Sri Lanka: Persistent denial of the right to internal self-determination entitle a People to external self-determination. -TNA

28/02/2021

Writing to Experts Committee to Draft a new Constitution for Sri Lanka the Tamil National Alliance says that  “the failure to offer a meaningful power-sharing arrangement, and the repeated breaches of commitments made in the past in this regard, would amount to the persistent denial of the right to internal self-determination. Under international law, such persistent denial of the right to internal self-determination would entitle a People to external self-determination.”

The letter follows:

24th February 2021
Chairman and Members,
Experts Committee to Draft a new Constitution,
Room No. 32, (Block 02), BMICH, Baudhaloka Mawatha,
Colombo 7.

Dear Sir/Madam,

We thank you for the two-hour meeting on 20th February 2021 at the Saffron Room, BMICH at your invitation.

We had previously responded to your invitation for proposals for a new constitution for Sri Lanka published in gazette extraordinary No. 2198/13 of 20th October 2020.

We outlined the salient features of our proposals at the meeting on 20th February 2021, and made the following observations.

• Sri Lanka is a multi-ethnic and multilingual society.
• The Northern and Eastern provinces have been the areas of historical habitation of Sri Lankan Tamil-speaking peoples, which position was acknowledged by prime ministers SWRD Bandaranaike and Dudley Senanayake in the two agreements signed with SJV Chelvanayakam, leader of the Federal Party.
• This was later confirmed by President JR Jayawardene, and indeed the Sri Lankan state, in the Indo-Lanka Agreement of 29th July 1987.
• The Thirteenth Amendment to the Constitution commenced a process of altering the governance structure of the country by introducing a framework for power-sharing. Although the main Tamil party at the time, the TULF, rejected the Thirteenth Amendment as being inadequate, we cooperated in the efforts to rectify the shortcomings and did not pursue the goal of a separate state thereafter.
• Every leader and government that came into office acknowledged that the power-sharing arrangement must be made meaningful:

◦ President Jayawardene’s assurance given in New Delhi on 7th November 1987;
◦ Mangala Moonesinghe Select Committee proposals in 1993 during President R. Premadasa’s tenure;
◦ President Chandrika Bandaranaike Kumaratunga’s proposals of 1995 and 1997, and the Constitution Bill of August 2000, which had the approval of the cabinet, which comprised President Mahinda Rajapaksa, President Maithripala Sirisena, Prof. G.L. Peiris, Minister Nimal Sirpala de Silva, and others;
◦ The Oslo Communique of December 2002, where ‘…the parties agreed to explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking peoples, based on a federal structure within a united Sri Lanka’;
◦ President Rajapaksa’s speech in 2006 at the inaugural meeting of the APRC, where he stated: ‘Any solution must be seen as one that stretches to the maximum possible devolution…’;
◦ The reports of APRC and its multi-ethnic experts committee; and
◦ The initiative launched in 2016, wherein parliament was converted into a constitutional assembly through a resolution adopted unanimously on 9th March 2016 (a draft new constitution was presented to parliament on 16th January 2019 by the Steering Committee with its second interim report).

• All of the above show that there has been wide consensus that the national question must be resolved by a meaningful power-sharing arrangement.
• This is also the promise given to India, the co-chairs (i.e. the European Union, Japan, the United States, and Norway), the United Nations, and the world at large.
• The claim for a meaningful power-sharing arrangement is based on the right to self-determination of the Tamil people, which ought to be exercised internally, within a united and undivided Sri Lanka.
• The failure to offer a meaningful power-sharing arrangement, and the repeated breaches of commitments made in the past in this regard, would amount to the persistent denial of the right to internal self-determination. Under international law, such persistent denial of the right to internal self-determination would entitle a People to external self-determination.
• We offered to work with the Committee in identifying the areas that need to be rectified in the Constitution in order to achieve meaningful devolution, which would ensure just sharing of powers of governance.
• The right to equal citizenship, which is owed to persons of all communities, can only be ensured by a just system geared towards the sharing of powers of governance.
• “Non-recurrence” can only be ensured by achieving genuine reconciliation and that can only happen if we arrive at a mutually agreed social contract – the Constitution.

R. Sampanthan, MP
Leader, Tamil National Alliance and
Parliamentary Group Leader of ITAK

Sgd. Mavai S. Senathirajah
Leader, ITAK and co-leader, TNA

Sgd. Selvam Adaikalanathan, MP
Leader, TELO and co-leader, TNA

Sgd. D. Sithadthan, MP
Leader, PLOTE and co-leader, TNA

Cc: President, H.E. Gotabaya Rajapaksa
Prime Minister, Hon. Mahinda Rajapaksa
The Leader of the Opposition, Hon. Sajith Premadasa
The Secretary General to the United Nations, António Guterres
United Nations High Commissioner for Human Rights
The Members States of the UN Human Rights Council

 That Fateful Night With DIG Anura Senanayake

By Rasika Jayakody –FEBRUARY 27, 2021

Rasika Jayakody

When I heard the news of retired Senior DIG Anura Senanayake’s death, my memories took me back to a fateful night at the Dehiwala police station in May 2008.

On that night, journalist Keith Noyahr, the then Deputy Editor of the now defunct ‘The Nation’ newspaper, was abducted and brutally tortured by a “hit squad”.

When the abduction took place, at around 10 PM near the entrance of Noyahr’s Dehiwala residence, I was the only one in the editorial at ‘Rivira’ attending to some last-minute work. In fact, I had met Keith at the office, just hours earlier. I remember the call that came to the editorial office, with the message, “Keith has been kidnapped. No one knows details.”

I put the phone down and rushed to the Dehiwala police station in desperation to find out what happened to our colleague. Several other journalists who worked with us — Munza Mushtaq, Dharisha Bastians and Wasantha Siriwardena — also joined and we inquired of the police officers as what they knew about how our friend had gone “missing” at the doorstep to his own residence.

No officer was able to give us a convincing answer. Soon, we were joined by the former CEO of the Rivira newspaper group Krishantha Cooray and the former Editor of ‘The Nation’ newspaper Lalith Allahakkoon — with whom Noyahr had dinner nearly a half an hour before the abduction. We were asked frivolous questions by the police officers, such as whether we suspected anyone for the abduction or whether the journalist had any “personal enemies”. As the journalists kept pressing the police officers for answers, the atmosphere became heated and intense.

