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“I emphasized the importance of progress in reducing the role and profile of the military in the North, and full respect for human rights” – thus said Robert Blake, an US official flying regularly to Sri Lanka bringing messages from his Government. Interesting as the statement is, it raises one simple question – in which international law book does it say that the US can have over thousands of foreign military bases while US can dictate to a sovereign nation on how to place its military inside its country? This is the question Sri Lankans like to ask and have answered. When the nations legally made to host these US foreign installations oppose US presence, what “accountability” does the US have for respecting the calls of these natives – since The “Status of Forces Agreement” has guaranteed that US cannot be held accountable for their crimes in any country that the US has bases in.
Exact US foreign military bases: Keep Guessing
It is believed that the US has over 1000 foreign military bases in over 120 nations and territories while UK and France have a further 200 in their former colonies. Inside these territories and nations the US bases and outposts are equally shocking. The number of US personnel currently stationed number over 160,000 and excludes US personnel in Iraq, Afghanistan, Hawaii, Guam, Puerto Rico and Kwajalein Atoll. All bases functions as storage facilities for weapons including nuclear arms, training, intelligence gathering, “echelon” bases monitor all email, phone and data communication traffic, extra-judiciary transport, imprisonment and torture of which Guantanamo Bay is the best example.
World War 2 gave US the excuse to strategize and establish a global network of military bases to protect its interests and those of its allies. Ironically, much of the security concerns US has today results from its own self-destructive actions and bullying approach. But, the “security factor” has been used to install bases in East Asia, Europe, Latin America, Middle East, Africa and Asia Pacific. Thus, the bases are crucial for US, NATO and EU and are perfect to overthrow governments diplomatically or militarily. The shocking military invasions numbering over 300 over the past century have been launched from these foreign bases thus the need to understand the threat posed to national security of any country entering the “enemy” list or “economic target” list.
The US has divided the world into 6 territories – 4 are located in the US and the other 2 in Stuttgart where the European Command territory stretches from Greenland to Alaska including Turkey, while the AFRICOM oversees military operations in Africa. EUCOM and AFRICOM is authorized to command US missions from Germany. Germany is the center of US military intelligence in Europe. Its not just foreign bases that the US has secured. What about the buildings, the heavy infrastructure, the storage tanks, the runways, rail lines and even pipelines that the US secures in all of these nations and territories?
To add to the confusion has been the numbers of private security contractors like Blackwater (Xe) who are based in all of the locations that the US troops are in. It is they who carry out the drone attacks and have been responsible for much of the mayhem taking place in the Middle East through their mercenary services.
Bases in Iraq and Afghanistan
The number of US bases in Iraq (505) were revealed only after US troops were preparing to leave Iraq. Officially, we are told that the US has removed troops from Iraq but does this not include the Dept of Defense staff currently in Iraq? The bases in Afghanistan is over 1500 counting all the forward operating bases, checkpoints, mega-bases, military installations and other logistical support facilities. The number of US troops stands at over 100,000 if not more. In 2002 NATO had 800 bases in Afghanistan. We may never know the exact numbers as at present but the Afghan bases are not reducing! Another question is why would US and NATO desire to have bases with sophisticated offices and gigantic airbases only along the gas and oil pipeline that is being built?
Why is it that the entirety of US bases in Afghanistan are all located along the route of the gas/oil pipeline? Why has opium production increased by a staggering 3100% (from 185tons before arrival of US in 2001 and now 5800tons in 2011) – Afghanistan accounts for 90% of opium and cannabis supplies to the world? What about the precious minerals like lithium, gold, iron, copper and cobalt that has also been discovered? Opium, morphine, cannabis, heroin, codeine, thebaine are all sought after by pharmaceutical companies.
Unknown to most of us Afghanistan’s Hindu Kush region is the home to rich soil – uranium, copper, lithium, gold and iron ore worth upto $ 3trillion. Hajigak area is said to contain 1.8tons of iron ore. Lithium is rare but needed for cell phones, portable computers, electric car batteries and so Afghanistan certainly has much to offer the mining industries!
The 9/11 attackers were not Iraqi’s nor had they links to Al Qaeda, neither did Iraq have WMDs but Iraq was attacked. US attacked Iraq to secure 115billion barrels of oil reserves! US spends $ 900billion per year on destruction when 49m Americans live in poverty and 46million depend on food stamps to survive and 4m are homeless.
Are there geological treasures in Sri Lanka in particular the North and East apart from the natural harbor?
Europe
US has 293 bases in Germany – why is it necessary for the US and UK to have bases in Germany or Japan 65 years after World War with over 70,000 US troops currently in Germany, more than 45,000 US soldiers in Japan and close to 30,000 US troops in South Korea?
The largest overseas US base is in Ramstein Air Base where US sent 40,000 troops to Afghanistan in 2009 – soldiers injured in Iraq and Afghanistan are flown and then sent to Landstuhl the largest US military hospital. Ramstein is used to cover 3 continents (51 nations) and has the largest US military shopping center and a 350 room hotel. There are 20 nuclear weapons at Buchel guarded by 50 US special forces troops. Over 80% of supplies of weapons, troops and other logistical requirements are routed via Germany. In 2008, there were over 1350 military transport landings in Leipsiz including 500,000 GIs en route to or from Iraq and Afghanistan. German-owned DHL has the exclusive US Army contract for courier services in Afghanistan and Iraq. Commercial airports like Hahn and US training at Grafenwohr is also provided.
Though the reunification agreement of the early 90s gives Germany the right to cancel US bases the Stationing of Forces Agreements with the US makes it unlikely that Germany would prohibit or restrict US military bases as Turkey did following the Iraq invasion though majority of Germans opposed the Iraq invasion.
The Netherlands is another US ally and hosts 7 US bases with nuclear warheads including 2 undisclosed locations that functions are reconnaissance flights over Colombia. All US arms and materials enter US without going through Dutch customs. All pilots flying on KLM have signed contracts that declare they have to take direct orders from the US air force in case of a war.
Asia – Countering China and Pilfering Resources
Following the Korea war the US has over 100 bases and facilities in Korea. Cases of US crimes in Korea are many yet US soldiers are never accountable and are instead repatriated where military court generally declares them “not guilty” or passes the most lenient of judgments. No damages can be claimed by the victims as the guilty enjoys legal immunity.
Iran and Pakistan have also begun building an oil and natural gas pipeline traversing Afghanistan and the pipeline has completed the Iranian portion and is now at the Pakistani border. Iran, Pakistan and even Afghanistan are all looking to push US away. While the US has been doling blood and money into these nations the people hate the US and are now looking for partners in China. US is seeking to include India into its periphery.
Rising demand for closure of US bases
Much of the outcries to close foreign military bases is due to their impact on land, water resources, communications, environment and health, cultural identity and the crimes that take place with foreign troops violating humanitarian international laws but having a carte blanche and immunity.
The military bases are located in strategic places, not only from the political and economic point of view, but they are placed near natural resources such as oil, water and biodiversity.
The US appears to care less over the rising numbers of calls for the closure of its military bases on the grounds that the facilities are undermining international peace and security as they are stations meant to prepare for war. Let us not forget that it was the US bases in Germany, Turkey, Diego Garcia, Saudi Arabia and other pro-US Gulf States that facilitated the Iraq invasion. Aerial bombings on Pakistan are launched from Diego Garcia, Ecuador base is used for covert military actions on Colombia, Iraq and Turkey bases functions as intelligence missions for Iran and Syria.
Iran is aware that it is being watched from US-occupied Iraq and Afghanistan while 8 of its neighbors are also hosting US/NATO bases. Moreover Iran is also faced with threats from US-backed nuclear powers of Israel, Pakistan and India and nuclear warheads in Turkey.
These foreign bases are causing social and environmental problems – rises in rapes by US soldiers, crimes, pollution, health hazards caused by testing conventional and non-conventional weapons are grounds for the opposition. The tragedy is that the agreements signed to enable the presence of US troops in these countries makes US soldiers unaccountable and immune from all local laws.
Nevertheless, it has not deterred residents from crying foul – activists and locals protested against expansion of US base with a new landing strip in Italy, the people of Okinawa, Japan are continuing their opposition that 30% of the island of Okinawa is being used by the US military since World War 2 and Okinawans even blocked the construction to a new base which was stopped in 2008 by a US court on ecological grounds. Residents of Okinawa have increased their opposition due to 12 MV-22 Osprey aircrafts operating in highly populated areas (Iwakuni, Yamaguchi, Ginowan and Okinawa) following crashes in Morocco and Florida. The Status of Forces agreement is a hindrance to the Japanese Government taking any action though US moved 4700 marines to Guam and 3000 to Hawaii, Philippines and Australia. Okinawa is important to the US because of its vantage on China, Taiwan and North Korea. However Futenma base (in the city of Ginowan which has over 90,000 residents) is unlikely to be ever moved off Okinawa. The plight of the Okinawians is made worse because Okinawa has only 4 seats in Japan’s lower house therefore the people’s verdict is of little consequence to political decisions.
Africans strongly opposed the US Africa Command with a headquarters costing over US$ 500m with close to 2000 US troops in Djibouti.
Natives from Puerto Rico (Vieques) were expelled from their homes to make way for a US bomb testing range that used 2/3 of the island and protests resulted in US navy withdrawing in 2004.
In 1973, under the British Indian Ocean Territory (BIOT) all citizens of Diego Garcia were rounded up, put on ships and sent to Mauritius following a US-UK deal allowing US to have an airbase in Diego Garcia. However, the Chagossian natives have won court cases in the UK to their right to return by that right has been blocked by British executive orders.
A RAND Corporation study reveals that 57% of all Germans want a complete withdrawal of US troops from Germany.
There are numerous local campaigns and movements like the International Network for the Abolition of Foreign Military Bases and the No Bases Network that are continuing the fight to resist military bases overseas and making progress internationally. The closure of the Manta military base in Ecuador is one such success story.
Costs Incurred
The cost of running over 1000 military bases overseas is over $ 100billion annually and excludes costs for Iraq and Afghanistan.
