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Foreign Affairs

Concentrate On Civilian Policing

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basilfernando

Basil Fernando

Within just a few days of the announcement of the new ministry, the Ministry of Law and Order, a rather unusual level of interest has emerged, judging by the many articles that have appeared in response to the government’s move. Though such quick responses are unusual, they are not surprising. If anyone is asked to point out some of the most pressing issues of public importance, the issue of the civilian police would emerge, without doubt. In fact, for several years, this issue has been addressed on an almost daily basis in all media, in all languages.

Therefore, it is worth trying to trace, by way of a brief history, how the issue of civilian policing acquired such importance.

Since the British established a policing system in Sri Lanka, some 147 years back, the idea of establishing a civilian policing system, which would be in charge of the law enforcement in Sri Lanka, gradually became quite a consolidated part of the building of the state in Sri Lanka. The critical point at which the idea of civilian policing came to be challenged is in the aftermath of the 1971 JVP ‘insurrection’. Suddenly, the police, together with the military, was pushed into the executing the idea of ‘exterminating insurgents’. The idea of extermination was in direct contradiction with the ideas of the administration of justice and enforcement of law in the normal sense, anywhere in the world.

Looking back, it is easy to identify the elements of such extermination, as compared with normal law enforcement functions.

Those elements are:

Arresting persons on a large scale, often based on very flimsy information, which the police were not in a position to assess for veracity;
The permitted use of extraordinary forms of torture with the view to discover information about insurgency and those who are involved in it to a greater or lesser degree;
‘Suspension’ of the police departmental orders in dealing with arrest, detention and the welfare of detainees;
Extraordinary forms of permitted secrecy and withholding of information, even from the next of kin of detainees;
‘Suspension’ of the requirement to observe the legal procedures of reporting arrests and detentions to court, as required by the Criminal Procedure Code of Sri Lanka;
‘Suspension’ of the rule relating to the production of suspects before magistrates within 24 hours;
‘Suspension’ of post-mortems in cases of deaths relating to insurgents;
Finally, large-scale killings of persons after arrest and disposal of their bodies.

These aspects of deviation from the normal legal procedure have been well researched and documented, and a considerable body of literature is available. The purpose of reiterating these items here is merely to trace when the beginning of a drastic departure from civilian policing took place in Sri Lanka.

Subsequently, there were other insurgencies, both in the south as well as in the north and east, which continued up to May 2009, during which period these same deviations continued and intensified. As for the south, the commissions appointed for investigation into involuntary disappearances have left a rather lengthy reports of how these practices occurred. Regarding the north and east, there are many reports made by independent observers, as well as, to some extent, recorded in court cases and numerous reports from human rights groups, including those from various UN agencies. However, a thorough, official record is yet to come, as no official investigations have taken place. Such an official recording would have enabled the survivors from such experiences to record their grievances before a state agency.

These deviations was legitimized by Emergecy Regulations and Anti- terrorism laws.

Normative Changes

Besides the deviation from normal practices mentioned above, there was also a significant change in the law itself, by way of constitutional changes. The 1978 Constitution brought all public institutions under the control of the Executive President and thus the structure of the institutions underwent a fundamental change in their normative framework. Again, this aspect is also well-reflected in the massive amount of literature that is available on the constitutional changes. By 2001, the impact of this change in the normative framework on the actual functioning of the police and other institutions was drastically felt. The disturbing impact of institutional failures led to a parliamentary debate and the passing of the 17th Amendment with near unanimity, with the objective of taking some partial corrective measures. There was a short period of experimentation with the 17th Amendment, which did not change the normative framework of the 1978 constitution but attempted to provide some relief in relation to the damage caused to the institutions. As far as the police were concerned, the National Police Commission brought about some significant improvements, though, due to normative problems, it was not possible to correct the situation completely. However, even these limited improvements collided with the normative framework of the 1978 constitution and the new political regime, which was thoroughly interested in restoring the 1978 constitutional framework. Thus, the 18th Amendment was adopted by the Rajapaksha regime, which went beyond mere re-affirmation of the normative framework of the 1978 constitution, but in fact created a situation in which it is almost impossible to bring about change.