It was at this point that Senior DIG Anura Senanayake — one of the most influential police officers at the time — visited the Dehiwala police station. His behaviour was abrasive and arrogant. In the heat of the moment, an argument broke out between Cooray and Senanayake, after Senanayake asked if the missing journalist had “a girlfriend”, suggesting the abduction might have been due to an extramarital affair. Noyahr is a deeply religious man with an unwavering commitment to his wife and children.

In the end, an angry Senanayake asked whether we knew who abducted the journalist, to which Cooray responded curtly, pointing out he should ask the question from the President, the Defence Secretary and the Army Commander.

As there was no proactive response from the police, Cooray spoke to some of his friends in the telecommunications industry and attempted to locate Nohayr through his mobile phone via transmission towers. All of us who were gathered at the Dehiwala police station kept on sending him text messages, assuming his abductors would switch on his mobile phone at some point, and the messages would be delivered.

In the meantime, Cooray spoke to Karu Jayasuriya, a minister of the Rajapaksa government at the time, and requested him to intervene in securing the release of Noyahr. We later learned that Jayasuriya had spoken to President Mahinda Rajapaksa regarding the issue and the President had then contacted Defence Secretary Gotabaya Rajapaksa.

Around 1 AM, we learned that Noyahr’s phone was located somewhere close to Malwana and Delgoda. Since we didn’t have much faith in the “police investigations” led by Anura Senanayake, we got into our own vehicles and set out in search of our friend. In Wasantha Siriwardena’s vehicle, Ishara Kodikara and I went to Delgoda, while the other journalists did the same. On the way, we talked to each other and informed each other of our whereabouts in order to stay safe. The government soon realised this abduction was becoming a serious issue as a result of this concerted effort by the journalistic fraternity.

Read More

 British Tamil woman commences hunger strike demanding Sri Lanka be referred to ICC

 

28 February 2021

Ambihai K Selvakumar, a director of the International Centre for the Prevention of Genocide (ICPPG) is in the second day of her hunger strike, as she continues her demand that the UK refer Sri Lanka to the International Criminal Court.

This hunger strike comes as the UN Human Rights Council convened for the 46th session in Geneva at the start of this week. During deliberations, UN High Commissioner for Human Rights, Michelle Bachelet outlined her damning report on Sri Lanka which not only highlighted Sri Lanka’s unwillingness to address issues of accountability but also warned that the deterioration of human rights heightened the risk of further violations. Britain’s representative, Minister of State for South Asia and the Commonwealth, Lord Ahmad, commended the high commissioner's detailed report and further criticised ongoing impunity in Sri Lanka, noting that “previous domestic commissions have all failed”.

In their statement the ICPPG sharply criticises Sri Lanka’s disregard for accountability noting their withdrawal from the previous cosponsored UN resolution as well as highlighting the High Commissioner’s report which detailed “deeply entrenched barriers to justice in the domestic criminal justice system, particularly for international crimes”. They also note that senior military officials accused of war crimes have been rewarded for their service and appointed to high-ranking government positions.

The statement also noted the increasing Sinhalisation of the North-East as well as the destruction of Tamil heritage sites and monuments. They also highlighted reporting from Journalist for Democracy in Sri Lanka (JDS) which reported 50 abductions within 26 months. These abductions occurred from 2016 till the first half of 2018 with most victims being reported as Tamils.

In her statement, Selvakumar maintains that she will not break her fast until one of the following demands are met:

1. Recommend to the UN Security Council and the UN General Assembly that Sri Lanka be referred to the International Criminal Court and take steps to effectively investigate charges of war crimes, crimes against humanity, and genocide.
2. Establish an International Independent Investigative Mechanism (IIIM), akin to those established for Syria and Myanmar, which mandates the evidence is of international crimes and human rights violations be collected and prepared for criminal prosecutions. A meaningful IIIM must have a strict time frame.
3. Mandate that the Office of the High Commissioner for Human Rights (OHCHR) appoint a Special Rapporteur to continue to monitor Sri Lanka for on-going violations and have an OHCHR field presence in Sri Lanka.
4. Recommend an UN-monitored Referendum to determine the aspirations of the Tamil people in Sri Lanka, on the basis that the North-East of Sri Lanka is the traditional Tamil homeland and the Tamils have the right to self-determination.

The demands put forwards by the ICPPG comes as there are increasing calls for the UK to take decisive action. In January over 250 British Tamil organisations called on the government to establish an IIIM to investigate Sri Lanka war crimes and the charge of genocide. That same month in an unprecedented act of unity major Tamil political leaders, Tamil civil society actors and Tamil victim community representatives have signed a statement calling for an international accountability process, including a referral to the International Criminal Court (ICC).  This month thousands of Tamils and Muslims across the North-East engage in mass demonstrations calling for the international community to take action on Sri Lanka. Families of the Disappeared have also conducted a protest making similar demands.

Over 75 parents of the FOD have passed away in the Tamil Homeland since they began their protests in February 2017. 

A hunger strike urging the Sri Lankan government to be brought before the International Criminal Court (ICC) also commenced in Nallur, Jaffna today morning, with Jaffna and Eastern University students among those taking part. 

Read ICPPG's statement here

PRESS RELEASE ICPPG Intenti... by Thavam Ratna

Read Selvakumar's statement here.

27022021 - Speech and Deman... by Thavam Ratna

For Families of the Disappeared, the International Community is Their Last Hope

MINOLI DE SOYSA-02/27/2021

It is a small shed with cement brick walls and an asbestos roof facing a dusty street. Car horns blare and trucks rattle past. Outside on a weedy patch of grass three baby goats bleat as they play. The walls are lined with photographs. They are mostly young boys and girls, some even in crisp white school uniforms and ties. There is a girl in a bright pink saree and another with jasmine flowers entwined in her hair. One is an ID card photograph; another is a posed studio shot. Most are just photocopies; the originals are kept safely at home. There is even a whole family – father, mother and three young children – who got a bus bound for oblivion.

