Address by Justice Neil Iddawala at the ceremonial sitting of the Court of Appeal held on 24th March 2021.
Thank you, Mr. Attorney General and Mr. Kalinga Indatissa for your kind and stimulating words. May I commence by thanking you all for honoring me by your presence. I consider myself privileged to be a Justice of the Court of Appeal at a time of unprecedented challenges for the justice system not only in Sri Lanka but across the world created by the COVID-19 pandemic.
Locking down courts might be necessary to protect the health and safety of justice professionals and court users but the challenge is to do this in a careful manner as it results in an important limitation of access to justice and further case backlogs. More attention than ever before must be paid to due process and fair trial standards if courts are unable to hold trials in person.
The functioning of the courts with regard to case management systems and data collection is a special challenge during this health crisis. Judges, Registrars, court officials, should continue to monitor and manage cases according to their responsibilities, even remotely. ICT offers the opportunity for the functioning of justice systems to continue functioning during the health crisis.
Online services and strengthening access to information through court websites and other means of communication such as phone, email, etc. can help maintain justice services and provide access to justice by alternative means. In applying ICT to expedite cases, courts must be careful to minimize the digital gap so that due process and fair trial rights are satisfied and access to justice on all matters is guaranteed including respect for fundamental rights, judicial independence, principles of a fair trial, cyber security and protect legitimacy of judicial proceedings.
The new innovations make judicial training even more important and judicial training should adapt to the emerging needs, including the use of IT. New curricula should be developed to support justice professionals during and after the health crisis. Specific training on teleworking, use of digital platforms for meetings and hearings, access to the internet, should be provided for justice professionals. Famous American Chief Justice, John Marshal observed that “the judicial system comes home in its effects to every man’s fireside; it passes on his life, liberty, property and everything”.
Laws delays is a perennial problem in our courts and to deal with delays and remedies in general, the judiciary can use the current situation to innovate ways in which on line solutions can be used to resolve backlogs. This should also include reviewing different levels of courts have been impacted differently and, if so, in what ways. Prosecutions of minor offenses, civil or commercial cases, could be postponed in this streamlining process. Matters oriented to protect rights, when serious crimes are committed including corruption connected to this crisis and cases of domestic violence should receive prior attention and space. Where and how to report abuses, using current online technologies must be addressed and urgently implemented.
A crisis requires immediate and urgent response. However, any kind of reaction to the crisis must be strictly based on the principles of the Rule of Law and must respect and protect human rights. Emergency measures must respect the principles of legality, legal certainty and proportionality and need to be constantly re-evaluated. Poor and vulnerable groups will be the most affected by the health and economic consequences of COVID 19. This is an opportunity for justice sector to adopt a people-centered approach to justice, to remove barriers to innovation and technologies that can further improve the way in which justice is delivered.
Transforming the judiciary for the future should maintain the necessary dialogue between all segment in the justice system and to take advantage of the new relations created between judges, court staff, lawyers, and other judicial experts to improve access to justice. As the health crisis is eroding economic and social stability, a functioning judiciary is more essential than ever. As William Penn, a well-known nobleman, writer and early advocate of Justice and Religious Freedom, stated “Justice is the insurance we have on our lives, and obedience is the premium we pay for it”.
Sumanthiran on what the budget does and does not do
Speech made November 22
I have consistently recorded my opposition to Minister of Finance being the President. From 2010 onwards in this House, whenever the President in his capacity as Minister of Finance has presented a budget I have recorded that protest and I wish to record that today as well. When a person who is not a Member of this House presents the budget as the Minister of Finance, that seriously curtails this House’ ability to be in total control of public finance as the Constitution stipulates in article 148.
This also exposes another thing this time: And that is there’s a 21st amendment to the constitution that, was said to be going back to the 19th amendment – that is doing away with the 20th amendment – and that has been pointed out during that debate. It doesn’t really do that. Under the 19th amendment to the constitution the president could not hold any ministries; not even the ministry of defence.
For the tenure of that president at that time, personal to him, to President Maithripala Sirisena, three named ministries were permitted in the transitional provision. Thereafter the president couldn’t hold any ministries. But now the President actually can hold any number of ministries. In fact he can hold all the ministries. So this is another occasion on which we can expose that lie to the country that some reform was made that executive powers were curtailed through the 21st amendment. No! no such thing was done.