Of the 2012 Federal Budget 59% – USD553billion has gone towards military and homeland security. 2% on Agriculture, Justice and Energy, 4% on Dept of State, Urban Development & Housing, 6% on education and healthcare &15% on other. In 1990 the national debt was $ 3.2trillion today it is a whopping $ 15.7trillion and counting (a 500% increase in 22 years).The next question is how or who has benefited from $ 11.5trillion spending on war?19 hijackers who pulled off 9/11 has resulted in US spending $ 3trillion on wars and denying the American people their own freedom and liberties. Yet the irony is that since 1941 the US has NOT being attacked by any foreign power to warrant spending on the military. It then appears that much of the hate the US administrations and its media enjoy promoting amongst the masses are self-created. With the creation of nuclear missiles that should be ample security! The current reliance of pre-emptive wars has made the US financially defunct and internationally mocked by those aware of the truth.
Meanwhile, globally the world spends $ 1.7trillion annually on designing new ways to kill, 13m die every year from starvation, 925m are undernourished, 1 child dies every 5 seconds due to hunger (16,000 daily deaths and 6m deaths cer year) – the cost taken to make a missile could give lunch to a school for 5 years! Does US elect representatives to allocate 44% of taxes towards killing?
It is the Politicians and not the military that start wars often coerced to do so by the super rich whose avarices and sadisms forces Governments to leave the fighting role to the poor. People are simply pawns and they die like dogs while millions is spent on devising lies to feed the world. Then comes the patriotic speeches for the bravery of the troops who had been sacrificed.
Over 6500 US soldiers have died while close to 50,000 are badly injured. Suicide rates of soldiers have increased by 80% – 300,000 that returned from Iraq and Afghanistan suffered post-traumatic stress disorders.
The National Commission on Fiscal Responsibility and Reform has suggested to cut US troops in Europe and Asia by one-third which would save America $ 8.5billion in 2015 will the US close its bases?
The Violent Truth
What America needs to understand is that if it thinks the world hates America it is because American Governments are killing innocent people – none of them are “terrorists”. America is spending trillions for the past 11 years and who has benefited? American taxpayers are footing the bill, American soldiers are sacrificing their lives and body parts to enable a handful of companies to reap gigantic profits from drugs!
The US became the sole superpower in 1989 with the collapse of the Soviet Union – why would it want to go to wars without provocation and spend trillions? What kind of an acceptable excuse is it to argue that the US arms industry is employing millions and benefiting the US when all that they are doing is to make weapons that are meant to kill and create a supply for those weapons?
Invasions with military action has nothing to do with security of nations but everything to do with pilfering nations by a handful that uses politicians to order wars and invasions so that their corporations could walk in and plunder the natural resources of nations is what todays wars, terrorism and R2P is all about.
US tax payers are paying for numerous foreign invasions putting their country in debt while a handful of elite global powers are reaping the benefits and US envoys play puppet diplomatic dictators to former colonies!
We will bankrupt ourselves in the vain search for absolute security.”
Dwight D. Eisenhower
We know more about war than we know about peace, we know more about killing than we know about living. We need to now change.
by Shenali Waduge
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An excellent piece in the New York Times today talks about ‘Monks Gone Bad’, describing a corrupt and violent Sangha that uses hate speech and abuse against minorities and is helmed by leaders who resemble fatuous politicians and not the ‘birds of the wing’ that the Buddha wanted his mendicant followers to be. I am not here to point out the contradictions between Buddhism as taught and Buddhism as practiced, the ingloriousness of Buddhist praxis nowadays is evident for all to see. I just wanted to point out that at every instance in that article where I saw Myanmar, I could have easily inserted Sri Lanka. For every instance where I read about 969 in the news, I can insert ‘Bodu Bala Sena’. About the only words that do not require replacing are ‘anti-Muslim’, ‘minority’ and ‘hate’.
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As we all know, the police, together with the Bodu Bala Sena soon disbursed the vigil, arresting some, manhandling others, and collecting the names and pictures of most of the attendees.
The Bodu Bala Sena and its kindred run amok in Sri Lanka, like bullies in a school playground, and with not much more in the way of finesse. They hurl offensive invective towards religious minorities, and their words have resulted in quite a few violent incidents against Muslims ,and at least one against Christians, re-opening wounds in the country that are still struggling to heal after the 30 year war. They seem to operate in a space where Sri Lanka has not just lost so many lives, its economic development, and so much of its natural beauty to a long, long war. In order, perhaps, to call their attention to this, a peaceful vigil was held outside the headquarters of the Bodu Bala Sena. As we all know, the police, together with the Bodu Bala Sena soon disbursed the vigil, arresting some, manhandling others, and collecting the names and pictures of most of the attendees. Not only this, the Facebook page of the Bodu Bala Sena decided to ‘name and shame’ these attendees, causing their supporters to enact the most disgraceful bout of name-calling, verbal harassment and racist trolling that I have ever seen on social media.
One of the ‘points of order’ from the Bodu Bala Sena, its supporters and some of the media who covered the incident, was that the legitimacy of the vigil was in question because the attendees did not represent the Buddhist population, that many Muslims, Christians and Hindus were present. On Facebook, attendees are called out as ‘demalek’ ‘muslimayek’ ‘jathiyak nathe’. Indeed, an attendee tweeted that he overheard someone saying that the vigil was convened due to a ‘conspiracy of Muslims and Catholics’. So much for a critical understanding of religious history- perhaps the speaker would be better served from devoting his time to education rather than racist troublemaking! To each his own, however.
It is altogether more worrying thing that this misrepresentation of the attendees was not only picked up by the media, but that it was also the feature of an article by Malinda Seneviratne, writing in the Colombo Telegraph. The good gentleman, from his considerable experience, no doubt, is able to discern a Buddhist from a non-Buddhist, and therefore writes an entirely unnecessary article that serves only to distance himself from standing with those who attended the vigil. In response, Dr Dayan Jayatileka – who is experiencing some changes to his tune- quite rightly pointed out the flaws in Mr Seneviratne’s argument, but did it in a manner that entirely calls attention to his own accomplishments and ‘stake’ in the manner. The riposte from Mr Seneviratne was then, to accuse the good Doctor of ‘throwing his CV’ at him. I ask you, gentlemen, is this really the response to what is happening in Sri Lanka? The actions of the Bodu Bala Sena, and the complicity of the government in them are grotesque enough without the debate being reduced to puerile attacks on each other’s logic.
If you have a voice that can be heard and that has gravitas, and you both have the great privilege of this, why not turn it more fully toward more constructive dialogue? Why not ask that the rights of those who attended the vigil be defended? Countless women- because the body of the woman is so carelessly mangled in these cases- are facing vile, misogynistic abuse via Facebook from the supporters of the Bodu Bala Sena. These men direct all their perverted, violent fantasies at these girls who really do not have much in the way of legal succour. After all, the AG has instructed victims of social media attack to file complaints with the police. Yes, the very same police who put the kybosh in the vigil. Why not direct more energy into rousing the non-English speaking Buddhists to speak out against the Bodu Bala Sena with less articles in places like the Telegraph which are read by the diaspora and the English speakers? Yes, the handicap at the vigil was that there were many who attended who were ‘English speaking’- but that does not make them any less Sri Lankan, any less Buddhist, any less angry, or any less valid in their protesting attacks on minorities. Give out your voice in solidarity with each other, with those who will question the validity of the Bodu Bala Sena, and in solidarity with what must be a better tomorrow.
*Anupama Ranawana is a wishful academic and a practicing activist. She can be reached for comment via Twitter @MsAMR25
There are many lessons from the rule of President Premadasa that will help to avoid repetition of making the same mistakes if properly adhered to. The quality of governance has deteriorated over the years and it is unlikely to change unless the present culture of governance carried down by successive governments and politicians does not change. Let all politicians remember that all governments have ended up falling short of people’s expectations because they have removed themselves away from the people trusting in only their henchmen of advisors and no sooner governments moves away from the masses it becomes the beginning of the end.
The culture to depend on the underworld and goon squads have passed down from one government to the other resulting in unnecessary bloodshed and a spate of criminal activity that has brought the country into disrepute over the years. Until such time this trend to depend on thugs ceases to be we are unlikely to bring any semblance of good governance to Sri Lanka since the law of the country needs to apply to all equally and officials implementing laws should not have to bow their heads down to lowlife gangsters who thinks they can brandish a weapon and people have to worship them.
Sri Lanka’s mobsters
Gangster rule and good squads started with the UNP and its legacy has continued unabated. The Wikipedia has a separate of Sri Lankan mobsters starting out with Gonawala Sunil involved in a spate of activities including rape of a 14 year old girl for which he was given a presidential pardon by then President J R Jayawardena and ended up obtaining an all-island justice of peace and bodyguard to Mr. Ranil Wickremasinghe then Minister of Education. Need we say more about the culture that was being slowly created. Then came Sothi Upali said to be a close ally of Sirisena C, then Minister of Housing under President Premadasa. Sri Lanka’s police had to address Sothththi Upali as “Sir”. Taking over from Soththi Upali was his arch rival Chintaka Amarasinghe who is said to have been aligned to the People’s Alliance. His brother Dhammika Amarasinghe is said to have had a hand in over 50 murders and countless bank robberies and as is always the case when their notoriety gets too linked to their patrons they end up being gunned down to conceal that links. Then comes Kalu Ajith who killed Chintaka Amarasinghe and was killed by Chintaka’s brother Dhammika. Next to enter is Kaduwela Wasantha who after a decade of terror was gunned down by another rival Karate Dhammika. We will all remember Baddegane Sanjeewa who was a police sergeant for President Kumaratunga. The other notorious underworld figures with fascinating names are Moratu Saman, Thoppi Chaminda,, Nawala Nihal, Kalu Ajit, Vambotta, Olcott, Thel Bala, Kimbulaela Guna, Dematagoda Kamal, Colum, Anamalu Imtiaz, Potta Naufer, Neluwa Priyantha, Kudu Lal and the latest to enter Julampitiye Amare.
The Good and Bad of Premadasa
If no human is perfect then no leader is perfect either. In the case of a President there are certainly good times and bad times though no leader can make the entire population happy with the decisions taken.
It is good to wonder how much of the legacy Premadasa had to deal with was of his own making. If we recall the late 1980s and early 1990s it is nothing but bloodshed and gruesome killings with a country torched from North to South. It was Ranjan Wijeratne who took on the task of eliminating the JVP which gave a sigh of relief to the people of the South though many innocent Sinhala youth perished as a result. No human rights organizations cried foul play not even the local NGO bandwagons or their mouthpieces.
It was J R Jayawardena who introduced neo-liberal economy to Sri Lanka which Premadasa continued while also carrying out his own program of bringing the villages to a reasonable level and managed to transform the UNP often described as the party of relatives into what he termed a people oriented party. He deregulated trade, financial services and privatization, he created massive zones of small industries giving employment to women in rural villages through garments, shoes, toys and revived tourism. He had started well over 15,000 small industry-based projects all over the island.
