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 Govt. faces heavy fire from Geneva

Govt. faces heavy fire from Geneva

2013 Feb 25


    Upul Jayasuriya’s resounding victory at BASL elections sends message to Rajapaksa regime
    US prepares tougher resolution with support from 27 European Union countries

By Our Political Editor

Besides polls conducted by the Department of Elections, perhaps the only other which assume an official character are elections to the Bar Association of Sri Lanka (BASL), the premier body representing the country’s lawyers.

Formed in 1974 with the incorporation of the Bar Council of Ceylon and the Incorporated Law Society of Ceylon, it is meant to be the spokes-body of the Un-official Bar with the Solicitor General from the Official Bar acting as the returning Officer for the election. The membership of the BASL includes judges, state counsel and private lawyers.
Even if they are classified as the ‘unofficial bar,’ like oxygen, they are a must for the survival of the official one — those lawyers from the State, as well as members of the judiciary. It is the harmonious blend of the threesome that ensures justice and fair play for the people. More importantly, they are the pivots on which the rule of law in a nation rests besides the now heavily politicised and increasingly undisciplined Police Department.

The climate for justice, fair play and the enforcement of the rule of law, there is little doubt, has changed for the worse. This was particularly so after the hurried December 2012/January 2013 impeachment of Chief Justice 43, Shirani Bandaranayake and the enthronement of CJ 44, Justice Mohan Peiris. The move angered even lawyers who were staunch supporters of the UPFA Government and triggered an international outcry. The shockwaves it created continue to reverberate here and abroad.
Every other year, District Court premises in different towns become polling booths. The Solicitor General supervises the polls in Colombo and District Judges supervise the polls in their respective jurisdictions. Between 8 am and 5 p.m. last Wednesday lawyers turned up to cast their votes, an exercise whose outcome delivered a powerful message to the UPFA Government.

Upul Jayasuriya. a frontline campaigner against the impeachment of Dr.Bandaranayake, was elected as president of the BASL by a majority of 2,048 votes against his rival Tirantha Walaliyadda, PC who admittedly was perceived as a government backed candidate and one who supported the appointment of Mohan Peiris as CJ 44. Walaliyadda secured 902 votes.

Congratulating the winner on his “resounding victory”, Walaliyadda, the vanquished said he would support all efforts on behalf of the BASL. The victory count is without 17 votes in Warakapola and 14 votes in Mahiyangana areas. The Returning Officers or the District Judges there had sent the results by post to the BASL. It is not just the larger majority that was cause for history. There were many reasons.

Walaliyadda was a last minute entry to the contest after Jayasuriya had announced his candidature. While several former BASL presidents and other respected President’s Counsel had thrown their weight behind Jayasuriya, pro-impeachment lawyers searched for a candidate. Newly appointed Bank of Ceylon chairman Razik Zarook, PC who spoke on behalf of “those lawyers assembled” at the ceremonial sitting of CJ 44 Peiris, was the main proposer of Walaliyadda’s candidature.

Ironically, last year, Walaliyadda challenged UNP MP Wijeyadasa Rajapaksha, and lost to him. His campaign platform was to ensure the independence of the legal profession without political interference, and had the support of the likes of Upul Jayasuriya. This time, however, government VIPs threw their full weight hosting lunches and dinners for lawyers in support of Walaliyadda.

Lunches and dinners included one at the Mahaweli Centre hosted by Minister Nimal Siripala de Silva; one in Narammala (Kurunegala District) by Minister Anura Priyadarshana Yapa; one at the Earl’s Regency in Kandy by the Central Province Chief Minister, Tissa Karaliyadde.

In Tangalla, Jayasuriya romped home securing 18 votes whileWalaliyadda obtained only two. Similarly, Jayasuriya secured majorities in other southern districts. Here are a few examples: Hambantota – Jayasuriya 14,Walaliyadde 4; Galle – Jayasuriya 97,Walaliyade 23; Matara – Jayasuriya 92,Walaliyadde 24.

Another significant victory was in Kandy where Jayasuriya secured 132 votes and Walaliyadda only 32. It was only in three towns that Walaliyadda won and they were by slim margins. They are Akkaraipattu: Walaliyadda 7, Jayasuriya 5; Baddegama: Walaliyadda 8, Jayasuriya 5; Kuliyapitiya: Walaliyadda 20, Jayasuriya 19.
At last year’s BASL elections, Wijeyadasa Rajapaksha polled 2,884 votes whilst Walaliyadda secured 1,123.