In short, what now exists as the policing system is a product of the deviations brought about in practice since 1971, and normatively brought about by the 1978 constitution, reaffirmed and re-strengthened by the 18th Amendment to the constitution.

When the Lessons Learnt and Reconciliation Commission (LLRC) made its recommendations relating to the problems of the rule of law in Sri Lanka and mentioned the need of delinking the police department from the Ministry of Defence, the aim of that recommendation was the reestablishment of civilian policing in the original sense – meaning before the practical transformations since 1971, and the normative changes since the 1978 constitution.

The present move to establish a new ministry, a “Law and Order” Ministry, and the place of the policing system under this new ministry, is announced as a step towards implementing the LLRC recommendation. However, the mere change of ministry will not create a civilian policing system that has the power and capacity to enforce law within the framework of the rule of law as it existed originally, unless the deviation – practically caused since 1971 and normatively caused by the 1978 constitution, reinforced by the 18th Amendment – is deliberately removed.

Such a change requires a change of design, an expression of intent in terms of principles by way of changing the normative framework of the 1978 constitution, as well as the practical steps to overcome the practices that have gotten entrenched since the aftermath of the 1971 insurgency.

The public has only one of two choices; Either to enter into this debate on civilian policing and achieve a decisive change or live in this same miserable situation without state protection, expecting the things to become even worse.

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Concerns On The Draft Code Of Media Ethics

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Mug shot

Harith de Mel

The Ministry of Mass Media and Information has recently proposed a Draft ‘Code of Media Ethics’. Upon reading the preliminary draft which has been made available selectively, the writer would like to highlight certain immediate concerns about this step by the Ministry. These concerns are primarily made for the preservation of an essential element of democracy; the freedom of the Media. There shall be no specific comment on the content of the Draft Code at this juncture as it would be premature even though on a perusal of the same it is much warranted.

The first concern is a matter of Professions and Ethical guidelines. Professions require and do have ethical guidelines. Ideally such is created and regulated by the profession itself. Therefore the propriety of a Ministry or Government to pass by regulation a Code of Ethics applicable to a profession must be questioned. It brings up the wider question whether any other profession can be subject to similar governmental actions. The Minister does have the power to pass regulations subject to approval by Parliament under S.30(2) of the Press Council Act of 1973 however the question remains whether the content of such regulation can ever be a code of ethics and even so a code of ethics formulated by the Ministry.

Further it must be noted that it is not in the absence of a code of ethics from the Media Profession the Government has taken this step. There is currently a ‘Code of Professional Practice (Code of Ethics)’ of The Editors Guild of Sri Lanka and Free Media Movement adopted by the Sri Lanka Press Institute which is quite comprehensive, and up to date has maintained a Press Complaints Commission for the implementation of such. Interestingly several elements of the same code has been extracted verbatim to the proposed code as well; however some of the additional ‘ethics’ proposed (especially in clause 1) cannot be said to be of a nature that any professional body would pass or that would be reasonably acceptable from the perspective of the Media Profession as it embodies very little professional insight on the workings of Media.   Thus the propriety of the Government to pass it own set of ethics and superimpose such on the Media profession is clearly questionable.

