The Wanni tinderbox

By Amantha Perera

The Wanni is in a horrible time wrap. Tens of thousands of civilians running from an assortment of weapons - from gunfire to artillery to air raids,  appear to be stuck somewhere straight out of a macabre war novel - where for normal, hardworking humans such experiences are only 'real' in fiction. The truth is that less than half a day's drive from Colombo, road access permitting, the macabre nightmare is as real as it can ever get.

There are at least 160,000 civilians displaced in the Wanni, the total population assessed being between 260,000 to 300,000 according to various relief agencies and it jumps to 417,000 according to numbers maintained by the government agents' offices. The inflation in numbers quoted may be due to coercion to get more supplies.

Last week the government directed all UN and other NGOs working in the Wanni, 11 in total, to relocate their staff to Vavuniya. The directive was first communicated at a high level meeting between government officials including Minister Mahinda Samarasinghe, Basil Rajapakse and Defence Secretary Gotabaya Rajapakse and UN and other high ranking members of agencies on September 8.

Along with UN Resident Representative Neil Buhne others who attended were heads of agencies of WFP, UNICEF, Senior Advisor to the UN on Safety and Security (UNDSS) and representatives of UNHCR and ICRC.

Before the meeting Gotabaya Rajapakse, in a letter to the government NGO Secretariat on September 5, had communicated the directive to relocate. The director of the secretariat communicated the same in a letter to NGOs thereafter that informed "all the NGOs registered in this office that no expatriate/employee or any other person employed by a NGO and working in the Wanni will be permitted to travel beyond the Omanthai check point, in consideration of prevailing security situation," and the removal of all assets out of the Wanni.

Dual purpose assets

The removal of assets has been influenced by Tigers who use dual purpose assets like heavy machinery and other technology to enhance its military capacity. Eleven agencies, including seven NGOs working in the Wanni began relocating last week.

In the last fortnight, the government has been emphasising on the development of Vavuniya as a hub for logistics, operations and supplies into the Wanni. And UN agencies, especially WFP had also increased its capacity in the last, major northern town before the Wanni.

Access into the Wanni had been one of the critical issues for those providing supplies into the Wanni. It had been shrinking, first gradually, and in the last two months, alarmingly.

Early this year when government troops intensified operations from the Welioya sector, the Tigers issued a similar warning and directive to UN and other NGOs operating in Mulaithivu. They were informed through the government agents that the Tigers could not guarantee the safety of their international staff and asked them to relocate to Kilinochchi. And they did so.

No agencies have had a permanent presence in Mulaithivu since then -  they go in, do their work and return to Kilinochchi. A similar scenario has been played out in the western sector off the A9 where fighting pushed the civilian population and aid workers into Kilinochchi.

Access maps maintained by the agencies clearly show that unfettered access was mainly on the A9 and some parts of the Paranthan/Mulaithivu road where IDPs have been shifting. Their operational hours were also cut to between 8.30 am and 5.30 pm. Further restrictions had been forced by lack of fuel supplies.

There was no public speculation of UN and other agencies relocating before this week's directive, but privately, many UN and other NGO staff were talking about it. A little known fact is that a similar scenario was played out in the east, in early 2007, when government troops moved in to Vaharai. Then also aid agencies were not allowed there due to security concerns.

In an interview with the Daily News, the Defence Secretary spoke of the Vaharai experience.  "If you can remember, there were INGOs, NGOs or UN organisations in Vaharai. There is only one AGA and through the Government Agent in Batticaloa we provided food to the civilians in Vaharai. When there was a shortage food and other essential items we organised 100 lorries of food to Vaharai. Of course we managed to send 89 of those 100 lorries. Then the LTTE started firing mortars and we had to stop the balance. But we sent these lorries.

"Later on when we liberated Vaharai and went into Vaharai we saw how the LTTE had used the food to build their bunkers, so enough food was there in the area. Similarly we can send food for these people. Then the UN will operate from Vavuniya," he said.

Moved en masse

 Fortunately, the civilians held captive in Vaharai and beyond moved out en masse in early March of 2007.

