Issues

LTTE's attempt to redeem itself in the east

By D.B.S. Jeyaraj

Rasiah Ilanthiraiyan alias Marshall is the replacement for Kausalyan in the east. The Liberation Tigers of Tamil Eelam Leader Velupillai Pirapaharan has selected the affable native.....

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> Buffer zone battle rages on

LTTE's attempt to redeem itself in the east

Large crowds arrived to pay their lat respects in Batticaloa and Kausalyan, Rasaiah, Col. Ramesh

By D.B.S. Jeyaraj 

Rasiah Ilanthiraiyan alias Marshall is the replacement for Kausalyan in the east. The Liberation Tigers of Tamil Eelam Leader Velupillai Pirapaharan has selected the affable native of Arumugathankudiyiruppu in the Eravur area as his new "arasiyal poruppalar" or political commissar for the Batticaloa-Ampara districts. The formal announcement was made by Tiger Political Chief S. P. Tamilselvan at a meeting of LTTE officials in Kokkadicholai held prior to his departure from the region.

Adhering to a request made by the LTTE Financial Division Head, Thamilendhi  the new eastern political chief will be called by his real name Ilanthiraiyan hereafter and not by his nom de guerre Marshall. Thamilendhi and senior LTTE leader in charge of education Ilankumaran have been in the forefront of the move to change names from English and Sanskritised Tamil to  "pure" Tamil. While many complied with this a few like Marshall did not. With his elevation he too is now ready to change.

Pure Tamil

Interestingly enough, Marshall had no need to discover a new name. Apparently the name bestowed by his parents - Ilanthiraiyan - is a pure Tamil name. So he has reverted to it now. Some in the LTTE have done so earlier. Tamilselvan and LTTE overseas branches administrator Manivannan are two people going by their original "pure Tamil" names. Earlier they were called Dinesh and Castro respectively.

Ilanthiraiyan was functioning as the LTTE's Batticaloa-Ampara headquarters administrator prior to his new posting. An old boy of St. Michael's College, Batticaloa, Ilanthiraiyan was involved in Tamil nationalist student politics with Ramalingam Paramadeva in the mid '70s. Later he was involved in the pro-TULF Tamil Youth League politics. Paramadeva later went on to become the first LTTE military commander for Batticaloa but died in the attack on Kaluwanchikudy police station in 1984. Ilanthiraiyan too was a member of the LTTE team that attacked Kaluwanchikudy unsuccessfully in the maiden venture commanded by Paramadeva.

Ilanthiraiyan joined the LTTE officially in 1983. Earlier he had been on the fringes helping out wherever possible. Like the former Tiger EasternCommander Vinayagamoorthy Muraleetharan alias Karuna, Ilanthiraiyan too was recruited by Tiger veteran Sinnathurai alias "Father" who is now an LTTE 'judge' in Palugamam. After receiving arms training in Salem, Tamil Nadu, Ilanthiraiyan returned to the east and participated in several operations. He also received special training in communications. Ilanthiraiyan has also functioned as an instructor in LTTE training camps.

Noticed

Ilanthiraiyan too went along with Karuna and other eastern cadres to the Wanni in the late '90s to fight against the Sri Lanka Army in operations Jayasikurui and Oyatha Alaigal. It was around this time that he was noticed specifically by Pirapaharan. The Tiger Supremo was impressed by his quiet efficiency and got Karuna to second Ilanthiraiyan for service in the Wanni after the fighting was over. One of his plus points is his fluency in English and Sinhala and of course, Tamil.

The LTTE Leader appointed Ilanthiraiyan as coordinator of the LTTE administrative secretariat in the Wanni. He reported directly to Velupillai Pirapaharan. This was the only high central authority post given to an eastern Tamil in the LTTE at that time. When Karuna revolted and charged the hierarchy with discrimination against easterners, he pointed out that none of the 30 top posts in the LTTE was manned by a Batticaloa cadre. Karuna's successor Ramesh tried to counter this by pointing out Ilanthiraiyan and boasting that an eastern Tamil was in charge of the entire LTTE administration.

After the Karuna rebellion was contained, Pirapaharan needed trusted and capable men from the east to serve in the region. Marshall or Ilanthiraiyan was one such person. He was sent back to a comparatively junior position as coordinator of the Batticaloa-Ampara LTTE Secretariat. He was closely associated with Political Commissar Kausalyan and the overall Special Commander for Batticaloa - Ampara Col. Banu in recent times. When Kausalyan was assassinated, it was Marshall who formally took possession of his body. Now he has taken over the post held by Kausalyan too.

Though Ilanthiraiyan will be in charge of the political section he will have another 'senior' from the north to help him for a while. Sithamparapillai Sivakumar alias Newton will also be in Batticaloa for an indefinite period and function as a special political commissar. Newton has been serving in Batticaloa for several years in the '90s and was generally well-liked. He was tipped to be sent to the east as political commissar after the Karuna revolt. The decision was reconsidered because it was felt that a son of the eastern soil was politically appropriate. Newton is from Karaveddy in the north.

It is possible that Newton could have formally succeeded Kausalyan but for the regional factor again. After Ramesh's transfer to the Wanni, another northern senior Banu was appointed Batticaloa-Ampara special commander. Having another northerner as political chief could have been problematic. Earlier the LTTE may not have bothered about these matters but after Karuna's charge of northern hegemonism, the movement has become more sensitive.

Newton will therefore play a secondary low-profile role to that of Ilanthiraiyan. Both will work together but the limelight will be on Ilanthiraiyan. Newton may be recalled to the Wanni after a specific period. Newton was a communications expert who received special training under the Indian Government in 1984. Hiswireless code sign was New Whiskey 84 . Newton's brother Sooriyakumar, a medical doctor, did yeoman service in the LTTE medical unit. He is now abroad for higher education.

The new eastern political commissar and his northern associate will have a formidable task to accomplish. They will have to restore the LTTE politically to its original position in the east. The LTTE is learning slowly that militarism is not the answer to every problem. The Karuna challenge can be met militarilyup to a certain extent only. Ultimately what counts is to win the hearts and minds of the eastern people and not go for their "b....s" as some would want the Tigers to do. Kausalyan had already commenced and done much good work in this sphere. It is now all up to Ilanthiraiyan.

