and Local Authority areas, taking into account factors such as the national interest, any provision that must be made in respect of the national debt, the needs and interests of the national government, the need to ensure that the provinces and local authorities are able to provide basic services, the fiscal capacity of the provinces and local authorities, the developmental needs of the provinces and local authority areas, economic disparities within and among the provinces, etc. The most important thing to note is that under the present constitution, the Finance Commission has only a consultative role and it can only make recommendations.

But under the proposed draft constitution, there is a provision which reads as follows: “Parliament shall take due cognizance of the recommendations of the Finance Commission in making decisions in the exercise of its powers and duties relating to public finance.” What this means is that the Finance Commission is to become a decision making body which can actually dictate terms to Parliament. The Provincial Councils will make allocations to the local authorities in accordance with the guidelines and criteria or directives specified by ‘the Finance Commission, or Parliament, as the case may be’. In addition to this powerful Finance Commission, under the proposed new constitution, there is to be a ‘Forum of Finance Ministers’ composed of provincial finance ministers and chaired by the Finance Minister in the central government which will meet bi-annually for consultation between the national, provincial and local spheres of government in matters relating to finance.

(To be continued)

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Sri Lanka: Sinhalese fishermen leave Tamil coast after arrests for arson (VIDEO)

Sri Lanka: Sinhalese fishermen leave Tamil coast after arrests for arson (VIDEO)

By Athula Vithanage-POST 19 AUGUST 2018
Non-resident fishermen from southern Sri Lanka reluctantly gave up occupation of the northeastern coastline after three of their colleagues were detained by courts for alleged arson attack on fisherfolk huts.
Cadjan huts sheltering at least eight families in the Mullaitivu district were burnt to ashes in the early hours of Monday (13), where local fishermen were protesting environmentally destructive methods used by hundreds of settlers from the south.
Boats, fishing equipment and domestic utensils worth millions perished in the fire on the Nayaru coast, a day after the government was compelled to declare that illegal fishing would be banned.
Lakshman Fernando, Warnakulasuriya Manoj and Jagath Fernando from the Sinhala dominated south suspected of carrying out the attack were remanded until 21 August by the Mullaitivu magistrate.
Mass protest
Angered by the uninterrupted settling of southern groups, with apparent military support, local Tamil fishermen had launched acontinuous mass protest earlier, forcing the fisheries minister to visit the area with Tamil National Alliance (TNA) lawmaker MA Sumanthiran.

Following discussions with local officials and fisheries representatives on 12 August, Minister Wijith Wijayamuni Zoysa promised to impose a temporary ban on environmentally damaging fishing methods prompting the suspension of the ten-day protest.
The fisherfolk huts went up in flames the next day.
Four days after the announcement of the ban, the southern settlers left Mullaitivu under the protection of police.
Tamil speaking Mullaitivu is the most heavily militarized district in the island with at least one soldier for every two civilians.☐
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Memorial for 1984 massacre of Tamil civilians opened in Kaithady

Memorial for 1984 massacre of Tamil civilians opened in Kaithady

A memorial for a 1984 massacre of Tamil co-operative workers was opened on Saturday in Kaithady, Thenmarachchi.
Home19Aug 2018
On 13th August 1984, ten civilians including workers from the Thenmarachchi West Multipurpose Co-operative Society were killed by Sri Lankan soldiers.
The memorial to the victims was opened today by ITAK leader Mavai Senathirajah.
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Sri Lanka’s Democracy: Very critical challenges ahead

Sri Lanka’s Democracy: Very critical challenges ahead

by Jayadeva Uyangoda-19 August, 2018
HomePolitical discussions in the country at present are largely dominated by questions around two themes: which individual will win the next presidential election and which political party will win the next parliamentary election.

These are no doubt important questions, but there is a more serious political question about what will happen to Sri Lanka’s democratization agenda in the years to come. Political and social activists, who have made direct contributions to regime change in 2015, are particularly preoccupied with the latter question. They are also quite worried about the indications that Sri Lanka is moving in the direction of another phase of direct assaults on democracy. The recent reports that plans are afoot in some quarters to profile citizens into two categories as patriots and traitors on the basis of psychiatric indicators, however bizarre they may sound, actually smack a little bit of Nazism.

