By Sarath de Alwis –

Sarath de Alwis

“An earthquake achieves what the law promises but does not in practice maintain- the equality of all men.”- Ignazio Silone

The Minister of Justice and the Minister of Law and Order are eminent practitioners of the law. They both had good reasons to say what they said during the Avant-garde floating armory debate.

The Minster of Law and Order Tilak Marapana is a former Attorney General. The Minister of Justice Wijeyadasa Rajapakshe is a former Chairman of the Bar Association.

Both are trial lawyers who rely on the law. We cannot and we should not expect them to concern themselves with abstract notions of ethical proprieties when clearly the law is on their side.

The Minister of Justice in the course of his speech alluded to agreements entered in to. “When the situation demanded, I as Minister of Justice studied all the relevant material. There are agreements entered in to. These are intertwined with a gamut of international law. There are interactions with other countries. There has been certain dialogues with the Security Council of the United Nations.” [Translated from the unedited Hansard] The Minister did not specify what the agreements were or the parties to the agreement. He certainly did not expand on the ‘dialogues with the UN security council’.

At its 7309th meeting. the UN Security Council Expressed its continued grave concern over piracy off the coast of Somalia despite a sharp decline in attacks. On 12th November 2014 the Security Council renewed for another year its authorizations, first agreed in 2008, for international action to fight the crime in cooperation with Government authorities.

Through the unanimous adoption of resolution 2184 (2014) under Chapter VII of the United Nations Charter, the Council renewed its call upon States and regional organizations that had the capacity to do so to fight ongoing sea crimes by deploying naval vessels, arms and military aircraft and through seizures of boats, vessels and weapons used in the commission of those crimes.

Probably, the Minister of Justice, has further information linking the expertise of Retired Major Nissanka Senadhipathi to the Security Council resolution.

If the Galle Floating Armory was a sequel to certain dialogues with the UN Security Council and that onerous responsibility undertaken by the Sri Lankan state was outsourced to Retired Major Nissanka Senadhipathi, this is our first intimation of that earth shattering event. It is curious that the Minister of External Affairs did not take part in the debate.

There seems to be an abundant supply of Red Herrings in the turbulent waters of the Indian Ocean and Sri Lanka has taken a lead in combatting pirates with privateers.

We should learn more about this innovative enterprise which according to the Minster of Justice has brought in to the country Rs. 16000 Million in foreign exchange of which it has paid Rs.3500 Million to the national exchequer. It is time to discover and unravel the Maritime Midas who has had the foresight to retain a mouth piece who could deliver at Hulftsdorp and the House at Diyawanna with equal tenacity.

Avant Garde Maritime Services (Pvt) Ltd – (AGMS) is a subsidiary of Avant Garde Security Services (Pvt) Ltd, and incorporated on the 24th June 2011 under the Companies Act (reference: NO.7 of 2007) of Sri Lanka. It has entered into a joint venture with Government Owned Business Undertaking (GOBU) of Rakna Arakshaka Lanka Ltd (RALL) of Sri Lanka to provide infrastructure facilities for international maritime security services.

The company website informs anyone who cares to probe that “the Parent Company Avant Garde Security Services (Pvt) Ltd, is the largest security company in Sri Lanka employing over 6,500 personnel. It has an unblemished record of over 17 years providing land based security to many organizations including key blue chip companies, most of the banks and financial institutions.

Avant Garde Maritime Services (Pvt) Limited provides comprehensive range of total risk mitigation solutions to the global maritime industry and also engaged in the business of providing of total logistical assistance to vessels transiting the Indian Ocean.

Avant Garde Maritime Services has created a network of facilities in strategic locations to ensure maritime security companies are assured of obtaining weapons and associated items for passage through piracy risk area and handing over them to be under the control of AGMS / RALL officers at the relevant destination ports before repatriation of sea marshals.

AGMS is a proud Signatory Company of the ICoC (International Code of Conduct), secured SAMI (Security Association Maritime Industry) membership and is in the process of getting affiliated to legitimate international maritime agencies.” Emphasis by the writer.

“Avant Garde is unique in comparison to other Maritime Security Companies for it has the services of more than 20 retired Admirals, Generals, Rear Admirals, Major Generals including Admirals from Oman and India and a host of other senior officers of the armed forces, senior officials of the police, civil servants and maritime professionals in conducting its operations. “

The Wall Street Journal and the ‘Guardian of UK has reported on the activities of Avant Garde Maritime Services (Pvt) Ltd. It has identified the company as one working closely with the government of Sri Lanka.

