18 September, 2018

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On Wijeyadasa’s AG’s Department & Marapana’s War Crimes Inquiry

By P. Soma Palan

P. Soma Palan

I refer to the statements by two Ministers, both legal minds, the Minister of Justice, Mr. Wijeyadasa Rajapakshe and the new Minister of Foreign Affairs, Mr. Tilak Marapana, in the Daily Mirror of 19th August on (a) the Independence of the Attorney General’s Department and (b) International Inquiry into alleged War Crimes, respectively.

AG’s Department

Minister Rajapakshe states that- I quote “the Judiciary and the AG’s Department act as independent institutions today and are free to act on the Police Reports given to it”. Does the Independence of an Institution means the freedom not to act also? It should, of course, have the freedom how to act. The Executive, no doubt, cannot interfere in this. But can it wait without acting? If Police Reports are given, it has to act on them. There is no freedom for inaction. If it finds no cause to take action on Reports given to it, then it must specifically and unequivocally say that the cases submitted to it have no prima-facie case to act upon, rather than procrastinate and “sleep on them”. Cannot the Minister concerned take the AG’s Department to task and instruct it to expedite action. This does not amount to political interference. This is sound management of the Department under your purview .Independence and non-interference does not mean tolerance or acceptance of inefficiency. Does it? Interference means influencing a course of action one politically desires. It is a question of either framing indictments for Inquiry by the Court or, state that there is no basis for charging the offenders. One of the two must be done. Otherwise, it is neglect of one’s duty. As a Minister in charge of the AG’s Department, he cannot wash his hands off, of Administrative control over it. The real reason is, the AG’s Department is not acting independently and objectively, but influenced by other external actors. The AG’s Department was a highly politicized one under the previous regime; it was directly under the Executive President. Although the previous regime is no more, relics of it are still extant. That is the crux of the matter. People demand justice, but it is denied to them.

International Inquiry into alleged War Crimes

The Minister of Foreign Affairs, Mr. Tilak Marapana says that- I quote “we have told them that foreign Judges and Lawyers may attend any domestic probe as Observers and this happened in the past as well.”He fails to distinguish and differentiate between the past context and the present context. This shows a lack discriminating reasoning. Or, he is mindful of this, but wants to mislead.  He cites in support of a case where the M.P. Mr. Jayalath Jayawadena made a complaint to the IPU for the violation of his parliamentary privilege. He says that the IPU sent an Indian Judge as an ‘Observer’ to the Judicial Inquiry. There is a substantive difference between an Inquiry into breach of parliamentary privilege and an Inquiry into the violation of International Law and International Humanitarian Law on a Resolution of the UNHRC, which is an arm of the United Nations. One cannot equate both Inquiries on the same footing. IPU is an association of Countries adopting a Parliamentary Democracy, whereas UNHRC is a world body which is mandated with jurisdictional power to inquire into violations of Human Rights and Humanitarian Laws. Sri Lanka as a Member State has to uphold its obligations. Alleged War Crimes are exceedingly serious than a mere violation of parliamentary privileges, where a Foreign Judge as an ‘Observer’ would suffice, at a domestic Inquiry. Other false reasoning of the Minister is when he states that “ what is more important is that the International Community and agencies are of the view the Sri Lankan Government is safeguarding Human Rights, and there is Judicial freedom, media freedom, freedom of expression and freedom of assembly”. These are developments of the recent past after the regime change. But not features of the dark days of the previous regime. The present situation is no defense for the alleged war crimes committed during past period, and not a plea for expiation. However competent and learned our Judges are, the offenders are the political Leadership and the Military of the Country, therefore, it is a conflict of Interest for our Judges to inquire and judge our own case. Justice must not only be done but seen to be done is a hallowed legal maxim. Thus, there is no sense of discrimination in the reasoning of the Minister of Foreign Affairs, and the Minister of Justice, in the former case.

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Latest comments

  • 1
    6

    Mr. Soma Palan has to figure something out. If the Yahapalana Foreign Minister, a senior member of the UNP, rejects foreign judges other than as observers, which Sri Lankan government does he think will comply with his line of reasoning, and when?

    Sorry Mr. Soma Palan, this is as good (or as bad) as its gonna get, on Sri Lankan soil.