Though the loss of Kausalyan is a void, his death along with those of others including former Ampara District MP Chandranehru Ariyanayagam has aroused a sympathy wave in the region. The assassination by Karuna's followers of a widely respected political figure has angered many people. It is also widely believed in the east that the killing was done by Karuna's loyalists in collaboration with a section of the armed forces.

Two theories

Interestingly there are two theories floating around in the east about the killings. In Batticaloa District most people feel that Kausalyan was the real target of the killers and that Chandranehru who provided him escort was caught in the crossfire.

In Ampara District where Chandranehru has more influence there is a viewpoint gaining currency that the former MP and not Kausalyan was the real target. According to this view, the killers were targeting Chandranehru's vehicle to bump him off without knowledge of Kausalyan being in it.

The mariner turned politico lost the last election but had earned the people's affection after his defeat through selfless service to the community. His chief rival Pathmanathan was elected as MP, but was not very effective in discharging his duties some feel. The recent tsunami disaster for instance brought out the best in Nehru who endeared himself to the affected people through dedicated service. There had been a move to pressure Pathmanathan into resigning his seat to pave the way for Nehru to be MP again. As for the Karuna faction, Nehru was seen as a traitor and they would not have liked this reemergence much.

The funeral for Kausalyan held at Thandiyady in the western sector of Paduvaankarai was another opportunity for the LTTE to revive its sagging fortunes. The Tigers are in effective control of only certain areas in Paduvaankarai. They face a Karuna threat in other places. The funeral was held in LTTE strongholds. These are also places inhabited chiefly by the social group to which both Kausalyan and ex-Special Commander Ramesh belong. The crowds at the funeral consisted chiefly of this segment.

The highlight of the funeral orations was that made by Ramesh. He broke down when relating how Kausalyan had eaten lunch with him in the Wanni at his home prior to departing. The local population came to see and hear Ramesh because there had been much propaganda in the past that Ramesh was held prisoner in the Wanni. The truth however is that Ramesh was found wanting in meeting the Karuna challenge militarily and was therefore transferred to the Wanni. He is now in charge of the eastern component in the Wanni, numbering more than 1000 cadres.

The LTTE also sent Karikalan, Nagesh and some other eastern Tigers in the Wanni to attend the funeral. A high profile Tiger contingent including Tamilselvan, Thamilendhi, Judiciary Head Pararajasingham , Senior Member Balakumaran and others, also attended the funeral. This made a tremendous impact on the Batticaloa people. The awarding of "Maamanithar" honour to Chandranehru also helped in this regard.

Balakumaran, the former EROS leader enjoys considerable clout in Batticaloa. He was at one time the manager of Eravur MPCS. Later the EROS had a strong base in the east. Balakumaran used the eastern trip to revive old contacts. Former Political Commissar Karikalan also met with a lot of Tamil people. He was not allowed to speak at Kausalyan's funeral for fear of alienating the Muslims. An unexpectedly large number of Muslims turned up at the funeral. There had also been hartals in Muslim areas for Kausalyan.

Impressive 'show'

The LTTE also had around 500 to 600 armed cadres on duty at the funeral. This was no doubt to impress the people as well as to provide security. Many people were surprised to see so many armed Tigers as the general impression had been that the LTTE was badly depleted after the Karuna revolt. A show of such military strength becomes necessary at times to project a positive image. Kausalyan's caste group is the single largest social entity among eastern Tamils. The sympathy wave in that community on account of his death could help the LTTE. Kausalyan's successor Ilanthiraiyan belongs to that group but is of a different matrilineal clan.

The promise held out by Karuna to the east is now diminishing. When Karuna revolted this column predicted that Karuna at best could become another Afghan warlord like Rostom and that at worst he would be reduced to another pro-government armed group like those led in the past by EPRLF Razeek,  PLOTE Mohan or TELO Varathan. It appears that a Karuna group has now emerged in the east to do the dirty work.

The fact that Karuna and his faction are now functioning as running dogs of the state is a bitter truth for the eastern Tamils to digest. The killing of beloved sons of the soil like Kausalyan and Chandranehru has brought that truth closer to home. There is some revulsion over this killing. There was much sorrow of a genuine nature. The funerals were well attended without any LTTE coercion. The people also paid their respects at viewing places voluntarily. If the LTTE conducts itself carefully it could build on this basis. If it engages in a clenched fist approach again, the LTTE would be squandering a valuable opportunity.

There are three immediate tasks facing the LTTE in the east. Good relations with the Muslim community must be firmly reestablished; people supportive of Karuna must be weaned away; victims of tsunami must be rehabilitated. The LTTE must address itself to this task urgently and diligently. This cannot be done by brute force but only through patient political work. Mere words are not enough. Only actual deeds will work.

Halt to oppression

The continuing persecution and oppression of Muslims must cease. The terms of the agreement entered into by the LTTE Chief Pirapaharan and SLMC Leader Rauf Hakeem on April 13, 2002 must be honoured and implemented. The Muslims must be treated with genuine respect and equality.

Likewise the LTTE must stop its conscription in the east. The unforgivable offence of hunting down former Tiger minors disbanded by Karuna must end. The killing of those holding different political opinion should also end. The LTTE must comply with provisions of the ceasefire and desist from committing acts of violence against civilians.

If the LTTE adopts a course correction and reorients its approach, they stand a very good chance of political redemption in the east. The prevalent reality is that the forces opposed to the LTTE will not let that happen. The voices of alarm raised in various quarters over the perceived 'affinity' between the LTTE and Muslims is a clear illustration. The next few months will prove whether the LTTE is capable of progressing positively or regressing negatively.

