Issue No. 123 February - April

The police looking on while a man is seen grabbing a monk who is on a death fast demanding that retired General Sarath Fonseka be released from detention.

Human Rights Review : February - April Institute of Human Rights 2 INSIDE THIS ISSUE:

Editorial 3 Current issues :

Election violence - democracy under threat - HR violence • US wants Sri Lanka to follow rule of land in Fonseka’s arrest 5 • Protest against death in police custody • A Special Police Unit To Protect The Good Name Of The 6 Rajapakses

• Cut waste to avert major financial crisis – Wijedasa • Our Electoral Rubicon 7 • Special Panel on Sri Lanka uncalled for and unwarranted 8 • Lowest voter turn out ever 9 Freedom of Expression Denied • From Richard De Soysa to Ekneligoda : The Slide 10

• Mob attacks MBC 12 • Lawyers condemn attack on MBC/MTV 13 War Crimes • Pillay repeats call for probe 14 • JVP agrees with Miliband • On Democracy 15 THE LEGEND OF APRIL FOOL’S DAY Articles • Guarding Against Authoritarianism : NOTEBOOK OF A NOBODY 16 • Arrest and Detention of Gen. Fonseka - A Legal Perspective 18 by Sarath N. Silva LLM. PC. Retired Chief Justice Unit Reports 21 Education Unit 21 Legal Unit 22 Restoration & Protection Unit 23 Staff Information 24

Edited by Cover page pics by Leela Isaac Daily Mirror - 06 / 04 / 2010 Layout designed by Hashini Rajaratna

Human Rights Review : February - April 2 Institute of Human Rights

3 EDITORIAL

arge crowds rush to Jaffna every day. Some of those who fail to find lodging. The old platform is L them have never been there before. The 30 used as an open kitchen and toilet arrangements years war is over and thanks to president Rajapakse, have also been made. Communication too is not a (General Fonseka is already forgotten), they are now serious problem. Just as the Tamils in the South at last free to visit those territories the Tigers once have learnt Sinhala for their own survival; the Tamils claimed as theirs. They are eager to visit the many in the North too are learning Sinhala, perhaps to do places of worship including a few recently discovered business among the visitors from the south. ones. They are genuinely happy to be there, moving But the question we should be asking is from Nallur to Mavattapuram, Keerimalai, Na- whether this large influx of visitors to Jaffna will help gadeepa, Dambakola Pattuna and Kandarodai. in promoting peace and national reconciliation in our Dambakola Pattuna in Madagal is where war torn country. According to the G.A. Jaffna, this Theri Sangamitha is said to have landed with the sa- vast crowd visiting the North is something positive. cred Bo sapling. A new dagoba has been built there The people of the North and south can at least meet and a statue of bikkuni Sangamitha has been in- freely and begin to trust each other, which could stalled in December 2009, by the first lady herself. later lead to building bridges between the two com- Kandarodai where the mini dagobas are found has munities. Building trust should begin with people in- acquired a new Sinhala name. In all these places teracting with one another. At the moment one does- name boards and notices are found in Sinhala. n’t see this interaction taking place. One major bar- Therefore the visitors from the South feel very rier being, that though both parties know enough of homely and comfortable. The forces are every where each other’s language to order and serve food, to giving them a sense of security. The Keerimalai tank ask and give directions, it is not sufficient to share which is now being used as a swimming pool is also each other’s experiences, feelings, deep rooted fears, heavily guarded because it falls within the High Se- hopes and aspirations. That requires a deeper under- curity Zone. In fact there is a police post adjoining standing and one can only hope that this will happen one of the kovils. In Nallur and Nagadeepa people in the course of time. are not only free to worship but also to do a little There is also the question of different atti- shopping. The vendors who have put up their stalls tudes and respect for each other’s religious senti- in the Kovil vicinity and Nagadeepa are mainly Sin- ments. Nallur Kandasamy Kovil for example is halese and those who are not, speak in Sinhala any- treated with great reverence by the people of Jaffna. way, for the convenience of the buyers. Today vendors from the South have put up stalls in Accommodation is a problem. The three big the vicinity of the Kovil to sell trinkets, kotta kilangu hotels in Jaffna, we were told are being occupied by and hakuru. It creates hurt feelings among the Hin- the army and the police, Smaller hotels like Pillaiyar dus who will not enter the kovil without properly Inn are booked for months ahead. The cheap guest cleansing themselves, to see hundreds of visitors houses and lodges are also brimming with guests. coming there as sight seers. One cannot blame the Every week nearly four lakhs of people visit Jaffna it first time visitors but better awareness and under- is reported, while the whole population of Jaffna only standing of the feelings of the local people is neces- amounts to five lakhs. Some popular restaurants like sary, if reconciliation is to take place. “Cosy” put up their shutters by 6 or 7 p.m., unable The local people feel that suddenly too many to cope with the demand for food. But the people of Buddha statues and shrines are coming up close to Jaffna are making every possible effort to make the Kovils, Churches and Mosques. Recently when at- visitors comfortable. Even private homes are offering tempts were made to build a shrine under a Bo tree the extra rooms they have for a nominal amount, next to another place of worship, the people had in- like the KR Inn on Palaly Road, Thirunelvely. Even tervened and stopped it. One irate young woman the old Jaffna railway station is made available to (Continued on Page 04)

Human Rights Review : February - April 3 Institute of Human Rights

4 EDITORIAL

(Continue from Page 03) ders are now friendly with us, they even speak told us “wherever they see a Bo tree, they want to Tamil”. Others say, “We are afraid of the army. They build a shrine, I simply dislike these beautiful Bo come and question our young boys and girls who trees now”. Creating this kind of resentment would- have retuned from IDP camps. These young people n't be conducive to peace building. are not admirers of the LTTE. They feared the LTTE There has been a lot of senseless destruc- would drag them away from their homes and make tion. Apart from buildings and cemeteries that have them fight. Today they are happy there is no LTTE. been demolished, monuments of peace have also But the army suspects them and keeps harassing been wantonly broken like the one inside the Jaffna them. We spend sleepless nights because it is at University premises. The statue of Thileepan has night that they come.” Reconciliation cannot take been destroyed very recently. (Thileepan was the place in this tense environment. LTTE political wing leader when the IPKF was in There is no enthusiasm among the people of Jaffna. He started a fast and as his demands were the North about the general election. One senses a not met, died fasting). These destructions do not kind of apathy and indifference, but some feel people help in healing and peace building. will still vote. A few of them told us “we voted for Chatty beach is beautiful and no wonder visi- Gen. Sarath Fonseka because we wanted a change of tors flock there. There‘s plenty of space for merry government. But that did not happen, instead the making. Busloads of picnickers from the South can man who won the war for the country is locked up in be seen singing and dancing on the beach. Opposite prison today. We are simply shocked and cannot help the beach, on the other side of the road however, is thinking – If this could happen to Sarath Fonseka, a large cemetery that has been bulldozed. The bro- what's going to be our fate? Is there any point in ken tomb stones are found in heaps scattered over a voting?” large area. One sees life and death side by side. If these people are to live with dignity and Those who make merry on the beach cannot be con- self esteem in the land of their birth there has to be sidered insensitive because they may not even be power sharing at the periphery and at the centre. aware that they are facing a cemetery. A little Today federalism and devolution of power have be- awareness would help in understanding the feelings come dirty words. No political party in the South of the others. even talks about it. Building roads and army camps A lot of building material (from China) has in the North is not the solution to the problems of the been unloaded on either side of the road between Jaffna people. The causes that led to the 30 years of Murugandy and Mankulam. We stopped to ask one of war must be addressed at least now. the soldiers, whether there was a plan to build But as one newspaper columnist (MSM houses for the displaced. ‘No’ he said, it was China’s Ayub) points out “Though Perumal and most Tamil donation towards an army cantonment. The govern- leaders still insist on the wider devolution of powers, ment plans to put up an army camp just like the one it might take a long or infinite time for the Tamils at Panagoda. One does feel sorry for the young, in and Sinhalese to arrive at a common point in the fact very young soldiers living in small tents in those light of the present psychological division on ethnic remote areas without the basic facilities. Their living lines”. It is possible for an enlightened democratic conditions are no better than those of the returning leadership to bring about this unity. But sadly after IDPs in their makeshift homes. But the question is the Rajapakse regime introduces a new constitution why are they being kept there after the war is over? we might have only a line of Sinhala Buddhist Kings, There is no fear or danger of LTTE attacks now. So not democratic leaders who believe in a multi ethnic, what is the need for this heavy military presence in multi religious society. Forces that support and con- the North? On the A9 road every hundred meters trol the present regime do not believe in a multi eth- there is a bunker and every mile or so a major mili- nic or multi religious Sri Lanka. What they envisage tary base. It certainly does not promote peace and is a unitary Sinhala Buddhist state where the minori- reconciliation. ties should merge with the majority, forgetting and While some people are happy with the army losing their identity. Is that possible? Only time will others are not. Those who are happy say “The sol- tell.