A cynical attorney-at-law who supported Jayasuriya pointed out that 52 had attended the dinner in support of Walaliyadda in Kandy but he had secured only 32 votes. Though some had attended the dinner, they voted for Jayasuriya, he said adding this was “the case in a few other places too.” This year, there were 11,228 lawyers on the voter register, though some were said to be dead, living abroad or no longer in practice.

Lawyers in large numbers arrive in Hulftsdorp to cast their votes. Pic Susantha Liyanawatte

Walaliyadda’s campaign strategy this time around was to “build a bridge” between the Government and the legal fraternity; a bridge that had collapsed with the impeachment crisis. That no doubt was cause for the official backing he received. Such a “bridge” would have helped the ruling UPFA leadership to gain control of one important segment in the legal sector that is now not within its realm. Of course, there are always lawyers backing Governments. Some even serve as chairmen of state corporations and other statutory bodies. Others have won briefs from corporations where the fees are handsome. Walaliyadda also made a call on the Opposition United National Party Leader Ranil Wickremesinghe. That was apparently to project the message that he had access both to President Mahinda Rajapaksaand Wickremesinghe — something which his rival did not enjoy.

Jayasuriya has been a bitter critic of Wickremesinghe and was the head of the UNP lawyers union, but took it to court when Wickremesinghe ousted him from the post. He was viewed as an antagonist, while Walaliyadda was portraying himself as a pacifist.

But the recent impeachment crisis was too fresh in the memory of the legal fraternity. They saw in Jayasuriya the candidate who opposed the Government’s oppressive measures against the lawyers to force Dr.Bandaranayake out of office with police muscle included, and instal one of its own advisers, Peiris in office. The Colombo Law Society elections that preceded the BASL election gave a clear indication which way the wind was blowing. ‘Temple Trees’ provided a list of candidates but it was rejected, barring two on it, and the anti-impeachment lawyers swept the board. It was a harbinger of things to come.

Jayasuriya who became a lawyer at 21 years remains defiant. “I have been given an overwhelming mandate to uphold the ideals our Association has stood for over the years. That includes an independent judiciary, the rule of law and the dignity of the Bar. I will work tirelessly to achieve them,” he told the Sunday Times. The task does not seem easy. The first major hurdle he has to cross is his own convocation on March 30, or in less than six weeks. That is the event that formally crowns him as President of the BASL. Traditionally, the chief guest at the event is the Chief Justice. And therein lies a tale.

Jayasuriya not only had the backing of the senior President’s Counsel and former presidents of the BASL, but his Bar to Bar campaign was carried out largely by young lawyers who were in the forefront of the anti-impeachment campaign.

That no doubt would be another new front for President Rajapaksa to cope with, particularly in the post-impeachment period. Last Wednesday, he told ministers at the weekly cabinet meeting that the Government was faced with the threat of several conspiracies. He said there had been a meeting at the residence of one time UNP parliamentarian Sagala Ratnayake in Deniyaya. A senior official of a western diplomatic mission had addressed those present. The diplomat concerned had tried to provoke people against the Government and made several exhortations. Ratnayake is now International Affairs Advisor to Opposition Leader Wickremesinghe. Another meeting, President Rajapaksa said, was held by the same diplomat at a five star hotel in Colombo. Here again, the sentiments expressed were to rouse the people against the Government, he noted. When the cabinet meeting was over, some ministers who spoke with each other said that state intelligence arms were closely monitoring the activities of western missions. That was how matters were reaching the President promptly. Hard on the heels of those two issues comes the one about Halal certification, Rajapaksa pointed out. It has been timed to coincide with the UN Human Rights Council sessions in Geneva, he told ministers. “There are all types of conspiracies,” he observed and urged ministers to exercise greater caution and not become emotional on any issue.

When the cabinet meeting was over, he beckoned to External Affairs Minister Peiris and Plantation Industries Minister Mahinda Samarasinghe to meet him before leaving ‘Temple Trees’. Samarasinghe is also the President’s Special Envoy for Human Rights. After the cabinet meeting, the two ministers were ushered into an area where President Rajapaksa was already seated. “I want you to go to Geneva,” the President told Samarasinghe. After a conversation that went on for nearly twenty minutes, asked to join in were External Affairs Ministry Secretary Karunatilleke Amunugama and Ravinatha Aryasinha, Sri Lanka’s Ambassador to the UN in Geneva. The discussion continued.
Though Samarasinghe is President’s Special Envoy on Human Rights, the EAM has not kept him informed until last Thursday on any developments related to the UN Human Rights Council. Besides the Council sessions beginning tomorrow, this issue has a number of matters to be dealt with.