Towards a vibrant judiciary

Never before has the judiciary in general and its independence in particular, been so much in the public focus. Never before have lawyers so purposefully shed their political, ethnic and religious differences and taken up the cause. The urgency was manifest most, in the results of the Bar Association of Sri Lanka (BASL) elections last week - that saw  Desmond Fernando, PC, win decisively. A week before, his main rival, Ikram Mohamed, PC, the then incumbent president of the BASL was a busy man. In addition to the demands of the fiercely fought election campaign, as the then leader of the Bar, he had many speeches to deliver at a number of ceremonial sittings of the Supreme Court held to welcome newly appointed judges to the Court of Appeal and the apex court in this country. Earlier,  a  number of eminent lawyers had observed that the public perception of the independence of the judiciary was at an all time low. They accused that the profession itself was in crisis. Recently, one of the most respected members of the Bar, H.L. De Silva PC, famously referred to the judiciary as what was 'formerly known as the temple of justice.' Legal luminaries like R.K.W.Gunasekera supported Fernando in what was perceived to be a collective effort by a number of lawyers to restore the good name of the Bar.

Justice A. R. M. Marsoof PC

In this backdrop, the speech delivered by Justice A.R.M. Marsoof on his appointment as a judge of the Supreme Court is not only timely but also appropriate in its content. Focusing largely on his personal commitment to an independent judiciary, this is to remain his recurring theme throughout the discourse. He however recalls his short period of time as President of the Court of Appeal and is quick to express his gratitude to the Chief Justice and other members of the Superior Courts Complex Board of Management for providing two split air conditioners to carry on work without discomfort during court vacation.

Justice Marsoof's preoccupation in his speech, with the independence of the judiciary is almost an exercise in reassurance both for himself as an officer of the apex court in the nation and for the public in whom sovereignty ultimately rests. An exercise that may lead the public to presuppose that the independence of the judiciary can no longer be considered a given. That an officer can no longer by his very appointment to this august and noble place be considered unshakable and without prejudice.

"I strongly believe", he says, "That justice as much as peace, is a prerequisite for social harmony, political stability, progress and development. But it is doubtful", he warns, "if justice can be secured in an environment that is devoid of an efficient, independent and impartial judiciary." He blames the denial of justice as the primary cause for the breakdown of law and order, and the concomitant chaos and states that the absence of an independent judiciary leads to the slide downwards towards the denial of justice.

Drawing from his belief in God, his speech is richly dotted with quotes from the Qu'aranic scriptures. Quoting the directions given by an Islamic caliph to a judge, he says " just judgment is rewarded by God and appreciated by the people. If one is devoted to God and adheres to the right, even when it is against one's own interest, then God will save him from hell."

In an attempt to arrest the downward slide of public confidence in the judiciary, Justice Marsoof states, "it is in this spirit that I pledge that it will be my earnest endeavour to administer justice impartially between citizen and citizen and between state and citizen without fear or favour, answerable only to God."

Surely, that is all his country would ask of him. We reproduce below the full text of Justice Marsoof's speech for the benefit of the public.

In keeping with the rich traditions of our courts, I consider it fitting that I respond to the warm welcome accorded to me as a judge of the Supreme Court.  It is with deep humility and gratitude that I accept the most gracious accolades expressed this morning, although I doubt very much whether I deserve any of the praise so generously bestowed upon me. Nonetheless, your words of encouragement will give me strength to carry out my duties as I assume office in the apex court of this country, fully mindful of the onerous task and responsibilities attached to it.

It was only in April last year that I assumed office as,  president,  Court of Appeal after spending three decades in the Bar of which the last 29 years were spent in the Official Bar. I have to thank all the honourable members of the Constitutional Council for amending the post-relative criteria adopted by the council to make it possible for an additional solicitor general in the Attorney General's Department to be appointed directly as the President of the Court of Appeal, and for encouraging me to accept that appointment. I must confess that I accepted the appointment after considerable hesitation, but I am glad that I did so as it gave me the opportunity of administering justice without fear of my decisions being final, which incidentally is a priviledge I will no longer enjoy as a judge of the Supreme Court.

During the short period of time I held the office of President of the Court of Appeal, I received the fullest co-operation of all the judges of that court, the Registrar, Mrs. M.M.Jayasekera, her Deputy Mr. S.Pinnaduwa, and the staff of the Court of Appeal, whom I thank wholeheartedly for their support and assistance. With their help, I was able to identify some of the causes for the delays experienced in that court, and to provide some solutions. I have to express my gratitude to His Lordship the Chief Justice and the other members of the Superior Courts Complex Board of Management for providing two split air-conditioners so that work can be done without discomfort during court vacations when the central air conditioning facilities are not available.

Action was also commenced with a view to fully automating the Court of Appeal along with the Supreme Court and the Commercial High Court with the help of the Legal and Judicial Reform Project of the World Bank.  I am also thankful to the Legal and Judicial Reform Project for working out a training programme for court stenographers with a view of enhancing their knowledge of English.

Problems

However, the major problem with the Court of Appeal has been that it is understaffed and overworked. Its volume of work actually requires twice the number of judges to handle. At present, cases in the Court of Appeal are heard before six benches consisting of two judges each sitting on all five days of the week. Some of these benches work till late almost every day, and the judges have very little time to write their judgements, which has resulted in not only in long delays in the pronouncement of judgements but also in delays in copies of judgements being made available to the parties after the pronouncement of judgements. In the first eight months of 2004 alone, 658 civil appeals were filed but during the same period only 251 appeals were disposed of, and as on August 31, 2004 the number of pending civil appeals accumulated over the ages stood at 9,807. In these circumstances, it is heartening to note that there is a proposal to reconstitute the Court of Appeal so that it could also function as a Provincial Court of Appeal, and the appeal briefs can be prepared and the sittings held in the provinces. While this could expedite the process of hearing not only civil but also criminal appeals, I would humbly suggest that the opportunity should be availed of to vest the jurisdiction presently vested in the Provincial High Court under the 13th Amendment to the constitution in the Provincial Court of Appeal, so that the high courts could concentrate more on criminal trials.

In my view the government should also consider transferring the fundamental rights jurisdiction vested in the Supreme Court to the Court of Appeal so that persons from distant places such as Jaffna, Badulla, Moneragala or Hambantota do not have to come all the way to Colombo to redress their grievances under Article 126 of the constitution. There could be an appeal to the Supreme Court from a decision of the Court of Appeal, with the leave of the Supreme Court.