Human Rights Review : February - April 4 Institute of Human Rights

5 CURRENT ISSUES

the government of Sri Lanka to ensure that he US wants Sri Lanka to follow rule is charged promptly, as you said, and that of land in Sarath Fonseka’s arrest everything is handled in accordance with Sri Lankan law as they move forward," Blake was The US was not satisfied with the manner in quoted as telling the BBC. which the Rajapaksa government had handled the Blake, who was the US Ambassador to Sri issue former Sri Lankan Army chief General Fon- Lanka earlier, refrained to make any comment on the seka’s arrest and hoped that Colombo would follow charges against General Fonseka saying that he had the rules of the land in this case, according to Times not seen them. of India online report based on comments attributed "We have encouraged the government to to Assistant Secretary of State for South and Central make public as quickly as possible what those Asia Robert Blake charges are," he said. "So far I think it has been less than we might have hoped for, but we have certainly encouraged -The Island-24/02/2010

Protest against death in police UPFA thugs attack Matara custody Mayor’s residence

Residents of Iginiyagala staged a protest A gang of UPFA supporters are reported to blocking the road leading to the Police Station by have attacked and caused extensive damage to the burning tyres following the death of a person in po- residences of Matara Mayor Upul Nishantha and SLFP lice custody. (M) coordinator B. Jayaratne. Police said the deceased, 47-year-old The gang had gone to the Matara Municipality Saman Tilakasiri, had been arrested following com- and inquired from the security guard there whether plaints that he threatened a monk and devotees in the Mayor was in. On being told that he wasn’t, they a temple. While being taken to the Police he had proceeded to his residence at Welegoda and had jumped into a river and drowned. Police said all damaged the gate and furniture. attempts made by them to rescue the man had The Mayor was not at home at the time but failed. his wife and children were. The same gang had later However, residents say that he was as- attacked and damaged the residence of B. Jayaratne. saulted to death by the Police and dumped into the A police team is conducting investigations instructed river. by Matara SP Ranjith Padmasiri. A postmortem was due yesterday evening. -The Island-23/02/2010 -The Island-23/02/2010

Human Rights Review : February - April 5 Institute of Human Rights

6 CURRENTARTICLES ISSUES A Special Police Unit To Protect The Crimes Division (which was run by that corrupt asshole named Vaas Gunawardena Good Name Of The Rajapakses before he was transferred). The unit’s objective is to prevent SRI LANKA, Piliyandala, January 24, 2010 - the usage of the president’s and his family’s name in Incumbent President Mahinda Rajapaksa is seen ad- fraudulent matters. That’s what they tell us, knowing dressing the crowd from behind bullet proof sheilding the majority of us (57.85%) are dumb enough to during the final rally prior to the Presidential Elec- believe them. But the rest of us know that this is cre- tions scheduled to be held on January 26. Rajapaksa ated to make the process of breaking limbs of those faces stiff oppossition in the form of (Retd.) Gen. who expose the wrongdoings of Rajapakses more Sarath Fonseka, the former commander of the Army. efficient. (Contributor / Perambara) Where else can something like this happen A special police unit is to be set up to protect but in a messed-up-feudal-nation such as ours? I the good name of Rajapakses. According to the po- mean just look at it, a special police unit to protect lice spokesman, it’ll be set up by a special order of the good name of one family? the IGP and will be under the direct supervision of DIG N.Ilangakone. It’ll be affliated to Colombo -www.kottu.org -

Cut waste to avert major financial crisis – Wijedasa The IMF assistance wouldn’t be avail- able unless the gov- Former UPFA National List MP Wi- He said that contrary to much pub- ernment restricts the budget defi- jedasa Rajapakshe says a sharp licised media reports, President cit to 7 per cent. Rajapakshe said reduction in the number of minis- Mahinda Rajapaksa had no option the country would have to take ters in the next Parliament is a but to deny ministerial privileges tangible action to fight waste, cor- necessity as part of the overall to some of the elected members at ruption and irregularities to bridge measures to bring down the the April 8 parliamentary poll. the deficit. He explained that the budget deficit. The former Chairman of the parlia- institutions under the President, The newly appointed UNP organ- mentary committee on public en- too, would have to tackle waste, iser for Maharagama electorate terprises said the bottom line is he said, emphasising the govern- says the country cannot allow min- that the country was struggling to ment wasn’t in a position to ignore isterial extravagance at the tax- pay interests on loans, public ser- the threat on the very survival of payers’ expense. vants salaries and pensioners. the economy. Responding to a query by The Is- The government seemed to be ig- Appreciating the defeat of the land, Rajapakshe warned of an norant or conveniently turning a LTTE, he said a total overhaul of unprecedented financial crisis blind eye to a rapidly deteriorating the economy was needed now. within the next few months unless financial situation, he said. Wijedasa Rajapakshe also called the government cut down waste. He said the government was under the MPs to review parliamentary He urged the government not to heavy pressure due to the IMF de- privileges such as housing allow- secure further commercial borrow- laying its third installment to Sri ance received by many. ings at exorbitant interest rates, Lanka. He said the government had abso- but take immediate austerity According to him, the country had lutely nothing to be proud of ex- measures to control government received the first IMF installment cept armed forces’ triumph over expenditure. last September and somehow the LTTE. He said the economy would be managed to take the second in All other sector, including educa- jeopardised by unrestrained com- December, though the lending tion and health were in chaos, mercial borrowings. agency deferred the third payment though ministers regularly boasted Rajapakshe estimated such bor- until the middle of this year due to of their achievements. rowings in the past four years at Sri Lanka’s failure to meet its obli- -The Island - 10/03/2010 over Rs. 2,000 billion. gations.

Human Rights Review : February - April 6 Institute of Human Rights

7 CURRENT ISSUES Rs. 459 bn lost due to waste, mismanagement in 2009 – Harsha de Silva

Total debt Rs. 824 bn, revenue only Rs. 702 bn

Waste and mismanagement of the economy, expensive "commission-agent" commercial loans, by the Mahinda Rajapaksa government, had resulted arranged by foreign fund managers. A classic exam- in a loss of Rs.459 billion last year, economist and ple being the high interest HSBC Bond issue. the UNFNational List nominee at the forthcoming par- High cost commercial foreign loans increased liamentary election, Harsha de Silva said yesterday. by 151% from Rs 164 billion in 2008 to Rs 411 billion Addressing a news conference in Colombo, he in 2009, de Silva said. said that the impact of the Rs.459 billion loss on each "The debt servicing situation is precariously Sri Lankan family of four, was that their debt burden placed, with repayments due, outpacing revenue by rose by Rs.100,000 in 2009.This has caused each 17 per cent, he said. " The total debt service [capital family’s total debt to increase to Rs.835,000. and interest] for 2009 was Rs 824 billion, while reve- De Silva, said that the imprudent and short nue stood at only Rs.702 billion." sighted policies followed by the ‘Mahinda Chintana’ De Silva, said that the government, had crea- had resulted in the debt quantum Sri Lankans owed tively hoodwinked the people, by showing a budget the world, rising to Rs 4,160 billion. deficit of 9.7 per cent in 2009, when it should have Referring to the infamous ‘Templeton Deal’, been 10.2 per cent. he said that the Rajapaksa regime was very fond of -The Island - 09/03/2010

OUR ELECTORAL RUBICON

“Fashion me now a man such as princes commonly are, a man ignorant of the laws, almost an en- emy of the public welfare, intent upon private gain…a hater of liberty and truth…measuring all things by his own desire and profit… Then put on him a golden chain….set on him a crown adorned with gems….”— Erasmus (Praise Of Folly)

he crown was made of solid gold with jewels encrusted. It was presented to President Mahinda Raja- T paksa by the Peoples Friendship University of Russia “as a token reminiscent of Russian Monarchy and in consideration of the President’s role also as a king who brought about peace to the world” (Daily News – 10.2.2010). This latest accolade would be an apposite addition to the President’s already formidable arsenal of illustrious titles (which includes such nonpareils as ‘Universally Glorious Overlord of the Sinhalese’; ‘Heroic Warrior Overlord of Sri Lanka’; and ‘Monarchical Emperor of the Glorious Land of Buddhism’); The minaret shaped crown could adorn the stage when the ‘Musical Concert to Honour the President’ takes wing on Feb- ruary 28 at the BMICH. Indulging in delusions of grandeur is an essentially harmless human foible. But when this malady affects powerful political leaders, the consequences can be both dangerous and far reaching. Velupillai Pi- rapaharan was hailed as the Sun God and the Leader of the World, and these delusions became acute enough to impact on his thinking and actions. Mahinda Rajapaksa would not be called king, against his wishes; the state media and ruling party politicians persist with this practice obviously because it pleases him (and thus helps their career). And when a man who plays at being a king asks the country to give his party a two thirds majority in parliament to enable him to create his own constitution, it cannot but be por- tentous. A Rajapaksa constitution will not turn Sri Lanka into a de jure monarchy. But it will introduce an ex- ecutive presidency or a premiership sans term limits, thereby enabling Mahinda Rajapaksa to remain at the (Continued on Page 08)