The 2nd issue that arises is as to one aspect of the content of the Draft Code which is one of the graver concerns. Clause 1 contains several grounds from (a) to (m) on which ‘No Publication should be published…’  for example ‘containing material against the integrity of the executive , judiciary and legislative’. The question that arises here is can a code of ethics for media set out a restriction on content or subject matter that the media may deal with? Ethics being primarily related to the conduct of the media should if at all regulate the ‘means by which the media acts’. These restrictions do not regulate the means. They regulate the ‘end’ or the end product that is the publication itself. There is a flaw in a code of ethics regulating the end and not the means to an end. From Clause 2 onwards there are considerations of these means. For example accuracy, standards of reporting, means of investigating, confidentiality and so on are matters within an ethical code which are the means by which the media should work. If at all any restriction on the content should not be other than that which is not allowed ‘by law’ which need not be stated and is implied and is further strengthened under The Press Council Act itself and by other laws. Certain elements of Clause 1 do not carry out that objective either. Interestingly the Code adopted by the Sri Lanka Press Institute does not at any juncture have any such restrictions either, as it is itself a proper code of ethics standing within the purpose of a code of ethics.

The 3rd concern is that this particular draft code of ethics cannot be set out as regulations under the existing Law.  Due to the inaction of several governments over time it has been seen that the Media is subject to Laws in a haphazard manner. The Press Council Act of 1973 deals with print media such as in the form of newspapers. However the draft code attempts to herd in Electronic Media and Websites. The only form of Law currently applicable to these forms of media are the Sri Lanka Telecommunications Act No. 25 of 1991 which by its provisions do not provide for regulations of this nature and by its preamble does not suggest any such. Therefore the Government as a first step will have to consider legislative amendments to the Press Council Act or additional legislation before it can come up with these regulations. This would make it a further issue as currently existing media forms which have been allowed to so exist will be subsequently subject to new laws and regulations. Given this clear retrospective effect this lacuna in law should not be unilaterally imposed by the government but done with extensive dialogue and consultation with the Media Profession.

The final issue is then what would be the effect if these legislative amendments are made and the draft code of ethics is passed by regulation and made applicable to all the said media above.  The code uses the words ‘shall adhere’ which in law usually suggests a mandatory provision. The code however does not suggest the method of implementation and as at current there have been suggestions from the Ministry that this code of ethics will only have an effect as such and no effect whatsoever as Law. To determine the truth of this one must read the Code of Ethics along with the existing Press Council Act of 1973 which is the Core Law according to sources that will be amended to facilitate these regulations.

S.2 of the said Act creates the body called ‘The Press Council’ which has the capacity to sue. Under S.3 it is constituted of 7 members who include 6 members appointed by the President and 1 person called the ‘Director of Information’. Out of these 6 members appointed only 2 members are selected by the president from a nominated panel respectively from working journalists nominated by the Journalists Associations and a person to represent the interests of employees of newspaper businesses from such employee unions thus leaving 4 others to be selected by the President in addition to the appointee as Director of Information. Interestingly a quorum of 5 suffices for the Council functions. Therefore there is grave concern as to the independence of this Council with respect to appointment, remuneration, removal, functioning quorum and so on.

Under S.9 the council may take action by way of Inquiry. This can be done where there is ‘complaint made to it or otherwise’ and this includes inquiry by the Council of its own initiative. The reason for such inquiry can be a publication by an editor or a working journalist which commits a breach of professional misconduct or breach of the code of journalistic ethics. Therefore the proposed Code of Ethics by regulation shall clearly fall under the criteria for instigating an inquiry.

Under S.11 the Council has the powers of a District Court to summon persons, compel the production of documents and administer and subject person to an oath. Further under S.12 refusal or failure to comply with the Councils abovementioned powers amount to ‘contempt of the Council’ of which a certificate may be submitted to the Court of Appeal by the Council Chairman and can be punishable under Article 105 of the Constitution as if it were contempt of the Court itself. Any orders of the Council are also final and cannot be questioned in any court of Law and further disobeying any order made by the Council amounts to summarily triable offence at the Magistrate Court with possible fines and imprisonment.

There is therefore no doubt as to the extreme powers that might be with the Press Council and the heavy blow to be dealt to the freedom of the media with the addition of this Code of Ethics. It could be suggested that the constitution, powers and functions of such a Council be reviewed and amended. Whilst regulation of Media is also a necessary component of government it should not be done without proper checks and balances. Having a ‘Code of Ethics’ and the adjudicative powers one on the side of government would amount to a serious concentration of powers which will seriously hinder against the freedom of the media.

