Connect with us

Features

Security and freedom:

Published

on

Minister of Justice Harshana Nanayakkara speaking in Parliament. (File photo)

Counter Terrorism Legislation in Sri Lanka

By Professor
G. L. Peiris
D. Phil. (Oxford), Ph. D. (Sri Lanka);

Rhodes Scholar, Quondam Visiting Fellow of the Universities of Oxford, Cambridge and London; Former Vice-Chancellor and Emeritus Professor of Law of the University of Colombo.

Civilisations since the dawn of history have engaged in search for the right balance between security and liberty — both elemental needs of society through dramatically changing conditions and priorities.

The Minister of Justice, Mr. Harshana Nanayakkara, announced last week the appointment of a Committee headed by Mr. Rienzie Arsecularatne, PC, to undertake a review of the current law, to assess proposals for reform over the decades and to recommend the content of an appropriate statutory regime.

On the conceptual plane, several approaches are possible.

I. Adequacy of the General Law

It is an arguable proposition that the general law suffices as the framework of an effective apparatus for security, any special legislation being not only unnecessary but harmful.

In the decades prior to 1979, Sri Lanka, without recourse to any special legal regime, was able to withstand crises including a military coup and a widespread insurrection involving armed attacks on police stations lslandwide. In its report of February 2022, the Law Commission of Sri Lanka was emphatic in its insistence that terrorism, in its multiple manifestations, should continue to be dealt with under the general law.

II. A Special Statutory Regime

The Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979, was enacted experimentally for the brief period of 6 months. Ironically, it has survived for 46 years. An integral part of our legal system today, it has invited harsh condemnation: “It was abused from day one, because the very provisions in the Act are for abuse, not to prevent terrorism.” (Mr. M. A. Sumanthiran, Hansard of 22 March 2022, Column 804).

Negative appraisal of this law has been prompted by generous scope for onslaught on fundamental values of a democratic society. Among the dangers are laxity encouraged in the investigation process, intrigue and corruption among officials of intelligence agencies intent on self-advancement, resort to impunity even to the extent of condoning torture, and alarming use of its provisions against media personnel, civil society activists and others for extraneous purposes.

The criticism is not unfair that the manner of its application contributed to impairment of harmony among ethnic, religious and cultural communities and powerfully impeded the emergence of a national consciousness.

While this was a disastrous consequence domestically, external dimensions have been no less disquieting. These impinge on the nation’s solidarity and stability, collective initiatives towards economic advancement and deep-seated cynicism regarding commitment to universally acknowledged human rights.

This was seen to inflict grave jeopardy on Sr Lanka’s vital interests in the fields of trade, investment and tourism. In Brussels, the continuity of GSP+ benefits, enabling access for the country’s exports to the vast markets of the European Union, came under threat. In Geneva, the Human Rights Council, in contentious proceedings, approved the setting up of a uniquely intrusive mechanism to target the human rights situation in Sri Lanka.

As these circumstances deteriorated, it seemed prudent to focus on the more serious infirmities and to expunge them as a matter of urgency.

III. Enactment of Amending Legislation

This task was undertaken in 2022.As Minister of Foreign Affairs at the time, I presented to Parliament, with the fullest support of the President and the Cabinet, a series of amendments designed to make the law more compliant with a civil and political rights culture.

(i) An egregious weakness of the existing law was the unjustifiably long period of imprisonment consequent on a Detention Order.

There were instances of an interval as long as 6 to 9 months between one date of trial and the next. This was remedied by clear provision that “Every trial under this Act shall be held on a day to day basis” (Section 8). Any departure had to be justified by compelling reasons.

(ii) Flagrant abuse was sought to be controlled by a series of mandatory safeguards which included a certified copy of the detention order being furnished to the Magistrate of the area within 48 hours (Section 3); a non-delegable duty imposed on the Magistrate to visit the detainee at least once a month to ensure absence of torture or maltreatment (Section 13); and provision for a report by a Judicial Medical Officer to be forwarded to the Inspector General of Police and the Attorney-General, with a view to criminal proceedings, where appropriate (Section 6 (ID)).

(iii) In the previous law access to Counsel as a legal entitlement was confined to judicial proceedings (Section 260 of the Criminal Procedure Code). This gap, entailing considerable vulnerability, was filled by explicit provision guaranteeing the right to Counsel during the police interrogation (Section 5).

(iv) In addition to Counsel, communication with family or close relatives was also ensured (Section 5).

(v) Unlike the earlier law which required mandatory remand of a detainee until conclusion of the trial, the amending legislation specifically conferred on the Court of Appeal jurisdiction to enlarge the detainee on bail after 12 months (Section 10).