    • 8
      1

      Dear Dayan, what Marapona said was for the Sinhala gallery. He will never say that in a foreign forum including UNHR Assembly. Like all his predecessors including those of Mahinda government, he will humbly accept the order given to have foreign judges in the panel of inquiry. He will assure to them that this will be done and when he comes next time the war crimes inquiry will be in progress. It is history that Sinhala leaders have continuously cheated and this will not change. But unlike cheating Tamils, if Sinhalese think that they can hoodwink the international community for ever, then you are sadly mistaken. Unlike Mahinda government, this government will be given more time and leverage to comply, but it will not be for ever and at one stage stick will be used. Go through what happened to other war criminals in the past, where some were forcibly fragged to stand trial in Hague. If Srilanka does not discharge its obligations as required by law, this is sure to happen to Srilanka war criminals too. Are you not ashamed of the plight of Jagath Jayasuriya who had to vanish from Brazil without even telling his Srilankan staff. Again a blatant lie has been told by Srilanka foreign ministry that he did not flee but left after completing his term. This is contrary to what Brazil foreign ministry said that he was appointed for three years, and Srilanka government never informed that Jagath Jayasuriya will be departing the country. It is common when an envoy leaves under normal circumstances after end of his tenure, he meets the foreign office people of the host country as well as diplomats of other countries to say good bye. I am throwing a challenge to the government to appoint Jagath Jayasuriya to any diplomatic post in any country valuing human rights to prove that he is not guilty. This sorry state is going to happen to other war criminals also.

    • 0
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      From the side of the political authority, Thero might be the last in line to decide how it is going to get, whether it is bad or good. By supporting runaway EPRLF, Thero withdraw him from Tamils sights. He did that by supporting the Old Royals from Sinhalese sight. When he was discarded by Old Royals, he became the orphan of the political, Media and diplomatic Sinhala society. In that condition Thero’s demarcation to Soma Palan of where it can get is the funniest statement ever appeared on a media.

      Yahapalanaya is two elements. UNP -SLFP. Their future action together is not yet guaranteed to be together. Joint Comedy Club is not a government or opposition. It is another horoscope reading issuing a challenge on what Yahapalanaya will be in future or which will be the final government decides of what to investigate. Yet, it was old King who first released a joint statement with UNSG to start these investigations and in May 2009 Thero reiterated in UNHRC. Mangala and other Yahapalanaya Ministers have repeated many times that they ended up undertaking what Thero and Old Royals promised to UNHRC and UNSG, when on the night of January 8th 2015, the Old Royals ran out of Temple Tree House without even collecting the lost slippers.

    • 2
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      Tilak had already exited Yahapalanaya once from AG for having taking part in the Avant Garde matters. If Thalatha properly prosecute Avant Garde, Tilak may face John Gotti’s lawyer’s fate. The above statement Soma Palan quoted is a statement from Tilak only about war crimes of Old Royals. We have to wait and see how Tilak and Thalatha getting along on Avant Garde matters. In other words, is that as “Sorry Mr. Soma Palan, this is as good (or as bad) as its gonna get, on Sri Lankan soil” the answer for Avante Garde case also or Old Royals and thus Tilak who represented them will be dragged to courts for corruptions as Yahapalanaya promised in the election?

      Mangala signed & attested the 30/1 resolution. Tilak had said he read it and it is in proper order. With that word Tilak will be facing the UNHRC, the way Mangala faced it. When Mangala was leaving FM, he had earned the world greatest liar in UNHRC. There by repeating Thero’ sentence of “Sorry Mr. Soma Palan, this is as good (or as bad) as its gonna get, on Sri Lankan soil” Tilak will also receive his due title in UNHRC. At that time, like Jegath did at Brazil Airport, when Jasmin Sooka show up in UNHRC, Tilak may end up wearing brown shoe on one leg and black shoe on other at the Geneva Airport to take a quick jump to Sri Lankan Soil, where he can hide under the feathers of Momma Hen, Thero.

    • 1
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      Dear Dayan, did you hear what Field marshal Sarath Fonseka said. Why are you rying to shield war criminals. Accept that war crimes had been committed and face it.

  • 0
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    Mr. Somapalan: where were you when those people were saying that Sri lankan did not have triend investigators to investigate finacial crimes, no people to dig how ill-gotten moneh went all over the world, Sri lankan justice system, just like the British system I suppose, is very slow, and there weremany such excuses. where were you all that time. Besides what ever happen, newspapers reported that a group of UNP Cabinet ministers who had training inthe Peliyagoda fish market university had scremqaed at the AG who visited Sirikotha and had asked do something to Rajapakses within two weeka. the newspaper was asking these things should be investigated. Instead who fromthe AG’s department visited their said, He visited Ranil wickramsinghe; nothing happened (who knows). and he took a shot at WR. Is that corruption and undue influence on AG’s department ?———————when a foreign minister talks about a very old and rotten issue of “foreign Judges on Sri lankan Soil” as his first intriductory speech, we can understand how bankrupt that foreign minister is in his duties. Who ever asked it, think Sri lanka is in some jungles in New guinea or in Africa.I feel sorry for those people as they are more developed than the Tamils and europeans.