Human Rights Review : February - April 7 Institute of Human Rights

8 CURRENT ISSUES

(Continued from page 07) helm of the country beyond 2017. An irreverent email doing the rounds states that thousands of people are changing their name to Rajapaksa ‘to get appointed as a Member of Parliament or even to get a job…. Hos- pital authorities were reporting that all new born babies are named Rajapaksa by their parents (also called Rajapaksa)……’ A parody, but a recognisable one; from November 2005, the Rajapaksa family has moved relentlessly to establish a stranglehold on the Lankan state and the government. The formal entry of First Son Namal into politics has provided this Rajapaksa octopus with yet an- other far reaching tentacle. This, together with the pervious elevation of another political neophyte, Presi- dential nephew Shashindra Rajapaksa as the Chief Minister of Uva, marks the reconstitution of the Raja- paksa Brothers Inc. as the Rajapaksa Brothers and Sons Inc. Sri Lanka’s newest arriviste dynasty has ar- rived. The President’s antipathy to the 17th Amendment (aimed at reducing the excessive powers of the Executive) is no secret. In his February 24th interview with the ITN’s ‘Ethulanthaya’, Defence Secretary and Presidential sibling Gotabaya Rajapaksa decried media freedom and human rights as ‘foreign concepts’ and opined that media organisations and judges who succumb to such ‘foreign concepts’ retard the forward march of the country. A constitution prepared by such minds is unlikely to emphasise either media freedom or human rights. At the end of a Rajapaksa constitution-making process, Sri Lankans may find themselves with rather fewer rights than they enjoy currently, with patriotic jargon covering up (and glorifying) the democratic la- cunae. The Rajapaksa Peril Lankan democracy is in peril, but not from corrupt politicians, nor from inept policies, nor even from a gargantuan cabinet. Lankan democracy is in peril, from the anti-democratic proclivities and dynastic ambitions of the Rajapaksa family. The UPFA would have been content with winning the parliamentary election with a simple majority. But for the Rajapaksas this cannot suffice. The Rajapaksas need a two-thirds majority. A simple majority would enable the UPFA to form a stable government but it would not enable the Rajapaksas to make a Constitution. And without a constitutional change, Rajapaksa rule is likely to end in 2017. By Tisaranee Gunasekera -Sunday Leader - 28/02/2010

President to Ban Ki-moon Special Panel on Sri Lanka uncalled for and unwarranted “Act in keeping with principles of UN Charter on non-interference,”

President Mahinda Rajapaksa has pointed out that ing the deaths of large numbers of civilians due to the intention of the UN Secretary General Ban Ki- military action. The UNSG was told that Sri Lanka moon to appoint a panel of experts to advice him had concluded its armed conflict with the most ruth- (i.e. the SG) on Sri Lanka is totally uncalled for and less terrorist organization in the world, more than unwarranted, a news release issued by his office said nine months ago, and was in process of working to- yesterday. wards further strengthening of national reconcilia- "In a telephone conversation between the President tion. and the UNSG yesterday (March 05, 10), arising "The President also said that the implementation of from a letter written by the UNSG on February 25, such an intention would certainly be perceived as an President Rajapaksa was emphatic on this position. interference with the current general election cam- He said it was both unprecedented and unwarranted paign being held island wide; where the people of as no such action had been taken about other states the North and of the East who were not free to par- with continuing armed conflicts on a large scale, in- ticipate in such elections earlier were being given the volving major humanitarian catastrophes and caus- (Continued on Page 09)

Human Rights Review : February - April 8 Institute of Human Rights

9 CURRENT ISSUES

(Continued from Page 08) in some parts Sri Lanka. The President and also drew opportunity to do so, respecting the highest stan- the attention of the UNSG to the panel of eminent dards of democracy. President Rajapaksa recalled persons already working on the allegations of human how interested forces attempted such interference, rights violations and other charges reported by the including by trying to draw in the UN and other bod- US State Department, as well as the action by UN ies, in the recently concluded Presidential Election Rapporteur Philip Alston on the much disputed Chan- too, which has been internationally accepted as being nel 4 video on Sri Lanka. peaceful, free and fair. "President Rajapaksa reiterated to the UNSG that "The UNSG was told that the allegations about Sri any appointment of such a panel as intended, would Lanka were motivated misrepresentations by apolo- compel Sri Lanka to take necessary and appropriate gists of the LTTE, and by some Non-Government Or- action in that regard,. The President stressed that Sri ganizations that due to being so misguided or other- Lanka looked forward to treatment as per the United wise, were clearly working on agenda that was di- Nations Charter that provides for equal treatment to rected against Sri Lanka. There are also sections of all Members of the United Nations, while respecting the western world being increasingly subjected to the principle of non-interference in the internal af- electoral pressure by the same apologists of the fairs of States." LTTE, the President said. "The discussion concluded with the President stating "The President informed the UNSG that he had al- that he would shortly be addressing a letter to the ready, as a further measure of reconciliation, ap- UNSG, further to this telephone discussion," the re- pointed a special committee to study and report on lease concluded. the lessons from the conflict situation that prevailed - Sunday Island - 07/03/2010

LOWEST VOTER TURN OUT EVER Don’t interfere, UPFA tells world

The UPFA which won the April 8 election 50 to 52% vote at general election stressed yesterday that the ‘international forces’ should respect the massive mandate given to it by the people at the April 8 election, and not disturb them in governing the country accordingly for the next term.

-Daily Mirror - 09 / 04 / 2010 Language issue: Northern govt. servants facing difficulties -Daily Mirror - 12 / 04/ 2010 The Ceylon Teachers Union (CTU) said that the public sector servants and teachers working in the Northern Province have faced difficulties due to circulars and letters issued in Sinhala. “Most of the documents issued for public sector officials are issued in Sinhala. But, the majority of public sector officials working in these areas are not well versed in Sinhala. They have faced many com- plexities due to this situation,” pointed out CTU Convener Joseph Stalin. According to Mr. Stalin, even the documents issued by the Education Ministry including the ap- pointment letters and circulars are published only in Sinhala. “This has created serious issues amongst the public sector employees as they cannot sometimes fully comprehend the language,” he said. -Daily Mirror - 02/04/2010

Human Rights Review : February - April 9 Institute of Human Rights

10 CURRENT ISSUES

FROM RICHARD DE SOYSA TO EKNELIGODA: THE SLIDE

thinkingly by some as an alibi, justification or explana- he 24th of February marked the first month tion for human rights violations. anniversary of the disappearance of Prageeth T There appears to be another war, a persisting, menac- Ekneligoda, the Lanka E-News journalist. Two special ing violence that perpetuates human rights abuses with Police teams are said to be on the case. They have impunity. however, not come up with any information as to Ek- neligoda’s whereabouts. Should the Ekneligoda disappearance be treated as a clear sign along with others of a sure and steady slide Ekneligoda’s disappearance is yet another statistic of into authoritarianism? shame in the long list of disappearances, abductions and extra-judicial killings that have targeted the media The arrest of Fonseka – no paragon of virtue for sure, in particular over the last four years. its motivation and manner, indicates that either fear and paranoia or seething revenge have replaced re- His disappearance, it should be noted, took place in the spect for the rule of law and the norms and procedures course of a presidential election campaign the first post of democratic governance. The charges to be framed –war island-wide electoral contest in this country for against him notwithstanding, Fonseka’s fate, probably two decades. hinges on what he has, might or will reveal on the issue The war – the one that is between the GOSL and the of war crimes. LTTE is over and cannot be cited as it has been in the (Continued on page 11) past and continues to be cited, shamelessly and un-