(vi) There was, as well, a significant expansion of judicial review as a check on arbitrary or capricious administrative action. In contrast with the ouster clause contained in the pre-existing law, the door was explicitly opened to judicial challenge in Fundamental Rights, writs and habeas corpus proceedings (Section 4).

(vii) Power conferred on the Executive to prevent a detainee from making any communication – which had a potentially chilling effect on the media in particular – was not merely whittled down but removed entirely. (Section 7)

(viii) The ambit of protection was appreciably enhanced by widening the definition of “torture” to bring it in line with contemporary developments deriving from international experience (Section 13).

IV. A Necessary Qualification

In presenting these amendments to Parliament, I candidly conceded that the solution proffered was provisional in character, pending overhaul of the entire statutory regime and its replacement by new legislation. This task, daunting in its challenge, was undertaken in collaboration by all relevant Ministries of Government, with active inputs by the Attorney-General, the Defence Secretary, the Inspector General of Police and Heads of the Armed Forces. This work was already under way.

A practical point of view, it seemed, was that the best should not be made the enemy of the good: my plea to colleagues was that a set of amendments, salutary in their impact for the time being, should not be jettisoned in cavalier fashion in pursuit of the ideal.

Parliament enacted the amendments into law by a majority of 86 against 35 votes.

V. The Future Path of Reform

The quest for a more satisfying version of the law was motivated by resolve to deal with the remaining deficiencies.

(a) The most striking of these blemishes was one which violated the very substance of criminal justice by infringing such seminal principles as the constitutionally entrenched presumption of innocence, the privilege against self-incrimination and established rules governing the burden of proof.

The offending provision enabled the reception in evidence of confessions made by a detainee to a police officer not below the rank of an Assistant Superintendent of Police (Section 16 (i)). This introduced the very real danger of wrongful convictions based on coerced confessions.

This indefensible peril, unfortunately, could not be removed because of strong resistance by defence authorities on the ground of overriding security concerns.

(b) Regarding the duration of custody under a detention order, on account of divergence of opinion which could not be reconciled, the maximum reduction which could be effected was from 18 to 12 months — the resulting mitigation still inadequate without proper judicial oversight.

(c) A conflict of jurisdictions brought about the inexcusable anomaly that, even where the Court of Appeal had granted bail, the Hight Court – lower in the judicial hierarchy – continued to be empowered to order remand.

Since these anomalies could not be expunged at the time, I took the initiative, with full concurrence of President Gotabhaya Rajapaksa, to give a solemn undertaking to the Human Rights Council in Geneva in March 2022, that a moratorium would be imposed on use of the PTA until the new, promised legislation comes into effect. It is much to be regretted that this assurance received short shrift after the change of government later that year.

VI. An Aborted Attempt

Based on conviction of the need for a completely new point of departure, a Counter Terrorism Bill was drafted and gazetted in October 2018.

The high watermark of authoritarianism, the repugnant features of the Bill included a grotesquely overbroad definition of terrorism (Section 3); compulsory programmes of rehabilitation as a condition of deferment of indictments (Section 72); authority conferred on the Executive to make ‘Proscription Orders’ incompatible with fundamental rights (Section 81); ‘Restriction Orders’ purporting to prevent, inter alia,”travelling outside the normal route between the place of residence and the place of employment” (Section 82); Orders relating to ‘Prohibited Spaces’ preventing journalists and others from “taking photographs., video recording and making sketches” (Section 84); and such vague criteria as “the impact on peaceful coexistence of the people of Sri Lanka” (Section 87) as factors aggravating the severity of a sentence.

Unsurprisingly, the proposed legislation failed to make any progress towards enactment.

VII. The Way Forward

In his intervention in the Debate in Parliament in March 2022 on the PTA Amendments, the current Foreign Minister, Mr. Vijitha Herath, then speaking from the ranks of the Opposition, strongly advocated wholesale repeal of the PTA, which he characterised as unreservedly evil. This is in line with the announcement a few day ago by the Minister of Justice that the Government is committed to the early enactment of entirely new legislation in place of the existing Act.

A useful word of caution relates to futility of reinventing the wheel. A profusion of material already in existence makes it superfluous to add yet another leaf to the thicket. The Law Commission Report compiled by three eminent President’s Counsel – Mr. Romesh de Silva, Mr. Sanjeewa Jayawardena and Mr. Manohara de Silva – has received less attention than it warrants.

It is vital to appreciate that upgrading and modernising the law is only one component of the overall effort required. No law, however sound, will accomplish its objective unless it is accompanied by an honest attempt to further professionalise the intelligence services and to provide systematic training, access to technology and connectivity with institutions around the world.