Even the one positive thing that is being touted is the re-establishment of the constitutional council. That also, we pointed out, is a political body, is not a 17th amendment constitutional council. More members are from this House which makes it political, and that body starts with the appointment, amongst others, independent commissions. And in the last couple of days we found how this supposed independent commission chairmen have behaved. We saw the National Police Commission Chairman going to the VIP launch to receive a person who was chased out of this country, for fraud, for large scale corruption. And who else but the chairman of the National Police Commission is there bowing in two, and welcoming him back.
A few days before that we heard the chairman of the Office of Missing Persons, saying that only a few people went missing and all of them are living abroad. Now that very office was established to investigate missing persons. And the government commissions, there are many, all of those commissions have reported that over 20,000 people have gone missing. That’s a conservative number. And the chairman of the office that is appointed, supposedly an independent office, says nobody has gone missing.
And then the Honourable Minster of Justice explains and says “No he’s wrong, because he hasn’t understood the Government’s priority. The government has prioritised reconciliation measures which must deal with the issue with disappearance also and unfortunately this chairman does not know that.” Now that creates another problem. Why should an independent office chairman know what the government’s priorities are? If he is independent, why should he comply with what the government wants to do today? The government will not want to do that tomorrow, the government changes its mind, day to day but if this is an independent office and he has been tasked by law to make investigations into this several thousands of disappearances in the country, and this is what he says.
So this 21st amendment was just an eyewash, really did not make anything independent in the country, nor did it strip the President of any executive powers. That said, let me turn to the budget proposals. I want to concentrate on one matter, and that is with regard to the EPF. The EPF is Sri Lanka’s single largest fund, this fund has been dipped into and there are serious allegations of fraud and corruptions in the way investments have been made out of this fund. There have been five forensic audits conducted, but no action has been taken to date. The last annual report of this fund is 2016, forensic audits have revealed massive frauds, into earnings and savings by the working force of this country, and not a muscle has been moved; nothing has been done to date with regard to taking action on this.
I am highlighting this because the economic crisis that we are facing in this country is primarily due to corruption. And that is why the IMF in its report have said “there are corruption susceptibilities” and that is one of the challenges for the IMF in implementing their programme in this country. The President or the Finance Minister in his budget speech said that’ll be dealt with; the corruptions, but where? Nothing has been done.
The other issue is with regard to the office of the Attorney General, who advises the government, who appears on behalf of the government, who defends the government even when the Right to Information Commission orders the Central Bank to divulge certain information the Central Bank appeals, and the Attorney General appears. Now these are pubic funds, these are monies of people of this country. There is absolutely no transparency; evidently large scale corruption and fraud and all that is covered up by the government, by the Central Bank , by the EPF and by the Attorney General gives absolute sanction to cover it up.
Now with that background, how do we get out this economic crisis? The government pays lip service, but every action of the Government demonstrates the opposite. Earlier this morning the Hon. Anura Kumara Dissanayake cited the case of a Minster who asked an Ambassador for a bribe, that was reported, he was suspended from the cabinet, and he got a committee of his choice appointed which exonerated him. And he is back in the cabinet, now to add insult to injury that very minister has been appointed as the President’s nominee on the Constitutional Council which is supposed to appoint independent commissions – handpicked , handpicked because there is no one who is up to that mark, in the cabinet.
Now who has the brass to go and ask an Ambassador for a bribe? I suppose the other ministers are a little less corrupt. So you have to pick the most corrupt, to appoint to the Constitutional Council. You have a convicted extortionist as a Chief Government Whip. So how do we then tell either the IMF or anyone else that we are dealing with corruption? The Government has really no intention of doing any of that sorts, the President has no intention. Because these are President’s appointments, so you say one thing but you do just the opposite.
here is a book written by V.P.Vittachi – a small blue colour book, I have read some time ago on President Jayewardene’s conduct – its called “Sri Lanka – what went wrong?” And Mr. Vittachi coins a word and calls it “plonking”.
He says President Jayawardene will say “I am turning right” this is the right way to go – I am turning right, and he will turn left. All the while he will insist, while travelling. “no ,no I am travelling right” that is plonking. Now the incumbent President learnt his political lessons from President Jayewardene. And one wonders whether that is what he is now practising, saying “we are dealing with corruption” but doing the very opposite to what will eradicate corruption.