Such a movement has not taken place in the Wanni, despite government appeals to do so. There has not been even a trickle since the air drop of leaflets on August 30.

The minutes of a recent meeting between UN officials and other members of NGOs held in Habarana on August 27 indicate that the Tigers may be preventing people from moving out. "LTTE (is) unlikely to allow substantial outflow of population from the Wanni," the minutes said adding that Tigers had intensified the pass system and indicated that no passes would be issued to family members of local staffers from UN and other NGOs allowing them to leave the Wanni. There have been reports that the Tigers have also moved to curb civilians fleeing through eastern seas and landing at Pulmoddai, north of Trincomalee. Two weeks back at least 27 civilians escaped through the route. Last week none were reported.

Another factor that is probably holding back any mass movement south  is the fear of what awaits them south of Omanthai. "Fear that most of the population will be considered guilty by association.  All Wanni residents over 16 have gone through compulsory self-defence training," the minutes said and also spoke of mass propaganda by the Tigers to galvanise the Wanni populace for the 'final battle.'

The Tigers' call

The Tigers had distributed their own leaflets setting August 26 as the deadline to finish building bunkers. Ironically, August 26 was the day that the Tigers indicated a shift in their Wanni battle mode with the air raid in Trincomalee. Senior Tiger cadres had also been talking publicly of past sacrifices by cadres as well as civilians.

Despite the access problems, the supplies  maintained by the UN and other relief operations with the help of the government agents in the Wanni served as a vital lifeline. WFP supplies have benefited at least 150,000 IDPs and there have been concerns that supplies to non-displaced civilians will also become a concern soon.

And there have been constraints. Only 10 trucks crossover to the Wanni with supplies now, and they are mostly from the 24 trucks with a combined tonnage of 280 tonnes operated by WFP.  The drop is drastic from a year back when sometimes 100 trucks would crossover with supplies. Also the  trucks' return journey has been held back adding to the delays caused by stringent procedures implemented by the government in allowing them in. Private truck operators have been increasingly loathe to move supplies due to security fears and Tiger taxes.

And there has been only one supply route - the A9 - through Omanthai. Military officials had given the assurance that the A9 will be kept open for supplies - now that is even more vital given the relocation of relief agencies to Vavuniya.

There have been other concerns though none had deteriorated to crisis levels. Thirteen thousand students are among the recent displacements, 22 schools in Kilinochchi are occupied by IDPs and schools' reopening for the third term was pushed back to mid-September. At the August A/Ls 45% of the registered applicants did not sit in the Wanni.

Health concerns

"While there have so far been no reports of significant or large-scale health problems, the authorities remain on the alert for outbreaks of diarrhoea, malaria and other diseases. The health situation will have to be monitored closely, especially with the monsoon rains fast approaching,"  ICRC said last week.

Twelve medical institutions, including four hospitals with a total bed capacity of 200 have been relocated, and moved to Kilinochchi.

All these concerns now have become even more dangerous given the relocation and the tenuous supply line. Supplies and personnel from relief agencies are now likely to be moved in daily convoys organised by the respective government agents of Kilinochchi and Mulaithivu. The UN is also considering the option of organising its own convoys.

Connected are the fears of the civilian population in the Wanni becoming accessories, by will or otherwise to ongoing military operations. The Tigers have shown no qualms about using civilians as a second front. It has given basic military training to all those healthy and above 14 years and now there is the increased fear of recruitment. "Forced recruitment is increasing," the minutes of the Habarana meeting said and already calls have gone out to former cadres to rejoin the ranks.

The Tigers' plan on civilians appears to be to retain a sizable civilian population within areas under its control and last year it agreed to create safe-havens in the Wanni according to documentation presented at the ongoing UN Human Rights Council sessions in Geneva.

The Annual Report of the Special Representative of the Secretary-General for Children and Armed Conflict, Radhika Coomaraswamy, presented at the sessions said that on October 17 last year the Tigers signed a plan of action dealing with raising the age of recruitment to 18.