What no leader has been able to match was Premadasa’s passion for precision and his attention given to details. He work up at 4a.m. did his yoga, read the newspapers and would even call his staff and ask for updates and no one could say “later”! – he was behind every project personally monitoring and supervising them and never forgot a single project he started. During Premadasa’s presidency not a single Government office was spared unannounced visits and all offices were clean and staff always on alert not knowing when the President might walk in. After Premadasa, the Government offices have cared little to continue those good practices and most offices function in a don’t care attitude.
Where did Premadasa go wrong. Coming from humble beginnings and working his way up the political ladder it was natural that he would suffer internal complexities which were manipulated by the people he kept around him as his inner circle. However those economic advisors did not want to make real Premadasa’s vision of making the poor richer and instead the rich got richer and the poor got poorer and people started to develop hate for the man they hoped would change their future.
The lessons
A leader is brought down by his advisors and it is no different in the case of President Premadasa which reiterates the need for the present leadership to be wary of those they solicit advice from. It was the rumors the tales and lies fed into the ears of President Premadasa that turned an iconic figure into a demon distancing him from parliamentary colleagues, sane advice by surrounding him with henchmen who turned Premadasa into a dictator killing off all opposition. In a country as small as Sri Lanka once sealed as a dictator it is difficult to remove that name from people’s minds. The poster mania started with the UNP and there was never an empty wall without a picture of Premadasa, the culture of news reflecting only politicians and their daily openings is another factor that has been carried down by successive governments over the years. Street smart, Premadasa definitely was but it takes far more to lead in a world where leaders are led by greater leaders. It is for this reason that leaders need to have intellectuals who love the nation and its sovereignty advising them and certainly not intellectuals ready to hand over the nation to foreigners.
While we cannot forget the manner that President Premadasa stood up against India demanding that the IPKF pack their bags and leave forthwith was overshadowed by the manner he lavished arms to the LTTE which killed countless innocent civilians and troops. We will not forget the lives of 500 innocent policemen who had to give up their arms on instructions of the Premadasa Government and watch each comrade being shot by the LTTE. It is said that President Premadasa had even threatened India that he would abrogate the 1987 Indo-Lanka Agreement and we wonder why he did not. The public have had enough of threats made to only please the public. It is now time for action.
Premadasa’s tenure of leadership was certainly marked with highs and lows and the manner that people celebrated his death with crackers and fireworks does not project any of the good he did during his 5 years in office as President. It does convey perfectly to all future leaders that people forget the good and will judge only on the bad and this is a lesson that needs to be remembered and not ignored. Leaders who accept this fact with a don’t care attitude are in for greater shocks.
Premadasa led a country in one of the most violent phases of Sri Lanka’s history. His advisors manipulated his paranoia, his weaknesses were tapped turning him into a man hated by the masses. He compared himself with great Dutugemunu and his closest confidant became the second most powerful man in the country but a man whose connections to LTTE terrorism remains to be investigated to understand how terrorism was created in Sri Lanka and why it remains a threat to this day with his connections to the Tamil Nadu “Eelam factor”.
It is often the advisors that build up animosities amongst politicians creating political rivalries. We all remember the animosities that prevailed between Premadasa, Athulathmudali and Gamini Dissanayake and their advisors will know how they played one against the other.
We may also like to remember President Premadasa’s plead of innocence “You can assassinate me…but don’t assassinate my character…” claiming he had nothing to do in the murder of Athulathmudali.
The view of most during Premadasa’s rule was that “you cannot rule a country by killing its people” though he chased out the Indian’s he did nothing about the Provincial Council system and judged the PCs as a means of generating a political base which is the same situation unfolding currently.
We are well aware that regime change is a top priority in the political scene prevalent in Sri Lanka. The strikes, the protests are all part of the ploys being used to test the type of change to be further manipulated. These are all testers before the real plan is set into motion and is meant to test how a government is able to handle situations. Governments do not help the situation by playing footsy with governance by setting different rules of laws to favored people and the malpractices building up over the years end up creating a mass of people unhappy with the type of governance not helped in the least by media which is often anti-government projecting situations far worse than what they are.
Devolving powers is not the answer
It is therefore upto the Government to face the situation realistically without functioning in a state of denial. No regime change operators will touch a country that has its masses behind its Government. This is why attempts are afoot to make the Government and the leadership to be projected as dictatorial and unsuited to lead. The reaction is not to make the situation worse but to take measures to address these properly.
What is evident is that advisors have managed to make Sri Lanka’s leadership think that by devolving powers the war crimes probe will be swept under the carpet. This is nothing but a carrot being dangled to get the President to agree to devolution. Agreeing to devolution is to destroy the sovereignty and unitary status of Sri Lanka and it is a quicker exit for the President from power and will leave him forgotten in history as a man who defeated terrorism but destroyed the nation – and it will be nothing he can ever be proud of. Therefore, it is good for the President to start to move closer to the people for they would never allow the country to ever fall into pieces for any peace that external forces are promising. In a country that has summers and springs we do not need further springs!
by Shenali Waduge
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“Neither a man nor a crowd nor a nation can be trusted to act humanely or to think sanely under the influence of a great fear” – Bertrand Russell (Unpopular Essays)
The malignant police response to the peaceful vigil organised by the Facebook group, ‘Buddhists Questioning Bodu Bala Sena’ proved one fact beyond doubt – the BBS is a protected species, protected by the Rajapaksas. According to video footage, the police acted as if they were the private army of the BBS, threatening and harassing the participants of the vigil. Clearly the police were under orders to display a zero-tolerance towards these non-violent protestors – just as they were under orders to employ a laissez-faire demeanour towards the mob attacking Fashion Bug.
The BBS will be above the law, so long as it does the Rajapaksas’ work.
The toxic conduct of the BBS can ignite an anti-Muslim Black July, jeopardise Colombo’s relations with the Islamic world and inflict a new war on Sri Lanka. Given these deadly potentialities, the order to protect and facilitate the BBS (and its offshoots) would have had to come from the very top. Gotabhaya Rajapaksa might be the Godfather of the BBS, but he could not have extended consistent patronage to an organisation trying to incite a Buddhist-Muslim conflict without the approval of his brother, the President.
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According to video footage, the police acted as if they were the private army of the BBS
Ethnic overdetermination died with the Tiger. The Siblings need a new (ethno-religious) overdetermination to prevent their Sinhala base from focusing on socio-economic issues (such as the electricity hike which will have a punitive impact on the poor/middle classes while shielding the rich). Fear of an ‘Islamic threat’ can reduce the Sinhala masses into a state of infantile compliance and make them respond to iniquitous economic-shocks with resignation rather than anger.
What about the possible loss of Islamic support, internationally? Perhaps the question should be approached from a different angle. The Rajapaksas need Islamic support because they are having problems with the West on democracy/human rights/accountability issues. If the West discards these concerns and welcomes the Rajapaksas into its fold,Colombowould not need Islamic allies.
Then there is the Magnitsky Act.
Last week, the Obama Administration imposed a travel-cum-asset ban on 12 Russian officials accused of rights violations under the Magnitsky Act. The EU plans to enact its own Magnitsky Act. Imposing generalised sanctions on a country for the crimes of its leaders amounts to collective punishment; it is unjust and ineffective – because the costs are borne not by the leaders but by the people. Laws such as the Magnitsky Act can localise punitive measures to miscreant-leaders/officials and ensure that ordinary people do not have to pay for the sins of their rulers.
Both Gotabhaya and Basil Rajapaksa are US citizens. They cannot but have properties and bank accounts in their adopted country. When President Rajapaksa needs medical help, his preferred option is the US, not China or Russia. The mere thought of the Magnitsky Act being applied against Lankan leaders/officials would thus be a nightmare for all three Siblings. Such a development may take years, but the Rajapaksas would want to take preventive measures early on, given what is at stake for them personally.
The Rajapaksas do not want to become Asian Chavezes. If there is an international model they might want to emulate it is of those Third World despots who were/are welcome in the West, despite innumerable tyrannical deeds.
How to build bridges to the West without abandoning the despotic measures necessary to maintain familial rule – that would be the Rajapaksa Gordian Knot.
One method is image-laundering. Since the Rajapaksa diplomatic and propaganda apparatuses are not up to the task of creating an Orwellian counter-reality, the job is being outsourced to Two American lobbying firms: the Majority Group and the Thompson Advisory Group (TAG). The TAG had only one reported client in 2012; its annual reported income was a measly US$ 80,000[i];Sri Lanka will pay this nonentity US$ 66,600 per month! The Majority Group seems so tiny that it does not have to disclose its lobbying details (firms with an annual income less than US$ 10,000 are exempt);Sri Lanka will pay this firm US$ 50,000 per month!
The urgent Rajapaksa need to mend fences with Washington might also explain another curious development: the BBS’s sudden American visit.
The BBS’s interest in sprucing-up its image is understandable. But why commence that image-remaking effort in theUS, a country with a Christian-majority, the home base of Evangelical churches the BBS loves to hate?
The BBS in America
The Rajapaksas continue to target their opponents/critics; the Uthayan paper was attacked, again, and the Sirisa TV was threatened, again. They have no intention of implementing the democratising recommendations of their own LLRC. They seem to be intent on either postponing the Northern provincial election or winning it by force.
They want to do all this without jeopardising the Commonwealth Summit. And they must escape the Magnitsky Act.
During the Cold War decades, the adoption of neo-liberal economics and anti-left politics sufficed for anyThird Worlddespot to become the darling of the West. Currently, a country which is anti-democratic can win Western favour only if it is seen as a target of ‘Islamic terrorism’.
Immediately after the horrendous Bostonbombing, a website notorious for rightwing insanities carried an article[ii] which blamed an Iran-Al Qaeda combine and mentioned Sri Lanka as a conduit state. According to the article’s unnamed source, Iran’s Quds Forces are collaborating with “Hezbollah and elements of al-Qaida with links to individuals in Sri Lanka and Bangladesh. He said that under Quds Force guidance, Hezbollah recruited Sunni terrorists allied with al-Qaida factions in Sri Lanka and Bangladesh who then entered the US for terrorist activities”[iii].
Given the schisms within Islam (which cause far more murderous violence than anti-Americanism), a nexus between the Shia Iran/Hezbollah and the Sunni Al Qaeda is as impossible as Mahayanism being welcomed inSri Lankaby the BBS. But this is the sort of insane conspiracy theory which is beloved by fanatics of every religion.