Continue Reading
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Features

As superpower America falls into chaos, being small is beautiful for Sri Lanka

Published

on

Donald Trump and Elon Musk

by Rajan Philips

“You may not be interested in the world order-but it is interested in you,” opines The Economist in its latest lead editorial, entitled “Dealing with the Don.” It is about America’s new Godfather, aka Don Corleone, aka Donald Trump, and the blitzkrieg beginning of his second presidential term that is causing, what the editorial calls, “the rupture of the post-1945 order.” It may be that the post 1945 order has run its course and needs a radical overhaul. But not for the reasons that seem to be motivating President Trump, and certainly not for whatever endgame he has in his mercurial mind. More than anything, in his second term Trump is presiding over America’s implosion into chaos and its spillover onto the world at large. It is super power devolving into super chaos.

Whether or not the world order is interested in Sri Lanka, the island country is in a fortuitously good place while other countries and polities are caught up in one way or another in the global waves emanating from the American vortex. Being small as island countries go, to recall Bishop Lakshaman Wickremesinghe’s felicitous phrase, has its benefits. There was a time, in the 1970s, when Ernst Friedrich Schumacher visited Sri Lanka touting his new, and over time very popular, book, “Small Is Beautiful: Economics As If People Mattered,” which included a chapter on “Buddhist Economics;” the island’s socialist intellectuals quietly laughed at him.

But the concept – small is beautiful – struck a chord in more ways and places than one. It strikes for Sri Lanka now quite meaningfully as people in bigger countries are struggling to make sense of Trump and to avoid being hit by debris from his erratic executive orders. Sri Lanka has had its ordeals – too severe and too many of them, in fact, for its size and endowments. Yet after a tumultuous overthrow of a government that had gone awry, the people have helped themselves to a new government that for all its innocence in governance is a perfect fit for a small country caught in the topsy turvy world of Donald Trump. For all its shortcomings, the NPP government has shown a remarkable restraint in the rhetoric of foreign policy, a temptation that almost none of its predecessors were able to resist. It is wise to be non-aligned without the rhetoric of non-alignment.

It could also be argued that there is nothing remarkable about showing restraint to Trump, because every government in the world is showing not merely restraint but are even faking deference to avoid the pain of whiplash Trump tariffs. It does not matter whether you are neighbours like Canada and Mexico, or if you are separated by oceans, like China and India. Europe is picked on with disdain. Africa is irrelevant and the Middle East could be managed with the Israeli military doing Washington’s bidding. Only Russia is spared, with inexplicable deference shown to Vladimir Putin. Only China has simply said that it is ready for any war, trade or any other, that Trump might be fancying.

White House or Fight House

The first leader of any other country not to fake deference to Trump and not fail to call out his Vice President, the insufferable JD Vance, is Ukrainian President Volodymyr Zelensky. He paid the price for it by being bundled out of the White House last Friday. Taking turns to insult and humiliate their Ukrainian guest, the American President and Vice President accused Zelensky of being disrespectful and ungrateful to their country while also accusing him of showing a preference for the Biden Admisnistration. Contentious meetings using colourful language do take place between word leaders and their teams, but they are always behind closed doors and spicy details come out years later in retirement memoirs for historical amusement. What happened in Washington last Friday was unprecedented; but, true to form, Trump called it “good for TV” – the be-all and end-all of his persona.

As usual, Trump’s Republican loyalists have been praising their fearless leader and his VP for standing up for their country, as if America needs some standing up to the beleaguered leader of a battered country. Trump’s main pique against Zelensky was the latter’s first refusal to sign a ransom agreement bartering away in perpetuity Ukraine’s critical minerals for half a billion dollars without any assurance for Ukraine’s security. A modified agreement was then drafted and Zelinsky flew to Washington for its signing last Friday. But things went off script as Zelensky chose to speak his mind. A return visit is now being planned for next week, with Zelensky going to Washington accompanied by French President Macron and British Prime Minister Starmer to show respect to the Don.

The Economist sees a new hierarchy in a new world order that are in the making. Number one, apparently, is America. The second tier below belongs to countries with resource endowments and unaccountable leaders – Russia, China, and Saudi Arabia. And the third rung goes to the old West of Europe and erstwhile American allies and longstanding neighbours like Canada. The unmentioned are the rest even though India looms from the shadows, too populous to ignore.

Sri Lanka can stay where it is unseen and hopefully untouched by reciprocal tariffs. And the opposition can make noise for the recall of the current Ambassador from Colombo to Washington. That will eventually happen but not due to any local political noises. The UNHRC like all of UN might be in a quandary. But the Council is going through the motions in Geneva and the government is playing its part. The real answer to the proceedings in Geneva could and should come out of genuine changes at home. A systematic and retroactive crack down to eradicate the country’s criminal infrastructure, and nationally inspired political change whether it comes through Clean Sri Lanka or a New Constitution, or both.