One was a letter written to Navi Pillai, UN High Commissioner for Human Rights, in response to a letter sent by her to the Government. Another was Sri Lanka’s response to Pillay’s report to the Council “on advice and technical assistance to the Government of Sri Lanka on promoting reconciliation and accountability in Sri Lanka.” Among others were the day-to-day briefings the EAM received from Geneva on matters related to the UNHRC. Minister Peiris had earlier won Presidential approval for Ambassador Aryasinha to head the Sri Lanka delegation and thus sidelined Samarasinghe. The friction between Peiris and Samarasinghe is well known and spilled over to the public domain in Geneva the last time round. Last Thursday, with just three days to go for the Council sessions, Samarasinghe was being told to pack his bags and fly to Geneva, thoroughly unprepared for the task ahead.

After the ministerial meeting and the one with President Rajapaksa, Samarasinghe flew to India. Though due back on Sunday, he hurriedly returned to Colombo on Friday to go through a ‘crash course’ to catch up on what the EAM kept away from him, before flying out to Geneva tomorrow night. He put off journalists by saying he was still abroad to pour over his brief and consult officials. He is due to speak at the UN Human Rights Council on Wednesday.

What led to the sudden change of heart after a decision to keep Sri Lanka’s representation at the official level? The opposition UNP had also provoked the Government by issuing a statement saying that Sri Lanka had already conceded defeat in Geneva. The move to have a low level delegation in Geneva, it turned out, had been on advice from Minister Peiris that if Ministers were to go, they would have to make formal commitments on behalf of the Government. The officials could easily say they would have to consult the Government in Colombo before giving any response. The change of heart at the last hour tells the story of how skewered the EAM thinking has become in the conduct of the country’s foreign policy.

The story behind the sudden change of heart reflects another chapter on how Sri Lanka’s foreign policy is conducted. After last year’s UN Human Rights Council sessions, Minister Samarasinghe made several public remarks. They related to the support he received and the challenges he faced. One in particular turned out to be a major faux pas. He announced during the early days that India would support the US backed (first) resolution. It was to cause a furore in Tamil Nadu where politicians protested to the Congress Government. A tape recording of Samarasinghe’s remarks to local radio stations also came in handy in their campaign. Some even made representations to Prime Minister Manmohan Singh. It was then a publicity campaign to project what Samarasinghe was doing. It remains to be seen how different it would be this time. Aryasinha is learnt to have written to his EAM bosses pointing out that some of Samarasinghe’s comments did not go down well with country representatives in Geneva and he had to “take the flak.” Based on this, Peiris had canvassed to allow Aryasinha to handle matters without any ministers travelling to Geneva. That development prompted EAM Secretary Karunatilleke to insist there would be no ministers in Geneva this time. The EAM Secretary had also strongly backed the move for Aryasinha to lead the delegation.

However, Aryasinha’s efforts came a cropper for two different reasons, according to an EAM source familiar with matters related to the UN. Firstly, he had identified officials in the EAM, the Justice Ministry and the Defence Ministry who he picked to serve on the Sri Lanka delegation. The other was consultations he was locked in with Eileen Chamberlain Donahue,the US Ambassador to the UN in Geneva, to “water down” the resolution on Sri Lanka and thus avert a vote. The first effort failed when the Ministry of Defence did not release the official he sought. The second move, it transpired, was taking a different turn.

An early draft of the US-backed resolution had gone through a metamorphosis where the wording, far from being “watered down,” had hardened. Against this backdrop, Ambassador Aryasinha was summoned to Colombo. After the Cabinet meeting, when Rajapaksa met with the two ministers, the EAM Secretary and the Sri Lankan envoy were asked to join in the discussion. That is where Rajapaksa overturned his own earlier decision that was based on the recommendations of Peiris, and told Samarasinghe to fly out instead. After the Cabinet meeting, official Government Spokesperson Minister Keheliya Rambukwella was unaware of what had happened after the cabinet meeting in the ante room of ‘Temple Trees’. He told the regular media briefing no decision has yet been made on the composition of the Sri Lanka delegation to Geneva.

On Friday, the Plantation Industries Ministry lost no time in officially announcing that its Minister Mahinda Samarasinghe would lead the Sri Lanka delegation to Geneva. More in the form of a new media campaign in the coming weeks would now come from the Plantation Industries Ministry and not the EAM. Needless to say the local publicity wars would be more intense than the diplomatic wars that the Government has to fight on many international fronts.