And such myths are used to justify the targeting of ethnic/religious/racial ‘Other’ as the anti-Semites did with the ‘Protocols of the Elders of Zion’ hoax.
One can easily imagine a meeting of minds between the purveyors of such delusions in the US and their saffron-robed Lankan counterparts.
The Obama administration does not subscribe to the myth of an anti-Islam civilisational conflict, but a future Republican administration (fortunately an unlikely possibility) might. Islamophobia is a powerful politico-ideological current within the Republican Party. Republican Islamophobes believe that “Islamic Sharia Law is creeping into American courts; the Department of Justice has come under the sway of the Muslim Brotherhood; and the President’s engagement ring includes secret writing that indicates Muslim loyalties…. in August delegates at the Republican National Convention voted to include a plank in their platform affirming their opposition to Sharia law” (Mother Jones – 3.1.2013). The Republican Party therefore would be far more receptive to Rajapaksa overtures, if the Siblings can portray themselves as warriors battling the ‘Islamic Threat’.
Is this the message the BBS is expected to convey to the Republican right, at the grassroots level, during its American sojourn?[iv]
[i] http://www.opensecrets.org/lobby/firmsum.php?id=D000057582&year=2012
[ii] The author of the article is Reza Kahlili, a self proclaimed CIA spy who in 2010 claimed that Iran “will attack Israel, European capitals, and the Persian Gulf region at the same time, then they will hide in a bunker (until a religious prophesy is fulfilled)…and kill the rest of the non-believers” (Washhington Post – 7.12.2010).Iran manifestly did not.
[iii] http://www.wnd.com/2013/04/u-s-was-warned-of-terror-attacks/ The World Net Daily is an ultra-right website infamous for its promotion of such delusions as the ‘Birther story’.
[iv] The BBS monks may have been deployed at least once previously on an unofficial diplomatic mission. Sometime in 2011, Rev. Galagoda-Atte Gnanasara Thero led a delegation to Norway. According to the CEO of the BBS, a purpose of the visit was to meet some of the hardline Tamil Diaspora groups. Why should Rev. Gnanasara et al, who relentlessly attack Tamil moderates, go all the way to Norway to meet pro-Tiger Tamils?
Categories
The Truth or Lies of Benjamin Dix
by Shenali Waduge
Benjamin Dix is the chief protagonist in promoting presumed wrongs committed by the armed forces of Sri Lanka and emerges every time there an international event using documentaries and films meant to devalue Sri Lanka’s military achievement – we have become accustomed to these theatrics just as we are well aware that the lady in charge of human rights impatiently awaits an incident to take place to issue a deregulatory statement against Sri Lanka. Dix spoke in 2012 as guest speaker on “photographic journalism” at the Institute of Art and Ideas,http://iai.tv/video/the- killing-fields and based on this presentation some lies and truths are now highlighted.
“I went to Sri Lanka in 2004 as a photojournalist and managed to get up to the North of Sri Lanka which is the liberation of tamil tiger elam area in the North where I started working for the United Nations”
Benjamin Dix started as a Photographer for Berg Publishers (2002 – worked for 10months). He came to Sri Lanka from India in 2004 after the tsunami and went to Sri Lanka’s north. He joined Norwegian People’s Aid and worked as Project Manager from March 2005 to December 2006. NPA is an organization that is accused of links to Sudanese rebels. He joined the UN in January 2007 until December 2008. He is putting 22months of his knowledge to accuse Sri Lanka of war crimes.
“I was based there for 4 years as the liason officer between the Tamil tigers and the Sri Lankan Government”.
Can the Government and the UN please confirm this statement because he does not appear in any of the names associated with the negotiations held between LTTE and GOSL and moreover many questions surfaces with regard to this role.
“It’s a divided country. In the South you have the Buddhist Sinhalese who are also the Government of the country”
Perhaps Benjamin Dix is not aware that there are more Tamils living outside the North and amongst the Sinhalese.
Benjamin Dix should also look at Sri Lanka’s Government MPs and count the number of Tamil and Muslim MPs before making inaccurate statements.
“North and the East predominantly Tamil”
Benjamin Dix is also unaware that the 2 provinces are now demerged and the Tamils no longer are the majority in the East.
“It was the most impoverished district of the country”
The areas held by the LTTE were out of bounds for the GOSL and its military.
Inspite of LTTE making USD300m profits annually not a cent went towards uplifting the areas that they held within their control though that money was utilized to purchase arms and build sophisticated bunkers for the LTTE and homes for the LTTE families – this bit of information Benjamin Dix appears to leave out – which is confirmed by his statement. “Kilinochchi where the UN was based and where LTTE had its political and military headquarters and by far the most built up area”
“It was quite a vulnerable population” – at least he has said one thing right, because that was what LTTE tapped into and why the people feared to do anything against the LTTE for fear of their lives and that of their children. LTTE imposed taxes on all goods passing LTTE controlled areas, individual households were taxed and penalties were imposed on those who evaded payment. There was an LTTE ‘customs” located at Omanthai from which LTTE collected Rs.4-5m. Benjamin Dix was well aware of this – is his concern then for the Tamil people who were being illegally taxed? Tamil farmers had to pay taxes according to produce, even Tamil Government employees had to pay tax of 8% of their income. Then the fishermen that Benjamin Dix spoke of whose livelihoods were affected because of the conflict, well they had to pay Rs.5 per kill for transporting fish from Mannar to Colombo! Ltte had a more sophisticated network to collect money from Tamil businessmen based in Colombo and from the Diaspora.
“no electricity in the area”
How can a Government take care of its people when LTTE was running a defacto state disallowing Government or troops to enter these areas.
Moreover, the LTTE did not want the people to have electricity or television because it would have meant the LTTE’s atrocities would have been exposed. The LTTE chose to keep the people blind to their atrocities. Moreover the LTTE had blown up the power grids. These are now being restored and Kilinochchi and Mullaitivu areas that had 0% electricity in May 2009 now have 29% and 23% respectively.
“people had no links to the country”
Sri Lanka remains the only government that never stopped sending food, medical requirements and essential goods to the areas of the northern and eastern peninsula through the past 3 decades. If people had no links it was because the LTTE attempted to keep the people by force. The Tamil politicians have been fooling the people all through. The very MPs representing the TNA once claimed that LTTE was the sole representative of the Tamil people. The people with time will realize how the politicians have fooled the people just like the LTTE.
Today, the people of the North can freely travel throughout the country – there are no bombs. The former LTTE cadres are now employed and doing all that they were denied because the LTTE turned them into killers.
Ideally, the plight of these children whose formative years were held to ransom and women who could have done far more out of their lives than be turned into killers is what people like Benjamin Dix and Channel 4 should have made a documentary on – not the lies that are being relayed just to suit the sponsors.
“from the beginning of 2007 a new President came into power, Mahinda Rajapakse a Sinhalese nationalist in the South in Colombo and he came on this wave of crushing tamil tigers and crushing terrorism”
Firstly Mahinda Rajapakse did not come into power in 2007, it was on 17 Nov 2005.
Mahinda Rajapakse was elected President of Sri Lanka and not the South only.
Benjamin Dix may have been a good friend of a terrorist organization but a terrorist organization is one that kills innocent people and after 30 years suffering and over 5 peace offerings and negotiations all of which the LTTE turned down, the decision to military take on the LTTE was when it closed the sluice gates in Mavil Aru.
The LTTE closed the sluice gates in July 2006 and only after numerous appeals did the army receive orders to open the sluice gates in August 2006.
Closure of the sluice gates meant that 9510 Muslims, 8013 Sinhalese and 4439 Tamils living in 20 villages did not have water for livelihood and domestic use.
Before the military operation the LTTE dominated an area of 15,000sq.km in the north and eastern provinces of Sri Lanka.
LTTE was controlling 6792sq km & manning 11km long FDL from Kilaly to Nagarkovil via Muhamallai in the North & a 140km long FDL from Mannar to Kokkuthuduwai via Omanthai in the South.
It was in March 2007 that the land operations commenced in the Northern province
“on the border they started an almost badminton match….artillery going backwards and forwards”
Benjamin gives himself away in this statement because he confirms that the LTTE was firing artillery.
“army would put wayside bombs called claymore”
Another fictitious statement, the majority of claymore mines used was by the LTTE
The army cleared all landmines with the assistance of foreign land mine teams.
“they got international fame when they killed the Indian President in 1990”.
Benjamin Dix needs to update his general knowledge. Rajiv Gandhi at the time of his death was the FORMER Indian Prime Minister (not the President) and he was killed in 1991 May 21 to be precisse not 1990.
“the distinction between the Tamil tigers and the Tamil civilians were blurred and it was difficult for us as the UN and for the army to distinguish between who was a rebel and who was a civilian”
The LTTE when it suited them wore military attire and posed as civilians too
Many would recall how some LTTE mingled with civilians coming to Government controlled areas and blew themselves up killing not only military personnel attending Tamil civilians providing them food and medical aid but Tamil civilians too. (Vishwamadu – 9 Feb 2009)
“the mother became a sympathizer for the rebels by having a daughter for a rebel”
This statement is poignant and leaving aside the laws of international laws related to non-international armed conflicts and role of civilians, the people must think how a military should act when the rebels not only pose as civilians when it suits them and use their knowledge of military codes against the soldiers. Whose conduct is morally wrong?
“tiger girls in the bunkers doing their hair in the morning” – together with his description of Prabakaran showing his cadres Bollywood movies depicts that Benjamin Dix was privy to where LTTE had their bunkers, had close links with the LTTE female cadres which really goes to show where his allegiance was. LTTE was a terrorist organization. It is not the duty of humanitarian organizations to be taking sides but to take the side of the humanitarian disaster – in this light is it now the duty of these humanitarian workers to at least inform their head offices what the LTTE were doing in terms of how they recruited children and turned women to killers?
“training behind the battlefields in the jungles….training with the artillery…this is tigers putting landmines into the ground on the front lines….and the claymores where someone will hide in the bush and pull ” – didn’t Dix say earlier that the army was responsible for putting landmines!!!
His description of how the LTTE suicide boats operate is also noteworthy and shows how well he knew of the details.