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Foreign Affairs

Launching Of The North East Provincial Council

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S.Sivathasan

S.Sivathasan

Prelude

The election of R. Premadasa as President of Sri Lanka was needed to give life to the North East Provincial Council (NEPC), and to get it moving. No sooner was he elected President, Varadaraja Perumal, the Chief Minister in waiting known as on HE  R. Premadasa the newly elected President. What is happening in the NEPC? inquired the President. Sir, absolutely nothing is moving and to make the Council perform, I do not have officers. When the President gave kinetic energy to the Council ‘Premadasa Style’, it got started quickly and changed to top gear.

The Launch

The sequence of events was as follows. On 19th November was the NEPC election. On 30th November Lieutenant Basic Nalin Seneviratne was appointed Governor. On 19th December was the Presidential election. The CM’s meeting was about 23rd December 1988. By this time the CM had only two officials. Dr.Wigneswaran, Secretary to the CM and Mr. V.N. Sivarajah, Chief Secretary (CS).  Finances offered to the Council had been nil. Take any officer you want from the Public Service and the letter of release will stick to, was his directive. An allocation of Rs. five million was also made for spending inside a week and it was spent usefully. With these two choices the Council got going and established the Secretariat in Trincomalee.

Taking off was a challenge. At the outset several have been reluctant to join the NEPC. It was Wigneswaran’s notion and was endorsed by the CM, that to be Chief Secretary, the senior most officer in the SLAS alone can command the allegiance of the officialdom. He approached the most senior but he declined. He then requested the subsequent, he also declined. The third Mr. Sivarajah accepted. The option was excellent. In addition to varied encounter he was senior even to really a handful of Secretaries in central Ministries. His cast of mind was nicely suited for the challenges ahead. The news inspired self-assurance among other public servants to join the NEPC.

The Board of Ministers comprised five &#8211 three Tamils, one particular Sinhalese and one particular Muslim. In view of the merger of two Provinces, ten Ministries have been allowed with every one handling two portfolios. The identical quantity of Secretaries was also allowed. Selections were created on seniority and merit and letters have been issued from the NEPC Secretariat. 4 of us received letters in Jaffna about 1st January 1989. IPKF helicopter took us to Trincomalee. A handful of far more Secretaries joined us in close succession to compose the complete complement of ten.

Starting

Till permanent accommodation was arranged in two months, most of us stayed with each other in the Irrigation Department circuit bungalow. For the CS, the day dawned at three.30 am and with his humming of thevarams (Hindu religious songs ) we had been up at four. From four.30 to 6 am discussions and writing and then all at office between 7 and 7.30. All were in a single huge area of the CM. A single conference table served the table demands for all. In a few weeks the secretariat was furnished and well equipped. For most senior officers the day ended at six or six.30 and not later simply because of the curfew at 7pm. With time and power fruitfully spent, a vertical takeoff was attainable.

The initial duty of the Secretaries was to set up the departments, staff them and to equip them. All these were completed from scratch from Head of Division downwards. After the Council got stabilised obtaining the employees from established departments became effortless. Trincomalee ceased to be a bogey and the EPRLF government became respectable. It drew the consideration of Colombo and earned the respect of those in North East.

For all the good results, the leadership of the Chief Minister buttressed by the invaluable contribution of Mr. Sivarajah and sagacity of Dr. Wigneswaran mattered. The CM had a knack for taking swift and pragmatic decisions. His mind was not weighed down by any ideological baggage. Nor was it assailed by doubts or diffidence. In the NE he navigated in hostile waters given that Tigers had been on the prowl. Merged NEPC was twice the size of the other ones. He wanted to demonstrate that granted the chance Tamils could administer. Creating a success of it was a passion and he produced it so.