These are warnings to democracy activists that the country is in for some serious political trouble. It is therefore, time now to begin a new discussion about what interventionist options are available to Sri Lanka’s social movements that have been engaged in past attempts at democracy’s defence, revival and consolidation.

This essay aims at making a contribution to generating such a discussion.

Three Entities

At the next presidential and parliamentary elections, the competition for gaining control of the government would be between three main political formations — the United National Party and its allies, the SLFP and its allies, and the present Joint Opposition and its allies. With regard to the agenda of democratization, these three entities provide very little positive possibilities.

Let us first look at the performance record of the UNP led by the present Prime Minister and the SLFP led by the present President during the past three and a half years. It teaches us the following negative lessons: (a) regime change is NOT an adequate condition for revival and consolidation of democracy in any substantial sense, although it is a necessary prerequisite; (b) political parties and leaders, even those who win elections on the promise of democratic reforms, may NOT always possess courage, conviction, and the political will to advance a sustainable reform agenda, and (c) Incomplete and half-hearted efforts for corruption-free governance, substantive democratization and peace-building have created a political space for a right-wing and authoritarian backlash with the potential for popular support.

Thus, the UNP and SLFP as political parties as well as their leaders are NOT dependable actors in advancing a transformative agenda for Sri Lanka.They have abdicated any future role for themselves as champions of democratic change. These are inconvenient truths. They are nevertheless political truths. And they encapsulate some political cruelties of our time as well.

How about those who are getting ready to come to power in a year or so? The so-called Joint Opposition, its new political party called the Sri Lanka People’s Front, the leaders of these two entities as well as the aspirants who are seeking endorsement as the common opposition presidential candidate in 2019, share one distinct commonality: their contempt of and antipathy towards a democratic reform agenda. They are at present creating conditions to secure a popular mandate for a post-democratic and populist-authoritarian political transition in Sri Lanka and they might even succeed in their quest. Their electoral success, if that happens at all, would bring some euphoria at the beginning. Yet, it is certain to mark a political setback of the worst kind for the citizens of Sri Lanka.
Such a regime change will also cause unmanageable political and social conflict, exacerbate political instabilities as well as ethnic and social polarization, and make violence necessary as an instrument of both regime survival and social resistance. As the numerous international examples show, dislodging such a regime from power will certainly be a violent affair, accompanied by bloodbath.

Democracy Cycle

This dystopian scenario is only one side of contemporary Sri Lanka’s story of democracy. Its other side is that democracy has been a social process pushed forward by citizens’ political desires, commitments, struggles and resistance interspersed with democracy’s decline, setbacks and regeneration. This has indeed been one of the most significant dimensions of Sri Lanka’s political change in recent history. Every retreat from democracy by regimes with authoritarian intentions has also generated resistance leading to eventual revival of democracy overcoming setbacks and popular inertia.

This cycle of retreat and regeneration of democracy is a part of the long-term dynamics of Sri Lanka’s political change. Each generation of citizens has to deal with it and bear its consequences and enjoy its fruits.

At the same time, the 2015 experience has taught Sri Lanka’s citizens a disturbingly new political lesson: political parties and the class of professional politicians are no longer reliable allies in the struggle for democracy. For them, democratic desires and aspirations of citizens have only an instrumentalist value. Their loyalty and fidelity to their own democratic constituencies is tentative, opportunistic and expendable.

Democracy’s Survival

The challenges of Sri Lanka’s democracy’s survival would be all the more daunting in a context where the SLFP and the UNP, if they find themselves in the opposition, would be decisively weakened as a part of the post-democratic political agenda of the new regime. All other political parties, except the JVP in the South and one or two Tamil parties in the North, are likely to capitulate and be partners in a new authoritarian onslaught. In a worst case scenario, what J. R. Jayewardene and Mahinda Rajapaksa did to ensure the disintegration and capitulation of the opposition in the recent past would appear mild compared with what is likely to happen under the political order that is taking shape at present.