“Kilinochchi the capital of the tigers. This is our UN office on the other side of the hedge… this was a civilian compound…but the tigers had moved the civilians out (unknown to us”UN”) and put one of their intelligence units in their office and that was bombed by the SL Govt”….”the tigers were using us (UN) as shields and under international law gives the Sri Lanka legitimate rights to bomb the area”
This is an absolute lie as crater investigation has revealed that it was the LTTE who was in Kilinochchi at the time that the UN was evacuating who had bombed not the UN compound but an area close to it.
Hypothetically if 10 to 15 air attacks per day as Dix mentions did not hit the UN office or injure any of its officers including Dix that shows that Sri Lanka’s air force was never involved in indiscriminate bombing
Dix also says that they knew that the LTTE would loot their generators and scaffolding, we know that 40 vehicles belonging to the Norwegian Peoples Aid “fell” into LTTE hands as well similarly LTTE would have been privy to much more.
“Casualties started to arise in early 2008….mass graves started to appear in the jungles”
Can Dix please tell us where these jungle mass graves are since he is so conversant in the jungle areas
Kilinochchi – came under GOSL control only 2nd January 2009 (by that time Dix was no longer in Sri Lanka). Kilinochchi was under LTTE control when the UN was told to move to safer locations (not evacuate). Thus when the film of supposed children begging UN officers to remain was taken, LTTE was very much present. It is left for the reader to imagine how such a film would have taken place under LTTE presence!
“On 17th August 2008 the tigers put out a letter to the population saying we now officially going out to war”
It was after the LTTE bombed close to the UN compound in Kilinochchi that the Government asked the UN and other international agencies to RELOCATE to safer areas and not EVACUATE
“Govt stopped us from importing materials we needed to make the bunkers …like concrete..like railway tracks” – how on earth can bunkers be built with materials like railway tracks!!
Benjamin Dix’s implication that the Tamil civilians were not provided food and that supplies to hospitals were affected is negated by these facts.
* January 2008-May 2009 58,393 metric tons of essential items were sent to Killinochchi and Mullaithivu districts in addition to 33,383 metric tons supplied to co-operative outlets during 2008 up to January 2009
* Every month, five to 600,000 litres of fuel was sent to each district despite fear that it may fall into LTTE hands.
* 900 government health staff in Mullaithivu and Killinochchi alone
* More than 20 litres of water per person per day was delivered and used.
* 175,000 personnel of the SLA have undergone local & international training to effectively be mentally & physically prepared to handle hostage rescue operations alongside a military operation against terrorism.
Yet LTTE attacked even the UN convoy carrying food and thereafter the military continued the supplies by sea. The numbers were purposely inflated so that the LTTE could stock the foods and essential items sent. Therefore, Sri Lanka becomes the only nation that continued to supply food, medicine and essential items despite knowing it may fall into LTTE hands but upholding its duty towards the citizens.
“one of the saddest pictures I took…became like many of the schools because of the children been taken by the tigers to fight”
If this is one of the saddest pictures why has Benjamin Dix not got Channel 4 to do a documentary of the LTTE’s forcible recruitment of children if as he says “education is everything to these people” and knowing that the LTTE was turning them into killers and denying them education or the joy of being with their parents and siblings?
Children grabbed from their homes, while studying and forcibly turned into killers all of which Dix and his colleagues would have seen as Dix himself is aware of the training camps in the jungles and that schools are empty as was told by his friend Pillai. Young females turned into suicide bombers or ordered to carryout suicide missions did Dix and others not care about the futures of these women? So please, enough of these double standards and emotional pep talks.
UNICEF has recorded 5956 abductions carried out by the LTTE for forced recruitment between January 2002 and December 2006, with 1012 of these being children under the age of 15 years
“education became impossible” – now that has changed not only are there over 900 schools now functioning there is a student population of 260,582 with 13.967 teachers. No one is kidnapping children to make into killers and suicide cadres now!
“my job was to work with the tigers and understand where they were going to do their fighting and where we could move 3-400,000 civilians”
– If the safety of the civilians was priority (not that of the LTTE) why did Benjamin Dix not secure their release from LTTE. The world cannot forget these civilians were being dragged from one end to the other not by the armed forces but the LTTE. Why did the LTTE not listen to these humanitarian agencies or did these agencies not insist on their release?
Yes the UN failed Sri Lanka’s 20m by siding with a terrorist movement and allowing Sri Lanka’s conflict to continue for 3 decades.
“this lady’s husband had been taken by the tigers to fight… if your fighting age is anything between 17 and 40 you are going to the front line to fight” – so do we classify these civilian fighters as “civilians” or “civilian combatants”.
“You’re our witness” – another poignant statement because Benjamin Dix alongside a host of other UN, INGO, NGO officers were working and living in Sri Lanka’s northern and eastern areas were witness to a host of crimes that the LTTE were committing all of which were not “humanitarian” and we demand to know what they did about these crimes because they should be standing trial for diminishing their role as humanitarian workers taking the side of a militant group over the Tamil civilians who were used and abused by the LTTE.
“people were barricading us in and begging us not to leave and through that 4 day period and tigers were moving their hard ware and artillery around….”
This clearly shows that the LTTE orchestrated these demonstrations because they were very much around the UN compound and amongst the UN officers
That there was no aerial bombing during the clipping of supposed demonstration outside the gates of the UN compound goes to show that on the 16th September 2008 the UN and LTTE were very much in Kilinochchi
“40,000” civililans were killed” – can Dix kindly prove this number…. It seems he is always talking in figures that somehow does not fit in with the actual total population of Tamils in Sri Lanka and that population is 2.4million of which 1million are overseas and if one spends a bit of time doing some calculations it is really impossible to believe the 400,000 or 500,000 figures that these former officers enjoy throwing into the air as if they personally counted them!
“when you remove the witness, when you don’t allow journalism the depths of war … but Sri Lanka was so much worse than Libya… its really bad”.
We are happy to do without “witnesses” who are one-sided and as for journalists we can say that numerous private tv stations including foreign were allowed to move with the troops to witness every stage of the conflict and none of them have said anything that remotely shows us that our soldiers were committing any crimes, Dix can summarize all his fictions in a book and sell like Weiss. The people of Sri Lanka will remain indebted to our forces no matter what
Dix is implying in the closing lines of his presentation that since the army did not know who was a civilian and who was LTTE, loosing thousands of civilians did not matter and that the army would not have to deal with them post-conflict – yet he forgets that 294,000 civilians were actually saved at the cost of 5000 military lives during the last stages of the war. If orders were clearly to fire at anything that moved as the US soldiers had been ordered to do in Vietnam then none in Sri Lanka’s military would have lost their lives nor would there be 11770 LTTE combatants. The GOSL has spent Rs.500million to rehabilitate and reintegrate to society – now save a handful they have either continued studied, engaged in a livelihood, taking to vocations like modeling and dressmaking, joined the security services, functioning as teachers and some are even playing for the national team in sports..…we are far more intelligent than to buy these lies.
A democratic Government has every right to protect the sovereignty of its country especially from terrorists and let’s not forget that having listened to the formulas provided by the West and its humanitarian agencies which could not stop the LTTE’s mission to kill civilians and only after 30 years of enduring terror that Sri Lanka’s military defeated the LTTE – that should be nothing Sri Lanka deserves to be punished for – especially when the very countries pushing for punishment have failed to deal with terrorism and their crimes against humanity goes unpunished or even investigated and the lady in charge of human rights cares not to waste a letterhead on them! We will not allow our soldiers to be humiliated with lies and fabrications because they remain the only military to have eliminated a terrorist movement while saving hundreds of thousands of civilians and thereafter designing an indigenous rehabilitation and reintegration program that no country can match. It may not be perfect but it still far superior to what other countries are unable to match because they are still battling terrorism.
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The Commission to Investigate Allegations of Bribery or Corruption is required to carry out a key task. The elimination of corruption and impropriety in public office by using the legal powers given to it by law. It has an investigative arm and a prosecution arm which give it serious muscle by law.
Jagath Balapatabendi
Jagath Balapatabendi
However, several political commentators and legal experts contacted by The Colombo Telegraph, effectively emphasized that in order for such a Commission to achieve its desired objective of eliminating corruption, it is necessary for the Commission to be free of political interference. Such freedom is absent, after the 18th Amendment to the Constitution, which repealed the safeguards created by the 17th Amendment. At the moment, all appointment to key judicial and public offices is made at the sole whim of the Executive President (Mahinda Rajapaksa). There is a ‘Parliamentary Council’ created to give the President its views on the suitability of nominees, which has no teeth and can make no binding decision or veto. It is widely condemned as a mere cosmetic constitutional device of no functional use.
In this situation, the integrity and reliability of holders of the highest offices is often called in question. Appointed by political patronage to the Rajapaksa Regime, many key public and judicial officers blatantly engage in various types of conduct which are against international norms of integrity and propriety. According to a key political commentator spoken to by The Colombo Telegraph, they do so, secure in the knowledge that the Rajapaksa Regime will protect them, as long as they remain faithful and do the regime’s bidding.
Serious concerns have been raised in recent times that the Bribery Commission is now being abused to intimidate and harass political opponents and falling out of grace with the Rajapaksa Regime.
In this background, the latest scandal is the revelation that retired Supreme Court Judge D. Jagath De S. Balapatabendi who as Chairman of the Bribery Commission is required to be independent of involvements or interests in relation to private sector companies, has acted as an arbitrator in a commercial dispute. The propriety of his functioning simultaneously as an arbitrator while being Chairman, Bribery Commission has been challenged, in a petition to the High Court of Colombo on the grounds that it is contrary to public policy.
In Case No. HC (Civil) WP 64/2013/ARB, the Petitioner (Delmege Forsyth & Co. Ltd.), seeks to have an award made on 20th February 2013 by a private arbitral tribunal presided over by Rtd. Justice D. J. De S. Balapatabendi after hearings conducted while holding the office of Chairman, Bribery Commission set aside. It is urged that the award is perverse and requires to be set aside as being contrary to public policy.
Here is the full text of the Petition, which is self-explanatory:
IN THE HIGH COURT OF THE WESTERN PROVINCE
SITTING IN COLOMBO
IN THE EXERCISE OF ITS CIVIL JURISDICTION
YCC EXPORTERS LIMITED
No. 133/8, Gothami Road
Rajagiriya
CLAIMANT
Vs.
DELMEGE DISTRIBUTORS (PVT) LTD.
No. 101, Vinayalankara Mawatha
Colombo 10.