  • 3
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    International Human rights and Humanitarian laws are recently developed or developing. Though there were some shadows of these ideas in some countries as early as 16th or 17th century, majority of the UN members have to have their constitutions amended to accommodate these. Lankawe wants a new constitution. There it can have provided easy clauses to accept the new UN conventions with simple parliamentary majority. But instead it is coming out with fraudulent explanation of it has no provision in the constitution to allow international jurist.

    Old King signed to release a joint statement with UN-SG to responsibility and accountability. Latter he denied as that had nothing to do with a real investigation. But as the investigation was the one expected by UN, there was some action to make Lankawe to go forward on Old King’s joint Statement.

    Yahapalanaya government co-sponsored and signed the resolution 30/1 but latter refused to accept the dictionary meaning of the words of “Foreign and Commonwealth”. When it was pushed on that, it is trying to tell that the UNHRC matters are only resolutions, not pacts or part of international law to Yahapalanaya to comply or honor any of them (30/1 or 34/1). Yahapalanaya appointed a new Foreign affairs Minister, convenient to deny that it never was in consent for the resolutions. Further it has appointed a new Justice Minister, who is more controllable the past one, so that it can float as many as “Sinhala Jury Verdict” cases as it wants to whitewash the Rapist Army’ crimes.

  • 1
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    What the individual or NGOs lawsuits, like the Brazil one, based on universal jurisdiction can do is if one or two cases are won, then the majority of the countries will be stopped from denying support for an international investigation. This would include the four major countries, India, China, USA and Russia who are the current major obstacle for International Investigation. Out of these four, USA agreed for internal investigation participating foreign and commonwealth justices and lawyers, through its resolutions, but other three did not take part in those resolutions.
    What one can meekly expect here is once the Hangbangtota contract is signed fully and the lands are delivered China, Yahapalanaya will start to show arrogance to IC as much as the Chitanta government showed. There then the IC may become tougher with Yahapalanaya like it was with Chitanta government.

  • 6
    0

    The Marapona brothers, Gamini & Tilak are in essence MaRa supporters.
    Gamini M.is lawyer for MaRa. Sometime ago Tilak M. defended Avant Garde in Parliament and amidst controversy resigned. Now he is back defending Gota from war crimes by putting a brake on Foreign Judges.
    All this goes to show that the PM is safeguarding the Rajapakses; Maybe keeping to a promise made in the weehours of the morning of Jan:8th 2015! to the deposed MaRa family?

  • 1
    0

    Mr. Somapalan: You people and so many of the UNP camp simply were having field days on the demise of WR. Now, the new minister is singing the same song that WR sang. She is saying that “AG can not act Hastily” so what do you understnd now.

  • 0
    2

    Today I am ashamed of my country in the name of my Supreme Leader Lord Buddha. I am helpless isolated in my country with my teenage son for the CRIME I UNCONDITIONALLY LOVED THIS COUNTRY AND PEOPLE Today everyone is reluctant to even to have a word with me, IB am not discouraged. I am different. I LOVE THAT DIFFERENCE.

  • 2
    0

    In other news:

    “Minister and Field Marshal, Sarath Fonseka said today he had information on the crimes committed by former army commander Jagath Jayasuriya, the then Vanni commander and that he was ready to give evidence if proper legal action was instituted against him.
    “I received complaints that Mr. Jayasuriya was engaged in crimes as Vanni commander with regard to those who were arrested. He continued the same strategy even after he was promoted as army commander. I have information regarding those who committed the crimes. I am ready to explain the crimes committed in detail if proper legal action is instituted,” he said.”

    • 4
      0

      Its high time to invite foreign judges. Our judicial system is higly grossly corrupted all mara ponnayas are black coated crooks. War crimes have been comitted by both sides and has to be fully investigated and punished as soon as possible. Victims have been waiting without justice for too long. Justice delayed and justice denied!

      • 2
        0

        Rohan Gunaratne:
        You hit the nail on the head. The last thing anyone of decency in this country wants to see is murderers and torturers being shielded by the alleged “arms of the law.”
        Marapana should NEVER have been appointed. He is Wijedasa Rajapaksa in spades with a better command of English and perhaps higher IQ, that’s all.

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