In the shed, Mariyasuresh Eswari and two other women speak of how their husbands and sons disappeared, stories they have repeated endlessly to numerous commissions, countless journalists and dismissive military and police personnel. They know the exact date and time, what the person of wearing and in one case, the faces of the perpetrators. Eswari tells her story time clearly, the occasional tears rolling down her cheeks. Ranjana Prabhakaran is matter of fact and stoic, displaying little emotion but Sulochana Wijedas clutches a framed, colour photograph of her 17 year old son and weeps bitterly.

For the past four years the three women have been part of a group participating in a continuous protest asking the simple question, “Where are they?” But to find the answer to the simple question is a very complex process fraught with evasion, denial and politics. While the previous government set up an Office on Missing Persons that has found no one yet nor brought any of the guilty to book, President Gotabaya Rajapaksa and his government deny the very concept of the missing. They refuse to accept the possibility that some “war heroes” may in fact have flouted the rules of war. This is despite many eye witness accounts of enforced disappearances over the decades and especially during the end of the war. Enforced disappearances are continuing to this day; just recently groups of young men have been arrested under the PTA and their families are unable to gain access to them.

In order to keep up their cause alive and to bring it to the notice of their last hope – the international community – the mothers from eight districts in the north and east went on a protest march in Kilinochchi last week. This time, instead of shouting slogans or carrying posters, they bound their hands behind their backs and tied blindfolds to represent how their relatives were taken away. On their heads they carried pots of fire to symbolise their request for justice.

The persecution and intimidation of the mothers and wives have intensified under this government. Military intelligence officers visit their houses regularly warning them not to participate in protests. For some mothers is a stark choice – do I keep looking for my missing child and put my remaining children in danger or should I just give up?

For Eswari, who is the president of the Mullaithivu Association of Relations of Enforced Disappearances, the struggle to provide for her three children is never ending. They are still in school so she works an early morning job as a cleaner and takes in work mending clothes to supplement her income. The government assistance she was getting has been stopped. She is unable to get loans from banks when the officers know she is involved in the protest movement. Sometimes she is able to get help from neighbours.

Two years after her husband, Mariyadas Mariyasuresh, disappeared in 2009 after he was arrested by the navy during a fishing trip, Eswari was approached by a man claiming that he could bring her husband back if she deposited Rs. 75,000 in a bank account. She scraped the money together but of course it was to no avail.

Despite the harassment, Eswari is determined to continue her quest for justice. “The government wants us to stop because it is a disturbance for them. If families don’t participate in the protests the issue will be forgotten. That is why I am continuing.”

“I continue my search for my husband because I know he is alive. I will keep looking until I know he is dead. If he is dead, how did he die? We are not afraid of the army. We want to know what happened,” she says defiantly.

When the CID questions Eswari, they come to her house before 7 am or after 7 pm accusing her of trying to revive the LTTE.  “They know it’s a lie,” she says scornfully. According to Eswari, there are 1,500 people missing from Mullaitivu. The Office on Missing Persons has a list of 524 who are mostly Tamils, many of whom went missing between 2007 and 2009.

Asked about the rumours that the missing are living overseas, Eswari is indignant. She maintains that people need passports to go abroad and these have to be obtained through government channels and there should be a record. “The government should inform us so we don’t have to roam around like this. They are trying to avoid telling the truth. If we are lying, the government should file a case against us and put us in prison. Why would be walking in the rain and the hot sun looking for children who are living abroad?” she asks.

As Sri Lanka’s abandonment of truth, justice, human rights and the rule of law is being discussed at the 46^th sessions of the UN Human Rights Council, it has been announced that President Rajapaksa, who has referred to the missing as being “already dead”, will meet the families of the disappeared to “bring closure to this issue and give the families a solution.”

The President wanted to listen to them, identify their actual grievances, rather than what politicians might say, and give them a solution. It was going to happen very soon, according to Secretary to the Ministry of Foreign Affairs (Retd.) Admiral Jayanath Colombage.

Nearly 80 mothers have already died without knowing what has happened to their children, the last one week ago. Some mothers are too sick to join the protests, so attendance is low. But despite these adversities, they are determined to carry on.

Eswari is certain that the government will give them no redress so she has pinned her hopes on the international community, hoping that it can use its influence and power to make the government do the right thing.

“We only have them and also people like you to help us find justice and to keep our cause alive,” she says. But when she ask me what her chances are, I cannot meet her eyes or reply.

Watch excerpts from the conversation with Eswari below:

Cabraalnomics: ‘No default because we have enough forex inflows to pay ISBs’

Monday, 1 March 2021 

Sri Lanka’s external debt problem is not a problem of State Minister Cabraal alone. It is a problem faced by the whole nation. Also, all the governments since independence except the one in power in 1954 and 1955 had contributed to it in a small or big way

Challenging doomsayers

My former colleague and friend with whom I can always discuss policy issues without tears, State Minister Ajith Nivard Cabraal in a statement reported in the press had challenged the ‘doomsayers’ who had been pronouncing from time to time the perilous path which Sri Lanka’s economy was taking toward an ultimate self-destruction (available at: http://www.ft.lk/front-page/Nivard-says-doomsayers-will-be-disappointed-again/44-713622). 

He had confidently said that those doomsayers will be disappointed when the Government would repay in full the International Sovereign Bonds or ISBs amounting to $ 1.5 billion coming up for repayment in July this year. He is correct and Sri Lanka will pay this $ 1.5 billion in July out of the country’s existing foreign reserves.

Multiple doomsayers at work

There had been many doomsayers in the past, but the latest addition to the list has been the Standard Chartered Bank or SCB and the Barclays Bank or BB which had functioned earlier as issue managers of those ISBs now out in the market. Both banks had downgraded Sri Lanka’s ISBs to ‘underweight status’ advising the investors to reduce their exposure to the bonds. The reasons for this bleak investment advice have been clearly articulated by the two banks in the titles they have selected for their respective reports. 

Barclays had said that 

Sri Lanka’s foreign reserves have been ‘drained faster than expected’ raising concerns about the country’s ability to meet its ISB obligations. Standard Chartered had projected Sri Lanka as ‘coming down to the wire’ implying that the ‘final outcome’ cannot be said until the last minute of the event. Both of them have opined that unless Sri Lanka goes for an IMF backed debt restructuring, the things would be critical for the country. Before SCB and BB, there was Citibank, another ex-ISB issue manager, which had issued a report on Sri Lanka warning the Government that ‘denying the problem was not a strategy’. 