"The plan also contained commitments to respect the neutrality and security of schools, hospitals and places of worship as 'safe zones,' and to ensure open and safe access by humanitarian actors to affected areas so that supplies and services may reach vulnerable communities," the report said. The safe-haven idea has not been given any consideration by the government.

Its absence however has not led the Tigers to ease the hardline stance. Before the government went public with the appeal to the Wanni populace to come to Vavuniya, government and relief agencies were laying contingency plans that spoke of the displaced moving further interior, on the Paranthan/Mulaithivu road, north east of Kilinochchi. There were no reports that spoke of a sizeable movement of civilians south, at least till December.

The Defence Secretary last week expressed his confidence that civilians will ultimately break free from the Tiger hold and move south. "Gradually, when we put pressure, they will come out, as you can remember in Sampur. We knew that they were having their so-called Mahaveer families. From Sampur they came to Eethalampattu and then moved into Vaharai. In Vaharai we put pressure from all directions. They came out from that area and the passage was restricted. That happened in Toppigala. Similarly they will not be able to keep the civilians when troops advance gradually into their territory. The civilians will not listen."

Available option

But if they are to come down, the A9 still remains the main option. No one is even talking of moving north, through Muhamalai, given the fortifications and the mines. The government has suggested an alternate. The A34 - the Paranthan/Mulaithivu road runs to Mulaithivu and connects to the A35 that runs south to Mankulam, and to the A9, through Oddusudan. From Oddusudan the option to move south through Nedunkerni is available, directly south or Mankulam west and then south.

This semi-circular route from Paranthan through Puthukudurippu to Mulaithivu, to Oddusudan, and then south  is the route the government prefers the civilians to take.

"We have given the civilians an area for them to withdraw or to hold back from Kilinochchi to Puthukudurippu and later from Puthukudurippu to Oddusudan. From Oddusudan they can move into Vavuniya. That is the route that we would like the civilians to take," the Defence Secretary told the Daily News last week.

The dynamics of the government's northward push could probably put the civilians out of the fighting, just south of Mulaithivu, but that will depend on the gains made by troops moving north of Welioya.

Due process followed in golf course project says former president

It was The Sunday Leader that exclusively broke the now famous "Kotte golf course deal" story. Following intense coverage of the issue by this newspaper, other news media also subsequently reported on the story. Based on these news reports a civil society group in the public interest instituted legal action by way of a fundamental rights petition. With this issue now before court the spotlight has once again shifted in particular to the main respondent, Former President Chandrika Kumaratunga. As the newspaper that first broke the story and in fairness to Kumaratunga, we publish below excerpts of the written submissions presented to court by the Former President's lawyers on the issue.

Former President, H.E. Chandrika Kumaratunga filed her written submissions in S.C. (FR) Case No. 352/2007 on 28th July 2008 and has set out in great detail that due process was followed with regard to the grant of the land for the Diyawanna Uyana Golf Course Project.

Kumaratunga has submitted that when she was elected President in 1994, she had sought to regularise all government activities in the pursuit of her government's stated policy of establishing transparent governance and eliminating corruption. In this context she had found that the alienation of state lands had hitherto been done on an ad hoc basis and had regularised it by "enunciating a policy by way of Guidelines for the Alienation of State Land, based on the recommendation of a committee appointed for this purpose comprising of senior public servants.

Similarly she had also proceeded to take action to regularise the divestiture of state owned enterprises in a similar manner. His Lordship the Chief Justice has adverted to this with regard to the divestiture of state enterprises in the Judgment in Vasudeva Nanayakkara vs. K. N. Choksy in SC (Fundamental Rights) 209/2007 delivered on 21/07/2008 on page 7 in the following words:

"The process of divestiture of state ownership which was initially done on an ad hoc basis in respect of enterprises that were incurring losses was formalised on 1.3.1995 and appropriately described as the Public Enterprise Reform Programme with the establishment of a Special Task Force by the President."

The President referred to being the 1st Respondent.