Trump’s Achilles Heels

There is also a new hierarchy in the making within America, and that could ultimately prove to be the Achilles heel of the Trump presidency. The world can only watch and wait. At the top are President Trump and First Buddy Musk. The hegemon and the henchman. There are cracks yet between the two, but few checks are emerging. After weeks of nonstop savaging of the US institutions of government and foreign aid by Elon Musk and his handful of laptop storm troopers going by the name of the Department of Government Efficiency (DOGE), there are signs of slowdown and rethinking. Not surprisingly.

Achieving efficiency in government is always a necessary and laudable goal. President Clinton eliminated about 400,000 jobs during his presidency, but that took several months of effort and selectivity spearheaded by Vice President Al Gore. Not some buddy like Musk. Musk’s method is to be random and reckless, and that has created chaos and the need to recall retrenched employees in essential services. A second reason for the slowdown is growing judicial restiveness towards Musk’s operations.

In a small but not insignificant setback to the Administration, the Supreme Cout by a 5-4 majority sided with a Federal District Judge who had ordered the Trump Administration to lift the funding freeze on USAID operations that Trump had imposed on his very first day in office. The judge’s order was for the government to pay for projects and contractors whose work had been completed, and payment approved, before Trump assumed office.

The constitutional question as to whether Trump has the authority to override laws and disband institutions like the USAID, just on an executive whim, is still being battled in lower federal courts. The Trump team’s expectation is to let the cases go to the Supreme Court and ultimately get a favourable verdict from highest court with its 6-3 conservative majority.

The setback this week was on an appeal that Trump rushed to have the Supreme Court stop the lower court order to make payment for completed work some of which involved humanitarian relief operations. Delayed payments and non-payment to subcontractors has been Trump’s modus operandi in his real estate business. Musk did that with employees at Twitter before he turned it into X. They were extending their method to government’s contractual payments.

The case drew attention with Oxfam that gets no money from USAID, joining other agency plaintiffs against the government cuts. A remarkable nugget about the case is the District Judge who ordered the government to pay for completed work. His name is Amir Ali, a 40 year old Arab-Canadian-American. Born in Kingston, Canada, he completed a degree in Software Engineering at the University of Waterloo, and went on to do Law at Harvard. He made a quick name as a civil rights and constitutional lawyer, winning over half dozen cases he argued before the Supreme Court, and winning over even conservative judges.

Obviously, Ali and other judges who are ruling against Trump have got their detractors and their share of threats. That reportedly includes a reportedly racist taunt by Musk that Ali should be doing software engineering instead of helping non-existent NGOs receiving government payments. That is America. There is room for Amir Ali just as there is room for Elon Musk. Who prevails depends on the day of the week. Literally, for as Canadian Prime Minister Justin Trudeau said, when asked by a reporter about his handling his battles with Trump over tariffs, “It’s Thursday!”

Tariffs are another area where Trump is mercurially insistent but is being forced to reverse course from one day to another. He arbitrarily imposed a flat 25% tariffs on all imports from Canada and Mexico, in addition to further taxes on steel and aluminum imports. All in clear violation of the free trade agreement between the three countries, which Trump renegotiated and signed on during his first term.

Prime Minister Trudeau called Trump’s tariffs a trade war that is aimed to cripple the Canadian economy and ultimately achieve the annexation of Canada as the 51st state of America. Trump has been obsessively musing about annexing Canada ever since he started his second term, in addition to his musings over Gaza, Greenland and the Panama Canal. But the annexation talk has riled up Canadians across the political spectrum and at every social level.

The federal and provincial governments in Canada are all on board for retaliatory tariffs against American goods until Trump removes the tariff threat altogether. And the Canadian public is gung ho about boycotting American goods and ceasing travel to America as tourists. The Trump Administration may not have quite expected the Canadian backlash, which comes on top of market turbulence and investor panic within America. The upshot has been almost daily announcement of tariffs and their withdrawals the next day – with a face saving pause until a future date.

There is no one actually in support of tariffs, in America or anywhere, except Trump himself. His cabinet of lackeys have no backbone to tell him what they really think about the idea, and so they are left to soften the blow by securing postponements from the Don. April 2 is the next date to watch for universally reciprocal tariffs that Trump has so far threatened to impose against all countries. Sri Lanka will have to be watchful, but there is still too much time left for Trump to change his mind multiple times. There is no point on betting on what he is going to do next. It is better to enjoy being small and not caught in the crossfire.