The fast-draining foreign exchange reserve of the country had been the contentious issue for all these investment advisors. Citi had even recalculated the country’s available foreign exchange reserves for debt repayment by taking out the short-term foreign liabilities on account of SWAPs, etc. According to them, that net amount was a dismal figure at about $ 2.5 billion. Before these investment advisors, all the three rating agencies, Fitch, Standard and Poor’s, and Moody’s, had downgraded Sri Lanka’s sovereign risks from B category to CCC category. 

Is the market driven by doomsayers?

It is quite clear that the whole international community of worth is seeing a ‘doomsday’ event regarding Sri Lanka’s ability to repay maturing ISBs at least in the near future. International investors who have taken a serious view of the emerging situ have begun to reduce their exposure to Sri Lanka’s ISBs by selling them in the market. As a result, ISBs which had been traded at a premium, that is, above the par value of $ 100, in February 2020 began to lose their glamour and consequently traded at a deep discount, that is, below $ 100. 

However, to its credit, Sri Lanka disappointed doomsayers in October 2020 by fully repaying the maturing ISBs by using its foreign exchange reserves. Reserves fell drastically but Sri Lanka managed to maintain its unblemished credit record in the eyes of external lenders. Now with another set of ISBs maturing in July, suspicion has been cast about the country’s ability, in a greater vigour and rigour, to repay its external debt.

Exuding confidence of success

But this has been hotly denied by the Government. Central Bank Governor Deshamanya Professor W.D. Lakshman even went to the extent of castigating those ‘doomers and gloomers’ as not understanding the alternate economic policy being pursued by the Government. But State Minister Cabraal has been more confident. He had argued that there should not be any fear of Sri Lanka’s defaulting its external debt by taking a different line of argument. In a nutshell, his argument is as follows.

Cabraalnomics: Rely on flows and not on stocks

He says that Sri Lanka’s outstanding ISBs amounting to $ 14 billion is only 16.7% of the total external debt and the balance debtholders accounting for 83.3% have no fear of loan default by the Government. But the actual numbers are different from these percentages. ISBs account for 40% of the Central Government’s external debt portfolio of $ 35 billion and 25% of the total country portfolio of $ 56 billion. However, this discrepancy does not invalidate his argument which is based on ‘flows of foreign exchange inflows’ rather than the ‘stock of foreign assets’ which the alleged doomsayers, according to him, have been using. 

In 2021, Sri Lanka would get a foreign exchange inflow of about $ 32 billion and it would be augmented by about $ 2-3 billion every year thereafter. Given this high foreign exchange inflow, repaying ISBs of $ 1 to 1.5 billion is nothing for the country, he concludes. He had therefore questioned, “Will the authorities be so foolish as to default on a payment of around $ 1 to $ 1.5 billion per annum and risk its entire economy and impeccable credit history?”

A numbers game?

State Minister Cabraal has a point, and it can be illustrated as follows. The debt repayment capacity of a borrower depends on both the annual income he gets which is a flow and the amount of assets he has which is a stock. In the case of a country, the flow relating to foreign exchange is simply the credit side of its balance of payments or BOP. The $ 32 billion he had talked about is the total inflow of foreign exchange to be received by Sri Lanka in 2021 as recorded on the credit side of BOP. When one looks at a commitment of $ 1-1.5 billion against this massive inflow, there is nothing to fear, even though the stock of foreign assets is ‘draining faster than expected’ leaving everyone in ‘suspense until the last minute arrives’. He had, therefore, confidently said that doomsayers who will rely on stock figures will be disappointed.

Support by fans

He has a wide fan base in the social media and his statement was quickly shared by many. Some had even translated it into Sinhala and posted it on their respective social media walls as if it is a fine finding they have made without giving credit to him. Many had liked it, and some had made encouraging comments too. His statement had invigorated some of them so much that they had even suggested to him that he should invite leading doomsayers in the opposition to a public debate. In their view, these numbers will leave all those critics speechless.

Two caveats, one practical and the other theoretical

This is new economics, and it can be safely termed ‘Cabraalnomics’. It is the foundation of the alternate strategy which the present Government is following. Its main features are ‘no to IMF, control prices, interest rates and the exchange rate, no risk in financing the budget through bank funding, not to worry about fast draining foreign reserves, rely on flows rather than stocks, have import substitution, restrict imports to contain the debit side of BOP, and have FDIs in large volumes to augment the credit side of BOP’. 

It has two caveats, though. One is practical and relates to the numbers quoted. The other is theoretical which is concerned with trying to attain what is known as ‘the impossible trinity’. The latter was explained in simple language by my former colleague, Professor Sirimevan Colombage, in a recent article (available at: http://www.ft.lk/columns/Policy-trilemma-poses-formidable-challenges-to-interest-and-exchange-rate-management /4-713226).

Forex outflows also matter

First to numbers. It is true that cash inflows will strengthen a borrower’s capacity to repay his loans. But how much of that cash is available for debt repayment will depend on how much of net cash is available after paying out normal bills. In the case of a country relating to foreign payments, this is determined by the magnitude of the debit side of BOP. That consists of imports, payments for services, factor service payments like interest payments and profit transfers, remittances out and above all, foreign exchange outflows on account of share and debt market transactions. If these are more than the foreign exchange inflows, there is a deficit, and the deficit must be financed by drawing on foreign reserves. In other words, the deficit or surplus in BOP is exactly identical with the decrease or the increase in the net foreign assets of the Central Bank. 

Hence, a country experiencing a deficit in BOP cannot use the foreign exchange inflows to repay debt. In the case of Sri Lanka, this is the normal situation, a deficit in BOP, unless the country borrows a massive amount from abroad. Hence, to rely on foreign exchange inflows to repay any debt is a non-event. In that sense, it is correct for the doomsayers to base their analysis on the foreign asset stock of Sri Lanka to determine its ability to repay foreign loans.