“Avant Garde Maritime Services (AGMS), a Sri Lankan company that works in partnership with the country’s government, is one of the major operators of floating armouries. The company’s chairman, Nissanka Senadhipathi, said there were “thousands of weapons” on his company’s ships. AGMS charges US$25 a day to store the weapons and ammunition, with 800 to 1,000 movements on and off the armouries each month.

The Guardian proceeds to explain that Sri Lanka has established itself as a leader on the armories, which are partly run by the country’s navy and have been approved by Security Association for the Maritime Industry.

The Wall Street Journal in a story datelined Gulf of Oman 3rd Feb.2015 in a report captioned “How floating armories help guard cargo ships from Pirates” makes a passing reference to Avant-garde Maritime Services.

“The MV Mahanuwara, a 40-year-old supply ship that works off the southern Sri Lankan port of Galle, can hold a thousand guns and the ammunition needed to use them.”

The report adds “international shipping industry spent around $1 billion on armed guards and equipment in the Indian Ocean in 2013, according to Oceans beyond Piracy, a nonprofit group based in Colorado.

The Wall Street Journal report has some interesting details about the operation of floating armories.

“The proliferation of armory ships is fanning concerns. There is no official record of how many armories exist or who operates them. Nor are there any regulatory bodies overseeing such enterprises in international waters. International standards for private-security firms don’t address floating armories. In theory, the ships are overseen by the nations whose flags they carry, but some in the industry say vessels don’t always declare they are armories. The regulatory environment allows “companies whose operators may not be licensed to use or transfer weapons and ammunition to act with impunity,” said a December report by the Omega Research Foundation, a British nonprofit group focused on the arms industry.”

The WSJ report says that the game draws many plyers and there are times when things go wrong.

“In October 2013, the MV Seaman Guard Ohio, an armory operated by Washington, D.C.-based AdvanFort International Inc., drifted into Indian waters. Indian authorities seized the vessel and arrested its crew and passengers. Onboard were 35 assault rifles and 5,680 rounds of ammunition, Indian officials said. Last July, AdvanFort said the charges against the 35 men on board had been dropped after eight months.”

The report has some ominous findings. “Critics say the armories themselves could be targets for attack by pirates or terrorists.

India, fearful that armories present a security risk, is pushing the International Maritime Organization, a United Nations agency, to develop guidelines for regulating the industry. In a 2012 report, the U.N. Security Council committee on Somalia and Eritrea said that the armory business was “uncontrolled and almost entirely unregulated, posing additional legal and security challenges for all parties involved.”

Up until 8th January the Defense Ministry was the personal fiefdom of Gotabaya Rajapaksa who ran it in the style of a Shogun with his brother the emperor preoccupied with the bickering and frolicking in the Palace. There is no doubt that the facility given to the outfit known as Avant-garde Security is an unbelievable cash cow. There is also no doubt that it operated with the approval and authority of the Defense Ministry.

It is also obvious that the business of floating armories was something that required sailing pretty close to the wind. As the Wall Street Journal notes the private counter-piracy boom has created new problems. Murky legal and consular difficulties already loom on the horizon. The challenge faced by the Government is to” recapture the policy agenda and define the limits and functions of the floating armories. It should then decide who should run it.

Gotabaya Rajapaksa decided that the Army, Navy and the Air Force could run Resorts, Spas and even Koththu Roti takeaway outlets.

For fighting pirates he decided to use Senadhipathi’s privateers. The decision to allow Nissanka Senadhipathi and his Avant-garde Maritime Services to enjoy a near monopoly while nominally in a partnership with an emasculated state agency Raknalanka is an abuse of authority.

The Minister of Law and Order and Minister of Justice will have no quarrel with Professor Peter Van Duynes definition of corruption.

Corruption is an improbity or decay in the decision-making process in which a decision-maker consents to deviate or demands deviation from the criterion which should rule his or her decision-making, in exchange for a reward or for the promise or expectation of a reward, while these motives influencing his or her decision-making cannot be part of the justification of the decision.”

Avant-garde Maritime Services had a well-oiled operation that functioned smoothly. The changes of 8th January mattered to them because its operations were permitted by a collusive regime. A neutral state was bound to ask them the simple question ‘Why are you special?’

It is that concern that prompted them to cultivate the new wielders of power. Enter Vajira Abeyawardena . It was not because they wished to hide what they did. It wished to ensure that they were allowed to continue what they were doing. Seeking legal opinion and paying for their expert guidance is not only permissible but tax deductible.

Why should Avant-garde Maritime services be treated as special? Because they know when, where and from whom to obtain legal opinion.