Continue Reading

Features

The JVP insurrection of 1971 as I saw it as GA Ampara

Published

on

(Excerpted from Rendering Unto Caesar, by Bradman Weerakoon)

In April 1971, there occurred the JVP insurrection which assumed significant proportions in the Ampara district. Rohana Wijeweera, the leader of the JVP at the time, had been arrested in Ampara, at the bus-stand a few months earlier and was in remand in far-away Jaffna. However, the cells he had initiated in the district schools, specially those with selected teachers and some of the best of the senior students continued to thrive — in Ampara those following science subjects were very active specially in the predominantly Sinhala areas.

On the night of April 4, 1971, the police station at Uhana — five miles away from where we lived — was attacked by a band of JVP militants. Shooting and grenade throwing had continued on both sides for or about two hours and some policemen suffered injuries. One JVP cadre had been killed and the police had seen others who were injured being carried away by the raiding party. As soon as the news was conveyed to me at daybreak, I motored up to Uhana and had my first sight of a dead militant.

He was a strong, strapping lad of about 20 years, dressed in a dark blue uniform. His body was still lying on the lawn of the police station grounds awaiting the post mortem. It had not been moved, and the weapon – a .303 rifle was lying by his side. His Che Guvera blue cap had fallen off and blood from the bullet hole in his forehead stained his face. I would never forget my first sight of the encounter of young militant against the state.

The police reacted very effectively in raiding the JVP hideouts in the jungles and I saw a group of captured students and a science teacher at the Maha Vidyalaya in Ampara being brought into the kachcheri cowering in the police jeep. The ‘boys’ had been camping out in the forest for a few days and appeared very dispirited and downcast having been badly assaulted.

Down towards the bottom of the district on the Moneragala border, a local JVP leader had set himself up as ‘Siyambalanduwa Castro’. His forte was the hijacking of government lorries laden with produce from the Eastern province bound for Badulla. Bags of rice and coconuts from Akkaraipattu were the main items of his brigandry. Soon, I had one of the cooperative department lorry drivers producing to me an official-looking receipt duly signed and sealed by ‘Castro’ which declared that the JVP had taken the twenty bags of rice being carried in lorry number such and such. It stated that the bags had been requisitioned at a time of emergency and acute food shortage for distribution to the poor. The driver should not be held responsible for any loss.

I gave the benefit of doubt to the lorry driver and absolved him from causing any loss to the state. I kept Castro’s receipt with me for a while as a memento of those stirring days of the beginning of the movement for the liberation of the poor of Uva.

The counter-action against the JVP uprising was intensive for the first month or so. Then in the month of May, there came an amnesty in which many thousands of young men and women surrendered. They were incarcerated, several, for quite some time. Many stories were later circulated about the number of young persons killed and the methods used by the military and the police in extracting information. My office and home became a place where anxious parents came to relate their tales of woe.

One morning, I was awakened by the sounds of heavy sobbing outside my gate. It was Jayawickrema of Uhana, whose house was a few yards away from the police station that had been attacked. He said his young son, Mihira, aged 23 had been taken in for questioning by the police and had been assaulted throughout the night. Jayawickrema had gone to the station and spoken to Weerasena, the OIC, who he knew well, but the OIC had denied that Mihira was taken in.

Later Jayawickrema found out that his son and three other boys had been taken away in a van to Batticaloa. I had the story inquired into and found that young Jayawickrema had indeed been taken in, beaten up badly and taken to the Batticaloa Hospital. On the way he had succumbed to his severe injuries. He had thereafter, been cremated in the Batticaloa cemetery. Old Jayawickrema was completely devastated and consoling him proved exceedingly difficult. He remained a constant friend until he passed away a few years ago.

Other stories also began to come from the colonies about police brutality. One that was particularly haunting was that of a group of youngsters from the 26 Colony shot in the presence of others as an example of what would be the fate of those who rebelled against the state. One of the mothers, whom we also began to know quite well, lost her mind on the death of her two sons and spent most of her time thereafter around the Buddangala Arannya where we used to meet her.

Once those who had surrendered came in, I was asked to find accommodation for about a thousand of them in Ampara. The only available site I had was the Malwatte Farm which was five miles away on the road to Samanthurai. I had earlier denuded the farm of all its goats and poultry, having to cater to the insatiable demands of the police for meat, when supplies stopped coming in from outside.

I sought authority from no one for my actions in dealing with an emergency but was certain I could adequately explain this to the government audit, if ever that were to arise. I remembered that Sir Oliver Goonetillake, when he was the Civil Defence Commissioner in war time, had done all manner of similar things and had had apparently 999 audit queries against him. I thought that if he could get away with it and yet go on to become governor-general, what had I to worry about?