Limited success of import controls

To prevent a foreign exchange outflow on account of imports, Sri Lanka has clamped selective import controls. As a result, imports fell in 2020 sharply by 20% to $ 16 billion. But the trade deficit narrowed only from $ 8 billion in 2019 to $ 6 billion in 2020 due to a fall in exports by 16% to $ 10 billion. Hence, Sri Lanka’s foreign exchange numbers are not that favourable. A further unsalutary development has been that import crunching by $ 4 billion due to import controls has taken place mainly in raw materials and capital goods. This affects the future growth prospects of the country. What it means is that import controls has had only a limited success so far. They have not been able to generate a surplus in the foreign exchange cashflow of the country. 

Debt issue is not only about ISBs

Sri Lanka’s debt problem is not related only to ISBs. In addition to the central government’s foreign debt of $ 35 billion, non-central government sector that includes private entities as well has borrowed $ 21 billion. The total known debt repayment obligations during the next 12-month period are about $ 6.4 billion. In addition to this, there are other short-term obligations and REPOs amounting to $ 2.3 billion. So, the total country obligations during the next 12-month period amount to about $ 8.7 billion. Hence, even if ISBs are paid in July, Sri Lanka has to find foreign exchange to meet all these obligations. 

Some of them could be reissued to alleviate the problem as pronounced by Governor Lakshman at a recent webinar. However, that is a peanut given the total obligations of the country. Hence, even after reissuing the maturing obligations, the main problem still remains unresolved. Foreign cash inflows will not help the country in this regard, since there is a deficit in BOP unless the country goes for massive foreign borrowings in the next 12 months. The foreign reserves at $ 4.8 billion are too little compared to these obligations. Hence, Sri Lanka has a genuine foreign debt problem and as SCB had said in its country report, until the last minute, no one cannot be certain about the final outcome. The issue raised by foreign doomsayers is that they do not see a credible plan by the government to meet these obligations successfully.

The impossible trinity

Now, let us turn to the theoretical caveat. The impossible trinity, also called policy trilemma, is that policymakers cannot fix the exchange rate, have free forex movements, and conduct independent monetary policy at the same time. When translated into laymen’s language, what it means that the Central Bank cannot have a stronger rupee, induce foreign inflows in FDIs, remittances and flows into share and debt markets, and control prices and interest rates. When these policies are set at the corner of a triangle, only two could be attained at a time. Colombage in his article has explained the ramifications as follows: 

How the impossible trinity works

“Given free capital mobility, the CBSL has no choice other than to give up either fixing the interest rates or fixing the exchange rate, in terms of the policy trilemma. Simultaneous suppression of the two rates leads to capital flights, as already evident in the Government securities and stock markets of Sri Lanka. The CBSL is engaged in a lonely battle in restoring economic stability whilst the Government does not seem to make any firm commitment towards reducing its budget deficit, which is the major cause of credit expansion, money supply growth, inflationary pressures, and rupee deterioration. 

Monetary policy autonomy has become important now more than ever, as central banks in many countries are compelled to follow Government directives in a subservient manner to inject liquidity into the market so as to resuscitate the economies adversely affected by the pandemic. Eventual erosion of central bank independence in the backdrop of the pandemic has compelled the CBSL to bear the brunt of macroeconomic rectification. It is reported that an agreement with the International Monetary Fund (IMF) would not be feasible due to the Government’s decision to take a different policy path that includes import restrictions and managed exchange rate”. Thus, CBSL’s A-Team maybe burning the midnight oils to disprove the impossible trinity.

A central bank in a panic mode

But the signs are visible that the Central Bank has failed in resolving the impossible trinity. When it has fixed the exchange rate and interest rates, foreign inflows and prices have flown out of the window. Then, instead of abandoning the impossible policy, it has started making mistake after mistake in the form of micromanagement of the economy. First, it invited Sri Lankan diaspora to send in their dollars into special bank deposits in the country. This did not generate a sufficient inflow. 

Then, it went for a dual exchange rate system by offering a premium of Rs. 2 over the official exchange rate to those Sri Lankans who send in remittances to the country. This is a selective depreciation of the currency the cost of which is to be passed onto the general taxpayers. When enough foreign inflows did not materialise, some awkward steps have been taken by the Bank to scrape the bottom of the pan. 

Accordingly, forward contracts have been suspended for three months, commercial banks have been ordered to sell 10% of their receipts on account of remittances to central bank and exporters to bring in export proceeds within six months and convert 25% of them immediately to Sri Lanka rupees. When inflation could not be controlled, a large number of consumer items were brought under price controls. But none of these commodities are available at the controlled prices in the market, as revealed by the weekly retail prices published by the Central Bank. This policy stance, instead of building confidence in those outside the Central Bank, has confirmed to them that the Bank is now being driven by a panic mode. 

Adding insult to injury

This is certainly an embarrassment to the Monetary Board which is responsible for this policy. To add insult to injury, for the first time in the history of the Bank, a civil society activist has demanded the Governor of the Bank and his economic team to come for a public debate on the policy stance in the spirit of adhering to democratic economic policy governance (available at: http://www.ft.lk/opinion/Intellectual-debate-needed-on-present-external-sector-monetary-management-policies-and-practices/14-713567). What this means is that the Central Bank is being continuously watched by the market and it no longer holds an unchallenged position to fix its policy.

Nation should be ready to take a hit

Sri Lanka’s external debt problem is not a problem of State Minister Cabraal alone. It is a problem faced by the whole nation. Also, all the governments since independence except the one in power in 1954 and 1955 had contributed to it in a small or big way. No point in castigating them now. What should be done today is to find a quick solution for the problem without defaulting the obligations. It requires the whole country to take a hit. The hit comes in the form of making available the necessary foreign exchange for debt repayment by cutting the domestic consumption. We are heading toward that position fast and the present problem is how to manage it without causing social, economic, and political disorder in the system.

Avoid anti-IMF rhetoric

In my view, Cabraalnomics should take note of this and have a backup rescue plan. That may include giving up the anti-IMF rhetoric because circumstances would force Sri Lanka to eat the humble pie eventually. This happened in 2008 during the previous Mahinda Rajapaksa administration and in 2016 during the previous Yahapalana Government.

(The writer, a former Deputy Governor of the Central Bank of Sri Lanka, can be reached at waw1949@gmail.com.)