Human Rights Review : February - April 10 Institute of Human Rights

11 CURRENT ISSUES

(Continued from page 10) eral election? Whilst the debate may rage about whether justice is There is the danger as some have warned of further being done and seen to be done, assurance will be unrest, even violent unrest outside of the north and made doubly sure to deny him any opportunity to east if the regime persists with these tactics. It is make such allegations again or elaborate on those he time it took comfort and security from its electoral has made already. majorities and got on with the task of seizing upon Add to the Fonseka arrest and impending court mar- the opportunity provided by its defeat of the LTTE to tial the attempt to seal the Lanka newspaper, the move the country from a post –war to a post conflict arrest and subsequent release of its editor Chandana situation in which the challenges of peace, reconcilia- Sirimalwatte, the allegations of moves afoot to block tion and unity are addressed in earnest. This is es- access to certain websites and the suspension of the sential for good governance and economic take off. Tissamaharama Pradeshiya Sabha. The 18th of February was the 20th anniversary of Most alarming in this series of events must surely be the murder of Richard de Zoysa. There was a theat- the convening and subsequent postponement of the rical tribute to mark the event comprising entirely of meeting of the Sangha Council to discuss the state of the work of Nobel Prize winning playwright, essayist governance in the land. That such an event was to and political activist Harold Pinter. This columnist take place was in itself an unprecedented and his- took part in the proceedings as the Minister of Cul- toric move by the clergy who have been conspicuous ture in Pinter’s short 2002 sketch entitled The Press by their silence over the treatment of IDPs and the Conference. At the press conference, the Minister state of human rights in general. That the momen- has this to say: tous event was postponed on the grounds of the “Let me make myself clear. We need critical dissent security of the monks and of the Tooth Relic is noth- because it keeps us on our toes. We do not want to ing short of shocking. see it in the marketplace or on the avenues and piaz- Whose responsibility is it to provide security? How zas of our great cities. We do not want to see it in come if security could have been provided for the the houses of our great institutions. We are happy Independence Day celebrations in Kandy, it was not for it to be kept at home so that we can drop in at forthcoming for the Sangha Convention? We are in a any time, read what is under the bed, discuss it with post-war situation after all. According to our consti- the writer, pat him on the head and shake him by his tution Buddhism has the foremost place and there is hand. By this method we keep our society free of a cabinet ministry to deal with these affairs. Is the infection. There is always, however, room for con- state admitting, conceding that it cannot provide se- fession, retraction and redemption.” curity to the venerable monks? Who would dare Have we come or are we coming to this? threaten them and even begin to hope that they could get away with it? The Bar Association election was a glimmer of hope. Not every professional association and civil The answer is the regime itself as reported by some society body will succumb to the dispensation of the of the monks involved in convening the Council. It day. The general election offers all of us an opportu- has been reported that monks supportive of the re- nity to play our part in ensuring that the bases for gime were dispatched to warn that if the Council good governance and economic take off are firmly went ahead the Sangha would be further divided and laid within a solid democratic framework of effective that bombs could even be exploded in the vicinity of checks and balances on the exercise of executive the Temple of the Tooth! power. It must not be yet another exercise of going A clear triumph of unfettered secular thuggery! back to the future.

What is the regime after? – the steam rolling of all By Dr. Paikiasothy Saravanamuttu dissent and criticism? And what use will the two - Daily Mirror - 06 / 03 / 2010 third’s majority sought be put to? Do we not have a right to know and what better occasion than the gen-

Human Rights Review : February - April 11 Institute of Human Rights

12 CURRENT ISSUES EKNALIGODA’S WIFE FILES HABEAS CORPUS

The wife of missing journalist Pradeep Eknali- goda told Daily Mirror yesterday that she had filed a habeas corpus petition in an attempt to get more infor- mation about her missing husband.

Sandhya Eknaligoda explained that the Human Rights Commission had recently visited her and as- sured her that the police would do their best to find her husband as they had also appealed to them to help her in her quest. Yet she said no action had been taken since then. “The Human Rights Commission has not got back to me with anything about my husband and are silent on the matter now,” she said adding that the Police had told her they cannot release any information until investigations are over.

“The Police have told me not to worry and that to Eknaligoda will be confirmed very soon. She said they will do as much as they can, but I know nothing however that since then she had heard nothing more of what’s going on,’ she said. She said she had been said on the subject by anyone and was starting to get encouraged when Media Minister Lakshman Yapa had worried. announced to the public that information with regard - Daily Mirror - 05/03/ 2010

Detained journalist appeals to Mob attacks MBC Court

Free Lance Journalist Ruwan Amarajith Weera- koon, currently in detention custody, through a law- A mob attacked the MTV/MBC head office at Bray- yer, filed a fundamental rights violation application brooke Place, Colombo yesterday evening severely against the CID and the Terrorist Investigation Depart- damaging the property of the place, an MBC official ment. said.

He had said that he had been illegally arrested He also said that the MTV staff members also on March 15, and thereafter detained in TID custody. came under attack around 3.30 pm and the staff had The petitioner requested the Court to direct to retaliate by throwing the very same stones at the the CID and the TID to release him from unlawful cus- mob after which the gang fled the scene. tody. The petition said that the detainee had been It is assumed that the attack had been carried arrested while he was receiving medical treatment at out to mark the protest over the upcoming concert by the Nawaloka Hospital Colombo. R&B singer Akon in Colombo sponsored by the MTV/ MBC networks.

The petition will be supported in Court, shortly. Police who arrived at the scene made at least 16 arrests. -The Island - 23/03/2010 - Daily Mirror - 23/03/2010

Human Rights Review : February - April 12 Institute of Human Rights

13 CURRENT ISSUES Lawyers condemn attack on MBC/MTV

The manner in which bail was granted to sixteen suspects who had allegedly attacked the MBC/MTV head office cannot be justified and police should have produced them before a Magistrate’s Court, Senior Lecturer of Law Faculty Prathibha Mahanamahewa said yesterday.

He made this observation while convening a media briefing to con- demn the attack on the MBC/MTV head office at the National Library and Documentation Service Board in Torrington, which was organized by a group going by the name Lawyers for Democracy. He further said that although there were clear video and audio evidence to prove unlawful assembly by a certain group of people with the intention of committing an offence, police were unable to follow the legal process in the country.

He further added that there were provisions in section 140 of Penal Code to apprehend the suspects and produce them before a Magis- trate’s Court since they caused damages to properties and inflicted injury to several persons. “We should protect the alternative media in the country as it a key requirement of a participatory democratic sys- tem,” he said.

Addressing journalists, Attorney-at-Law Sunil Watagala said that at- tack on the Sirasa media network was not a mere attack on Sirasa, but an attack on the entire democratic system in the country. Agree- ing with him Attorney-at-Law Premaratne Bandara said that all the intellectuals in the country should be united to educate the public since the basic law in the country is deteriorating and the law of the land should be upheld at all cost. - Daily Mirror - 26/03/ 2010

CONTACT DETAILS

Institute of Human Rights www.ihrsrilanka.org

Head Office : 42, Skelton Road, Colombo 05.

Branch Offices : Jaffna : Urelu East, Chunnagam, Jaffna Tel : 0212240999

Anuradhapura : 198, Courts Side, Anuradhapura Tel : 0253899218

Ampara : 1/227, Front of Uhana Maha Vidyalaya, Uhana Tel : 0633635825

Matara : 13, Temple Road, Kotuwegoda, Matara Tel :041-5621457

Human Rights Review : February - April 13 Institute of Human Rights

14 CURRENT ISSUES

Pillay repeats call for probe “I am convinced that Sri Lanka should undertake a full reckoning of the grave violations committed by all sides during the war, and that the international The UN High Commissioner for Human Rights had community can be helpful in this regard,” she said in repeated calls for an independent investigation into a speech presenting her annual report at the UN Hu- war crime allegations in Sri Lanka. man Rights Council session in Geneva.

The High Commissioner had said that human rights Last May, the council held a special session on Sri abuses in the country were damaging prospects of Lanka just after the end of the war against the LTTE, reconciliation after 25 years of the civil war. but the Sri Lankan government deflected criticism by introducing its own resolution praising its defeat of Ms. Navaneethem (Navi) Pillay, said the country the Tigers, which was then passed, boosting the Co- should take a full reckoning of the grave violations lombo stock exchange. committed by all sides during the war. - Daily Mirror - 05/03/ 2010

SL opposes Miliband’s intent JVP agrees with Miliband to address Eelam summit The Janatha Vimukthi Peramuna said it agreed with the Britain Foreign Secretary’s allega- oreign Minister Rohitha Bogollagama yesterday tion of human rights violations owing to the treat- F summoned the Acting British High Commis- ment levelled against opposition presidential can- sioner in Colombo Mark Gooding to the Foreign Minis- didate General Sarath Fonseka, JVP MP and DNA try to express Sri Lanka’s strong protest against the general secretary Vijitha Herath said yesterday. British Secretary of State for Foreign and Common- wealth Affairs David Miliband’s intent to address the “Foreign secretary Miliband is correct to London Conference of the pro-LTTE ‘Global Tamil Fo- say that we are having human rights allegations rum’ on Feb. 24 in London. since the Government arrested General Sarath Fonseka without a charge sheet and kept him un- - The Island - 25/02/2010 der arrest for more than a month without pressing charges. It is an abuse of human rights in viola- tion to our constitution,” Herath said. He com- mented in response to Britain’s Foreign Secretary video alleging Sri Lanka of major human rights concerns and said that he stood by what he said during the World Tamil Forum.