The former President has also emphasized that in the discharge of her functions as President, she had necessarily to be guided by the reports, recommendations and advice of the relevant statutory functionaries.

Kumaratunga has submitted that while there is no dispute that the press plays an important role in focusing attention on matters that affect the public, such press reports by themselves cannot be relied upon and / or considered as evidence in support of allegations against any person.

She adverted to this in the background of the Judgment of the Supreme Court In Mahinda Rajapakse vs. Chandra Fernando and 4 Others (S.C.F.R. Application No.387/2005 - S.C. Minutes of 28th September 2005), where the Supreme Court highlighted the danger of the police even investigating a complaint of misappropriation of funds based on a press report and held, at page 5 of the Judgment that,

"If any person can read a newspaper and on the basis of a story in the newspaper make a serious allegation against another person as to the commission of criminal offences and a criminal investigation is commenced thereupon by the police, a serious question arises for consideration by this court as to its propriety. The criminal investigation process is an exercise of the coercive powers of the state and visits the persons investigated with certain serious consequences which may lead even to their arrest and detention. Therefore, it has to be used with caution and kept strictly within its statutory limits bearing in mind the fundamental rights of persons including the right to equal protection of the law."

She has submitted that the same approach is warranted and is even more important in this matter, where great reliance is sought to be placed by the Petitioners on newspaper reports to substantiate the allegation that she has acted in abuse of power and violated the fundamental rights of the Petitioners.

Frivolous allegations

She has submitted that the Petitioners have attempted to mislead court in that, as far as is revealed by the documents that are before court the true position appears to be that, the impugned payments to the 9th to 11th Respondents appears to be in respect of the shares in the 4th Respondent company sold by them to Access Holdings (Private) Limited and that the Former President could never have had any control over the sale and purchase of shares in companies in their ordinary day to day commercial transactions propelled purely by commercial considerations. Whether the parties to such transactions made profit or not is of no interest to and is irrelevant to her nor can it be a ground for complaint against the 1st Respondent. It is frivolous. It is an everyday commercial reality that the very basis of commercial transactions is to make a profit.

On this tenuous and incredulous basis, Kumaratunga claims that the Petitioners have proclaimed that she had violated the law, in particular, Article 12(1) of the Constitution of Sri Lanka by the several alleged acts (set out in Paragraph 39 of the Petition) amounting to abuse of power.

Kumaratunga has submitted that her government sought to enhance the incentives given to investors with intent to attract maximum amount of investment to Sri Lanka as a part of the National Economic Development plan proposed by the 1st Respondent and her government and approved by parliament in June 1995.

It is in this background that the BOI received the application of APGC on 7th April 1997 seeking approval for a project to set up a golf course.

Numerous other projects given similar facilities by all governments

* The attention of court was also drawn to the documents filed by BOI marked

..3](2), ...JJ(3),... 33(4),...KK,... KK(1),...KK(2),...and KK(3) relating to several other projects the contents of which clearly, demonstrates that the said project did not receive preferential treatment and that there were numerous other projects that qualified to be in the same category /level of investment, which received similar equal and transparent treatment and followed identical procedures as this project.

 Hence, the cry by the Petitioners that the said alienation of land was questionable and was non-transparent and unsolicited is wholly untenable in fact and in law, because the BOI like the UDA are free as of date from any control by the Former President and could very well have informed Your Lordships' Court if the alienation of land in question in these proceedings was done in any other manner. But they have not.

Project satisfies the stated purpose of "Development activities of the UDA"

It is common ground that the certificate of vesting (vide: document marked "P1(a)"

clearly states that the purposes for which the land in question was acquired in the

late 1980s was for the "development activities of the UDA" long before the

government of the 1st Respondent took power in 1994.