A variety of local and international factors seem to be conspiring to cause this possibility. Key among them are (a) the emerging regime’s close proximity to China, its admiration of the Chinese economic and political model, and of course the links with the new forces of global capital, (b) its agenda of rapid economic growth with excessive emphasis on political stability amidst an unprecedentedly severe economic crisis, (c) authoritarian adventurism of the ex-military-civilian power bloc that would shape the new regime’s domestic and international agenda, (d) the likely onset of a counter-democratic backlash following the presidential and parliamentary elections, and (e) return of the governance model of national security state. Thus, Sri Lanka has the potential to emerge as a new and extended version of the Maldives.

Now, this backdrop confronts Sri Lanka democracy constituencies with some difficult and intractable prospects with the following questions: If a serious setback to democracy is almost a certainty after 2019-20 elections, how will democratic regeneration be possible in Sri Lanka? How could democratic civil society and political society constituencies survive an inevitable phase of repression and closure of the space for dissent and mobilization? How could regeneration of the democratic movement be made possible under conditions of a Right-populist and authoritarian regime?

Democracy’s Defences

Building and strengthening democratic defences and resistance in our society is perhaps the only available path to counter the degeneration of Sri Lanka into another version of the Maldives. In view of the decline of Sri Lanka’s political parties as institutions of democratic resistance, most of the responsibility for resistance will fall on the shoulders of citizens and their autonomous mobilization.

The culture of resistance is indeed one of the abiding qualities of the political life of Sri Lankan society. The praxis of resistance is usually preserved and sustained by groups of activist citizens who constitute the democratic nucleus of society. It is they who also constitute the civic republican core of Sri Lanka’s democracy. Their civic republican spirit is characterized by their politics of (a) defending democracy whenever it is under threat, (b) civic resistance, (b) public spiritedness, (c) civic alertness and vigilance, (d) collective activism, and (e) the vision of democracy as an indispensible public good. They are spread across trade unions, industrial workers, student groups, peasant organizations, urban and rural youth, women’s activists, professional associations, socially conscious religious communities, media practitioners, non-governmental organizations, and individual citizens with advanced democratic consciousness.

Democratic Resistance

Though relatively small in numbers, it is some of these groups who first mounted sporadic resistance to the authoritarian regime of the Rajapaksa brothers and then created conditions for sustained resistance until a new coalition of political parties emerged to facilitate opening up new space for democratic revival.These civic republican groups are now largely dormant. They are awaiting a fresh phase of mobilization and it requires coordinated initiatives and action.

Providing organizational leadership to these scattered core groups of Sri Lanka’s democratic social movements is perhaps the immediate task of the more active and resourceful civil society groups. They have one year ahead before the next presidential election to mobilize a new social movement of democratic defence and resistance in Sri Lanka and then build a strong coalition of counter-veiling social forces to any authoritarian political formation that has prioritized the replacement of democracy in its Right-wing reform agenda.

There are a few normative principles on which the politics of a new social movement for democratic defence and resistance needs to be constructed. (a) It is a broad coalition of social movements, built on the principle of democratic plurality and diversity; (b) It should evolve itself as a lose conglomeration of multiple spaces of democratic resistance with no centre, no ideological straitjacket, or no organizational hierarchy; (c) It will work in a purely tactical alliance with major political parties, with the firm conviction that its political autonomy is not compromised; (d) It will work in closer coalitionist cooperation with small political parties without getting entangled with their electoral agendas; (e) It will construct a new political language that can reignite democratic and emancipatory political imaginations of the broad constituencies of citizens.