Mr Attorney, Mr. Mohomed, you are aware how glad I am to be welcomed to the Supereme Court along with my old friend His Lordship Justice Nimal Gamini Amaratunga, whom I have moved closely with for the last 35 years. I have pleasant memories of my association with Justice Amaratunga, who was my senior in the Law Faculty of the University of Ceylon, Colombo, whose room I used to frequently visit to listen to his intellectual discourses between puffs of cigarette and sips of plain tea. He shares with me a commitment for justice that comes from our social background and spiritual outlook.

As for me, I strongly believe that justice, as much as peace, is prerequisite for social harmony, political stability, progress and development. But it is doubtful if justice can be secured in an environment that is devoid of an efficient, independent and impartial judiciary. Often, it is the denial of justice that leads to the breakdown of law and order and the concomitant chaos; and invariably, it is the absence of an independent judiciary that leads to the slide downwards towards the denial of justice. An independent judiciary therefore reinforces justice, peace and stability in a society.

Appointment

For the preservation of judicial independence, it is indispensable that there is transparency and fairness in the process of making appointments to, and promotions in, the judiciary. Seniority and merit should be the only criteria for the appointment and promotion of judges, as the adoption of any other method of selection would be extremely dangerous. If appointments and promotions are made without regard to age old traditions and rules of seniority, not only the independence of the judiciary but also the public confidence in the judicial system will thereby be seriously affected.

On a personal note, I wish to add that the Attorney General's Department was my second home for 29 long years, and I am deeply indebted to not only the senior officers of this department who taught me almost every thing I needed to know and under whose close supervision I discharged my duties, but even to my contemporaries and juniors from whom I have learnt much and with whom I have enjoyed life to the fullest. There can be no better training ground for potential judges, and those who were elevated to the judiciary from the Attorney General's Department have proved to be very good judges indeed. I am also happy that in the Supreme Court as presently constituted, there are six judges who were former colleagues of mine in the AG's Department of whom two, namely, his Lordship the Chief Justice and his Lordship Asoka De Silva were my seniors from whom I have learnt a great deal.

In my view, the judiciary should not consist of only career judges, and opportunities must be available for those from the official and unofficial Bar to be recruited into the judiciary. This is because diversity is an important characteristic of a virile judiciary. As the Right Honourable Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs and Lord Chancellor, observed in his Foreword to the Consultation Paper entitled Increasing Diversity In The Judiciary (CP 25/04 published on 13th October 2004)-

"....the diversity of the nation should increasingly be reflected in the diversity of its judges. A more diverse judiciary is essential if the public's confidence in its judges is to be maintained and strengthened. ..Our judges are of exceptional ability, independence and probity, and we must preserve that. But I do not believe that there is any conflict between merit and diversity. Rather, we must encourage more talented individuals to apply, whatever their background, so that we can be sure that the best are being appointed and the judicial system benefits from their talents and experience."

The Right Honourable Lord Woolf, Lord Chief Justice of England and Wales has observed in the same Consultation Paper that -

"..it is accepted generally by the judiciary that we must increase among our number the percentage of women judges and the percentage of judges who come from the ethnic minorities. It is imperative that this is achieved in ways that enhance rather than damage the existing quality of the judiciary."

The post-relative criteria formulated by the Constitutional Council does provide for a certain degree of diversity. However, it is necessary to provide the members of the bench and the Bar opportunities to make representations regarding these criteria so that they can be refined to overcome difficulties and problems, and provide for greater diversity. In particular, I am strongly of the view that the Constitutional Council should consider further amending its post-relative criteria for appointment of judges of the Supreme Court to enable any additional solicitor general who had been conferred silk to be considered eligible for such appointment. Additional solicitors general are persons who have served in the official Bar for more than 25 years and they are conferred silk in recognition of the eminence they have achieved at the Bar. They should therefore not be deprived of the opportunity of being considered for direct appointment to the Supreme Court, particularly in view of the fact that the secretary to the Ministry of Justice, the legal draftsperson and jurists or persons of high academic attainment in the field of law who have less or no court experience are considered eligible for appointment to the Supreme Court.

Sovereignty

Article 3 of the Constitution of the Democratic Socialist Republic of Sri Lanka declares that sovereignty is in the people and is inalienable. Being a representative democracy, the powers of the people are exercised by the legislative, executive and judicial organs of state in trust for the people. I therefore consider myself bound by the commandment of God expressed in the Holy Quran, in the chapter entitled Sura An Nisaa IV:58 in the following words:

"God doth command you, to render back your trusts to those to whom they are due; and when ye judge between man and man, that ye judge with justice."

The same idea is reflected in the following words which I quote from the directions given by an Islamic caliph to a judge, which is reproduced from Justice Dr. C.G.Weeramantry's well known work entitled Islamic Jurisprudence: An International Perspective:

"Your judgement should not be the basis for the noble to hope for your favour, and for the poor to despair from your justice...just judgement is rewarded by the God, and appreciated by the people. If one is devoted to God and adheres to the right, even when it is against one's own interest then God will save him from hell."

It is in this spirit that I on this occasion of the ceremonial welcome by the Bar pledge that it will be my earnest and anxious endeavour to administer justice impartially between citizen and citizen, and between state and citizen without fear or favour, answerable only to God. I am singularly fortunate, that I am born and bred in a country to which judicial independence is nothing new. I wish to recall what Chief Justice Sir Stanley Fisher said speaking at the ceremonial sitting of the Supreme Court on April 16, 1930:

"Judges come and judges go but the continuity of work in these courts is unbroken. The atmosphere remains and I do think that if it were possible for a judge of 50 years ago to come back actually to these courts, he will at once feel himself at home and recognise the same atmosphere and the same sense of justice emanating and inspiring those who worked in these courts in his own day."

As Justice Dr. A.R.B.Amarasinghe has observed in the Foreword to his monumental volume entitled The Supreme Court Of Sri Lanka.

"The spirit of justice in our Supreme Court is invincible and the independence of the court is inviolable. And there is little doubt that it shall always be so, for that has been the desire of those who have served it from the Bench and at the Bar and that has been and, above all else, is the will of the Sri Lankan people."