The affidavit filed on behalf of the 7th Respondent (BOI) clearly states that the project as envisaged in "P3"

a) Satisfies the water management needs of the area;

b) That it was in keeping with the overall plans for the development of the larger area;

c) That the 7th Respondent acted in consultation with the Central Environment Authority

and the 20th Respondent;

d) That the Golf Course and the allied development carried out by the 4th Respondent was strictly within the master plan relating to the development of the new Capital City of Sri Lanka (vide: documents produced marked "3R9(A)" to "3R9(F)" (copies annexed) with the affidavit filed on behalf of the 3rd Respondent) which was formulated by a previous government and not at the behest of the 1st Respondent;

e) The project underwent a lengthy Environmental Impact Assessment and had received the approval of the Central Environmental Authority (vide: paragraph 22(j) of the Statement of Objections of the 3rd Respondent).

Presentation of the Cabinet Memorandum of 9th February 1998, after all required procedures were followed

Kumaratunga has submitted that it was thereafter that she had presented the Memorandum to the Cabinet of Ministers marked "P3" of 9th February 1998 seeking the approval of the Cabinet of Ministers to allot the said land for the said project subject to the terms and conditions set out in the said Memorandum marked "P3", after all the required approvals had been granted by all relevant authorities.

Established procedures followed

She has submitted that the allocation of land was done in accordance with the Guidelines relating to the Alienation of State Land enunciated by the government, which Guidelines were initiated on the instructions of the 1st Respondent as she assumed office in November 1994 in order to ensure that state land will not be alienated in an ad hoc and irregular manner as had been the practice under previous governments.

The Former President had when assuming the office of President for the first time established a committee of high ranking public servants to go into this matter and formulate guidelines for alienation of land which was further backed by the circular issued by the Presidential Secretariat to all government departments and institutions requiring strict compliance.

No preferential treatment

It is clear from the documentation tendered by the BOI that the 4th Respondent company was not afforded any preferential treatment in connection with the said project as alleged by the Petitioners, other than the concessions granted to projects of the same nature, extent and effect as evidenced by the fact that more than three years had lapsed between the aforesaid proposal made on 7th April 1997 and the signing of the Lease Agreement No.758/760 on        4th September 2000.

She has gone on to submit that in early 2002, Cabinet approval was granted, a Memorandum presented by the then UNF Minister, Mr. Ravi Karunanayake to the Cabinet of Ministers seeking the appointment of a committee to inquire into whether irregularities had occurred in the allocation of land to the 4th Respondent company in respect of the said project. However, a while, later, the said Memorandum had been withdrawn without adducing any reasons therefor.

Consequently, the 1st Respondent submitted a Memorandum, dated 3rd July 2002, to the 'Cabinet of Ministers (filed with the 1st Respondent's Statement of Objections marked "iR2") proposing that such a committee be indeed appointed to conduct the said inquiry.

Kumaratunga seeks termination of agreement

Thereafter, the 1st Respondent submitted a further Memorandum, dated 28th July 2004 (filed with the 1st Respondent's Statement of Objections marked "1R3") advising the Cabinet of Ministers that, the said project was acting in contravention of the original recommendations of the Central Environmental Authority and, sought the approval of the Cabinet of Ministers for the termination of the Agreement with the 4th Respondent company.

The Cabinet had authorised the termination of the agreement with the 4th Respondent company. (vide - the document annexed to the Statement of Objections filed by the UDA dated ii March 2008, marked "3RA"). (copy annexed)

The UDA had then sought the advice of the Hon. Attorney-General and had been advised that, the Agreement with the 4th Respondent could not, under the circumstances existing at that time, be terminated.

Collective decision of the cabinet

On the basis of the aforesaid, it was submitted that, the decision to grant the relevant land to the 4th Respondent company for the said project and the approval of the said project itself was a collective decision taken by the Cabinet on a Cabinet Memorandum presented by Kumaratunga in her capacity as the minister in charge of the BOI. Every member of the Cabinet is responsible for the decision including the current President. The participation, concurrence and approval of all concerned governmental authorities was duly obtained and was not done "at the behest of the 1st Respondent" and cannot be and should not be held to be so. It is a blatantly false and malicious allegation made by the Petitioners most irresponsibly.