The Tamil National Alliance’s Parliamentary group met today, and we took certain decisions with regard to this budget. We have highlighted various shortcomings, matters that are contrary to the well-being of this country, Particularly the high percentage of allocation to the defence sector. The country’s economy is contracting. Various fundamental service sectors are contracting, are reducing. Whilst in the last two years the allocation for the defence sector has been increased by 12 %.
Now this is not salaries and recurrent expenditure that is necessary. You must only visit one of the camps to see the high life that go on there. To test it out I went with the President and had lunch at the Vavuniya Air Force camp. The lunch is of a standard that is higher than what you can get in a seven star hotel. Nothing has come down. No one wants to touch that. The ceramicware, the food, everything. Nobody wants to touch that. You tell the country 70 % of our people have dropped one meal. 50,000 children are in danger of malnutrition. Government may deny it. But those are the real facts, and you want to keep the military happy. You don’t want to upset them. So that you can suppress dissent, so you can suppress people who protest that they don’t have food to eat. Now all of this is there and at a time like this one would have expected a programme through this budget to lift this country out of the economic crisis and it is not there, so we are opposed to this budget.
But for one reason, we took a decision today not to cast our vote on opposition. That is due to the reason that the President has in the last couple of days repeatedly said that he is taking steps to resolve the long standing Tamil National Question. Although we are sceptical – it is not because we trust it, but we don’t want to be blamed for opposing a President when he says “I want to solve this, come let’s sit down and talk” so for that very reason, we will today not cast our vote against this budget.
The TNA’s position on Ranil Wickremesinghe
By Uditha Devapriya
A Budget vote usually shows which parties support the government and which do not. Barring the Dullas Alahapperuma faction, the SLPP voted en masse for the second reading of the recent Budget. Except for MPs like Duminda Dissanayake, the SLFP voted against it. Despite some ambivalent, vague remarks from its MPs, the SJB also voted against it, with Sajith Premadasa outlining alternative policies that this government has not bothered to consider, let alone debate and discuss. For a while, it seemed as though the minority parties, especially the Tamil ones, would follow. Yet they have refused to do so.
The rationale of the mainstream Tamil parties is interesting. In recent weeks, President Ranil Wickremesinghe has signalled his intention to resolve the National Question. Some of his more recent moves, including the establishment of a Northern Province Coordination Sub-Office of the Presidential Secretariat, suggest that he is utilising the National Question to win favour and support from these parties. The fact that he located the Sub-Office, not in the fertile Jaffna District, but in the poorer Vavuniya District, shows that he is conscious about the cosmetics of what he is doing. Indeed, at the opening ceremony he observed that the government is seeking a solution in the North “that is acceptable to all.”
The minority parties have reacted accordingly. Having originally criticised the Budget and resolved to vote against it, the Tamil National Alliance soon reversed course. The TNA’s M. A. Sumanthiran declared that they would not oppose the Budget, stating that the President had repeatedly said that he wants to resolve the National Question and that he had invited Tamil parties to discussions. Sumanthiran did admit that they had “publicly expressed our scepticism”, but added that “nevertheless, when there is a hand that is stretched out from the President himself, we thought we must reciprocate in some way.” The TNA later elected not to take part in the voting process for the second reading.
Sumanthiran justified his party’s stance on the basis that it was a “signal of our bona fide on this matter.” Tamil parties have consistently flagged reforms relating to devolution and regional development. It is only understandable that they should revise their earlier position when the country’s President signals his desire to resolve these matters.
President Wickremesinghe’s record on minority rights is by no means clear-cut. Yet for the TNA, he appears to be a better bet, and a better deal, than the Rajapaksas. The issue here, which the TNA may be aware of, is that Mr Wickremesinghe is heading a government that is dominated by a party belonging to a family which most minorities view with disfavour. The flip side to this argument is that President Wickremesinghe calls the shots, and as such he is in a position to enlist the support of the party, and that family, for reforms relating to ethnic grievances and minority rights. So long as they think that the President will implement these reforms, Tamil nationalist parties will support him, however cautiously.