Mr. Attorney, Mr. Mohomad, let me conclude by thanking you once again for your kind thoughts and words. I must have on record my appreciation to the offer of continued co-operation from the official and unofficial Bar, and I certainly would solicit much of it to ensure the speedy flow of justice, which we all want and desire. I am indeed grateful to His Lordship the Chief Justice and the other judges of the Supreme Court as well as the honourable judges of the Court of Appeal and the original courts for gracing this occasion. I also thank the members of the Bar and every one of you present here this morning for taking time off to attend this ceremonial sitting. I take this opportunity to thank all those who sent me messages of congratulations and those who personally offered their felicitations on my appointment.

I wish to place on record my heartfelt gratitude to my most respected teachers who taught me what I knew not in the many schools and institutions of higher learning where I had the good fortune of studying. I am sad that my father, who nurtured and guided me from my childhood, is not among the living to see me being welcomed to the apex court of this country. I remember him saying to me once when discussing my future career, that I should not call myself, or permit others to call me, Justice Marsoof, if I am not willing and able to do justice in every case that comes before me. These are words that I shall never forget so long as I hold judicial office.

I am extremely fortunate that my mother, who courageously supported me after my father's demise and to whom I am eternally grateful, is able to see me ascend to the highest pinnacle in the judiciary, and thank the Almighty for making it possible for her to be present in court on this ceremonial occasion. I am distressed by the fact that my wife who has always been my guide and minister is unable to attend this ceremonial sitting as she is recovering from surgery occasioned by an accident. Nonetheless, I have to thank her, and my son Althaf, who has been my friend and assistant, for all the love they have bestowed on me which contributed to make me what I am.

ALHAMDULILLAH, I thank the Almighty Allah, who knows best, for all the blessings bestowed upon me. In particular, I consider it auspicious that I was called upon to take my oaths as a Judge of the Supreme Court before Her Excellency the President of Sri Lanka on Arafat Day, which preceded the Id Mubarak, the Festival of Sacrifice, and I am ceremoniously welcomed by the Bar on Muharram Day, which is the first day of the New Year according to the Islamic Calendar.  Thank You, and May the Blessings of the God Almighty be with you.

Govt. to centralise foster child care under
Presidential Secretariat?

By J. S. Tissainayagam 

The government's inveterate desire to centralise operations connected with Sri Lanka's recovery, rehabilitation and reconstruction after the tsunami will impact adversely on that group we consider most vulnerable in our society - children - unless swift steps are taken to reverse a decision made by the ruling party to bring in legislation for this purpose. The bill was taken up by cabinet last week, but put on hold.

In the bill, described as "urgent in the national interest" to "enable special legal provisions to be made in respect of persons and property affected by the tsunami and matters connected therewith.," the National Child Protection Authority (NCPA) that functions under the Presidential Secretariat will become central to the foster care of three categories of youth: children and young persons orphaned by the tsunami, children who are left with a single parent unable to take care of them, or young people who need care and protection that a single parent cannot provide. (Young people are those under 21, while a child refers to someone under 16).

Though this might appear innocuous enough on the surface, the new role of the NCPA will encroach into the authority of the Department of Probation and Childcare Services (DPCS) and its commissioner whose responsibility it is, at present, to oversee and facilitate foster childcare.

DPCS

The DPCS functions under the central government as well as at provincial level. The DPCS in the centre is responsible for policymaking, training and foreign adoption. The provincial DPCSs are responsible for local adoptions and intervening in the judicial process in adoption cases. It also does follow-up work on children put in foster care.

Under the existing legislation, the adoption of children/young persons is mostly undertaken by the provincial DPCSs since the majority of the children/young persons, as well as their prospective foster parents, are Sri Lankans. Accordingly, when an application for adoption is made, the probation officer of the provincial DPCS compiles a Social Inquiry Report. The report is processed by the local magistrate to see whether the legal provisions are met with and whether the prospective foster parents are suitable for the task. The recommendation is then submitted to the commissioner of the provincial DPCS who makes the final decision on the adoption.

The bill however proposes that if a person wishes to become a foster parent, he or she has to apply for a Foster Care Order to the commissioner of the provincial DPCS of the province of which the child is currently resident, with a copy of the order to be forwarded to the NCPA.

According to the proposed legislation, "On receipt of the copy of an application . the chairman of the Authority (NCPA) shall forthwith refer the same to a Foster Care Evaluation Panel . for the purposes of evaluating the suitability of such an applicant to be a foster parent" [Sec. 14 (1)]. 

The panel will comprise the chairperson of the NCPA or a person nominated by the chairperson, a nominee of the Sri Lanka College of Paediatricians, a nominee of the commissioner of the DPCS, a psychologist and psychiatrist nominated by the NCPA. The panel will evaluate each application according to criteria laid down by a schedule.

The panel is expected to evaluate the suitability of the applicant and make its recommendation to the chairman of the NCPA within two weeks. If the panel recommends the suitability of the applicant, the chairman in turn forwards it to the commissioner of the provincial DPCS. The commissioner, after securing the consent of the child (if over 10 years), or the young person, issues the final order appointing the applicant as a foster parent.

Drawback

According to professionals working with children in Sri Lanka, the proposed legislation's main drawback is the centralisation of the process of adoption by institutionalising the Foster Care Evaluation Panel, which is to function under the NCPA. It should be remembered the NCPA operates under the Presidential Secretariat. With the volume of applications requesting foster care expected to burgeon, the panel would become a bottleneck preventing the expeditious disposal of such applications.

Critics feel that though there are drawbacks in the present Social Inquiry Report because its compilers do not include specialists such as psychologists, psychiatrists or paediatricians, these could be remedied at a provincial level rather than centralising it under the NCPA. They also disapprove the proposed legislation because it does not allow the credentials of a prospective foster parent to be scrutinised by a magistrate. While not demanding the marginalisation of the NCPA, they believe that instead of involving it in implementing foster care, its traditional role as a monitoring body should be strengthened at district and sub-district levels.

According to Section 16 (4) of the bill, "Notwithstanding the issue of a Foster Care Order . the (provincial) commissioner shall at all times remain as guardian of a foster child until that child reaches the age of 18 years." Further, the commissioner is duty-bound to ensure the adequate "care, custody and protection" of children who are not placed under foster care and of those who cease to be under foster care [Sec. 10(2)].