In this background she has submitted that the large amount of unimpeachable, credible and contemporaneous official documentary evidence placed before the court by all the concerned Respondents, clearly demonstrates without any manner of doubt that the said project did not receive preferential treatment from any governmental authority, whether "at the behest of the 1st Respondent" or otherwise. It took its normal, transparent and legitimate course as all other projects similarly placed. There is no evidence to the contrary of whatsoever nature.

No undue interest taken by Kumaratunga

There is no material of any evidentiary value before the Supreme Court to even remotely hint that the Former President took any undue interest in the said project other than as the then Minister of Finance in the performance of her duties as such minister, consulting the policy considerations of the government and of the interests of the country at that the relevant time.

She has also placed at the forefront that in fact, even after she ceased to hold the Office of President and Minister of Finance from 17th November 2005 onwards, the BOI acting under the authority of the present Minister of Finance who is the present President of Sri Lanka - Mr. Mahinda Rajapakse, has by its letter dated 19th July 2006 and the consequent Agreement No.3057 (filed with the affidavit filed on behalf of the BOI marked I'll-1111-11 and "II") has continued to authorise changes to the said project requested by the 4th Respondent company.

Not acted in abuse of power

Therefore it is abundantly clear from the above factual matrix that H.E. Kumaratunga neither in her capacity as Executive President nor as a member of the Cabinet nor in her capacity as the Minister of Finance did not in any manner whatsoever act in "abuse of power" or to the detriment of the "trust" reposed in her. She has submitted that to decide otherwise, in the face of the insurmountable, uncontradicted, contemporaneous, bipartisan, documentary evidence before the Supreme Court, would surely occasion a grave miscarriage of justice, at the behest of the Petitioners, which Your Lordships' ought not, with respect, countenance.

Land not awarded in "unsolicited" nor irregular manner

The allegation that the project land was awarded in an "unsolicited manner" is totally baseless, as land required for BOI projects were awarded only if the investor requested it. Such award of land was never required by any government to be awarded after calling for tenders and bids for the grant. The very 'soliciting' for goods or services from government is employed only in instances where the government call for bids for the same through tender procedures.

In the case of BOI projects it is not the government that calls for bids, but the investor proposes to invest his monies in a project and it is the investor who requests land from the government. Therefore the question of 'soliciting' does not arise.

No material of evidentiary value before the Supreme Court to substantiate allegations against Kumaratunga

She has further submitted that, a consideration of the entirety of the vast amount of contemporaneous documentary evidence that has been placed before Your Lordships' by all concerned Respondents, unequivocally demonstrates that she has fulfilled her duties as the then President of Sri Lanka and the Minister of Finance, with unquestionable honesty and integrity.

The malice behind the falsity of their allegations stand exposed in the face of the uncontradicted evidence to the contrary placed by the state agencies themselves, who were made Respondents by the Petitioners.

The ulterior motives of the Petitioners and their instigators are clearly demonstrated by this alone.

She has submitted that the Petitioners though having been given the opportunity to file Counter Affidavit in response to the Affidavits of all the Respondents including the 1st Respondent, have miserably failed to contradict and / or rebut any of the factual positions set out in the Affidavit she filed and / or of any other Respondents including those of governmental institutions that have fully justified the propriety of the project in question.

It was also submitted on her behalf that the institution of the these proceedings is a part of a continuing campaign to discredit her and to cause irreparable loss and damage to her good reputation, which is further evidenced by the continuous prejudicial and convenient media reports which are being published and in the public domain, with the hope of pre-judging the entire matter. The latest report being that these proceedings are a step towards depriving the 1st Respondent of her civic rights.

The clear fact is that the Petitioners in seeking to invoke the jurisdiction of Your Lordships' Court are endeavouring to abuse the process of Your Lordships Court for the Petitioners own and likeminded mala ride purposes.

It has been submitted that it is the fervent hope and the legitimate expectation of the 1st Respondent that Your Lordships' will not permit the process of court in the exercise of its sacrosanct fundamental rights jurisdiction to be undermined and wantonly abused by the Petitioners, in this manner.