As the offices got streamlined, priority shifted to improvement effort. It had to be placed on a certain footing with a sound policy frame. Policy surely had to take its bearings from national parameters, though considerably leeway was offered for Provincial initiative. The approach of devolution itself demanded dialogue for expanding the scope and to quicken speed.

Central Ministers

The first Central Minister to invite the CM and the relevant officials to the Ministry on his own initiative was Hon. S. Thondaman. This was in early January. I was present considering that I handled the subject of Livestock Development. The fullest authority to make this subject efficient was devolved by the Minister. At an in residence meeting in the Ministry, when an officer expressed fears at the extent of devolution the Minister quipped “nobody will go to courts on that score”. All through my tenure, I had maximum support from the Ministry and proactive cooperation from the parent Department. The Division of Agriculture as well was amongst the earliest to devolve with authority, finances and staff. The character of the Director Dr. Irwin, created a difference given that he had a very good grasp of devolution. Ministers also visited Trincomallee and had discussions with CM, Ministers and officials. Hon. Ranil Wickremasinghe had the twin subjects of Education as effectively as Youth Affairs and came far more often.

Since I was Secretary for the subject of Agriculture in the Province, I attended quarterly conferences at the national level in Colombo chaired by Hon. Lalith Athulathmudali, Central Minister of Agriculture. He extended his fullest cooperation for the devolution approach. Our initiatives coupled to his pragmatic approaches created for good results. The Secretary Mr. MDD Pieris, a blessing for the Minister was a blessing for us as well. He was amongst the most stand out and his choices in our support have been proactive and bold.

Governor

The 1st Governor of NEPC was Lt. Gen. Nalin Seneviratne. He held workplace for the full term from Nov. 1988 to Nov. 1993. He was exemplary. He was 1 amongst the initial batch of six multi ethnic selectees, to proceed to Sandhurst in 1952. Selections have been created by a Board chaired by Sir Kandiah Vaithianathan the then Secretary Defence. As soon as the Governor told me that this was the way Vaithianathan strove to keep an ethnic balance. He retired from the army as its Commander.

He assumed office with the benefit of experience, but dispensed with his command antecedents. He had the most exact conception of a Constitutional Head of the Province yielding the fullest space to the elected Council, the Chief Minister, the Board of Ministers and officials. He entertained no thought of deflecting or overriding devolved authority with Central directive or control. With all the personnel he had a warm rapport. In Parallel he maintained a delicate balance with the Centre. Provincial governance moved smoothly on.

Institutions

In addition to Ministries and Departments, two critical institutions had been created: the Provincial Public Service Commission and the Auditor General’s Division. Each had been manned by competent personnel who did credit to those institutions. For new appointments which were numerous, in various grades, procedures have been laid down and selections created accordingly. Full documentation was produced and appointments were duly authorized by the PPSC. Adherence to propriety insulated all appointees from any future issue. In all this the Chief Secretary brought his mature expertise to bear. With higher stress function it was tempting for some of us to neglect them.

Till April New Year, governance was smooth sailing. Circumstances demanded it. President was sworn in on twond January 1989. General elections have been scheduled for February. What ever the spread of the IPKF, the militants produced their presence felt in the North East. Turmoil in the South seemed challenging to include. The economy was in the doldrums. The President’s concern was to consolidate his position. Perhaps cordiality with India seemed advisable and it was extended to the CM and the Provincial government.

Spending budget 1990

In the latter component of 1989, the budgetary workout was initiated by the Ministry of Finance of NEPC, with a Budget Call supplying realistic parameters. The Draft Estimates ready by individual Ministries had been additional reviewed with the Ministry Secretary by a committee of three Secretaries prior to getting sent to the Provincial Treasury. The ‘Printed Estimates’ brought out soon after laborious work and submitted with the Budget Speech was an impressive 300 web page volume in Programme Spending budget format. It was to the credit of the Secretary Finance Mr.S. Dharmalingam who was both SLAS and an Accountant. In a number of approaches the NEPC demonstrated that it had come into its personal with consummate ability.