This means that even the proposed legislation tasks the provincial DPCS with caring for children after adoption and if they are not adopted. Therefore, the NCPA's entry into the process through the Evaluation Board appears meaningless interference in a procedure that is largely unified.

What is more, if proof of the pudding is in the eating, the DPCSs have handled more than 70 adoptions since the tsunami without any complaints.

The proposed bill needs to be reviewed through public debate and amended so that the drawbacks of the present system are eliminated while new shortcomings such as centralisation and meaningless interference do not creep into the process.

Using the tsunami to muzzle the people

By Frederica Jansz

The government will bring in a Tsunami (Special Provision) Act of 2005 seeking to deal with certain developments that have cropped up in the post tsunami scenario. The bill has already received cabinet approval.

According to Justice and Judicial Reforms Minister, W. D. J. Seneviratne, the bill will bring in a Tsunami (Special Provision) Act to deal with the issuance of death certificates, adoption of children and appointment of foster parents.

Seneviratne is quoted on a government website stating this bill will be presented to cabinet and "brought before parliament shortly." The act will also help the government to prevent malpractice and corruption relating to the handling of tsunami relief and assistance.

According to the Justice Minister, the bill would also deal with problems relating to immovable and movable properties destroyed and damaged in the tsunami tragedy.

"This bill is a comprehensive piece of legislation that deals only with the tsunami victims - persons and properties," he says.

Critical issues

"As a result of the tsunami, there are a number of unforeseen problems and it is necessary to bring this kind of legislation to deal with those critical issues," the Minister adds.

"It will also deal with people who have disappeared. The law will provide for missing persons who have not re-appeared within one month, presumed to be dead," Seneviratne asserts. It will also deal with issues pertaining to children rendered parentless and children who have lost one parent.

Last Monday, President's Counsel K. Kanageesvaran argued in the Supreme Court against a provision in the government's Disaster Management Bill where power was to be given to government organisations to requisition immovable property. The Supreme Court determined it could only be done with consent of the owner.

"This was the only obnoxious feature in the bill," Kanageesvaran said, maintaining the Attorney General's Department had agreed to change this provision.

Attorney-at-Law Elmor Perera asserts the government cannot be allowed to pass legislation using the tsunami as a cause saying such laws would remain inconsistent with the constitution. Perera pointed out the President has sufficient powers at present to deal with all aspects of the tsunami and its related work and thus fresh legislation is not necessary.

Attorney-at-Law and Executive Director, Transparency International, Krishantha Weliamuna held similar views. He said, "from 1978 onwards there were so many important laws passed as urgent bills. In my view this is a ridiculous provision authorising government to act arbitrarily."

Once a law is passed, he said, "You cannot challenge its authority." Drawing on previous examples he referred to important constitutional amendments that were introduced by this government as well as those of the late President J. R. Jayewardene and R. Premadasa.

"So many laws were passed as urgent bills which resulted in these bills not being seen by anybody, not even properly by parliamentarians."

Weliamuna maintained the public remains unaware of the repercussions of such laws including Supreme Court judges who are not given time to study the bills.

"No government had taken the initiative to give advance notice before introducing fresh laws," Weliamuna said. "The tsunami may require extraordinary legislation passed but I think it is nothing but right that these laws are passed by normal procedure," he asserted.

The comments of the three top lawyers were made in the backdrop of President Chandrika Kumaratunga secretly promulgating emergency regulations in 14 of the island's 25 districts in the aftermath of the December 26 tsunami.

The new regulations apply not only to the districts along the south and east coasts directly affected by the tsunami, but to the Western Districts of Colombo and Gampaha too. This is despite Colombo and Gampaha remaining largely unaffected by the disaster. The emergency within these areas lends police, armed forces and any presidential appointee extensive powers.

The draconian measures include powers for the police, army and officials to suppress political criticism or opposition. The regulations were put into force on January 4, nine days after the disaster, but were made public only on January 25.

The emergency decree was brought to public attention not by the UPFA government but by the Civil Rights Movement of Sri Lanka (CRM).

In a statement on January 13, the CRM expressed concern that the regulations were not available, declaring it was "imperative" that people knew under what laws they were governed.

Similarly, the public - including judges and lawyers - remained vague about the details surrounding the Tsunami (Special Provision) Act of 2005. As the government slipped in emergency regulations with no murmur of protest of debate for that matter from civil society, it had done so with this bill too, the contents of which remain obscure.

On January 3, the day before imposing the state of emergency, Kumaratunga put the military in charge of relief operations. The Chief of Defence Staff, Admiral Daya Sandagiri was installed as overall commander of relief operations and top officers were appointed as relief coordinators in 12 districts.

To the dismay and anger of the LTTE and its social services arm, the Tamil Rehabilitation Organisation (TRO), the military took over the running of relief camps, which house several hundred thousand refugees in the north and east as well, and was included in the civilian administration at district and provincial levels.

No justification

The President, nor for that matter anyone else in government, has offered any justification for these extraordinary moves. The proclamation declared that the state of emergency was in the "interests of public security," "the preservation of public order" and "maintenance of supplies or services essential to the life of the community."

Prof. J. A. Karunaratne in an article he authored points out that Kumaratunga has failed to explain how the overriding of basic democratic rights will assist the victims of the tsunami disaster.

The point is this. As Krishantha Weliamuna asserted, the scope of the regulations is not limited to relief work. References are repeatedly made in the document to the exercising of powers "in the interests of national security" and for "the preservation of public order."

In other words, the military, police and officials have been given wide-ranging powers to act over matters that have nothing to do with the tsunami and its aftermath.

The regulations make it an offence to cause "disaffection" among public officers; to distribute posters, handbills or leaflets "prejudicial to public security, public order or maintenance of essential services" or to "spread any rumour or false statement" that "is likely to cause public alarm or public disorder."

So vague are these provisions that anyone in any way criticising or opposing the government can be deemed to be guilty of an offence punishable by imprisonment of not less than three months and up to five years.

Area military commanders can take over any building or premises. The "competent authority" appointed by the President can requisition any vehicle. Authorities can "require any person to do any work or render any personal service in aid or in connection with, national security or the maintenance of essential services."

