Colombo Telegraph

With No Rule Of Law, Return To Fear & Uncertainty

By S. Ratnajeevan H. Hoole

Prof. S. Ratnajeevan H. Hoole

When we are ruled by the law, contracts can be freely entered in the confidence of enforceability. We can drive on the streets knowing that the police will not harass us so long as we drive properly. Indeed, we even have some protection from murderers and criminals in the confidence that they will be punished for harming us. What our institutions buy through proper procedures will be priced best. Our properties will appreciate since the rule of law is conducive to happy living. Our children will be with us instead of fleeing abroad. Alas, rule by the law seems to evade us Sri Lankans.

Impunity for War Crimes

As the Friday Forum states, “The President and Prime Minister in particular, have an important responsibility for leadership” in upholding the rule of law.” They have utterly failed us.

UNHRC Resolution 30/1 (A/HRC/30/L.29) which our government under the President and Prime Minister cosponsored and passed on 29 June, 2015, reads that the Council

“Recognizing that the investigation into alleged serious violations and abuses of human rights and related crimes in Sri Lanka requested by the Human Rights Council in its resolution 25/1 was necessitated by the absence of a credible national process of accountability

“1. Takes note with appreciation of the oral update presented by the United Nations High Commissioner […], the report of the Office of the High Commissioner on promoting reconciliation and accountability in Sri Lanka and its investigation on Sri Lanka requested by the [HRC] in its resolution 25/1 [Footnote  2] including its findings and conclusions, and encourages the Government of Sri Lanka [GoSL] to implement the recommendations […]; 

“6. […] affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators;”

Footnote 2 refers to A/HRC/30/CRP.2, the Report of the OHCHR Investigation on Sri Lanka (OISL), detailing the atrocities by our armed forces and the LTTE. This report has therefore been endorsed and appreciated by our government and our judicial deficiencies accepted.

After the UNHRC Resolution 30/1 the President insisted that Sri Lanka’s sovereignty and integrity weren’t compromised, and stressed that the new journey started on 8 January must be persisted with, shunning extremists.  Ranil Wickremesinghe said at the same time that the passage of the US resolution and the international community uniting for Sri Lanka were key for the country’s future wellbeing.

Now, however, the President boasts (Daily Mirror 4 March, 2017) to the SLFP executive committee that he had shown his ‘backbone’ to the International community by rejecting UNHRC Chief Zeid bin Ra-ad Al Hussein’s recommendation for a hybrid court to probe war crimes allegations in Sri Lanka. If the President truly has a backbone, why did he cosponsor 30/1? Did the President and PM lie in promising what they had no plans to do? Having done nothing, are they trying to buy time and still lying because in the new cosponsored resolution, they are calling upon GoSL to “fully implement” measures that are outstanding from the 2015 UN resolution? 

The Monitoring and Accountability Panel of renowned foreign legal experts established to monitor compliance with Resolution 30/1, recommended that Sri Lanka be referred to the International Criminal Court if it failed to take steps to implement the Resolution, including establishing a hybrid war crimes court with the participation of international judges and prosecutors (Daily FT, 02.03.2017)

The initial reaction of GoSL to the final report of its Consultation Task Force on Reconciliation (CTF) amounts to a cynical and reckless repudiation of the stated aspirations of Sri Lanka’s citizens (EIN Presswire, 28.02.2017). As a Tamil, I wonder if we have a future in Sri Lanka.

This new resolution seeks to buy time but nothing in the original goals is changed. The President is again promising the UN international judges. This is local politics as elections may be upon us soon. In the meantime, a senior official said to me “the President is not listening to those who voted for him and the government is being run by the John Seneviratnes and S.B. Dissanayakes who were with President Rajapakse at the last elections and never voted for Sirisena.” Will the Seneviratnes and Dissanayakes ever vote for Sirisena?

Impunity for National Heroes?

Major advances in the rule of law through the Nineteenth Amendment were undermined when Sirisena forced the head of the bribery commission, Dilrukshi Dias Wickramasinghe, to resign, saying he publicly condemned her for the prosecution of three retired admirals and the former defence secretary Gotabhaya Rajapaksa with “disgust,” and that “military commanders who led the successful campaign to crush separatist Tamil Tiger rebels in 2009 should not be humiliated by bringing them to court” (EconomyNext,17.10.2016.)