We turned Malwatte Farm into a really effective rehabilitation center. Of course, the camp was heavily guarded and encircled with barbed wire and sentry points and looked like something out of an album of a prison camp in World War 11. But I was determined to make the inmates feel that they were to be rehabilitated and not imprisoned. I got them gifts of sports equipment and books from the local Rotary Club and some reconditioned two-wheel tractors from the department of agriculture which, along with the farm equipment, the boys began to use for their work on the farm. I used to drop by as often as I could to chat with them along with Esala, my 10-year-old son who became quite a favourite with the `boys’ since he was, as they said, the GA’s son and not the ASP’S son.

One day the camp inmates approached me and inquired if they could have a monk to visit them preferably on a Poya Day as some of them wanted to observe ‘sil’. This, I thought was such a good idea, that I prevailed upon the Nayake Priest of the Ampara Temple to come along with me to the camp and give a sermon to the inmates. It was a wonderful occasion when on that full moon night of Poson, the camp took on a most peaceful appearance and the boys used their bed sheets sewn together as ‘pavada’ which they laid for the priest to walk on to the platform from which he delivered a very appropriate sermon.

The atmosphere and the faces of the devout young men were indescribable. During that whole year there was only one case of a break out, when one night, a group of four boys had tunneled their way under the barbed wire fence and got away under the noses of the sentries.

Ampara Gets a CO

After the initial shock of the attack on the Uhana police station had been withstood and the police had mobilized their own defences however inadequately, the government imposed a coordinating officer for the district. He was a young Lieutenant Commander, Fernando, of the Navy who wanted to make a big impression. He migrated to Australia soon after his Ampara assignment. The coordinating officer had his own methods of imposing his leadership over me.

He set himself up at the Kondawattuwan Circuit Bungalow and had it ringed round by several concentric circles of armed sentries. It was very impressive. Consequently, it was quite an effort even to pay a call on him. I was received with great formality and courtesy but made to undergo quite an ordeal entering his fortress. My official driver, poor Weerasekera, was made to halt the car at least a 100 yards away from the entrance and wa1k.30 paces with his hands raised high above his head. It was only on his completely satisfying the sentries that he was indeed the driver of the GA that we were able to proceed inside. All this after informing them of my time of arrival in advance!

My own defence tactics were much more primitive. All I had were my faithful kachcheri staff officers: Piyadasa Liyanaarachi, U G Jayasinghe, Lakshman Perera, S B Niyangoda, A P Dainis, and the late Ananda Herath. They were duly mobilized and served with distinction as my personal bodyguards and doing night duty protecting the residency, smartly dressed in multi-coloured sarong and short-sleeved banian.

Damayanthi was persuaded to accommodate them, some on beds and some on camp cots, and feed us all for about three weeks at the residency. They provided great companionship and some much-needed good humour during a time of danger. Padmaseela de Silva — one of the braver ones — volunteered to act as the outdoor watchman choosing as a look-out point the hood of the balcony, which was, as he himself made out, both safe and from where he could not be seen. Everything went well for a couple of nights until Dainis going out for a ‘call of nature’ early one morning heard sounds of loud snoring. He discovered it came from Padmaseela, fast asleep and with his ancient 12 bore shot-gun, recently borrowed from the kachcheri, lying snugly by his side.

Continue Reading

Features

HAVE YOU EVER EVEN BEEN TO NEPAL?

Published

on

Terraced fields in Nepal

(Excerpted from Fallen Leaves, an anthology of memoirs by LC Arulpragasam)

In 1962, I joined FAO as the Land Tenure Officer in its Regional Office in Bangkok. Within six months I was told that I would be sacked within a week unless I retracted a certain position that I had taken on land reform in Nepal. This is the story.

The Government of Nepal had passed a tenancy reform law in 1962, based on the advice of the Ford Foundation (USA). The law provided for security of tenure along with reduced rents for tenants of agricultural land. Its provisions were roughly in the following terms. Whoever is a tenant of an agricultural land on a specified date (x) will have permanent rights of tenancy. Such a tenant cannot be evicted as long as he pays the landlord a rent of 25 per cent of the crop each year. This was as opposed to the 50 per cent of the crop that was habitually being charged by landlords in Nepal at that time. The law was praised in international circles as a brilliant piece of legislation, because it was short and simple, making any legal challenge difficult.

The legislation was sent to me for comments by my boss, Dr. Erich Jacoby, Chief of the Land Tenure Branch of FAO, Rome. I wrote back to say that while the law was short and direct, there was an implicit problem in its very first words, which said: ‘whoever is a tenant of an agricultural land on date x…’ The law did not specify how it would be decided, whether there was a tenant on the land, and how he would be identified. In practice, every landlord would say that there was no tenant on his/her land – and hence there would be no tenants to benefit from this ‘excellent’ law.