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National & Sub-National Planning Approaches In Sri Lanka (1948 – 2018)

National & Sub-National Planning Approaches In Sri Lanka (1948 – 2018)

logoNational and Sub-National Planning Approaches in Sri Lanka (1948 – 2018): A Critical Review by P. Sumanapala. 2018 Quality Printers, Homagama
Development planning, implementation, monitoring and evaluation at national and regional levels assume high significance in contemporary society as they involve economic development, poverty alleviation, social engineering and preservation of quality of life at national and regional levels. Involvement in efficient economic development planning and implementation at various administrative units has been part of state responsibility at varying levels since independence. However, complexities have emerged in the field of planning with the expansion of neoliberal, free market economic ventures initiated and implemented by the private sector-local and foreign – making the process of planning quite challenging.
 Coordination of planning and implementation activities including budgeting, provision and careful utilisation of resources among various levels of government plays a crucial part in the process. At this juncture, whether Sri Lanka is facing up to this challenge in terms of political, institutional (bureaucratic), and procedural dimensions is a reasonable question to raise. In this regard, gaining an understanding of how the development policy development and planning evolved since independence and acquiring a sense of the challenges facing planners as well as how to address them are necessary steps. This book provides the reader with a useful resource to achieve these objectives. The author who held important positions in the national planning department of the finance ministry and the finance commission responsible for provincial budgets has utilised his academic training as an economist to come up with this publicationHe holds a Master’s degree in Regional Development and Planning from the Institute of Social Studies in The Hague, the Netherlands. The book details measures to arrest regional disparities, e.g. local government to be given more responsibilities, better coordination, industries in agriculture areas, focus on vulnerable groups (pp. 64-67). A series of recommendations to address other continuing issues are also included in the final two chapters. There are   numerous insights that present day planners and students of development planning can gain by reading the book.
Successive governments since independence introduced a number of development plans and policy approaches/frameworks at the national level while a range of development initiatives has been instituted to develop regions and sub-regions.  The latter followed   policies and strategies adopted at macro level in order to address the regional disparities. In terms of the changes in planning approaches, ‘governments from 1948-1977 accorded a prominent place for economic planning. Governments that came after 1977 adopted a less interventionist liberalised economy approach. They provided policy directions to private investors considered as the engine of growth for viable projects and utility services (p.29). However, compared to other countries in the region such as Thailand, Singapore and Malaysia, Sri Lanka has not performed well in the economic frontier in terms of economic indicators. Aafter analysing socio-economic data, the author states that the objectives and targets set out have not been achieved satisfactorily due to domestic and international factors some of which are beyond the control of relevant authorities (P.81).
Since the introduction of Provincial Councils in 1987, national planners had to work with their counterparts at the provinces –both at the political and bureaucratic levels.  However, the duplication of development plans by the line ministries and Provincial Councils has emerged as a major issue. Concentration of industrial, commercial and service activities in and around the capital have not changed during the last seven decades either.  
The book includes chapters that engage with national and regional planning approaches, provincial planning and challenges of development planning. It analyses the planning strategies adopted by governments during the seventy years since 1948 at national and regional levels. 
Chapter 1 deals with definitional issues and the nature of policies and plans implemented in various periods. Reasons for poor performance are also outlined (pp. 30-31). For the 2015-18 period, planning indicators are given. The government vision is explained as ‘to graduate the economy to an upper-middle income status by 2020’(p.25). In order to achieve this vision, ‘the government adopts an economic strategy based on social market concept with the twin objectives of achieving higher growth and promoting social equity’ (p.25). Developing regional and rural economies through strong small and medium enterprises is part of the policy agenda.
Chapter 2 deals with national planning approaches including their theoretical backgrounds such as Classical and Neo classical, Core-periphery, Dependency, and Neo Marxist. The distinction between capitalist and socialist development concepts are elaborated while pointing out that in the 20thcentury the US and the Soviet Union adopted mixed economy model incorporating elements of both market economy and centralised planning by the state. The details on theory in the chapter remain very basic and descriptive. The author does not engage critically with the theoretical approaches mentioned or their suitability to the Sri Lankan context. However, the chapter provides the reasons for regional disparities and emphasises the need for balanced regional development across provinces (pp. 34, 39-41). 