- Daily Mirror - 03/04/2010

Human Rights Review : February - April 14 Institute of Human Rights

15 CURRENT ISSUES

On Democracy be kings. In other words, ours was a country where transitions of power took place through violence. A I’m a liberal, who believes every living being democracy lets the people get rid of the government cherishes freedom, liberty. Liberalism is about free- without violence. In a tyranny it never happens that dom. More specifically, it’s about giving the greatest way. Take the last presidential election. What did we possible freedom to every individual, politically, eco- see before and after it? Killings, kidnappings, arbi- nomically, and culturally… We are democrats, even trary arrests and detentions. though we do not think it’s perfect. Democracy is It is because the democratic traditions are majority rule, nothing more, nothing less. Of course, weak that the people don’t care when one family the majority is often wrong. They will believe any takes full control of the government. Look at the ridiculous lie if the one who tells it knows how to tell faces of those people who attend political rallies in it. Yet we are democrats. Why? Because we believe places like Anuradhapura, Polonnaruwa or Mahiyan- in democratic traditions. ganaya. Can you even imagine them ever under- Has democracy failed in Sri Lanka? Of course standing the value of Human Rights? Can you ever it hasn’t. It is Sri Lanka that has failed. We were imagine them understanding that allegations of war given the universal franchise in 1931, just one year crimes being treated as treason is undemocratic and after the British parliament gave it to its own people. is ultimately hurtful to the country? They never will. But why does it now look like a tyranny rather than a At least not in our lifetime. Until the day they do un- democracy? Because democratic tradition in Sri derstand, they will have a king. We will have a dicta- Lanka wasn’t strong enough to handle it. tor. Ours used to be a country where sons killed -www.kottu.org- fathers and younger brothers killed elder brothers to

THE LEGEND OF APRIL FOOL’S DAY

pril Fool’s Day as it was their disapproval. The news an- tower ditch to see the lions A called many years ago is gered the king and when an in- washed.’ People had thronged this still observed in numerous coun- vestigation was ordered the villag- place to watch the annual cere- tries in Europe and Asia. The ori- ers had behaved almost like fools. mony of washing the lions. This is gin of this fun day when people The shocked soldiers who considered a well remembered are tricked by others or sent on had come for investigations re- hoax to this day. In modern times foolish errands are consequently ported to the king their bitter ex- this day is equally popular and named April Fool, has puzzled his- perience. Since then the village of usually tricks are played within the torians from the very beginning. Gotham was never troubled by family or in the company of There are many legends and sto- royalty. This is considered one of friends who can take up a joke. It ries attached to this. the greatest tricks attempted on is considered, adhering to the tra- It has been said that when an English monarch. Whether it dition that anyone who plays jokes King John was crossing to the really happened on April Fool’s on April Fool’s Day after 12 noon West Country with his private Day is not quite certain. is himself a fool. Throughout cen- army he sent a messenger to However the village of turies April Fool’s Day has given Gotham to tell the inhabitants that Gotham in Nottinghamshire was purpose and a touch of cheer to he and his followers would be known as the ‘village of fools.’ The the chores of everyday life. Since passing through their village. In annual custom of fooling people some of the origins of these sto- those days it was the custom that was practiced from very early ries are beyond human recollec- every road the king used would be times. One of the very last records tion, man may have invented his regarded a public highway. of this custom had been in 1698 own explanations that are more The people did not like when a newsletter for April 2 humorous and satisfying than the their privacy disturbed. So they stated that ‘yesterday being April truth. sent a message to the king of l, several persons were sent to the -Sunday Leader - 28/03/2010

Human Rights Review : February - April 15 Institute of Human Rights

16 ARTICLES

Guarding Against Authoritarianism In 1947, he wrote his first book ‘If This Was A NOTEBOOK OF A NOBODY Man’ which opens with his poem quoted by Shanie above. In that, he describes his capture by the Italian Fascist Militia in December 1943, his "You who live safe deportation to Auschwitz, his life in the concentration in your warm houses, camp and the subsequent liberation of the camp by You who find, returning in the evening, the Red Army in January 1945. In 1963, he wrote Hot food and friendly faces: ‘The Truce: A Survivor’s Journey Home from Ausch- Consider if this is a man witz’ as a sequel to ‘If This Was A Man’ and covers who works in the mud, his return journey to Italy through Russia and Cen- who does not know peace, tral Europe. Both books have now been published who fights for a scrap of bread, together, with an Afterword where Levi answers who dies for a yes or no. some questions posed by readers. It is of relevance Consider if this is a woman, to us to read some of the questions and Levi’s re- without hair and without name, sponses, because in the world in which we live, it is with no more strength to remember, necessary to guard ourselves against authoritarian- her eyes empty and her womb cold, ism. like a frog in winter. Are the people in authoritarian regimes also culpa- Meditate that this came about: ble? I commend these words to you. One of the questions posed to Levi was whether the Carve them in your hearts, German people knew what was happening. Levi’s at home, in the street, answer is a perceptive one: " How is it possible that going to bed, rising: the extermination of millions of human beings could Repeat them to your children. have been carried out in the heart of Europe without Or, may your house fall apart, anyone’s knowledge? The world in which we West- may illness impede you, erners live has grave faults and dangers, but when may your children turn their faces from you. compared to the countries in which democracy is smothered, and to the times during which it has Primo Levi was a Jew who qualified and worked as an been smothered, our world has a tremendous advan- industrial chemist in northern Italy. In the early for- tage: everyone can know everything about every- ties, he joined the Italian resistance to Mussolini’s thing. Information today is the ‘fourth estate’ ; at fascism. By then, Nazi Germany on a swing through least in theory the reporter, the journalist and the Europe had installed Mussolini to rule a puppet state news photographer have free access everywhere; in northern Italy. Levi was caught in the mountains nobody has the right to stop them or send them by a fascist militia; he escaped certain death by pre- away.... tending that he was in the mountains not because of In an authoritarian state, it is not like this. There is any anti-fascist political activity but because he was only one Truth, proclaimed from above; the newspa- hiding from the Germans as he was a Jew. He was pers are all alike, they all report the same one Truth. sent to the vast Fossoli detention camp which housed So do the radio stations, and you cannot listen to various categories of people not ‘approved’ by the those of other countries. In the first place, since this Fascist Republic. In January 1944, the German SS is a crime, you risk ending up in prison. entered the camp and ordered their deportation to In the second place, the radio stations in your coun- the Auschwitz Concentration Camp in Poland. try send out jamming signals, on the appropriate Levi says that it was his good fortune to be deported wavelengths, that superimpose themselves on the to Auschwitz only in 1944, that is, after the German foreign messages and prevent your hearing Government had decided, owing to the growing scar- them....In an authoritarian state, it is considered city of labour, to lengthen the lifespan of the prison- permissible to alter the truth; to re-write history ret- ers destined for elimination! After 11 months in one rospectively; to distort the news, suppress the true, of the Auschwitz camps, the Soviet Red Army en- add the false. Propaganda is substituted for informa- tered the camp in January 1945 catching unaware tion." the Germans, who fled leaving behind eight hundred Levi quotes Eugene Kogon, a former Professor of Po- prisoners. Of this number, about seven hundred per- litical Science at the University of Munich: ‘In spite of ished due to illness, cold and hunger, despite the the varied possibilities for information, many Ger- Russians’ aid. Levi was one of the lucky ones to sur- mans didn’t know because they didn’t want to know. vive. But it took Levi another ten months before he Because, indeed, they wanted not know. It is cer- could reach his home town of Turin in Italy. And thus tainly true that State terrorism is a very strong began his literary career. (Continued on page 17)