Under regulation 12, the President can declare "any service to be an essential service," making strikes and all forms of industrial action illegal. Any worker failing to carry out his or her duties, can be sacked, evicted from government quarters, and charged with an offence. Likewise, it is an offence to impede, obstruct or prevent a person engaged in an essential service. It is also an offence to incite, induce or encourage essential service workers not to carry out their jobs.

The regulations provide for the "prevention of unauthorised entry" into areas taken over by the security forces or essential services. Such powers may be used to enforce a government ban on the reconstruction of houses within 100 metres of the shoreline in the south and 200 metres in the north and east. Fishermen and others are bitterly opposed to these measures, which will hinder their ability to carry out their work.

Wide powers

Under regulation 16, the police and security forces have wide powers to search, detain and arrest without a warrant any person suspected of committing certain offences under the criminal code such as abduction, kidnapping and rape. The regulations bypass present police procedure and greatly strengthens the hand of the security forces.

It is an offence to obstruct anyone exercising powers under the emergency regulations. It is also an offence to assist anyone guilty of a breach of the regulations. It is an offence not to report an offence to local authorities. Anyone detained is bound to answer questions. Moreover, they can be placed in the temporary custody of a policeman or military officer for up to a week.

Any confessions and statements extracted by such methods are admissible in legal proceedings along with any book, document or paper found in the possession of the accused. Court cases involving offences under the emergency regulations have been given top priority.

While there are broad provisions for detaining and trying those deemed to oppose government authorities, anyone exercising powers under the regulations is protected against all legal action, except by the Attorney General.

Unfettered operation

Karunaratne and Weliamuna both assert that the overriding thrust of the state of emergency is not to assist the victims of the tsunami, but to ensure the unfettered operation of the state apparatus. The regulations are aimed at anyone who criticises, opposes or obstructs the security forces and provides for their arrest, detention, questioning and prosecution without even the existing minimal legal guarantees.

Kumaratunga's decision to secretly impose such draconian measures underscores the deep crisis confronting her administration and the political establishment as a whole.

The UPFA government came to power last April pledging to improve living standards and to restart peace talks with the LTTE, but has failed to do either. Even before the tsunami, the UPFA was confronting a growing hostility and anger over its broken promises.

Now, by official estimates, nearly 40,000 people have died and almost a million people have been displaced since December 26. Many of the survivors have lost family members, their homes and possessions, and their livelihoods. Overwhelmingly the victims are poor and have no alternative means of support. Some have received no assistance even nearly two months after the disaster.

And it is in this context that the President with no notice to the nation introduced emergency regulations, which can not only seize property and other movable items but also detain and arrest persons perceived to pose a threat to national security or the rebuilding of Sri Lanka's battered coastline.

"Things have not been  mishandled" - PC Minister

Southern Provincial Council's alternative Energy, Highways, Cooperative, 
Food and Commerce Minister, U.D.G. Ariyathilake

By Wilson Gnanadass In Galle

Allegations are swirling that tsunami aid, while not being equitably distributed, is also being pilfered by powerful men close to the Freedom Alliance government.

During the past several weeks the local media has highlighted instances where many individuals have been involved in either pilfering or misusing tsunami aid that was purely meant for tsunami victims.

The present government has also come under severe criticism for not being transparent regarding the amount of money that is obtained from well wishers and donors. What is worse is the unequal distribution of aid. While the government and mostly the politicians are apparently busy getting involved in the relief operation, in reality the tsunami victims continue to complain they are short of essential items.

The Sunday Leader last week published photos of relief aid being off loaded to an upper floor of a politician's office in Galle. The question that was posed was why this politician avoided the front and the rear entrance to take the relief goods, but instead opted to unload from the side road to the upper floor.

The incident took place at the office of Southern Provincial Council's Alternative Energy, Highways, Cooperative Food and Commerce Minister, U. D. G. Ariyathilake who has now categorically denied getting involved in pilfering tsunami aid.

The Sunday Leader during a visit to Galle to investigate into this incident found out that both the main and the rear entrances of the office were spacious enough to unload even huge consignments of goods.

The Sunday Leader also observed that people or vehicles did not frequently use the side road used to off load the goods, thereby giving the impression that this road could have been used to pilfer goods.

The people in the vicinity also said while the people languishing in the camps were starving due to shortage of food and other essential goods, this ministry chose to move stuff from place to place without expediting the distribution process.

When interviewed by The Sunday Leader, the people in the camp also complained that they were mostly fed by the NGOs and the private sector but the government was inactive in giving them relief.

It was also observed that the ministry did not have details of goods that were transported from Richmond College to the ministry premises on that particular day. Nobody has an account of goods that were brought from the collage. The ministry has records of only the items given to the victims and not obtained from well wishers.

The Minister, denying The Sunday Leader report said as the passage through which the goods could have been taken to the upper flow was narrow and long, the ministry officials opted to carry the relief items from the road direct to the upper flow, a method he said that was easier than carrying the goods through the main and rear entrance. He also said the ministry on that day was short of manpower.

He said that since the relief stuff the ministry received were insufficient to offer to all the victims it was important to bring the goods from the Richmond College hall to his ministry for parceling. Therefore the ministry had to break big parcels and make smaller bags in order to ensure all the victims in a particular camp are given relief, he said.

Here is the full account of the The Sunday Leader's interview with the minister.

"After Galle was hit badly by the December 26 tsunami, 30 centres were established to house the tsunami victims.

At the same time relief was also pouring in from well wishers and other private companies especially from Colombo.

We did not have a place initially to collect all the goods that were sent to us. So I spoke to the Richmond College principal and obtained permission to use the College hall as the main collecting centre.

I managed to get the hall from the principal because I am an old boy of this prestigious school.

Initially we distributed these things directly to these centres run by some priests. But later those whose houses were partially destroyed returned to their houses.

After setting up the collecting centre at the college we stopped distributing aid directly to the people but sent all the goods to the centre for parceling.

The college principal called me one day and told me to clear the hall in view of the reopening of the school on January 10.

I had no option but to transfer everything we had collected and store at Richmond College elsewhere. At that moment we did not know what to do with the goods and where to store them.