Turn of the Tide

A handful of days preceding New Year an explosion close to the Trinco clock tower &#8211 constantly a sensitive area –  signalled a break down in relations among the Centre and the Province. For the powers that be at Trinco and probably with IPKF intelligence, particular surmises were possible. For all the cordiality and aid some quid pro quo or reciprocity was anticipated by Colombo politically. It was not forthcoming from the CM who had his Provincial constituency and interests to safeguard and foster. He stood steadfast. The breakdown did not hinder the perform programme that was set in motion. Nonetheless the talks that the government had with the LTTE and the expanding rapport between the two, had their inevitable influence in the Province. This was from mid-1989 onwards.

Adverse Events

The next significant occasion to have significant political consequences was the Basic Election in India in November 1989. The Congress and Rajiv Gandhi had been defeated and VP Singh was elected Prime Minister. The latter’s compulsion was to correct a incorrect. The decision to invade wastaken with no circumspection. A wasteful war with heavy casualties to India, was getting prosecuted due to miscalculation of enemy strength. These elements had been compounded by the hostility of Premadasa Government. The changed political equation was unfavourable to the NE Provincial government. This was completely realized after the CM’s meeting with the PM in early January 1990.

On his return he called all the Secretaries and apprised us of the adverse turn in political situations. He told us quite candidly that his mission had failed. “IF I say I can give you protection it is a lie. Therefore you have to safeguard yourselves. Photo copiers and typewriters we can get, but Secretaries (ie like you) we cannot get. So you have to remain safe”. He added “By 15th March the Provincial Council will wither away. By the 15th June war will break out between the government and the LTTE”. On the dot each happened. This was not advance expertise of a diabolical plot. It was intuitive political judgment. The Secretaries getting targets had been constrained to move out soon after mid-February.

Unilateral Declaration of Independence

UDI is critical business and a matter of life and death. Even right after thirty years of a non-violent mass movement Nehru did not declare a UDI. Pirapakaran did not situation a declaration even after 26 years of violent struggle. Varadaraja Perumal’s declaration was treated as issued with levity. It was a respectable smoke screen, as a prelude to flight. On February fourth evening 1957, the writer was present at a public meeting of the Tamil Congress, in the premises of the Jaffna Town Hall. G.G. Ponnambalam the leader announced “On this day the fourth of February 1957, I Declare an Independent TAMIL NAD”. This was significantly less than in levity. ‘Tamil Nad’ was delivered with perfect anglicized accent and impeccable intonation. In India it was Madras State then and Thamil Eelam had not come into vogue in Ceylon.

Following an unremitting independence struggle, a rebel group that has grown over time and is potent sufficient to defend territory, considers such a declaration. Preceding it is also severe preparation for recognition. None of it occurred ahead of this UDI. What is surprising is, it is commented upon to this day. It is also said that President Premadasa reacting angrily to UDI dissolved the Council. Following decapitation was it essential? No doubt a death certificate was necessary. In March 1990, The Provincial Council presided over its own liquidation. Regrettably enough we were witness to its premature finish.  Mr. Sivarajah lamented quoting the words of Bharathi – “Paathi thinkintra pothilae thaddi parippaan”. Hardly had I eaten half, than he snatched it away.

(This report is a tribute to the late Mr.V.N.Sivarajah whose services had been unparalleled. It was a persistent request of his to place on record, our perform and achievement in the NEPC and in the Ministries.)

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General

Rizana – Yet another Sri Lankan Foreign Ministry Failure

Rizana Nafeek a Sri Lankan national from Muttur was beheaded in accordance to Saudi Arabian law on 9 January 2013 possessing been located guilty of killing a four month child whilst serving as a domestic in Saudi Arabia in 2005. The appeals for her release have been many – from each local and international. But, it is the Sri Lankan Foreign Ministry and its Mission in Saudi Arabia that must be held accountable and