Human Rights Review : February - April 16 Institute of Human Rights

17 ARTICLES

(Continued from page 16) postponement of the parliamentary election due the weapon, very difficult to resist. But it is also true that following year) that followed, many opposition lead- the German people, as a whole, did not even try to ers were arrested and detained on a fictitious charge resist. In Hitler’s Germany, a particular code was of conspiring to assassinate the President and stage a widespread: those who knew did not talk; those who coup. People now laugh those charges off as being did not know did not ask questions; those who did ridiculous and politically motivated. But at that time, ask questions received no answers. In this way, the many professionals, media persons and others (some typical German citizen won and defended his igno- still in positions of leadership) defended this propa- rance, which seemed to him sufficient justification of ganda. There were also scores of lesser known indi- his adherence to Nazism. Shutting his mouth, his viduals who were similarly incarcerated a couple of eyes and his ears, he built for himself the illusion of years later on similar fictitious charges. In two recent not knowing, hence not being an accomplice to the contributions, one newspaper editor (Jayatilleke de things taking place in front of his very door. Silva now of the Daily News) and another newspaper Knowing and making things known was one way columnist (Malinda Seneviratne) have recalled their (basically then not all that dangerous) of keeping arrest and detention during that time by the Police one’s distance from Nazism. I think the German peo- using emergency powers under the Prevention of Ter- ple, on the whole, did not seek this recourse, and I rorist Act. de Silva concludes his story thus: "I should hold them fully culpable of this deliberate omission.’ be failing in my duty if I do not convey here my grati- In response to another reader’s question, Levi stated: tude to those numerically small but influential group "Everybody must know, or remember, that when Hit- of dedicated persons who grouped them- ler and Mussolini spoke in public, they were believed, selves ...under civil society organisations that stead- applauded, admired, adored like gods. They were fastly campaigned for and negotiated our release. ‘charismatic leaders’; they possessed a secret power Recalling what happened almost two decades ago of seduction that did not proceed from the credulity one could write dispassionately on one’s experience. or the soundness of the things they said but from the Yet such writing cannot convey the physical and psy- suggestive way in which they said them, from their chological impact of the PTA on its victim. eloquence, from their histrionic art, perhaps instinc- The anxiety for oneself and for one’s family, the ap- tive, perhaps patiently learnt and practised. The prehensions about the fate of one’s colleagues, the ideas they proclaimed were not always the same and despair and gloom enveloping one’s very soul, the were, in general, aberrant or silly or cruel. And yet fear of the next moment, the next day, the trauma they were acclaimed with hosannas and followed to and the entire gamut of debilitating factors have to the death by millions of the faithful. We must re- be experienced to feel the full ferocity of the PTA. In member that these faithful followers, among them other words, for a full comprehension of the PTA, its the diligent executors of inhuman orders, were not venom has to be experienced in person." born torturers, were not (with a few exceptions) In 1988-1989, many thousands disappeared or were monsters; they were ordinary men. Monsters exist, killed. Similarly over the recent years, many thou- but they are too few in number to be truly danger- sands have disappeared, or been maimed or killed. ous. More dangerous are the common men, the func- Not all those were killed in the course of conflict and tionaries ready to believe and to act without asking not all were JVP or LTTE cadres. Yet, many condoned questions. or defended these extra-judicial murders; or tried to A new Fascism, with its trail of intolerance, of abuse, shift the blame for the killing elsewhere, knowing full and of servitude, can be born outside our country and well who the perpetrators were. These are the com- be imported into it, walking on tiptoe and calling it- mon or ordinary men and women whom Levi wrote self by other names, or it can loose itself from within about who are ready to believe propaganda, who are with such violence that it routs all defences. At that not ready to ask questions and who shut their point, wise counsel no longer serves, and one must mouths, ears and eyes to the truth. find the strength to resist. Even in this contingency, During the parliamentary election campaign of 1999, the memory of what happened in the heart of President Chandrika Kumaratunga survived an assas- Europe, not very long ago, can serve as support and sination attempt by a suicide bomber but lost an eye warning." in the process. One demented journalist with a pathological hatred for the former President has sug- Propaganda versus Truth gested that the attempt on her life and the loss of While the history of fascism and authoritarianism in her eye were staged by the President herself to gain other countries can serve as a warning to us, we also sympathy votes. Kumaratunga being still around in need to learn the lessons of authoritarianism from the political arena, there will still be uncritical takers our own recent history. In 1982, soon after the Presi- for this propaganda. dential Election and prior to the referendum (seeking (Continued on page 18)

Human Rights Review : February - April 17 Institute of Human Rights

18 ARTICLES

(Continued from page 17) Our concern for justice and liberty should also go for Similarly, stories are being leaked with monotonous Prageeth Ekneligoda, who has simply disappeared regularity about the misdeeds of Sarath Fonseka, without trace, like hundreds before him. Here, at once hailed by his very detractors as a hero. Even least his family and friends have asked questions but the alleged sins of his relatives and associates are have received no answers. This has been going on, being visited upon the man. The many worthy pro- unfortunately with increasing frequency, over the fessionals and media persons who defend his arrest last several decades. Like the German people, our and detention do not seem concerned that no specific people also know who is responsible for these abduc- charges have yet been framed against the leader of a tions, disappearances and extra-judicial killings. But political alliance contesting the forthcoming parlia- as long as we are not willing to ask questions and mentary election. Nor do they seem concerned that, resist until we receive satisfactory answers, or are like the present Prime Minister in 1982, Fonseka re- only willing to be selective in our condemnation of mains in detention, unable to campaign for his politi- the perpetrators, we will have to live with repression cal alliance. No, it is more prudent to shut one’s and the trend to increasing authoritarianism, which- mouth, ears and eyes than to speak out and ask ever government is in power. questions. -The Island - 06/03/2010

Arrest and Detention of Gen. Fonseka - A Legal Perspective by Sarath N. Silva LLM. PC. Retired Chief Justice

Every living being by nature cherishes liberty, secu- in June 1980. The Covenant relevant to the issues rity and freedom of movement. Law evolved as an addressed in this article is the International Covenant instrument of regulation of human conduct and rec- on Civil and Political Rights (ICCPR). ognized from the earliest times that certain rights Article 9 of the ICCPR provides that; pertain by nature to all members of the human fam- 1. Everyone has the right to liberty and security of ily. This body of rights that stem from Natural Law is person and no one shall be subjected to arbitrary appropriately designated Human Rights. The United arrest or detention and the deprivation of liberty Nations being the foremost international organiza- shall be only on grounds and that in accordance with tion, established in the aftermath of the holocaust - the procedure established by law; the 2nd World War, as its first official act in Decem- 2. Anyone arrested shall be informed at the time of ber 1948 adopted and proclaimed the Universal Dec- arrest the reasons for his arrest and promptly in- laration of Human Rights. Its Preamble specifically formed of any charges against him and be brought states that the Declaration is a "recognition of the before a judge or an officer authorized by law to ex- inherent dignity and of the equal and inalienable ercise judicial power who will decide on the question rights of all members of the human family (and) is of release or continued detention of such person. the foundation of freedom, justice and peace in the Human Rights which assure liberty and freedom from World". arbitrary and illegal arrest stem from the Magna The Preamble further states that the "disregard and Carta (Ch 39) decreed in England in the year 1215; contempt for Human Rights resulted in barbarous Declaration of the Rights of Man (paragraph VII) acts which have outraged the conscience of man- made by the National Assembly of France in 1792 in kind", alluding thereby to the repressive fascist re- the aftermath of the French Revolution and the Fifth gimes being the cause of the War and that, "it is es- (1791) and the Fourteenth (1868) Amendments to sential if man is not to be compelled to have re- the Constitution of the United States of America. course, as a last resort, to rebellion against tyranny Our Constitution of 1978 has substantially incorpo- and oppression, that Human Rights should be pro- rated the content of Article 9 of the Universal Decla- tected by the Rule of Law". ration and the ICCPR and guaranteed by Article 13 Article 3 of the Universal Declaration states that eve- the freedom from arbitrary arrest and detention. It is ryone has a right to life, liberty and security of per- pertinent to note here that Sri Lanka having acceded son and Article 9 provides that no one shall be sub- to the ICCPR in 1980 is obliged in terms of Article 40 jected to arbitrary arrest or detention. to report on the measures taken to give effect to the The Human Rights stated in broad terms in the Uni- rights recognized in the Covenant. Since there were versal Declaration were legally defined in two Cove- complaints of non compliance, the ICCPR Act No. 56 nants adopted by the United Nations in December of 2007 was enacted by Parliament to give effect to 1966. Sri Lanka being an original State party to the certain Articles of the ICCPR. Universal Declaration acceded to the two Covenants (Continued on page 19)