Read More

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A scandalously ‘coercive’ monk brought to book

A scandalously ‘coercive’ monk brought to book

Sunday, August 12, 2018
Core elements of the fifty-six page decision handed down by the Court of Appeal this week sentencing General Secretary of the Bodu Bala Sena (BBS) Galagoda Aththe Gnanasara to six years rigorous imprisonment for contempt ‘in the face of the court’ constitute a stern warning to unruly individuals (monks or laymen) attempting to interfere with the processes of court.

An eminently rigorous sentence

The Sunday Times Sri LankaIf it was thought (and indeed, it would have been, judging from the openly insulting behavior of the BBS and its representatives during the court proceedings at the Homagama Magistrate’s Court), that the judiciary would not respond with the appropriate severity, then those misapprehensions may now be laid to rest.

In fact, observing the markedly subdued reactions of those representing the accused monk who had deposited himself in hospital at the time of the sentencing as they presented themselves before television cameras on Hulfsdorp, it appears that the decision has had a markedly salutary effect, almost immediately.

For many of us, applauding a decision imposing an eminently rigorous sentence for contempt, (nineteen years, to be served concurrently making it six years in all), does not come easy. Sri Lanka’s history of contempt of court has been a peculiar mixture of judges being extremely harsh on some occasions and unduly lenient in others. When a teacher of English Antony Michael Fernando was sentenced to one year rigorous imprisonment by the Supreme Court (per order of then Chief Justice Sarath Silva with Justices Yapa and Edussuriya agreeing), after he was determined to have ‘raised his voice’ and insisted on his right to pursue an application that he was urging himself before the Court in early 2003, this was perhaps a good instance of the former category of cases.

Unusually strong language by Court

Fernando was thereafter detained at the Welikada prisons and inhumanely physically abused by prison guards leading to criminal charges being filed against the torturers who were also named in a fundamental rights application filed on his behalf, though these cases did not result in justice being served.

While Fernando’s case is at one extreme, there are many more at the other extreme where the authority of the Court had been egregiously flouted with no apparent repercussions. Viewed objectively and putting aside the racial and religious motivations of the BBS, the scandalous conduct of its General Secretary at the Homagama Magistrate’s Court during the hearing of an application relating to the disappearance of journalist Prageeth Ekneligoda which led to this decision by the Appeal Court was unequivocally one such instance.

In finding the accused General Secretary of the BBS guilty, the Court of Appeal did not mince its language. The judges pointed out that the accused who had no connection to the case being heard at the Magistrate’s Court and had no standing to appear, had ‘addressed’ the Court without express or implied permission of the magistrate. He had intended to ‘intimidate’ the magistrate into granting bail to the suspects (all intelligence officers) after the magistrate had already refused to do so.

Intent to intimidate and coerce

This ‘address’ by the accused to the magistrate had been made in a high tone, to be heard ‘even by those waiting away from the court room’ and had been in ‘abusive, offensive and commanding’ language. In doing so, he had tried to ‘somehow force’ the judicial officer into obeying his commands and to reverse an already pronounced Order of the magistrate. It was proven beyond reasonable doubt that, despite not being a party to the case, the accused had come in support of the suspects deliberately to intimidate and coerce.

Among those coercive utterances was the statement by the accused to the Homagama Magistrate that this was the ‘white person’s law’ and that he did not accept that law. The Appeal Court reprimanded that statement in the strongest terms, observing that whether it is foreign-made or locally-made, it is the ‘prevailing law that the courts have to apply.’ It was further emphasized that ‘the Court will administer justice according to such law irrespective of its genesis.’ The accused’s statement was concluded to be an attempt to ‘degrade’ the honour and authority of Court and a categorical refusal to accept its authority, deserving therefore of the most stringent response.