RESPONDENT
AND NOW
In the matter of an Application to set aside Arbitral Awards in terms of Section 32 of the Arbitration Act No. 11 of 1995
DELMEGE FORSYTH & CO. LTD., with which Company DELMEGE DISTRIBUTORS (PVT) LTD., is now amalgamated with,
and of No. 101, Vinayalankara Mawatha
Colombo 10.
RESPONDENT-PETITIONER
H.C. (Civil) WP Case No. 64/2013/ARB Vs.
YCC EXPORTERS LIMITED
No. 133/8, Gothami Road
Rajagiriya
CLAIMANT-RESPONDENT
On this 5th day of April 2013
The Petition of the Respondent-Petitioner abovenamed appearing by Yamuna Balasuriya, Attorney-at-Law, practising under the name, style and firm of V. W. Kularatne Associates and her Professional Assistant, Vijayalakshmi Deepani Niroshini Wijesekera, its Attorneys-at-Law, states as follows:
1. The Respondent-Petitioner abovenamed (hereinafter sometimes referred to as the “Petitioner”) was a Company duly incorporated under the laws of Sri Lanka and has its Office at the aforementioned address, and on 13th June 2012 the Delmege Distributors (Pvt) Ltd., the Respondent in the Arbitration referred to herein was amalgamated with Delmege Forsyth & Co. Ltd., at the same aforesaid address, within the jurisdiction of Your Honour’s Court. The management control and majority Shareholdings of Delmege Forsyth & Co. Ltd. changed in or about June 2011.
A true copy of the Certificate of Amalgamation issued by the Registrar General of Companies dated 13th June 2012 is annexed hereto marked “P1”, pleaded as part and parcel hereof
2. The Claimant-Respondent abovenamed (hereinafter sometimes referred to as the “Respondent”) is a Company duly incorporated under the laws of Sri Lanka and has its Office at the aforementioned address, within the jurisdiction of Your Honour’s Court.
3. On or about 10th May 2007 a Memorandum of Understanding was entered into between the Respondent and the Petitioner, and in pursuant thereto on or about 28th May 2007 an Agreement was entered into between the Respondent and the Petitioner.
True copies of the said Memorandum of Understanding dated 10th May 2007 and the said Agreement dated 28th May 2007 are annexed hereto marked “P2” and “P3”, respectively, pleaded as part and parcel hereof
4.
(a) Under and in terms of the aforesaid Memorandum of Understanding [P2] and Agreement [P3] the Petitioner advanced to the Respondent a Loan of Rs. 20 Mn., of which Rs. 2 Mn., was advanced on 11th May 2007 upon the execution of the Memorandum of Understanding [P2], and the balance Rs. 18 Mn., was advanced on 28th May 2007 upon the execution of the said Agreement [P3], and the Respondent signed a Promissory Note dated 28th May 2007 promising to pay on demand the said Rs. 20 Mn., to the Petitioner.
A true copy of the said Promissory Note dated 28th May 2007 is annexed hereto marked “P4”, pleaded as part and parcel hereof
(b) It is evident that the Petitioner had advanced by way of Loans a substantial sum of Rs. 20 Mn., as had been required by the Respondent, obviously in circumstances of financial predicament, which the Respondent had been in.
5. Under and in terms of the said Memorandum of Understanding [P2] and Agreement [P3] –
(a) The Respondent appointed the Petitioner as the exclusive Licensee and Distributor of the products under the “Doctor Baby” Brand Name, claimed to have been owned by the Respondent.
(b) For the aforesaid Brand Name, the Petitioner was to pay to the Respondent a Royalty Fee of Rupees One Million Five Hundred Thousand (Rs. 1,500,000/-) per month or Ten Percent (10%) of the Net Sales Price, whichever is higher, in respect of each Month.
(c) The aforesaid Royalty Fee payable per Month was to be set-off as part repayments of the aforesaid Loan of Rupees Twenty Million (Rs. 20 Mn.) with interest thereon calculated at the market rate of interest to be determined by the Bank of the Petitioner being applied on the diminishing balance, after the recoupment of the Monthly Royalty Fee.
6.
(a) In terms of Clause 3(1) of the aforesaid Agreement [P3], the aforesaid Loan was to be re-paid with interest thereon calculated at the market rate of interest to be determined by the Bank of the Petitioner, which rate of interest had been confirmed to be 19% p.a., as evidenced by the confirmation Statement dated 29th February 2008 of the Respondent [P5].
(b) The said confirmation dated 29th February 2008 of the Respondent [P5] further confirmed the debt of Rs. 24,111,947/- as at 29th February 2008 by the Respondent to the Petitioner, with no debt, whatsoever, due to the Respondent from the Petitioner as at that date 29th February 2008.
A true copy of the said confirmation Statement dated 29th February 2008 is annexed hereto marked “P5”, pleaded as part and parcel hereof
7.
(a) Though the Agreement [P3] was entered into on 28th May 2007, due to practicalities, the actual operations of the arrangements contemplated under the said Agreement [P3] had not immediately commenced, and had commenced only subsequently.
(b) Among the reasons for the frustration of such commencement of operations immediately after entering into Agreement [P3] on 28th May 2007, had been;
(i) the inability on the part of the Respondent to have readily made available the products for distribution and sales by the Petitioner, inter-alia, due to the default of payments by them to their respective Suppliers of the products, and
(ii) also due to the absence of the requisite approvals therefor, which had to be obtained and provided by the Respondent from the Cosmetics, Devices & Drugs Regulatory Authority.
8.
(a) In such circumstances, as had been requested by the Respondent, the following further Loan Advances had been made by the Petitioner to the Respondent;
10th December 2007 – Rs. 1,500,000/-
26th March 2008 – Rs. 1,700,000/-
25th June 2008 – Rs. 750,000/-
Rs. 3,950,000/-
(b) The Statement [P5] dated 29th February 2008 given by the Respondent had confirmed that the Respondent owed the Petitioner Rs. 24,411,947/- as at 29th February 2008, having acknowledged the payment of Rs. 1,500,000/- on 10th December 2007, then described as Royalty, that too, only in the Month of December 2007, and not before; but later acknowledged by the Respondent on 25th June 2008 vide [P6] as a Loan as referred to at 8(a) hereinabove.
(c) Consequently in such circumstances, the Petitioner and Respondent by Letter dated 25th June 2008 [P6] had further jointly agreed as follows;
(i) for the Petitioner to make a minimum Royalty payment of Rs. 700,000/- per Month to the Respondent, until 10% of the actual Sales exceeded Rs. 700,000/- per Month, without making any recoupment from the aforesaid Loans.
(ii) that the Petitioner would recover from the Respondent monies on the aforesaid Loans of Rs. 20,000,000/- and Rs. 3,950,000/- , including the aforesaid payment made in December 2007, which had previously been described as Royalty and later treated as a Loan as aforesaid, from Royalties in excess of Rs. 700,000/- per Month.
(iii) that a total of Rs. 8,739,251/- (i.e. Rs. 206,137/- + Rs. 4,199,781/- + Rs. 4,333,333/-) was due to the Petitioner from the Respondent as at 30th June 2008, in addition to the aforesaid Loans of Rs. 23,950,000/-, and that nothing was due to the Respondent from the Petitioner as at 30th June 2008.
(iv) the said Letter dated 25th June 2008 [P6] jointly signed by the Petitioner and Respondent constituted an amendment to the Agreement [P3] dated 28th May 2007.
(v) accordingly the minimum Royalty payable of Rs. 1,500,000/- per Month as per Agreement [P3] dated 28th May 2007 had been abandoned by the aforesaid joint Letter dated 25th June 2008 [P6] stipulating a new minimum Royalty of Rs. 700,000/- per Month to be paid by the Petitioner to the Respondent, without any recoupment against the aforesaid Loans, and anything in excess of Rs, 700,000/- per Month up to 10%, as Royalty on the total sales, to be recouped as re-payments against the aforesaid Loans to the Petitioner.
A true copy of the said Letter dated 25th June 2008 is annexed hereto marked “P6”, pleaded as part and parcel hereof
(d) It is evident from the foregoing that the then prevalent Sales of the said “Doctor Baby” products of the Respondent had not been adequate enough to recoup the aforesaid Loans advanced by the Petitioner to the Respondent, as had been required by the Respondent to be recouped from the aforesaid future Royalties on the said Sales of the said “Doctor Baby” products of the Respondent, as had been contemplated in the Agreement [P3].
9.
(a) Thereafter several disputes had arisen between the Petitioner and the Respondent, resulting in the Petitioner terminating the aforesaid Agreement [P3], read together with joint Letter dated 25th June 2010 [P6], with effect from 30th June 2010 by the Petitioner’s Letter dated 31st March 2010 [P7], in terms of Clause 6(6) of the said Agreement [P3].
(b) The said termination of the Agreement [P3], read together with joint Letter dated 25th June 2010 [P6], being within a period of 5 years from the date of the said Agreement [P3] dated 28th May 2007, the following proviso of Clause 6(6) of the said Agreement [P3] came into force and operation;
“Provided if the Agreement is so terminated before the expiry of a period of Five years from the date hereof YCC shall refund all monies remaining in its hands out of the said sum of Rs.20,000,000/- to Delmege.”
(c) The said Agreement [P3] dated 28th May 2007 contained the following Clause 6(6):
“6(6) Delmege shall as any time during the currency of this Agreement have the right of terminating this Agreement by giving YCC Ninety (90) days written notice of such termination and upon termination or sooner determination of this Agreement, Delmege shall immediately cease the use of the Brand Name, unless it has purchased the same hereunder from YCC.
Provided if the Agreement is so terminated before the expiry of a period of Five years from the date hereof YCC shall refund all monies remaining in its hands out of the said sum of Rs.20,000,000/- to Delmege.” (Emphasis added)
(d) Thus, under and in terms of the said Clause 6(6), the Petitioner terminated the said Agreement [P3] dated 28th May 2007, read together with joint Letter dated 25th June 2010 [P6], with effect from 30th June 2010 i.e. after the effluxion of a period of 3 years and one month, which was before the expiry of a period of 5 years from the date of said Agreement [P3], whereupon the aforesaid proviso in Clause 6(6) came into force and operation.