Human Rights Review : February - April 18 Institute of Human Rights

19 CURRENTARTICLES ISSUES

(Continued from page 18) eral was done and he is detained in terms of the Thereafter, an opinion was sought by the President Army Act (Cap. 625). The Army Act was enacted by from the Supreme Court as to compliance by Sri Parliament in 1949 soon after gaining independence Lanka and the positive opinion given by the bench of for the purpose of raising and maintaining an Army 5 Judges presided by me was submitted to the Euro- for Ceylon as the country was then known. pean Union to avert a suspension of the GSP+ facility The only explicit provision in the Army Act which au- in 2008. It appears that this position has now re- thorizes an arrest is contained in Section 150 which versed and the GSP+ facility is being suspended by relates to deserters and absentees without leave. A the EU. Be that as it may the Fundamental Rights as police officer or in the absence of a police officer, an contained in Article 13 (l) and (2) of our Constitution officer or soldier of the Army is authorized to arrest a which guarantee freedom from arbitrary arrest and deserter or absentee without leave and to forthwith detention read as follows; produce such person before a Magistrates Court. 1. "No person shall be arrested except according to Then there is provision for the hearing of evidence by procedure established by law. Any person arrested the Magistrates Court and further orders being made. shall be informed of the reason for his arrest." It is clear that the retired 4 star General has not had 2. "Every person held in custody, detained or other- the benefit of procedural safeguards applicable in wise deprived of personal liberty shall be brought relation to a deserter or absentee without leave. before the judge of the nearest competent court ac- A broad provision as to persons liable to be taken to cording to procedure established by law, and shall military custody is contained in Section 35 of the not be further held in custody, detained or deprived Army Act which provides that "a person subject to of personal liberty except upon and in terms of the Military Law who commits any military or civil offence order of such judge made in accordance with proce- may be taken into military custody". Section 57 ex- dure established by law." tends the application of Section 35 to a period even The procedure established by our law for the arrest after the person ceases to be subject to military law and detention of a person reasonably suspected of but in respect of offences committed whilst he was having committed any offence is contained in the subject to military law. Hence the principal issue to Code of Criminal Procedure Code Act No. 15 of 1979. be considered before one gets into the realm of of- The very clear sequence of provisions in Section 109 fences, charges and so on, is whether General Sarath of the Code lay down the procedure for the investiga- Fonseka was 'a person subject to military law' when tion of an offence leading to the arrest of the sus- he functioned as the Commander of the Army and pected offender. Section 32 states the manner of later as the Chief of Defense Staff. making an arrest and Section 37 provides that any There is no complexity in deciding this issue since person arrested and held in custody shall be pro- Part VII of the Act is itself titled "Persons subject to duced before a Magistrate within 24 hours. Military Law". Section 34 of this Part states that for The purported arrest and detention of General Sarath the purposes of the Act, 'a person subject to military Fonseka, the unsuccessful candidate at the Presiden- law' means a person who belongs to any of the fol- tial Election, who has challenged in Court the validity lowing classes of persons: of the result of the elections and the manner in which (a) "All officers and soldiers of the Regular Force"; the counting of votes was done, within a period of 12 (b) "All such officers and soldiers of the Regular Re- days of the Election, has been done manifestly con- serve, Volunteer Force...." trary to the Fundamental Rights guaranteed by Arti- The term 'officer' is defined in Section 162 to mean cle 13 (l) and 13 (2) of the Constitution and the Hu- 'an officer commissioned as an officer of the army" man Rights recognized and agreed to by the Govern- Part 11 of the Act is titled "Officers" and contains ment of Sri Lanka as contained in Article 9 of the Uni- provisions commencing from Section 9 which deals versal Declaration and the ICCPR. The procedure fol- with the commissioning officers to Section 12 as to lowed in the purported arrest and continued deten- the promotion and transfer of officers. tion is contrary to the provisions of the Code of Part III of the Act is titled "Soldiers" and has provi- Criminal Procedure Act. The person who purported to sions regarding their enlistment. make the arrest is not an officer authorized to do so It is manifestly clear that the Commander of the under the Code and the General has now been con- Army is neither a commissioned officer nor an tinuously held in custody for a period of over one enlisted soldier. The appointment of the Commander month without being produced before a Judge or a is provided for in Part I of the Act titled "Organisation competent Court as required by Article 13 (2) of the of the Army". Section 8 of Part I of the Act provides Constitution, Article 9 (3) of the ICCPR and Section that the President shall appoint "a fit and proper per- 37 of the Code. son to command the army" and when so appointed It is claimed that the arrest of the retired 4 star Gen- (Continued on page 20)

Human Rights Review : February - April 19 Institute of Human Rights

20 CURRENTARTICLES ISSUES

(Continued from page 19) officer". The only instance where a junior officer may that person shall be designated Commander of the order into custody a senior officer is where such offi- Army. Hence one need not even be a commissioned cer is engaged in a quarrel, affray or disorder. The officer to be appointed to command the army. Even Commander is the highest ranking officer and as such after appointment the Act does not describe him as there would be no officer senior to him who could an officer. But, specifically states that the person ap- order that the Commander be taken into custody. pointed shall be designated Commander of the Army. Similarly after a person subject to military law is Hence the Commander of the Army is not a person taken into custody in terms of Section 40 only the subject to military law in terms of the Army Act. 'commanding officer of that person' is empowered to Military offences are set out in Part XII of the Act. investigate the charge against him and to take steps Every offence defined in Section 95 to 130 is specifi- for a trial by Court Martial. There is no officer who cally worded to state that it applies only to a 'person could be "commanding", the Commander himself. As subject to military law'. Therefore none of these of- such it is inconceivable and, inconsistent with scheme fences apply to the Commander of the Army. of the Act to assume that the Commander of the There are three types of Courts Martial provided for Army is a person subject to military law as defined in in the Act viz. a general court martial; a field general the Act who may be taken into military custody, de- court martial and a district court martial. It is specifi- tained, charged, tried and sentenced at a Court Mar- cally stated in Sections 46 (2), 49 (1) and 51 (1) that tial. It would be preposterous to suggest that the any of these Courts Martial may try only a 'person Commander who is thus not liable whist in service subject to military law'. Hence there would be no becomes a person subject to military law and thereby question of the Commander of the Army being becomes liable to be taken into military custody, de- brought up before any of the Courts Martial for trial tained, tried and sentenced by a Court Martial after of any military offence. he relinquished office. In any event the present Com- Even the two sections referred to above that author- mander has never been a senior officer to the Gen- ize the taking into custody of any person viz. Section eral and as such he cannot in terms of Section 36 (1) 35 (whist in service) and Section 57 (1) (after ceas- "order into military custody" the General considering ing to be in service) specifically state that they apply the latter as a 'junior officer'. Furthermore the pre- to situations in which a person subject to military law sent Commander has never been the 'commanding commits an offence. officer' of the General, as such he is not empowered General Sarath Fonseka relinquished the position of in terms of Section 40 (l) of the Act to cause an in- the Commander of the Army in July 2009 and was vestigation against the General or to 'take steps for appointed Chief of Defense Staff in terms of Act No the trial of that person (the General) by a Court Mar- 35 of 2009. Section 2 (3) of the Act provides that tial' as provided in Section 40 (1) (b) (i) of the Act. when the Commander of any force relinquishes his The position under the CDS Act No 35 of 2009 is no position to assume the post of CDS during the period different. As noted before although the Act deems the he holds such post he shall deemed to continue as a General to be a member of the regular force of the member of the regular force to which he belongs. Army whilst serving as CDS, he is not deemed to be This deeming provision does not go so far as to state 'a person subject to military law' under the Army Act. that during such period this person would be subject In any event the present Commander cannot be con- to the Army Act or be subject to military law. The sidered a 'senior officer' or the 'commanding officer" Commander of the Army who was not subject to mili- of Sarath Fonseka in the period the latter functioned tary law when he held office cannot by any stretch of as CDS since in terms of Section 2 (4) of the Act imagination be considered as being so liable after he whilst serving as CDS he held the rank of General. relinquished such office. Viewed from a different perspective, the Army Act The conclusion to be drawn that the Commander of was existing law when the present Constitution was the Army is not a person subject to military law and promulgated in 1978. It continued in force in terms as such cannot be taken into custody, detained or of Article 168 (1) of the Constitution. However such tried by a Court Martial under the Army Act is consis- continuation in force is subject to any express provi- tent with the scheme of the Act itself. Sections 35 sion in the Constitution. In brief, it is a basic principle and 57 referred to above state that a person subject of interpretation that the Constitution being the supe- to military law who commits any offence may be rior law should prevail over ordinary laws. Therefore taken into military custody. However, these sections the Fundamental Rights guaranteed by Article 13 do not provide for the procedure by which such per- (based on the Universal Declaration and the ICCPR as son may be taken into custody. Such procedure is noted above) which relate to arrest, detention trial laid down in Section 36 (1) which states that "a sen- and punishment, will prevail over the Army Act. ior officer may order into military custody a junior (Continued from page 21)