JUDICIAL CORRUPTION

Dr Nihal Jayawickrama-- 2021/02/28

I grew up, spending my childhood, adolescence and early adult life, in the home of a judge who ended his judicial career as head of the country’s highest court. I also had the enviable experience of serving as his private secretary sometime between my graduation and entry into the profession. The life of a judge of that time, as I observed it, is perhaps best described in the words of Justice Michael Kirby of the High Court of Australia. The regime imposed on a judge, he said, “is monastic in many of its qualities”. Lord Hailsham, a former Lord Chancellor, described the vocation of a judge as being “something like a priesthood”. Sir Winston Churchill considered that “A form of life and conduct far more severe and restricted than that of ordinary people is required from judges”.

While judges did not isolate themselves from the rest of society, or from school friends and former colleagues in the legal profession, they rarely, if ever, socialized with politicians. They declined to perform the quasi-executive function of serving on commissions of inquiry. In that relatively calm and stable economy, their salaries were rarely increased. They drove, or were driven, to Hulftsdorp in their own cars. They lived in their own homes, except for the Chief Justice who was provided with an official residence.

In the early 1960s, when I was admitted to the Bar, and began practising before the courts of this country, any suggestion that a judge or magistrate might be corrupt would have been so preposterous that, in fact, it was never heard. A strong tradition of integrity underpinned the judiciary at every level. At a time of immense change, both political and social, the judiciary remained constant in its commitment to equal justice under the law.

Of course, the judiciary had its share of problems and its critics. The trial rolls were long; the backlog in the appellate court was enormous. The rules of civil and criminal procedure were Victorian. I recall expressing the exasperation of a starry-eyed young lawyer when, writing the annual report as honorary secretary of the Bar Council, I described the judicial system as an antique labyrinth with tortuous passages and cavities through which the potential litigant must grope, often blindfolded, in his search for justice. From below the Bench, some of the judges seemed short-tempered and discourteous; some seemed lazy – one, in particular, appeared to fall asleep from time to time; and not every judge appeared to be learned in the law. However, it was unthinkable that a judge could be corrupt.

 

The emergence of judicial corruption

It was some ten years later, in the 1970s, when I was serving as Permanent Secretary to the Ministry of Justice and also, ex officio, as a member of the Judicial Service Advisory Board, that I encountered, for the first time, a complaint that a magistrate had accepted a bribe. The complaint appeared to be true. When confronted, the magistrate resigned his office. It was also during this period that I saw and experienced, with considerable unease and sadness, how some serving judges could demean themselves, and the sanctity of their office, in the pursuit of preferential treatment from the executive branch of government. When some of these efforts proved to be rewarding, it was difficult not to become sceptical. It was time for the illusions of youth to disappear.

 

Conventional bribery

The picture changed dramatically in the 1980s and in the decades that followed. The civil, criminal and appellate procedural reforms of the 1970s which we introduced were repealed and the Victorian laws revived. Thereafter, many a litigant or accused person began to find it more economical to secure the disappearance of a case record or the absence of a witness than continue to retain counsel for prolonged periods when no progress was made in his or her case. Complicated procedural steps meant several gatekeepers requiring payment to facilitate movement to the next stage of judicial proceedings.

In a direct mail survey in 50 Sri Lankan judicial stations conducted by the Marga Institute in 2002, civil litigants, virtual complainants, and remand prisoners reported to having paid bribes to lawyers’ clerks, court clerks, police officers and fiscals. Lawyers reported hundreds of incidents of bribery, the beneficiaries being the same. Several Judges admitted to being aware of such acts of bribery, and added members of the legal profession to the list of beneficiaries. Finally, the Judges identified at least five of their own brethren as bribe takers, three of them being in connection with the delivery of judgments. The report of that survey was published by the Marga Institute under the title: “A System Under Siege; An Inquiry into the Judicial System of Sri Lanka”.

 

Global phenomenon

Judicial corruption was not a Sri Lankan phenomenon. In Bangladesh, a national household survey revealed that 63% of those involved in litigation had paid bribes to either court officials or the opponents’ lawyer. In Tanzania, a commission of inquiry reported several instances of judicial officers accepting bribes to grant injunctions, reduce sentences or dismiss cases; accepting bribes from advocates to give preferential judgments; and colluding with auctioneers to share the receipts from selling property belonging to litigants. In Uganda, the Chairman of the Judicial Service Commission reported several complaints of judicial officers taking bribes to give bail or judgment. In Argentina, 57% of those polled said that they felt corruption was the main problem with the judiciary. In Honduras, three out of four polled believed the judiciary was corrupt. According to the Geneva-based Centre for the Independence of Judges and Lawyers, out of 48 countries covered in its annual report for 1999, judicial corruption was pervasive in 30 countries.

 

Undue influence

Corruption in the judiciary is not limited to conventional bribery. An insidious and equally damaging form of corruption arises from the interaction between the judiciary and the executive, as well as from the relationship between the judiciary and the legal profession. For example, the political patronage through which a judge acquires his office can give rise to corruption if and when the executive makes demands on such judge. Similarly, when a family member regularly appears before a judge, or when a judge selectively ignores sentencing guidelines in cases where particular counsel appear, the conduct of the judge would give rise to the suspicion of corruption. So would a high rate of decisions in favour of the executive. Indeed, frequent socializing with particular members of the legal profession, the executive or the legislature, is almost certain to raise the suspicion that the judge is susceptible to undue influence in the discharge of his duties.

 

The blurring of a critical relationship

In Sri Lanka, a dramatic change in the relations between the judiciary and the executive occurred with the advent of the Executive President, the ultimate source of power and patronage. For example, in 1983, a Judge of the Supreme Court described to a parliamentary select committee his relations with the then President:

“I want to say this. My relations with His Excellency the President have been very cordial. In fact, I know him. I have only met Mrs Bandaranaike for a few seconds in my life. But I have known the President from 1948 and I have had very cordial relations with him. We had a common interest in history. I admire his culture, his refinement, and it was never my intention to do anything harmful to him personally. We have met at several functions at President’s House, at private dinners, and in 1981 he invited me and my wife for his birthday party at President’s House. We were very honoured. My community, my family, are his traditional supporters”.