Further, an additional factor weighing with the judges was that when state counsel and the lawyer representing the aggrieved party rushed back into the court room upon hearing the commotion and attempted to support the Magistrate whom they had found to be in a vulnerable situation in the face of the accused’s verbal onslaughts, they too had been abused with the state counsel being referred to as ‘impotent’ by the accused General Secretary. Assessing the testimony with judicious care, the Court of Appeal found that the evidence of the state counsel, the magistrate and the lawyer buttressed each other and were trustworthy while the testimony of the accused and his witnesses who spoke on his behalf were contradictory.

A wider principle in issue

No doubt, this decision of the Appeal Court will be a potentially strong deterrent to those wishing to follow in the turbulent if not thuggish footsteps of the accused in this case. But there is a wider principle in issue. Too often, calls for the codification of a law on contempt have been seen as a limitation on the discretion of judges to exercise their authority in such cases.

In Fernando’s case for example, the ruling against him was taken to the United Nations Human Rights Committee under the terms of the International Covenant on Civil and Political Rights,
(ICCPR) with this columnist representing his case at the time. Thirteen jurists of the UN Committee agreed without dissent that, “no reasoned explanation has been provided …as to why such a severe and summary penalty was warranted in the exercise of the court’s power to maintain orderly proceedings when the only disruption was the repetitious filing of motions and one instance of ‘raising his voice’ in the presence of the court (U.N. Doc. CCPR/C/83/D/1189/2003 (2005).

While that may be so, it must also be even reluctantly conceded that, as this week’s Appeal Court decision amply shows, there are instances when, exercising the power of contempt in all its severity is, in fact, required.

In all respects therefore, Sri Lanka should look to enacting a Contempt of Court Act, in line with neighbouring countries in the region. This will be useful for keeping both unruly individuals dismissive of the authority of court and overly repressive judges, within the framework of the Rule of Law when contempt powers are in issue and are so exercised.

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Amali Mallawaarachchi-Monday, August 20, 2018

Former President Mahinda Rajapaksa is not qualified to contest the upcoming Presidential election, Higher Education Minister Wijeyedasa Rajapakshe said yesterday.

He said that according to the provisions of the 19th Amendment to the Constitution, a former President is barred from contesting any Presidential election.

The provisions stipulate that no President can hold the Executive Presidency for more than two terms.
He pointed out that some groups are trying to establish a notion that former President Rajapaksa could contest in the coming Presidential Election based on certain legal arguments.

Minister Rajapakshe further said neither former President Chandrika Bandaranaike Kumaratunga nor Mahinda Rajapaksa are allowed to run for a third term as the 19th Amendment to the Constitution does not allow so.

He said the Presidential Election Act states the seriousness of a disqualified person handing over nomination to contest in a Presidential Election. He pointed out that legal action could be taken against a candidate who gives a false statement on his or her qualification to contest at a Presidential Election.

“When a person wants to contest in a Presidential Election, he or she has to hand over his or her nomination along with a sworn statement which says that he or she is not a disqualified person to contest as a Presidential candidate.

If a person who has become a President twice, requests to compete as a candidate for a third term, that person will also have to give a sworn statement saying that he or she is not disqualified to contest. If such a statement be given, that would become a false statement. It will become a lie. According to the Penal Code Provision 190, a person giving a false sworn statement is subject to three years imprisonment,” Minister Rajapakshe pointed out.

Minister Rajapakshe made these observations at a press brief held at Nawala yesterday afternoon.
Minister Rajapakshe, commenting on certain parties stating that they are going to seek the Supreme Court’s opinion on the matter, pointed out that only the President can seek opinion from the Supreme Court with regards to it.

“No one other than the President can directly seek an opinion from the Supreme Court. Even if they do, the Supreme Court will discard the requests,” the Minister added.

Asked if a person who has served two terms as a President is qualified or not to hold the post of Prime Minister, Rajapakshe said that it does not affect a person to hold office as a Prime Minister, a Minister or a Member of Parliament.

Asked when the next Presidential Election would be declared, Minister Rajapakshe said that President Maithripala Sirisena will be able to, if necessary, call for a Presidential Election at the completion of the fourth year of his office.

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