Last week, the Sunday Times revealed exclusively in the front-page lead story the highlights of an early draft of the US-backed resolution. It called upon the Government to allow “unfettered access” to UN rapporteurs. Among them were mandate holders dealing with the independence of judges and lawyers; torture; human rights defenders; freedom of expression; freedom of association and assembly; extrajudicial, summary or arbitrary executions; and the Working Group on enforced or involuntary disappearances. Adoption of that provision would place Sri Lanka on the agenda of the UN Human Rights Council for years to come. This is besides the other repercussions it would cause.

Whilst this main highlight has remained in subsequent drafts, the latest one, knocked into shape this week, contains additions that make a pointed reference to the impeachment of Chief Justice Bandaranayake. The latest draft incorporates additions from would be co-sponsors. It was only this week the European Union announced that it would support the latest US resolution against Sri Lanka. This would mean that 27 EU member countries will be co-sponsors though some of them may not be members of the Human Rights Council. Others are also expected to join in, though their numbers will not be known until mid-March. Last year, the resolution was co-sponsored by more than 40 countries. Here is the latest draft circulating in Colombo’s diplomatic community as well as in Geneva. Diplomatic sources in Colombo said further changes to the draft were likely.

“Promoting Reconciliation and Accountability in Sri Lanka
“The Human Rights Council,
“Guided by the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenants on Human Rights and other relevant instruments,
“Recalling Human Rights Council Resolution 19/2 on Promoting Reconciliation and Accountability in Sri Lanka,
“Reaffirming that it is the responsibility of the Government of Sri Lanka to ensure the full enjoyment of all human rights and fundamental freedoms of its entire population,
“Taking note of the Government of Sri Lanka’s National Plan of Action to Implement the Recommendations of the Lessons Learnt and Reconciliation Commission (LLRC) and its commitments as set forth in response to the findings and recommendations of the LLRC,

“Noting with concern that the National Plan of Action does not adequately address all of the findings and constructive recommendations of the LLRC,
“Recalling the constructive recommendations contained in the LLRC’s report, including the need to credibly investigate widespread allegations of extra-judicial killings and enforced disappearances, demilitarize the north of Sri Lanka, implement impartial land dispute resolution mechanisms, re-evaluate detention policies, strengthen formerly independent civil institutions, reach a political settlement on the devolution of power to the provinces, promote and protect the right of freedom of expression for all and enact rule of law reforms,

“Also noting with concern that the National Plan of Action and the LLRC’s report do not adequately address serious allegations of violations of international law,
“Expressing concern at the continuing reports of violations of human rights in Sri Lanka [--, including] threats to judicial independence and the rule of law, [such as the dismissal of Chief Justice Shirani Bandaranayake; enforced disappearances; extra-judicial killings; torture; repression of the freedoms of expression and assembly; and intimidation of and reprisals against human rights defenders--] and failure by the Government of Sri Lanka to fulfil its public commitments, including on devolution of political authority to provinces as called for in Sri Lanka’s constitution,

1. Welcomes the report of the High Commissioner for Human Rights on the human rights situation in Sri Lanka [and urges / calls upon the Government of Sri Lanka to implement its recommendations];

2. Reiterates its call upon the Government of Sri Lanka to expeditiously implement the constructive recommendations made in the LLRC report and to take all necessary additional steps to fulfil its relevant legal obligations and commitment to initiate credible and independent actions to ensure justice, equity, accountability, [including investigations of violations of international law,] and reconciliation for all Sri Lankans;

3. Urges the Government of Sri Lanka to formally respond to outstanding requests, including by providing unfettered access, by special procedures mandate holders, in particular the Special Rapporteurs on independence of judges and lawyers; human rights defenders; freedom of expression; freedom of association and assembly; extrajudicial, summary or arbitrary executions; minority issues; and the Working Group on enforced or involuntary disappearances; and discrimination against women;
4. Encourages the Office of the High Commissioner for Human Rights andrelevant special procedures mandate holders to provide, in consultation with, and with the concurrence of, the Government of Sri Lanka, advice and technical assistance on implementing the above-mentioned steps;

5. Requests the Office of the High Commissioner for Human Rights, with input from relevant special procedures mandate holders, as appropriate, to present [to the Human Rights Council an interim report at its twenty-fourth session and] a report on the provision of such assistance and progress on reconciliation and accountability, including investigations of violations of international law, and the provision of technical assistance in Sri Lanka to the Human Rights Council [in an interactive dialogue] at its twenty-fifth session.”