The same Judge described how he enjoyed the hospitality of a Cabinet Minister:

“Thanks to the hospitality of the Honourable Minister of Lands, we were all sent on that wonderful trip of the sites. We got younger. You know, we all went and it was a delightful trip. I wrote and told you about it. Lovely time, delightful! We were hoping we could make it a sort of annual trip.”

He also spoke about a prominent Opposition parliamentarian:

“His step-brother, Mr Michael Dias, has been a friend of mine since he was my tutor in the Lex Aquilia at Cambridge University in 1945-48. However, my friendship with Michael Dias has brought me no advantages. The two brothers are as different as chalk and cheese. I think in 1973, Honourable Minister of Lands, your nephew Upul had that tragic death by drowning. I met you in the funeral house. That was a time when he was turning Hulftsdorp upside down. We had a conversation about that. I think I told you in plain, blunt, Anglo-Saxon what I thought of him. You may remember this. I wish to say that in the 1977 election nothing gave me greater pleasure than listening all night to the Dompe result.”

 

The blurring continues

The blurring of the critical relationship between the Judiciary and the Executive continued under later Presidents. For example, in 2004, on the eve of the general election, a Chief Justice, reputed for his political sagacity and legal acumen, participated in a religious ceremony in a Buddhist temple together with a Cabinet Minister and several candidates of a particular political party. The television camera constantly focused on the Chief Justice, who was seated at the feet of the Minister (who appeared to be on an elevated seat) during the long programme. Several years after he had left office, the same Chief Justice publicly apologized for not having given the right judgment in a politically sensitive case. “I am very sorry. I am asking the whole country: forgive me”, he was reported as having said (Sunday Times, 26 October 2014).

In 2011, barely weeks after his retirement, another Chief Justice was appointed as an Adviser to the President. When a judge, and a Chief Justice at that, decides to take a great leap from the Supreme Court to the Presidential Secretariat to serve the executive branch at its core, the alarm bells must surely begin to ring. The country was entitled to know, but was not told, whether the Chief Justice had sought this position, or whether the Head of the Government had offered it to him, when and why.

In 2014, yet another Chief Justice travelled from Colombo to the deep south, to join the then President, his immediate family and his siblings, in celebrating the Sinhala and Hindu New Year rituals at the President’s “ancestral home”. Several pictures that were published showed the participants, including the Chief Justice, “attired in white and facing south” feeding milk rice to each other and engaging in other traditional transactions in what was essentially a family occasion.

 

In the same year, the same Chief Justice joined the President’s entourage (which included Ministers and Members of Parliament) on an official visit to Italy and the Vatican. It was the first occasion when a Chief Justice had accompanied a political leader on a state visit abroad.

 

Such conduct too, was not peculiar to Sri Lanka. A former President of the Supreme Court of Jordan, speaking at a conference in 1999, provided several illustrations from his own personal experience of this form of judicial corruption. He described how judges were pressurized by executive authorities to render judgment contrary to law; received benefits from the government in the form of gifts in money or in kind; and offers of employment to the judges’ children. He also spoke of victimization when the decision did not accord with the wishes of the executive.

 

The corrupting influence arising from the interaction between the judiciary and the executive has been documented by a Nigerian jurist. For example, he describes how a newly appointed judge, still undergoing training, was flown by a presidential jet to try a sensitive case of national importance and delivered his judgment by midnight; and how a judge trying a case of an opposition leader said he would need time to consult others before delivering his judgment. In Costa Rica, 54% of those polled believed that judicial decisions were subject to external “pressures”.

 

Combating Judicial Corruption

 

In 1997, after almost two decades in academia, I was persuaded by a former colleague at the Commonwealth Secretariat to “come down from the ivory towers” to work at Transparency International in Berlin. That non-governmental organization was then in its formative years, and one of its principal objectives was to identify sectors that were vulnerable to corruption, and then to formulate strategies to combat such corruption. It was there that credible evidence began surfacing of corruption in judicial systems. How should this phenomenon be addressed? Independence had always been considered to be the single fundamental requirement for a national judiciary. Judicial independence is not a privilege of judicial office, but an essential pre-requisite for the protection of the people. How real was that protection if the evidence that was surfacing was an accurate reflection of the state of the judiciary? Was judicial independence being traded for money or other benefits? Was adherence to the principle of judicial independence, by itself, sufficient to ensure the delivery of justice? Was it now necessary to formulate and implement a concept of judicial accountability?

 

Judicial Accountability

 

Accountability was not a new or novel concept. It is a constitutional requirement in a society based on the rule of law and democratic principles of governance that every power holder, whether in the legislature or the executive, is, in the final analysis, accountable to the people. Was there any reason why the judiciary, which is entrusted by the people with the exercise of judicial power, should not, individually and collectively, be accountable for the due performance of its functions? The challenge, however, was to determine how the judiciary could be held to account in a manner that was consistent with the principle of judicial independence. My colleague, the late Jeremy Pope, and I agreed that these were issues that were best resolved by the judges themselves.

 

Judicial Integrity Group

 

For that purpose, we initiated discussions with a representative group of ten Chief Justices from Africa and the Asia-Pacific region who agreed to meet under the auspices of the United Nations. At that preparatory meeting in Vienna in April 2000, which was chaired by Judge Weeramantry, Vice-President of the International Court of Justice, the Judicial Integrity Group (as this group of Chief Justices is now known) agreed that judges should be accountable to the community they serve through their absolute adherence to a set of judicial values, and that a statement of core judicial values should be capable of being enforced by the judiciary without the intervention of the executive and legislative branches of government. The Group believed that transparency at every critical stage of the judicial process will enable the community, especially through its legal academics, civil society and a free media, to judge the judges.

 

The Bangalore Principles of Judicial Conduct

 

At the request of the Group, I prepared an initial draft statement of principles of judicial conduct, drawing on rules and principles already articulated in national codes of conduct (wherever they existed) and in regional and international instruments. Over the next twenty months, that draft was widely disseminated among senior judges of both common law and civil law systems in over 75 countries. In November 2002, at the Peace Palace at The Hague, a revised draft was placed before a Round Table Meeting of Chief Justices drawn from both the civil and common law systems, at which Judges of the International Court of Justice also participated. The final draft that emerged from that meeting – the Bangalore Principles of Judicial Conduct – identifies six core values of the judiciary: Independence, Impartiality, Personal Integrity, Propriety, Equality, and Competence and Diligence.