The Tamil National Alliance has had a long and tenuous history with Ranil Wickremesinghe. On two occasions, in 2010 and 2014, it supported a candidate fronted by Wickremesinghe’s party, the UNP. On both occasions, Wickremesinghe declined to contest and supported a common opposition candidate against the incumbent. In 2010 the TNA supported the army commander who led the war against the LTTE. The party did not mind this, given that they viewed the Rajapaksas as the bigger evil. In 2015 the TNA supported one of Mahinda Rajapaksa’s former Ministers, despite that Minister claiming in international media that should he become president, he would not immediately phase out the army or remove army camps from the north and east. There too, the party followed a strategy of siding with its enemy’s enemy.
The TNA has very few objectives which it shares with other parties. It wants devolution of power, regional development, and radical constitutional and structural reforms. Among these reforms is one objective that tallies with the aims of liberal and left-liberal parties, the abolition of the Executive Presidency and its replacement by a parliamentary system. This, too, the TNA views as crucial to its objective of greater devolution: once the Presidency is abolished in toto, so the reasoning goes, it will become easier to devolve more powers to the periphery. It helps that the UNP’s willingness to capitulate to these demands over the last quarter-century, since 1999, has turned the TNA into a cautious partner.
This is despite the UNP’s less than stellar record on ethnic relations. Certainly, as the recent election of a second-generation Indian immigrant as British Prime Minister shows that ethnic politics, however progressive it may be, can often camouflage class issues. That is what we are seeing here today. Other Tamil political formations have demarcated the TNA, and like-minded parties, as regressive and reactionary. The excuse that the TNA have trotted out for their past choices – such as their support for Sarath Fonseka – that they prefer the lesser evil, pales away when you consider that, when it comes to the political establishment in Sri Lanka and its record on minorities, there has never been a lesser evil.
I think the Tamil Left, and more so the Indian Marxist Left, were more prescient in these matters than bourgeois Tamil parties. Even Left parties like the LSSP got most of it right in their analysis of the upsurge of Tamil nationalist sentiment in the 1970s: their argument basically was that if they were not anchored in class politics, such sentiments would soon evolve into fascistic movements. This is what the LTTE eventually became: as The Economist put it, they were for all intents and purposes “classically fascist.” That these parties today prefer right-wing, neoliberal outfits to centre-left and social democratic alternatives shows that they are yet to escape their past. In that sense, their recent moves vis-à-vis the Budget, and President Wickremesinghe, reveals that they have a long way to go.
The buck doesn’t stop there, however. For decades, the TNA, together with sections of civil society, the liberal and left-liberal intelligentsia, and sections of the New Left, have dabbled in tinkering with the Constitution. The reforms they have proposed, such as the abolition of the Executive Presidency, have provoked predictable nationalist opprobrium, but also more thoughtful and constructive responses elsewhere. My criticism of these proposals generally tallies with those latter responses: I understand where calls for these reforms come from, but firmly believe they are not only impractical given the geopolitical situation we are in, but also not an urgent imperative for the country’s democratisation.
Indeed, if the recent electoral Pink tides in Mexico, Peru, Colombia, and Brazil should tell us anything, it’s that reforms should first address economic grievances before engaging in broader political and constitutional changes. At the end of the day, the National Question in Sri Lanka is an eminently economic one. If we are to consider it, address it, and resolve it constructively, we need to assess its material dimensions better. And yet, barring relentless talk of devolution and the abolition of the presidency, there has been very little discussion about, say, spurring industrialisation and manufacturing, or achieving growth with equity (the Premadasa paradigm) in the north and east.
It’s not the Tamil parties only, of course. The New Left’s actions, especially its isolationist tactics, are problematic too. But while the JVP and the FSP have declared that they want to walk it out alone, the TNA has, over the years, built a reputation for band-wagoning with right-wing parties which have failed to deliver any benefits for the country or its minorities. As Dr Dayan Jayatilleka has note in a recent essay, Marxist Tamil politicians, from Comrade Sanmugathasan to Pathmanabha, warned against allying with reactionary and pro-Western parties. But this is precisely what the TNA has been doing for the last quarter-century, going as far as to oppose the People’s Alliance government, despite the many ambitious reforms it proposed, like the merger of the North and East, in deference to the UNP.