A true copy of the Petitioner’s Letter dated 31st March 2010 terminating the said Agreement is annexed hereto marked “P7”, pleaded as part and parcel hereof
10. The said Agreement [P3] dated 28th May 2007 contained the following further Clauses:
(a) Clause 4(2)
“At the termination of this Agreement by efflux of time or the sooner determination thereof;
(a) any Royalty Fee remaining unsettled as aforesaid shall be paid and settled by Delmege to and on demand by YCC; and
(b) any, Royalty Fee paid in excess of the required amount remaining with YCC shall be refunded by YCC to Delmege on demand together with the aforesaid interest thereon; “
(b) Clause 4(4)
“At the termination this Agreement by efflux of time or the sooner determination thereof, Delmege may put the said Promissory Note in suit to recover any sums of money from and out of the Upfront Payment remaining unpaid by YCC hereunder and, if all such monies due have been paid and settled by YCC, then the said Promissory Note shall be returned to YCC by Delmege.”
(c) Clause 7(5)
“The termination of this Agreement by afflux of time or the sooner determination thereof as aforesaid shall not affect the rights of either of the parties hereto from claiming and recovering from the other of them all dues and properties that may have become payable or recoverable by the date of each termination or sooner determination. “
11. (a) Nevertheless, by Letter dated 10th June 2010, the Respondent, acting through Mahinda Ellepola, Attorney-at-Law, referred the matter for Arbitration, nominating Dudley A. Karunaratne, Retired High Court Judge, as the Sole Arbitrator, and giving 30 day’s notice to the Petitioner to nominate the Petitioner’s Arbitrator, if the Petitioner does not agree to a Sole Arbitrator.
eto marked “P8”, pleaded as part and parcel hereof
(b) Consequently, the Petitioner sent Letter of Demand dated 2nd July 2010 to the Respondent, claiming a sum of Rs. 24,045,280/44 from the Respondent.
A true copy of the said Letter of Demand dated 2nd July 2010 is annexed hereto marked “P9”, pleaded as part and parcel hereof
(c) Thereafter, the Petitioner by Letter dated 8th July 2010 addressed to the aforesaid Mahinda Ellepola, Attorney-at-Law for the Respondent, denied the allegations in the aforesaid Letter dated 10th June 2010 [P8] of the said Attorney-at-Law, as baseless and malicious, and stated that the Respondent had failed to duly comply with its obligations under the said Agreement [P3)], and reiterated its demand for the payment by the Respondent of Rs. 24,045,280/44 made by the aforesaid Letter of Demand dated 2nd July 2010 [P9], and subject thereto, nominated Kushan D’ Alwis, Attorney-at-Law, as the Petitioner’s Arbitrator.
A true copy of the said Letter dated 8th July 2010 is annexed hereto marked “P10”, pleaded as part and parcel hereof
12.
(a) Consequently, in terms of Section 6(3) of the Arbitration Act No. 11 of 1995, the retired Supreme Court Judge, D.J. de Silva Balapatabendi had been appointed, as an additional Arbitrator to act as the Chairman of the Arbitral Tribunal, as evidenced by Letter dated 4th August 2010 received from the Sri Lanka National Arbitration Centre.
A true copy of the said Letter dated 4th August 2010 is annexed hereto marked “P11”, pleaded as part and parcel hereof
(b) Accordingly, Arbitral Proceedings commenced at the Sri Lanka National Arbitration Centre, Colombo 2, within the jurisdiction of Your Honour’s Court.
(c) As at the date of the aforesaid appointment, as the Chairman Arbitrator, D.J. de Silva Balapatabendi had retired on or about 17th May 2010, as a Supreme Court Judge.
(d) Subsequently however, the said D.J. de Silva Balapatabendi had been appointed on or about 13th May 2011, as a Member of the Commission to Investigate Allegations of Bribery or Corruption in terms of Act No. 19 of 1994, and had been appointed as Chairman of the said Commission.
(e) In terms of Section 18 of the Commission to Investigate Allegations of Bribery or Corruption Act No. 19 of 1994, the said Chairman of the Commission, D.J. de Silva Balapatabendi was deemed to be a ‘public servant’, within the meaning of the Penal Code, which at Section 19 thereof defined a ‘public servant’.
13. (a) The Petitioner is advised that in the foregoing circumstances, the said Chairman of the Arbitral Tribunal, D.J. de Silva Balapatabendi having assumed Office, as the Chairman and Commission Member of the Commission to Investigate Allegations of Bribery or Corruption, became a ‘public servant’, as aforesaid, exercising executive and quasi-judicial power, and was thus and thereby ipso facto disqualified from functioning, as Chairman of a private Arbitral Tribunal, involving commercial disputes between private parties, and receiving payments therefor from the private parties.
(b) Unlike other ‘public servants’, Supreme Court Judges in Sri Lanka retire at the age of 65 years with 90% of the salary, allowances and other perquisites, so that such persons are not compelled to seek post retirement employment.
(c) Nevertheless, in this instance in terms of the Commission to Investigate Allegations of Bribery or Corruption Act No. 19 of 1994, retired Supreme Court Judges are appointed as Commission Members of the Commission to Investigate Allegations of Bribery or Corruption, with further lucrative allowances and perquisites.
14. (a) In the foregoing circumstances, the Petitioner is advised, that the Arbitral Tribunal ipso facto became improperly constituted and functus, with the appointment of the Chairman of the Arbitral Tribunal, D.J. de Silva Balapatabendi, as the Chairman and Member of the Commission to Investigate Allegations of Bribery or Corruption.
(b) As a consequence, the Arbitral Tribunal ipso facto becoming improperly constituted and functus as aforesaid on or about the said 13th May 2011, thus and thereby the Arbitral Awards made on 20th February 2013 by the said improperly constituted and functus Arbitral Tribunal were ipso facto ab-initio null and void and of no force or avail in law.
(c) The Petitioner ill-advisedly continuing to be a party in such Arbitration Proceedings, did not however or in any manner, whatsoever or howsoever, cure the aforesaid impropriety and the fact that the Arbitral Tribunal ipso facto became functus from around 13th May 2011 as aforesaid.
(d) It was the duty and obligation cast upon the said Chairman of the Arbitral Tribunal, D.J. de Silva Balapatabendi, a retired Supreme Court Judge, to have withdrawn from such Arbitral Tribunal immediately upon assuming Office, as Chairman and Commission Member of the Commission to Investigate Allegations of Bribery or Corruption.
15. (a) It was highly scandalous and of serious odium for the Chairman of the Commission to Investigate Allegations of Bribery or Corruption, exercising executive and quasi-judicial power to investigate and prosecute offences of bribery and corruption, to have involved himself to have chaired private disputes settlements, leaving himself exposed to be compromised by private parties, who make payment for his such services, as Chairman of a private Arbitral Tribunal.
(b) The ‘public perception’, which is vitally important of the independence of the Commission to Investigate Allegations of Bribery or Corruption, in the foregoing circumstances is susceptible to be seriously put in jeopardy.
(c) The foregoing was in serious conflict with the Public Policy of Sri Lanka, warranting the prompt setting aside, as ipso facto ab-initio null and void, the purported Arbitral Awards made on 20th February 2013 by the said improperly constituted and functus Arbitral Tribunal.
(d) Sri Lanka had ratified the UN Convention Against Corruption on 31st March 2004, which encompassed both the public and private sectors, whereby Sri Lanka stands obliged to duly observe, perform and fulfill the duties and obligations on its part under the UN Convention Against Corruption; more so it is imperative on the part of the Commission to Investigate Allegations of Bribery or Corruption to respect and conform to the duties and obligations under the UN Convention Against Corruption.
16. (a) Regardless of the foregoing, the said Arbitral Tribunal, chaired by D.J. de Silva Balapatabendi, Chairman of the Commission to Investigate Allegations of Bribery or Corruption, had continued to conduct Arbitration Proceedings, having previously entertained the Claim of the Respondent dated 31st August 2010.
A certified copy of said Claim dated 31st August 2010 is annexed hereto marked “P12”, pleaded as part and parcel hereof
(b) The Petitioner, as was obliged, responded by the Statement of Defence dated 8th October 2010, including its aforesaid Claim of Rs. 24,045,280/44 made by its aforesaid Letter dated 2nd July 2010 [P9] against the Respondent.
A certified copy of the said Statement of Defence dated 8th October 2010 is annexed hereto marked “P13”, pleaded as part and parcel hereof
18. (a) The aforesaid Arbitral Tribunal as had been notified by Letter dated 4th August 2010 [P11] had commenced Arbitration Proceedings, with the Statement of Claim dated 31st August 2010 [P12] having been tendered, and had proceeded to sit on or about 11 days up to 30th March 2011, at which point of time the Inquiry had commenced with proceedings having been had on two days.
(b) Thereafter, the aforesaid improperly constituted and functus Arbitral Tribunal had regardlessly proceeded to continue to conduct the said Arbitration Proceedings, with the Inquiry being continued on 20th May 2011, after the Chairman of the Arbitral Tribunal, D.J. de Silva Balapatabendi had assumed Office on or about 13th May 2011, as a Member and the Chairman of the Commission to Investigate Allegations of Bribery or Corruption, as aforesaid.
(c) Thus, the improperly constituted and functus Arbitral Tribunal had sat on or about 18 days thereafter conducting the said Inquiry, recording evidence, receiving Written Submissions, hearing Oral Submissions, and consequently had made Awards on 20th February 2013, whilst the Chairman of the Arbitral Tribunal, D.J. de Silva Balapatabendi, was at the very same time, also the Chairman of the Commission to Investigate Allegations of Bribery or Corruption.
Certified copies of a bundle of Documents consisting of all papers filed before the Arbitral Tribunal, including recorded evidence, oral and written submissions, are annexed hereto at the end, compendiously marked “P16”, pleaded as part and parcel hereof
(d) The Petitioner very respectfully reserves the right to tender any further relevant Documents, which would be material to assist Your Honour’s Court to adjudicate upon this matter.
(e) (i) Though the Respondent had held out, more particularly, as per Documents marked
P2 dated 10.5.2007
P3 dated 28.5.2007
P4 dated 28.5.2007
P5 dated 29.2.2008
P6 dated 25.6.2008
P8 dated 10.6.2010
P11 dated 4.8.2010
P12 dated 31.8.2010
that the Respondent was a Public Limited Liability Company without describing itself as a Private Limited Liability Company as mandatorily required in terms of Section 6 of the Companies Act No. 7 of 2007, which came into force on 3.5.2007, the Petitioner in endeavouring to obtain the Annual Accounts of the Respondent from the Registrar of Companies recently discovered that the Respondent was a Private Limited Liability Company, without describing itself correctly, in violation of the said mandatory requirement under Section 6 of the Companies Act No. 7 of 2007.