 

In 2006, the Bangalore Principles were unanimously endorsed by the UN Economic and Social Commission (ECOSOC) in a resolution which requested Member States to encourage their judiciaries to develop rules with respect to the professional and ethical conduct of judges based on the Bangalore Principles. Sri Lanka has ignored that request.

 

Commentary and Implementation Measures

 

In 2007, at the request of ECOSOC, the Judicial Integrity Group developed a 175-page Commentary on the Bangalore Principles which has since been published by the UN and by national judiciaries in several languages. Sri Lanka has failed to take note of that.

 

In 2010, the Judicial Integrity Group agreed on Measures for the Effective Implementation of the Bangalore Principles. That statement describes action required to be taken by the judiciary, and the institutional arrangements to be established by the State to secure judicial independence and accountability. Among the latter is an independent appointment mechanism with both judicial and non-judicial members to ensure that persons selected for judicial office are persons of ability, integrity and efficiency. Through the recently enacted 20^th Amendment to the Constitution, Sri Lanka has rejected that requirement.

 

Conclusion

 

The Bangalore Principles now provide the judiciary with a framework for regulating judicial conduct. It is the global standard. These Principles have been the model for codes of judicial conduct from Belize in the Caribbean to the Marshall Islands in the Pacific, from Tanzania to the Philippines, from Bolivia to Jordan. They were motivated by the need to address the phenomenon of judicial corruption. Many judiciaries across the world have profitably employed them to achieve that objective. However, the Sri Lankan Judiciary has chosen not to formulate or to implement a code of judicial conduct to regulate itself

 Expose: Avant Garde Repatriation Mafia Revealed As Nandasena Allows Buddy To Rake In Big Bucks

Avant Garde boss Nissanka Senadhipathi with then Defence Secretary Gotabaya

FEBRUARY 28, 2021

Colombo Telegraph is now in possession of proof positive that President Nandasena Gotabaya Rajapaksa has authorized his close buddy and criminal accused by the Attorney General of Sri Lanka to monetize the process that allows desperate Sri Lankans to return home during a raging pandemic.

Former Army Major Nissanka Senadhipathi, gun-runner, weapons smuggler and once fugitive from justice in Sri Lanka has won exclusive rights to organize air tickets and quarantine accommodation for Sri Lankans seeking repatriation.

Senadhipathi is on trial in the High Court under the firearms ordinance for illegally leasing Sri Lankan Government licensed weapons on the high seas through his Avant Garde Maritime Services. Now that same company is the government-authorised agent for repatriation of overseas Sri Lankans.

Sri Lanka’s embassies overseas directing citizens trapped in other countries to wire funds directly to Avant Garde Maritime Services Pvt Ltd at Commercial Bank in order to be eligible to travel on pre-organized flights usually operated by national carrier SriLankan Airlines. Colombo Telegraph has these emails in possession and will expose the contents to our readers.

While the country has declared itself open to tourists since January 21st, Sri Lankan citizens desiring to return home continue to be compelled to register with embassies overseas and wait months for a designated flight but only after paying exorbitant fees to a private company that has direct patronage from the Government of Sri Lanka the email trail reveals.

The whole mafia was exposed by Father Tyrell Alles, a clergyman who returned to Sri Lanka from serving in Indiana USA for many years in the Daily Mirror newspaper on February 4, 2021.

Colombo Telegraph previously reported how Senadhipathi’s Avant Garde had forced the newspaper to take down a web version of the article.

The official that threatened the newspaper’s editor subsequently release audio of his conversation with Daily Mirror Editor Kesara Abeywardena. The tape reveals the Avant Garde official speaking to the Editor in threatening tones. A second audio clip reveals a second phone call in which the Daily Mirror admits the newspaper made an “inadvertent mistake” by publishing Father Alles’ article. The audio reveals a craven Abeywardane urging the company official to “explain to Mr Senadhipathi”.

Listen to full audio below:

The article that featured the recording of the call with the Daily Mirror editor which appeared on a news website in Sri Lanka also said Avant Garde was going to pursue legal action against the Colombo Telegraph, for the decision to reproduce in full Father Alles’ article which was removed from the DM website. The Avant Garde “spokesman” told the website that “Uvindu Kurukulasuriya of ‘Colombo Telegraph’ had alleged that the article had been scrapped after ‘Avant Garde Maritime Services’ had given money to the newspaper to do so.”

At no point in the report published in Colombo Telegraph did this website allege that Senadhipathi’s company had paid money to pull Father Alles’ article off its website.

It is well known in Sri Lankan media circles that Nissanka Senadhipathi has a terrifying record of intimidating witnesses and the media, buying out entire websites in order to stop unfavourable coverage.

The emails received by Colombo Telegraph now reveals that Father Alles’ account of his repatriation saga was entirely accurate and Avant Garde was controversially overseeing and profiting from a repatriation project that has been the subject of ire for many Lankans returning from overseas.

However Daily Mirror not only removed the article from its website, it also published Avant Garde’s response the following week with the “same prominence” Father Alles’ article received, as Abeywardena promised the official from Avant Garde.

The following email was sent from the Consulate of Sri Lanka in Melbourne Australia, to a Sri Lankan registered with the embassy for repatriation to Colombo.

Dear Sir/Madam

This is further to our email of yesterday.

Your special repatriation flight UL [redacted] now scheduled to depart Melbourne on 20th September at 1900 hours and arrive in Sri Lanka Mattala Airport at 0115 hrs on 21st September (local times indicated).

We have now been informed of the revised payment details. Accordingly, your flight arrangements including the ground arrangements (PCR tests on arrival, quarantine hotel accommodation and ground transportation) ar emade by the Avant Garde Maritime Services (Pvt) Ltd. Therefore the terms and conditions of your quarantine hotel package is determined by Avant Garde Maritime Services (Pvt) Ltd.

Please note that the High Commission of Sri Lanka in Canberra/Consulate general of Sri Lanka in Melbourne is only facilitating your repatriation through the above flight.

Please also note that you are required to first make the payment for the ground arrangements and submit the payment confirmation to the Sri Lankan airlines at the time of the issuance of the ticket.

You are not required to respond to this email

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