One could theoretically fall back on the land records to ascertain who was a tenant on any particular date. But it was known that Nepal did not have such land records – least of all, a record of tenancy. Some identification of each parcel of land, its extent, its ownership and tenancy would be needed for implementing such reforms – and this was completely lacking in Nepal at that time. This is in contrast to the comprehensive system of land records in British India, which provided the basis of its land tax system, whereby all lands were surveyed and registered, showing the names of all owners and their tenants, if any.

There was an even more serious problem. My experience in Sri Lanka showed that landlords would evict their tenants, claiming that they cultivated the land themselves. Or through daily-paid workers, leaving no tenants to benefit from the new law. In a semi-feudal country like Nepal at that time, it was very likely that the tenants would be intimidated by their landlords, through threat of eviction, cut-off of credit or even violence, to make them surrender their rights as tenants. Not being able to defy their landlords, they would even abjectly agree to remain as ‘hidden tenants’ with no rights under the law. In exchange, they would be allowed to continue to cultivate the land, at whatever rent the landlord decreed, and subject to eviction at any time.

Everything would depend on the mechanics by which the tenant of any land was to be identified and recorded, prior to the enforcement of the law. The law, however, by ignoring this fundamental problem, left the tenants worse off than before, subject to immediate eviction by landlords who wished to evade the new law. I had only given my above opinion to my boss, because he had asked for it. I did not know at that time that it would cause an international incident!

About one month later, FAO was informed by the UN Bureau of Public Administration, which was executing the project, that the identification and registration of tenancy rights was to be done by a cadastral surveyor, who would survey and register all agricultural lands. This left the difficult task of recording tenancy rights to a lowly surveyor (called an amin in Nepal), who was paid only the equivalent of US $1 per month at that time, thus making him utterly susceptible to bribery and intimidation. With these probable outcomes in mind, I wrote to my boss, who had again requested my opinion, that the process of registration of tenants proposed by the UN was likely to result in the cadastral surveyor merely recording that there were no tenants on the land (because the landlords had brought pressure on them) leaving no tenants to benefit from the reforms!

Little did we anticipate the reaction of the United Nations Office. First we received a reply from the Director of the UN Bureau of Public Administration, Mr. Coates, stating that such recording of ownership and tenancy rights had been done all the time by cadastral surveyors in India. He claimed that he himself, as an ex-member of the Indian Civil Service (ICS), had on many occasions adjudicated such ownership and tenancy rights based on the cadastral surveyor’s findings ‘under the peepul tree’.

When my boss persisted with my opinion, the UN Headquarters in New York complained directly to the Director-General of FAO that FAO was obstructing their programme on unfounded and uninformed grounds. This was followed also by an official complaint to the Director-General of FAO by the Nepalese Government alleging the same. Unfortunately, the Director-General of FAO, Mr. B.R. Sen had himself been an ex-member of the hallowed Indian Civil Service. He dismissed FAO’s stand as uninformed, stating that he himself had decided such ownership disputes on the basis of cadastral surveys on so many occasions ‘under the peepul tree’! Learning that I was the culprit, he ordered that I go immediately to Nepal and officially apologize and retract FAO’s position. If I did not do this within one week, my employment was to be terminated! At this juncture my boss, the Assistant Director-General in charge of the FAO Regional Office tried to protect me. But when he heard the full story, he was utterly dismayed. Although he was a Pakistani, he too had been a former member of the ICS: how many times, had he too decided such cases, based on a cadastral survey, ‘under the peepul tree’, with no difficulty (that I had predicted) at all!

By this time I did not know which I hated more, the Indian Civil Service or the peepul tree! All the top administrators in the UN system at that time seemed to be British or Indian retirees from the prestigious Indian Civil Service (ICS). So I was beginning to see this as a dispute between the ex-officials of the ICS and myself, from the Ceylon Civil Service (CCS). I still felt that I was right and that they (including my top boss in FAO, the Director-General himself) were wrong.

First, although they knew cadastral survey and land administration, this was not the issue. For the issue was whether the process that they advocated could actually identify and register a tenant under the shadow of land reform. They had actually never done this! Second, whereas they had all decided on ownership and thought that they had decided on tenancy, their inquiries had only been to identify the owners of the land for tax purposes, while completely depending on the landlords to supply the name of the tenant for the full land record.

Nepali farmers

Whereas the landlords had previously willingly provided the names of their tenants to the Indian Civil Servants, the same landlords now wished to deny that they were any tenants on their land at all! Thus the question was whether the procedures used in India for deciding on ownership for tax purposes would be adequate for deciding on tenancy for land reform purposes! Thirdly, although these top ex-ICS officers had years of experience in land administration, they had no experience of land reform.

Thus their long experience in deciding quite a different issue, in quite a different era, in quite a different social and legal dynamic, was now the biggest obstacle to their understanding the different nature of the problem and of finding a suitable solution. In the end, they turned it into a personal problem. For whereas they had all been to Nepal, it was known that I had not! It got even worse when they saw me, for I looked even younger than my 32 years at that time!