(ii) In the circumstances, the Petitioner having been unable to obtain copies of Annual Accounts of the Respondent, respectfully moves for an Order of Your Honour’s Court that the Petitioner be permitted to obtain copies of same from the Registrar of Companies and to tender the same to Your Honour’s Court for the proper adjudication of this matter.
(f) On the other hand, the Petitioner had correctly described itself as mandated, as a Private Limited Company under and in terms of Section 6 of the Companies Act No. 7 of 2007
18. (a) The Chairman of the Arbitral Tribunal, D.J. de Silva Balapatabendi, who was also the Chairman of the Commission to Investigate Allegations of Bribery or Corruption, with the Respondent’s Arbitrator, Dudley Karunaratne agreeing, had made a phenomenal baseless Award in favour of the Respondent, tantamounting to conjecture, without having taken any cognizance of the past actual financials of the Respondent, and amounting in total to Rs. 145.5 Mn., (Rs. 55.5 Mn., + Rs. 90 Mn.), having also questionably ignored the interest payable by the Respondent on the substantial aforesaid Loans amounting to Rs. 23,950,000/-, which had been advanced to the Respondent by the Petitioner, as per the aforesaid Agreement [P3], read with joint Letter dated 25th June 2008 [P6], as morefully set out hereinbelow.
(i) A Royalty payment of Rs. 1.5 Mn., per month from the date of Agreement [P3] of 28th May 2007 up to the date of termination of the Agreement [P3] on 30th June 2010 i.e. for 37 months, totaling Rs. 55.5 Mn., less the 3 Loans advanced of Rs. 3.95 Mn., referred to at paragraph 8 hereinbefore; without having taken into account the interest of 19% p.a. payable on such Loans as set out hereinbefore, and also intriguingly having chosen to ignore that the Respondent and Petitioner had, in fact, agreed by Letter dated 25th June 2008 [P6], to amend the said Agreement [P3] dated 28th May 2007 and that the Respondent had confirmed having owed monies to the Petitioner as at 30th June 2008, as set out at paragraph 8 hereinbefore.
(ii) In addition to the above, a further payment of damages purportedly based on the Royalty payments lost by the Respondent of Rs. 1.5 Mn., per month for another future 5 years i.e. for 60 months, making a total of Rs. 90 Mn., from which the aforesaid original Loan of Rs. 20 Mn., paid in May 2007 upon signing of Agreement [P3] had been deducted, that too, questionably without having taken into account the interest payable of 19% p.a. on such Loan as morefully set out hereinbefore; and furthermore without having examined the Respondent’s actual financials for a relevant period before the Petitioner entered into Agreement [P3] in May 2007 with the Respondent, and without having taken cognizance of the cogent fact that the Agreement [P3] stood amended by the joint Letter dated 25th June 2008 [P6].
(iii) Intriguingly, the foregoing interest payable of 19% p.a. had been omitted, notwithstanding the fact that the Petitioner’s Arbitrator, Kushan D’ Alwis in his dissenting Award had provided for such 19% p.a. interest payable by the Respondent to the Petitioner on the aforesaid Loans, which therefore the Chairman of the Arbitral Tribunal, D.J. de Silva Balapatabendi, and Respondent’s Arbitrator, Dudley Karunaratne would have been well and truly aware of.
(b) On the other hand, the Petitioner’s Arbitrator, Kushan D’ Alwis, Attorney-at-Law, dissenting with the foregoing phenomenal Award based on conjecture, had written a separate Order, awarding the Respondent in contrast Rs. 6.04 Mn.; that too, without having taken cognizance of the cogent fact that Agreement [P3] stood amended by the joint Letter dated 25th June 2008 [P6] and that the Respondent had thereby confirmed that the Respondent owed monies to the Petitioner as at 30th June 2008.
Certified copies of the aforesaid Award and the said dissenting Award are annexed hereto marked “P14(a)” and “P14(b)”, respectively,
together with Letter dated 4th April 2013 of Dissanayake Amaratunga Associates, Attorneys-at-Law annexed hereto marked “P15” confirming that they had not received Certified Copies of the aforesaid Awards dated 20th February 2013, even though the Proceedings before the Arbitral Tribunal of 20th February 2013 – vide [P16] had recorded thus in contravention of Section 25 (4) of Arbitration Act No. 11 of 1995
“The Registrar of the Arbitration Centre is directed to send certified copies of the Award and the Dissenting Order to the parties concerned by the registered post”
pleaded as part and parcel hereof
(c) (i) The Agreement [P3] dated 28th May 2007 in proviso at Clause 6(6) had specifically stipulated thus, which was applicable in this instant case:
Provided if the Agreement is so terminated before the expiry of a period of Five years from the date hereof YCC shall refund all monies remaining in its hands out of the said sum of Rs.20,000,000/- to Delmege.”
(ii) The Petitioner in its Statement of Defence [P13] dated 8th October 2010 had stated its Claim of Rs. 24,045,280/44 as had been demanded by its Letter dated 2nd July 2010 [P9] from the Respondent, with the Respondent having given the Petitioner a Promissory Note dated 28th May 2007 [P4].
(iii) Clause 2 (4) of the Agreement [P3] dated 28th May 2007 is given below:
“2(4) within a time period of five (05) years of signing this Agreement, agrees to sell outright and absolutely assign the Brand Name to Delmege in due form of Law for the price or consideration of United States Dollars Two Million (Rs. 2,000,000/-), if Delmege has notified YCC in writing of its intention to so purchase the Brand Name such notice to reach YCC at least fourteen (14) days prior to the intended date of purchase, it being declared and understood that if such notice is not received by YCC as aforesaid, YCC shall have the right to refuse to so sell the Brand Name to Delmege.”
The foregoing is in contravention of the Exchange Control Act, thereby raising the issue that Agreement [P3] is an illegal contract, and thus and thereby would be repugnant of and in conflict with Public Policy.
19. Being aggrieved with the said purported Arbitral Awards made on 20th February 2013 by the aforesaid improperly constituted and functus Arbitral Tribunal, the Petitioner very respectfully invokes the jurisdiction of Your Honour’s Court, and moves to have the said purported Arbitral Awards set aside, on the following, among other grounds, that may be urged by the Counsel for the Petitioner at the Hearing of this Application.
(a) The Chairman of the Arbitral Tribunal, D.J. de Silva Balapatabendi became disqualified from being a Member of the Arbitral Tribunal and Chairman thereof, upon assuming the public office of a quasi-judicial nature on or about 13th May 2011, as a Member and Chairman of the Commission to Investigate Allegations of Bribery or Corruption, thereby ipso facto disqualifying him to have continuing to be a Chairman of the Arbitral Tribunal.
(b) Thus and thereby on or about 13th May 2011 the foregoing rendered the Arbitral Tribunal to ipso facto become improperly constituted and functus, and whereby the aforesaid Awards made on 20th February 2013 to be ab-initio, null and void and of no force or avail in law.
(c) The foregoing Arbitral Proceedings, including the aforesaid purported Arbitral Awards are thus and thereby scandalous and in serious conflict with the Public Policy of Sri Lanka, causing grave public odium.
(d) The purported Awards are contrary to the covenants in the Agreement [P3], dated 28th May 2007, read together with the joint Letter dated 28th June 2008 [P6] between the Respondent and the Petitioner.
(e) The foregoing purported Awards are contrary to the Laws of Sri Lanka and are in conflict with Public Policy of Sri Lanka.
(f) The said purported Awards contain decisions on matters not falling within the purview of the Terms of Reference.
(g) The said purported Awards deal with disputes not contemplated by and not falling within the submissions to Arbitration and also contain matters beyond the scope of submission to Arbitration.
(h) The foregoing purported Awards had been made in the absence of and without any examination of the actual financials of the Respondent.
(i) The foregoing purported Awards had gravely failed to take cognizance of the fact that the Agreement [P3], which stood amended as aforesaid and the consequent arrangements tantamounted to an ‘unfair contract’.
20. (a) If the interim relief sought for herein is not granted, irreparable loss and damage and irremediable mischief would be caused to the Petitioner.
(b) The Petitioner reserves the right to support for interim relief at an appropriate stage.
21. The Petitioner has not previously invoked the jurisdiction of Your Honour’s Court in respect of this matter.
22. The Affidavit of the Group Managing Director of Delmege Forsyth & Co. Ltd., with which Company, Delmege Distributors (Pvt) Ltd., is now amalgamated, is annexed hereto in support of the averments herein contained.
WHEREFORE the Petitioner very respectfully prays that Your Honour’s Court be pleased to:
(a) set aside the Arbitral Awards delivered on 20th February 2013,
(b) grant interim relief staying the operation and enforcement of the Arbitral Awards delivered on 20th February 2013, until the hearing and final determination of this Application,
(c) make an Order declaring that the Petitioner is entitled to obtain certified copies of the Annual Accounts of the Respondent from the Registrar of Companies to be tendered to Your Honour’s Court for the adjudication of this matter
(d) grant costs, and
(e) grant such other and further reliefs as Your Honour’s Court shall seem meet
Settled by:
Viran Corea, Attorney-at-Law
M.A. Sumanthiran, Attorney-at-Law
Categories
Moneylife: Travel to Sri Lanka
Travel to Sri Lanka- I
Naveena Israni explores the beaches and the wild side of this island nation
If  you’ve currently explored attempted-and-tested destinations in the US and Europe and grown weary of Southeast Asia, it’s about time you booked your tickets to refreshing, cost-effective Sri Lanka. This tropical island nation is now on the radar of travellers who avoided it due to the decades-extended civil war. Offered its stellar mixture of beauty, culture and history, and the expanding focus on sustainable tourism, this is the greatest time to discover Sri Lanka.
Continue reading: http://www.moneylife. in/write-up/travel-to-sri- lanka-i/31105.html
Travel to Sri Lanka II: A Treasure trove
In the second of this two-part series, Naveena Israni traverses the hills of Sri Lanka and sheds light on the country’s architectural, religious and cultural heritage
In  our prior problem, we gave you basic travel suggestions on Sri Lanka, followed by a tour of the beach town of Bentota and a walk on the wild side. Right here, we’ll discover the Hill Nation of this island nation, as nicely as its cultural and religious heritage. Our first cease is Nuwara Eliya, the heart of Sri Lanka’s tea nation, situated over 6,000ft above sea level.
Continue reading: http://www.moneylife. in/post/travel-to-sri- lanka-ii-a-treasure-trove/ 31363.html