To be fair by the TNA, its MPs have unequivocally stated that they will not support the government if it does not deliver on its promises. Yes, it seems something of a stretch to think that the present political setup is conducive to the reforms that minority parties want. Nevertheless, even if we grant that the SLPP and the UNP are sincere in their desire to address and engage with minority grievances, the TNA should know that the resolution of those grievances, relevant as they are to the resolution of Sri Lanka’s National Question, is by itself not enough. Whatever constitutional reform package the government has, even if it appeases minority parties, needs to be buttressed by cohesive, inclusive, and progressive economic policies. Whether the government has such policies in place remains to be seen. Its actions over the last few months suggest that it does not.
The writer is an international relations analyst, researcher, and columnist who can be reached at email@example.com
Only a temporary reprieve
The Supreme Court’s determination on the constitutionality of the Bureau of Rehabilitation Bill
By Ambika Satkunanathan
The Supreme Court’s determination on the constitutionality of the Bureau of Rehabilitation Bill was met with relief last week. While the determination affirms many fundamental principles and constitutional protections, it provides only a temporary reprieve. Human rights activists and legislators who are concerned about the state’s attempts to restrict human rights through laws and institutions should maintain vigilance with regard to this proposed law.
The submissions of the Deputy Solicitor General reveal the government’s thinking on this issue; it exhibits contempt for basic legislative principles and highlight the absence of evidence based policy making that has the well being of the public at its core.
The Supreme Court, in no uncertain terms, found that vague provisions in the proposed law prevent the public from understanding the ambit of the law and stated that if government authorities are “cloaked with power under vague provisions” it can lead to arbitrary action since the officials themselves will not know the extent of their powers.
In response to the Deputy Solicitor General’s submission that the court should consider the provisions as they exist and not speculate whether the law can result in an arbitrary exercise of power during implementation, the court affirmed it has jurisdiction to consider the threat of potential abuse of proposed laws. The court stated it does not have to await actual or imminent infringements by the implementation of the law if the concerns are based on “plausible possibilities”.
At a time when the government is weaponizing the law to restrict fundamental rights, the importance of these assertions by the court, which reiterate that law is made for the public, and hence the public should be able to understand the extent of its application, cannot be overstated.The government justified the (over) broad definitions in the proposed law on the basis it was not possible to be specific because the rehabilitation provided would depend on the category of persons to whom it was being provided. This illustrates the government had little or no idea about who was to be rehabilitation or how when it drafted the law.
The court did not accept the Deputy Solicitor General’s argument that future specific laws would define the category of persons who could be subject to rehabilitation, and said that would be a “dangerous route” to take, thereby recognizing the need for certainty in the ambit of the law.
The government’s claim it will draft laws in the future to specify who will be rehabilitated sounds disingenuous because even at present, there are laws that the government can utilize to send persons to rehabilitation such as regulations issued under the Prevention of Terrorism Act for the rehabilitation of former LTTE combatants.
A few critical issues however remain unresolved even following the Supreme Court’s determination. Although the court examined whether the provisions of the Bill are clear and whether there are adequate safeguards “for the achievement of the objective of the Bill” to prevent arbitrariness in the decision making process, the objectives themselves are problematic.
For instance, the cabinet memorandum on the Bill, which the court referred to and seemed to accept, proposes (compulsory) rehabilitation instead of imprisonment. Yet the reality is that where drug dependent persons are concerned, neither method leads to impactful outcomes. The cabinet memorandum further presents (compulsory) rehabilitation as a solution to prison overcrowding.
In reality, the solution that will lead to meaningful outcomes is the decriminalization of personal drug use and treating it as a health issue by providing voluntary, community-based solutions; not the establishment of more places of detention at which human rights can be violated.
The court states that the Bill’s inconsistency with the constitution shall cease if references to ex-combatants, violent extreme groups and “any other group of persons” are deleted, and Bill is limited to “drug dependent persons” and “such other persons as may be identified by law”. The court proceeds to accept that consent to rehabilitation must be without “duress, coercion or undue influence” and not as “an alternative to protracted remand”. Yet, at the same time, it accepts a contrary position, i.e. that (compulsory) rehabilitation (without consent) is possible through a judicial order.