If a decision to send a minister to head the Sri Lankan delegation came some 72 hours ahead of the Council sessions that begin tomorrow, several international organisations have already sent in their representatives to Geneva. This is in addition to putting out reports and statements ahead of the event that begins tomorrow. Also setting the stage is the UK based Global Tamil Forum which is holding its third anniversary conference in Committee Room ‘A’ of the British Parliament on Wednesday. Among the speakers are Nick Clegg, Britain’s Deputy Prime Minister; Baroness Warsi, Senior Minister of State for Foreign and Commonwealth; Ed Milliband Opposition Leader; Erik Solheim from Norway; Yasmin Sooka (a member of the UN panel that probed Sri Lanka) from South Africa and Teresa Williams, Secretary of State for Northern Ireland.

Speakers from Sri Lanka include Rajavarothayam Sampanthan, Leader of the Tamil National Alliance, M.A. Sumanthiran (TNA – MP), Sandya Ekneligoda, wife of disappeared journalist Prageeth Ekneligoda and onetime free media activist Sunanda Deshapriya (now in Switzerland). The GTF extended invitations to several journalists from Sri Lanka but they have not been accepted.

UK’s stance on Sri Lanka in respect of the Human Rights Council and the Commonwealth Heads of Government Meeting (CHOGM) in Colombo this year, are reflected in a message British Prime Minister, David Cameron sent the GTF last night.

For any peace to succeed in Sri Lanka, he said it must “be based on justice and the rule of law, an inclusive political settlement and reconciliation between all those affected by the war. He added, “In particular, it is important that Sri Lanka properly investigates alleged breaches of humanitarian and international law and that, those responsible are held to account.’

In a lengthy report issued ahead the UNHRC sessions, The International Crisis Group said last Wednesday that “�.Sri Lankans of all ethnicities who have struggled to preserve their democracy deserve stronger international support. The HRC’s 2012 resolution was an important first step, but more is needed. This should begin with a stronger HRC resolution in March 2013, which must demand concrete reforms to end impunity and restore the rule of law; mandate the Office of the High Commissioner for Human Rights (OHCHR) to monitor violations and investigate the many credible allegations of war crimes committed in the final months of the war by both sides; and, where possible, identify individuals most responsible.

“The Commonwealth secretary general should formally refer Sri Lanka to the Commonwealth Ministerial Action Group (CMAG), which should insist that the government take substantial steps to restore the independence of the judiciary. Were it to refuse, the Commonwealth should relocate its November 2013 heads of government meeting, currently scheduled to take place in Colombo, or at the very least participants should downgrade their representation.

“All governments and multilateral institutions with active ties to Sri Lanka must rethink their approach and review their programs in light of Colombo’s deepening and dangerous authoritarian drift. This includes military-to-military relations and bilateral and multilateral development assistance, including from the UN, World Bank, Asian Development Bank and International Monetary Fund�..”

In a statement issued on Monday, the Human Rights Watch, however, called for more measures. “At its March 2013 session, the United Nations Human Rights Council should authorize an independent, international investigation into war crimes committed during the final months of Sri Lanka’s armed conflict,” the HRW said in a letter to members of the Human Rights Council.

It said, “Since the council adopted a resolution on Sri Lanka at its March 2012 session calling for action, the Sri Lankan government has taken no significant steps to provide justice for victims of abuse and accountability for those responsible.” The Amnesty International has also issued a statement.

The adoption of the second US-backed resolution against Sri Lanka in Geneva, either in the format given on this page or with further damaging additions, is expected to have an adverse impact in several quarters. One in particular, which is of great significance, is the upcoming Commonwealth Ministerial Action Group (CMAG) scheduled for April this year. Some key members of the Commonwealth spearheaded by Canada want Sri Lanka to be listed in the agenda. They are, among other matters, moving to shift the venue of CHOGM, the Commonwealth summit of Heads of Government, from Sri Lanka to another country. There is little doubt that the contents of the latest resolution, which in essence accuses Sri Lanka of violating Commonwealth rules (the Latimer House principles), could be used as part of the campaign for a venue shift.

President Rajapaksa quite rightly told his ministers last Thursday not to react emotionally. He should extend this advice to the proper conduct of Sri Lanka foreign policy too. He must make sure it is for the country, Sri Lanka, and not for the personal aggrandisement or self-glorification of any of his Cabinet ministers. If that is allowed to continue, who will suffer are the Government, the country and the people. That should be the first step in averting colossal damage that stares in the face of the UPFA Government in the coming weeks.

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