In fact my house is situated just few yards away from the college. But I thought I should not use my private residence to store things belonging to the public. I thought there would be various allegations against me. Then the only place that was available to store the food was my office situated in the Galle Fort. Since it was a Saturday the office was closed. That is why my officials decided to pass the goods to the upper flow. To be honest since assuming office, I would not have entered my office through the front gate more than 10 times. Whenever I walk through the front gate customarily people working in the office tend to stand up. In order to avoid this I always used the rear entrance.

We had our personal staff from about December 27 up to about mid January. I had my officers staying here some days till 12 mid night. After the tsunami people tried to make this office as a place to seek help. So my officers have always been here.

On the very day we were asked to remove the goods my officials had decided to take the things to the upper floor from outside.

Though the rear entrance is wide enough to bring things, they had to be carried through a narrow staircase if they had to enter the room where all the collected stuff is stored.

I had no intention of stealing those foodstuff. I could have taken the things in the night or could have easily transferred to my private residence if I had any intention of stealing them.

I challenge anybody who says these things have been mishandled. I never had any intention of acquiring these things for me when it was purely meant for the tsunami victims.

I am an old boy of Richmond College and a lawyer by profession. I always honour law and order. My father died being engaged in politics for 24 years. I may be a poor person if you take the country as a whole. But in my own village, we were very rich. Though my father was in politics he died in a government hospital. I did not have money even to buy his coffin.

Though I am a lawyer these three months I have not gone for practicing. Had I gone, I could have earned some extra money. I did not want to go because I was committed to help the tsunami victims.

I still pay the banks for the loans I have obtained. Why should I live in debt if I were to depend on things belonging to others? The Inland Revenue Department has filed a case against me for not paying my tax in time. Now if I were a person to steal why should the department charge me?

I have not got the reputation of hitting anybody or setting up people to do anything bad to others. I have always stood firm for the rights of others and never tried to deprive others of their basic needs.

The Sunday Leader has killed me by publishing those photographs. This has tarnished not only my image but also the image of my wife and children."

Buffer zone battle rages on

By Easwaran Rutnam  In Galle

A row of shops newly constructed by the Urban Development Authority (UDA) opposite the Galle vegetable market remains unutilised more than a month after they were erected.

The reason according to vendors at the Galle market is that the UDA has built some of the new shops within the 100 meter zone which goes against the government ban and Coast Conservation Department (CCD) regulations.

The shops were constructed as a relief measure for vendors whose stores were within 100 meters of the Galle shore and were damaged by the tsunami last December.

The CCD says the UDA will be in serious breach of the ban if the new shops are found to be within 100 meters of the shore.

Deputy Director of Planning, Coast Conservation Department, Gamini Hewage told The Sunday Leader that shop and resort owners have been advised against reconstructing damaged buildings within the 100 meter buffer zone unless they receive clearance from the CCD.

The police are also said to be involved in monitoring the buffer zone to ensure no new constructions take place.

However, the new shops erected by the UDA seem to have been passed through and the CCD assured that it will make inquiries to see if the new stores in Galle fall within the zone which will be in total violation of the regulations.

Restricted area

Vendors in the area say the Survey Department had measured the vicinity and according to markings laid out by them some of the new shops fall within the restricted area.

The vendors of the Galle vegetable market, which was partially damaged by the tsunami and is on the verge of collapse, criticised the authorities for failing to repair the damaged market or put the new shops to good use.

The damaged market requires just two pillars to hold the roof up which is an obvious death trap.

"At least if the new shops were built at a proper location we could have been moved there. Instead state funds have been wasted while some of the shops are partly built and used by stray animals," they said.

They also noted that a Laksala outlet within the buffer zone opposite the Galle police station is fully operational despite adjoining stores that were partially damaged by the waves being completely razed down by bulldozers.

"Since Laksala is a state outlet the government could have set an example by removing the outlet from the buffer zone so that others may follow suite," said M. T Ahamad, a shop owner in the area.

Ahamad also rubbished the tsunami loan scheme offered by the state to rebuild damaged businesses saying there is too much red tape.

He noted that when he approached the People's Bank regional office in Galle to apply for the loan the bank had refused to accept the application on the pretext that his business was still operational within the buffer zone.

According to him, the bank refuses to facilitate the rebuilding of any property within the restricted zone.

No state money

Ahamad said that he resumed operations with his own money and loans received from friends and hoped to repay his friends from the bank loan.

He also said that when he attempted to mortgage a property located several meters away from the buffer zone the bank had refused to comply saying the business he operates within the buffer zone must first be relocated.

"This is absurd. They won't help me to continue with my operations within the buffer zone nor will they mortgage what I have outside the zone. Aren't they supposed to help the affected and not hurt us more?" asked an angry Ahamad.

However when contacted by The Sunday Leader an officer at the People's Bank Galle Regional office said that they are awaiting a clear decision from the state if partially damaged buildings will be permitted to rebuild within the 100 meter buffer zone.

"If we release the loans and the government says partially damaged structures within the zone have to be removed, then the owners will be in a tight situation where they will not be able to pay back the loan," he said.

Meanwhile shops damaged by the tsunami along the Katugoda stretch in Galle have also been repaired by the owners who say they will defy the 100 meter ban.

"We have begun to rebuild using our own money even though the police advised us against it. Most of the damaged stores are under reconstruction and I don't think the police will be able to do anything about it," says the owner of Fazila Textile Emporium in Katugoda, Mohamed Azmy.

Some people have even placed tent covers over their damaged property to ensure that authorities don't bulldoze the area.

In Unawatuna tourists resorts, villas, stores and homes severely damaged by the tsunami have also been rebuilt or are under reconstruction.

Goonawathi Pathirana, a resident in the area who ran a tailor shop within her premises could be seen rebuilding her property inside the 100 meter buffer zone with the help of foreigners in the vicinity.

"I am building my shop to resume by business. But since the government says I can't stay here I will have to go even if I didn't want to," said Pathirana in disappointment.

Going ahead

The owner of Banana Gardens Rest House, that has the sea kissing the rear entrance, says he realises he is violating the ban by rebuilding his resort but will continue with the renovations.

He noted that the government had failed to assist them when they were hit by the tsunami and it was unfair to prevent them rebuilding with their own money.

"The money the government got was because of the tears we shed over the international media. They should use that money to help us and not themselves," he charged.