Globally, including in Sri Lanka, evidence shows that compulsory rehabilitation is counter-productive and leads to quicker relapse. Further, compulsory rehabilitation contravenes human rights standards. It is due to this reason, the UN has repeatedly called upon countries to cease compulsory rehabilitation. The violation of fundamental rights during compulsory rehabilitation is hence not a “fanciful hypothesis” as there is documented evidence to that effect, especially at the military run centers at Kandakadu and Senapura.
The court also does not recognize right of a drug dependent person to leave treatment whenever they choose. Instead, the court says that steps have to be taken to apprehend persons leaving without authorization. Moreover, the court states that the issue of leaving rehabilitation when a person wishes has to be dealt with in regulations issued under the law.
However, if rehabilitation is not punitive, as claimed by the state, persons should be able to enter and leave rehabilitation voluntarily and any law enacted should be only to regulate the functioning of such centers to ensure they adhere to standards related to conditions, maintenance of records and confidentiality, much like the regulation of private healthcare providers.
While the court cannot rule on existing laws, it’s view that the current law dealing with drug dependent persons, i.e. the Drug Dependent Persons (Rehabilitation and Treatment) Act, provides curative means to deal with drug dependence does not align with evidence. Both in principle and practice, the current law is punitive, not curative. The abusive nature of the current law has to be studied in the context of proposed amendments to the Poisons, Opium and Dangerous Drugs Ordinance as well, because it expands the powers of the police and empowers them to refer a person to rehabilitation bypassing a judicial process.
This illustrates the state’s insidious attempt to extend its abusive tentacles, which the court has found to be unconstitutional. Simply put, if rehabilitation is voluntary, there is no need to empower the bureau to rehabilitate drug dependent persons. All that is required is for the government to dedicate resources to establishing centers, as well as ensure that existing centers adhere to human rights standards. Any law drafted to enable this would have to focus on the standards to which the centers have to adhere to ensure the rights of persons entering treatment voluntarily are protected.
The state has proposed the inclusion of once a month visits by the magistrate to the rehabilitation centers as a protection against torture. While this appears progressive, in practice, given the everyday nature of violence at the military run centers in particular, a monthly visit will do little to arrest deeply entrenched abuse.
Further, the purpose of law and processes should be to prevent abuse, rather than only to detect and address it after the abuse has taken place. Although the proposed new section also requires the magistrate to refer the case to the Inspector General of Police to commence an investigation into any cases of alleged torture, the historical failure to hold the police accountable and entrenched impunity raise grave doubts whether this will be adequate protection in practice.
The court reiterates there can be no derogation from the protection against torture enshrined in the constitution. Nevertheless, at the same time, it allows the provision that permits the use of minimum force to compel a person to obey lawful orders to remain intact. Since a person who is drug dependent will not be able to perform many functions during the withdrawal process due to physical and psychological changes they experience, this provision will allow the use of force for behaviour that is normal and to be expected during a withdrawal process.
This provision hence undermines the protection against torture guaranteed in the constitution. Additionally, the denial of evidence based and effective treatment options, such as harm reduction, and instead forcing persons to perform labour, may constitute inhuman treatment according to international human rights standards.
The cabinet memorandum on the Bill does not set out the empirical evidence on which the Bill is based. Nor did the Deputy Solicitor General make submissions in this regard. The result of disregard for evidence based policy making leads to the adoption of regressive positions on rehabilitation, such as labelling persons undergoing rehabilitation as persons with disabilities, which the court rightly states is inappropriate.
Interestingly, the Deputy Solicitor General submitted that the decision to involve the military in rehabilitation is a matter of policy and hence not within the purview of the court. The court found that since the cabinet memorandum on the Bill does not mention the involvement of the military, the Bill is not in line with the policy objective set out in the memo. The court further pointed out the lack of clarity regarding military involvement, i.e., are they employees of the bureau, will the same disciplinary procedures apply to them? It is pertinent to note that through its argument to defend the involvement of the military in rehabilitation, the government has acknowledged that militarization is a government policy.
The Bureau of Rehabilitation Bill is just one building block in the state’s attempt to label certain social groups deviant, criminalize them based on their status/identity, use the law to arbitrarily detain them and subject them to a process of supposed rehabilitation. This process is militarized and will result in grave human rights violations. Though containing many positive elements, the Supreme Court’s determination still leaves room for the proposed law to be used in relation to persons considered drug dependent persons, as it contains many provisions that will result in grave human rights abuses.(Groundviews)
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