Human Rights Review : February - April 20 Institute of Human Rights

21 CURRENTARTICLES ISSUES

(Continued from page 20) nance of public order; These Fundamental Rights may be restricted in their 3. The arrest should have been necessary to assure operation to the members of the Armed Force only in the proper discharge of his duties as a member of the the manner provided by Article 15 (8) of the Consti- Army and tution which reads as follows; 4. Necessary to maintain discipline in the Army. 15 (8). "The exercise and operation of the fundamen- I do not wish to labour the point but none of the con- tal rights declared and recognized by Article 12 (1), ditions as laid down in Article 15 (8) to warrant a re- 13 and 14 shall, in their application to the members striction of the Fundamental Rights guaranteed by of the Armed Forces, Police Force and other Forces Article 13 are met in relation to the purported arrest charged with the maintenance of public order, be and detention of General Sarath Fonseka. subject to such restrictions as may be prescribed by In conclusion I wish to state that from whatever per- law in the interest of the proper discharge of their spective one may look at the matter - the Constitu- duties and the maintenance of discipline among tion; the Universal Declaration; the ICCPR; the Code them." of Criminal Procedure Act; the Army Act or the CDS It is clear from this provision that if General Sarath Act; the purported arrest and continued detention of Fonseka's Fundamental Rights guaranteed by Article General Sarath Fonseka who is now a candidate 13 of the Constitution assuring him the freedom from nominated for the Parliamentary Elections is entirely arbitrary arrest, detention, punishment, etc. is to be contrary to law and justice. I do not state so in dero- restricted upon any purported exercise of power un- gation of the lawful authority of any person or institu- der the Army Act, at the time of such 'arrest' he tion empowered to decide on the matter, but only to should have been; kindle the compassionate reflection of right thinking 1. A member of the Army people on an issue of humanitarian concern. 2. He should have been charged with the mainte- -The Sunday Island - 14.03.2010

EDUCATION UNIT

TRAINING PROGRAMS Announcement Commencement of the next A request was made by the Army Secretariat to Diploma in Human Rights conduct lectures in Sinhala medium on Conflict Resolution at International Peace Support Operation Diploma in Human Rights Training – (IPSOTSL) Sri Lanka – Kukulegega. The Program is an interactive course that explores

the concepts of Human Rights, discuses the ‘rights’ Since we do not have a funder for the Army Pro- dimension of global and local events and trends gramme, We Co-ordinated with Non Violent Peace and build a community of individuals to participate Force – Sri Lanka for the resource fee. They agreed in making a change. to provide us the resource fee on condition we in- Course Duration : 06 months (Sessions clude a lecture on Human Rights Defenders in our every Saturdays from program. This was communicated to (IPSOTSL), 9.00 am to 1.00 pm) they have agreed. The lectures will be conducted in Colombo Medium : English, Sinhala and Tamil Course fee : Rs.15,000/- Resources persons were Ms Tahirih Q Ayn & Mr Ali Path. Mr Ali Path was supported by Ms Tahirih Q Registration fee : Rs. 150/- Contact : Ayn in translation. Ms. Priyanthi being the Hashini at [email protected] for co-ordinator for the workshop. English medium Priyanthi at [email protected] for Sinhala medium Unita at [email protected] for Tamil medium

Tel. Nos : 0112502703 or 0113158863 Website : www.ihrsrilanka.org

Human Rights Review : February - April 21 Institute of Human Rights

22 LEGAL UNIT CLINICS PIL Case for Dr. Jayan Mendis (Director NIMH)

Mobile Clinics We have decided to support Dr. Jayan Mendis The Director for NIMH to file a PIL case against Ministry Two mobile clinics were conducted in Jaffna at of Health as Ministry has decided to replace him on Vinopathi Community Center Achellu and the ground of academic qualifications. His service Yogapuram, Anna Community Center, Urumpu- record with Mental hospital is indispensable beside rai on 16th and 24th February respectively. the academia.

Documentation for IDP Setup of “Befriender’s service for Women and children desk @ Police HQ We initiated a meeting with Human Rights Commission for the implementation of docu- mentation of IDP’s. Initial discussion held in February 2010 with di- rector and ASP of Police desk. Documentation for National Institute We were requested to obtain permission from of Mental Health (NIMH) IGP. With the recommendation of Juvenile Court It is identified the Mulleriyawa Unit -2 is filled Magistrate the letter was sent for approval. with at least 600 detainees abandoned by their families and they are with no proofs of their identity. We are in the process of obtaining the service of Commission of Department, Registrar of persons to conduct a mobile clinic to fulfill the Primary documentation such as birth certifi- cate, NIC etc. The Registrar of persons has agreed to support us in this task.

BOOSA TRANSPORT

Seven visits were made in the months of January and February. As an added service we introduced refreshment to passengers with effect February.

CORRECTION : ISSUE NO.122 Awareness Programs

Prison Clinics Awareness for war victims of “Ranaviru sevena” In the last issue of Human Rights Review (N.122)

we had inadvertently left out the fact that the Initial discussion held in February 2010 to con- prison clinics mentioned in that issue were funded duct awareness session on human rights. by UNDP Equal Access to Justice Project. We regret the omission.

Human Rights Review : February - April 22 Institute of Human Rights (R&P Unit) 23 RESTORATION & PROTECTION UNIT

REUNIFYING & REINTEGRATING CHILDREN FROM LEGAL REPRESENTATION FOR REMAND HOMES (MAKOLA & RANMUTHUGALA) CHILDREN AS FOLLOWS

Month of February Total • Cases represented by the Network lawyers within the, Collection of new cases 21 Colombo jurisdiction : 41 No. of cases Referred to Network Lawyers 43

Legal representation 62 • Cases represented by the Network lawyers out of the, No. of children represented in Court 49 Colombo jurisdiction : 21

No. of children reunified with guardians 10

No. of children placed in Institutions 10

CASES HANDLED FOR THE MONTH OF FEBRUARY 2010 BY NETWORK LAWYERS

10 9 8 7 6 5 4 3 2 1 0

WELFARE ITEMS FOR MAKOLA BOYS SCHOOL SUPPLIES FOR CHILDREN IN IDP CAMPS IN COLLABORATION WITH "PENNIES & DIMES FOR BET- REMAND HOME TER TIMES

On Jan 29th Poya day ,Facilitated a local 300 $ from young donors who saved pocket money (children party to assist the Makola boys remand in Boston) for School supplies of 30 IDP children. home with 25 square rule exercise Coordinated with a group leader in Boston, with regards to are books ,25 double rule exercise books,2 willing to send Rs.30,000/- to purchase educational material large Carom boards,2 draft boards,2 ten- for IDP children with one parent. Partnered with CHA Longdon Pl. and Serendib children’s home in Jaffna ,who sent 30 bio- nis balls, drawing books ,Boys under gar- data ’s of IDP children, of single parent or no parents. It has ments and shorts .The items were pro- been followed up with the Boston team leader who has in- vided in February 2010. formed that the money will be sent

Human Rights Review : February - April 23 Institute of Human Rights

24 STAFF INFORMATION Chairman Jeevan Thiagarajah

Board of Directors Michelle Gunaratne Leela Isaac M.S.M.T. Samaratunga Tahirih Q Ayn H.G.Dharmadasa

Legal Unit Hot Line : 077-3760680 011-2585812 [email protected] Manager – Legal Neel Sujith Silva [email protected] Legal Officer Unica Fonseka Legal Officer Wasana Ellawala Legal Officer Ireshika Goonawardena Legal Officer V.S. Niranjan Senior Coordinator K Premaseeli Coordinator Ayesha Shibly Coordinator Dinusha Bandara Coordinator Varahini Canisius Legal Consultant B.N. Thamboo

Education Unit 011-2502703 [email protected] Education Administrator Menaka Shanmughalingam [email protected] Education Coordinator (Sinhala) Priyanthi Gamage [email protected] Education Coordinator (English) Hashini Mahesha Rajaratna [email protected] Education Coordinator (Tamil) Unita Ferly Bastian [email protected]

Grants Administrator Gayani Meegamuge [email protected]

Restoration and Protection Unit 011-5368910 [email protected] Manager – Restoration and Protection Shermila Perera [email protected] Coordinator Nithyavani Baladasan

Finance Unit 011-2502810 [email protected] Accountant Gimhani Jayathunga [email protected] Finance Officer Champa Jayakody Accounts Assistant Ayesha Jeewanthi Accounts Assistant Shashika Jayasinghe

Administration 011-2585815 [email protected] Manager – Administration Ajantha Ismail Senior Office Assistant / Driver M Kannadasan Front Officer V P Chandima Padmasiri Office Assistant Samantha Wijerathne Driver / Office Assistant Duminda Attygala

Jaffna Branch 060-2218338 [email protected] Legal Consultant Jayasingham Jeyaruban Supervisor T. Sanmuganathan Coordinator Shiyamini Rajaratnam Office Assistant S Nanthakumar

Anuradhapura Branch 025 3899218 [email protected] Legal Officer Erandhi Thilakaratne Coordinator Sameera Sanjeevani

Ampara Branch 0633635825 [email protected] Legal Officer Nayana Kumudini Coordinator B.G. Chandra Dilhani

Kotapola Brach 041-5621457 [email protected] Legal Officer J.D. Ajantha Coordinator Deeshani Prabhasari

Human Rights Review : February - April 24 Institute of Human Rights