National Heroes have impunity for murder and graft. Tamils can be murdered by them with impunity.

The Commissions and the Law

The Police Commission’s Chairman has resigned giving unbelievable reasons but I reliably know that he quit because he faced obstacles that prevented him from delivering. Today we have an Election Commission with no elections to conduct. The government which has to announce the dates, is trotting out excuse after excuse. The Election Commission has heard strong rumours that even Provincial Council elections will be postponed and is seeking legal advice on how to respond if that happens.

Everyone seems ignorant that there is a Commission; even the Parliament that created it and reporters.  The Select Committee under the Hon. Thalatha Atukorale summoned the Chairman and officials to learn of their views on overseas voting. They do not seem to know there are two Commission members.

Jaffna University and the Postal Rule

Another ongoing issue of lawlessness relates to the application of US Prof. Sam Thiagalingam for the post of VC. Five internal deans applied. Many were worried that outsider Thiagalingam, if appointed, may look into ongoing corruption, especially in undeserved promotions in violation of circulars. Internal staff recruits are students for 4 years, then demonstrators and finally up to 8 years on probation where they learn to respect and obey seniors who determine their degree, recruitment and confirmation. An outsider without these 12+ years of serfdom may not be obedient. Thiagalingam’s application posted well in time in the US arrived, they say, 2 days late and was rejected.

There is Standard English case-law, Adams V Lindsell from 1818, that established the rule that the date of posting is the key date of effective receipt. This was accepted by a five-judge bench of the Supreme Court under Chief Justice Basnayake in University of Ceylon v Fernando [1957] 59 NLR 8. It was held that where the post is used for transmitting, the relevant party  was required to do no more than send, in due time, a properly addressed prepaid letter containing the name and address of the opposite party.

When consulted by the VC, the UGC obligingly said the Council may decide. The election was held without Thiagalingam on the ballot and three names have now been transmitted to the President for him to choose one. An unfair appointment is imminent. The President needs to be careful after violating procedure on the recent High Court appointment

It is the same everywhere including the Election Commission on receipt of applications. Administrators decide on their own authority and feel no need to study the law or even listen when the law is explained. Some Jaffna Councillors while agreeing that the UGC was wrong, felt that as UGC appointees, if they did not listen to the UGC’s opinion they could be removed. Clearly our Councils have no backbone. Reason strangely has no place in an institution that is meant to be its vanguard.

Secretaries Dr. Devanesan Nesiah and Murugeysan Rajendra

I was lecturing to the new class of SLAS cadets of about 130 on 07.03.2017 on Ethics for Administrators for their induction. I told them of Dr. Devansean Nesiah, CCS class of 1959, whose career was not progressing in a tight situation for Tamils. During the 1977- UNP regime, this Class I Grade 1 officer was merely Director of Plan Implementation under a politically appointed Secretary with ties to a typewriter company. Nesiah was made chair of the tender committee to buy typewriters for the service and asked to submit a blank, signed recommendation to the Secretary.

I told the cadets, “Many of our ministers are corrupt. It is certain you will face similar situations and become corrupted. Nesiah did not comply and was sent to the Pool. The Secretary still flies high and was appointed to the UGC.  However, Nesiah was ultimately redeemed when Premadasa introduced racial quotas and made Nesiah Secretary after a long hiatus for Tamils. This 20th, he will receive national honours from Sirisena.

I asked the cadets, “Will you succumb? Or can you take the service back to the example of my grand uncle’s brother Murugeysan Rajendra who was Secretary to the Treasury and Head of Service?” The Minister of Finance and later President had a Tamil daughter-in-law who imported an MG Sports car without duty using provisions for temporary 6-month-use. After, six months Rajendra impounded the car. The angry minister called up Rajendra and asked him, “What do you think you are doing?” Back came the calm reply, “I am upholding the law.”

Rajendra’s was a time when upright administrators could not be harmed by our corrupt leaders. By giving-in to our corrupt leaders who are everywhere, we have lost our country. It is time we told off those who govern us where to get off, regardless of the personal cost. We need the rule of law to take back our future.

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