Although I was convinced that I was right, I now had no option but to go – as instructed – to Nepal to eat humble pie and retract my position. I was snubbed by the UNDP Representative in Delhi – and it got worse when I reached Nepal. The Permanent Secretary of the Ministry of Planning refused to see me. I was sent down to the Joint Secretary who was unnecessarily brusque. Although I had decided to capitulate and eat my piece of humble pie, I had to make a pretence of looking into the matter. So I asked to visit a village where the cadastral survey and land registration had already taken place according to the procedures prescribed by the UN. The Joint Secretary asked me where I wished to go. Not knowing anything about Nepal, I jabbed wildly at the map. He remarked drily that I was pointing to the Himalayas, but he could get me as far as Pokhara in the foothills, but that I would have to walk from there!

So I set out early next morning to Pokhara by plane, which in those days landed in a grass field. Accompanied by a senior surveyor who was to be my interpreter and guide, we walked for a full day to get to the village that I had fortuitously chosen. It was a thrilling experience, walking in the silence of the mountains with the snow-clad Himalayan peaks towering above me. In one place, I also had the thunder of water from a subterranean river shaking the ground beneath me. I reached the selected village by nightfall. When I examined the cadastral map and land record prepared by the cadastral surveyor, it showed that all the lands were cultivated by their owners, either as owner-cultivators or through daily-paid workers supervised by them. Since the record showed no tenants, there would be no beneficiaries of the land reform in this village.

The next morning at daybreak, I positioned myself on the path to the fields, so that I could meet the farmers going to and from their fields. I tackled one in about every four farmers, asking more or less the same question: ‘Are you a tenant?’ Every one of them answered that he was either an owner cultivator or a daily-paid worker, although most seemed to be too poor to be owners of their own land. I repeated the process at eventide, when the farmers returned from their fields, but I always received the same reply. I spent the whole of the next day asking the same question and getting the same answer. In desperation, I requested a meeting of all farmers on my last evening in the hope that group dynamics might reveal a glimpse of the true picture. But even at this meeting, I received the same response.

At this point, the only well-dressed man spoke up, saying: ‘Sir, because of your perseverance and hard work, I need to speak out, since none of the others here can afford to do so. These poor men here have been lying to you for the past two days: they are all tenants. They have been informed in advance of your arrival and have been instructed by their landlords to say that they are not tenants. In fact, they have been threatened with eviction and violence – and two of them, even with death’. At these words, there was a babble of voices, all wanting to speak. They burst out that they were indeed tenants, but had been threatened with eviction by their landlords if they claimed the same. I invited each one to speak – and each one said the same thing.

I then took out the already completed cadastral map and went over it with them. I asked the entire group whether there was a tenant on each lot of land, going over all the lots in turn. They unanimously answered: ’Yes, so-and-so is the tenant’ in respect of each lot, with 100 per cent agreement. After recording the name of the tenant and of the owner against each piece of land, I had a new land record made, which was confirmed by the entire village. And it was the exact opposite of that recorded by the cadastral surveyor, following the procedures prescribed by the UN!

Whereas the latter showed that there were no tenants on any of these lands, my records showed that there was 100 per cent tenancy on all lands in this particular village. This meant that if the land reform had proceeded on the basis of the cadastral records prepared by the Government and championed by my own FAO Director-General, there would not have been any tenants to protect and thus no beneficiaries under the land reform law!

Having got the new land record confirmed by the senior surveyor, I then had to walk an extra day to get the endorsement of the Zonal Commissioner. On the next day, in Kathmandu, I had to report my findings to the Joint Secretary, who had also invited Dr. Lindsay, the author of the land reform legislation, to the meeting. They were astounded to find that their system of identifying tenants had provided 100 per cent wrong information. Instead of retracting my position and apologizing to the Government and the UN, I was now able to prove that I had been right all along, even though I had never been to Nepal before!

I also became a favourite of the Ministry at that time. The Minister himself would come to the airport to meet me on each of my subsequent visits. The Government requested me to formulate an FAO project for assistance to its land reform programme. I introduced a new system for the identification of tenants based on the participation of both the tenants and owners through public village meetings – which was adopted by the Government in the 1960s. This episode proved to be a personal and professional triumph for me in the early days, since I had proved even the Director-General of FAO and his Assistant-Director-General for the Asian Region, as well as the UNDP, the UN Bureau of Public Administration, the Ford Foundation and the Government of Nepal, all to be wrong! I was only 32 years old at that time – and had never been to Nepal when I first gave my opinion on the issue.

Continue Reading

Trending