Lanka’s top legal knights rode out in full force on Thursday to express serious concerns on the final report of the Presidential Commission of Inquiry appointed by President Gotabaya Rajapaksa on January 9 last year to probe ‘political victimisation’ during the previous government’s tenure of office, the ‘Yahapalana’ years which spanned  between January 9, 2015  [...]

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Top legal guns ready to fire at PCI bid to rip the judicial robe

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Lanka’s top legal knights rode out in full force on Thursday to express serious concerns on the final report of the Presidential Commission of Inquiry appointed by President Gotabaya Rajapaksa on January 9 last year to probe ‘political victimisation’ during the previous government’s tenure of office, the ‘Yahapalana’ years which spanned  between January 9, 2015  and November 16, 2019.

As a preliminary move of taking stock of the entire situation before firing their legal salvos at the controversial report, this elite band of eleven legal luminaries, comprising President’s Counsel K. Kanag-Isvaran, Romesh de Silva, Ikram Mohamed, Faisz Musthapha, Upali Gooneratne, Geoffrey Alagaratnam, Saliya Pieris, Nihal Jayamanne, Upul Jayasuriya, Wijeyadasa Rajapakshe and U.R.D. Silva jointly signed a letter addressed to the Sri Lanka Bar Association Secretary Rajiv Amarasuriya requesting him ‘’to obtain certified copy of the entirety of the proceedings along with the final report submitted from the President’s Secretary.’

SIGNATORIES: Top: K. Kanag-Isvaran, PC; Romesh de Silva, PC; Ikram Mohamed, PC; Faisz Musthapha, PC;Upali Gooneratne, PC; and Geoffrey Alagaratnam, PC Below: Wijeyadasa Rajapakshe, PC; Saliya Pieris, PC; Nihal Jayamanne, PC; Upul Jayasuriya, PC; and U.R.D. Silva, PC

The request to the Bar Association to prepare the brief for the Counsel’s deliberations was, no doubt, occasioned by the growing anxiety prevailing amongst the public whether the Presidential Commission’s report had impugned judicial judgment and trespassed upon hallowed judiciary ground.

This disquiet, which descended upon Hulftsdorp Hill no sooner the report was handed to the President on December 8 last year, intensified further when snippets reached the public domain; and today this unease over the alleged unprecedented assault on the judiciary pillar of State, finds emphatic echo in the Kanag-Isvaran-led legal A team’s letter when it casts serious concerns that the contents of the report

  • may undermine the rule of law in this country,
  • endanger the independence of the judiciary and
  • erode the impartial and efficient functioning of the AG’s Department.

It is, indeed, a heartening sign that, in an extraordinary standing of unity, these eminent legal friends of the unofficial bar have rallied to lead from the front the just legal crusade to protect the sole fount of all justice, safeguard the judicial integrity, stem the eroding tide from flowing to the AG’s Department and wearing away its rock of impartiality, and prevent the slippery slide into anarchy by upholding the Rule of Law and defending it whenever it’s under threat.

It will also be a morale booster to those who had been in the vanguard of opposition to the Presidential Commission of Inquiry’s report until now. A day earlier the Samagi Jana Balawegaya had taken their political positions and had accused the Commission of   ‘arrogating to itself the powers of the judiciary’.

Chief Opposition Whip, SJB MP Lakshman Kiriella told the media: “The Presidential Commission of Inquiry (PCI) probing the incidents of political victimisation has usurped the powers of courts. It has not been given powers of the courts. The PCI has recommended that cases pending before the Magistrate and High Courts be stopped. Victims have been turned into complainants and complainants into offenders. The PCI has made recommendations to acquit those implicated in numerous offences. The commission has recommended that some who violated the laws be acquitted and compensated. A PCI has no such powers. We have submitted a petition to the Chief Justice on Tuesday against the PCI hijacking the powers of the court.”

Another instance highlighted by the media is the case of former parliamentarian Duminda Silva who was convicted of the murder of Bharatha Lakshman Premachandra and was sentenced to death after a three-judge bench of the High Court, appointed by the Chief Justice at the request of the Attorney General, found him guilty, with the presiding judge dissenting.

The appeal to the Supreme Court against the decision was heard by a five judge bench comprising of Chief Justice Priyasath Dep, Justices Buwaneka Aluvihare, Priyantha Jayawardena, Nalin Perera and Vijith Malalgoda. Incidentally Justice Nalin Perera would succeed retiring Chief Justice Dep and the then Attorney General Jayantha Jayasuriya in April 2019 would in turn succeed retiring Chief Justice Nalin Perera and emerge as the present Chief Justice.

In its unanimous judgment delivered on October 7, 2018, the Supreme Court affirmed the decision of the lower court. The Presidential Commission of Inquiry appointed by the President last January has, however, recommended in its report the acquittal and release of Duminda Silva against the unanimous decision of five Supreme Court judges.

This is but one instance where the Commission is accused of going beyond the distinctly drawn line of duty. Perhaps the entire report subjected to keen legal eagle eyes may reveal plenty more which may be determined as posing a direct challenge to the supreme authority of the Judiciary.

Till then, Lanka’s legal knights have kept their swords sheathed lest the political hue will rust it.

Muslim COVID dead linger on to haunt Govt.

IRANATHIVU ISLANDERS FACE NIGHTMARE ON THEIR ISLET TERRAIN

While the rest of the world bury their COVID dead without any issue, Lanka has walked alone, maintaining mandatory cremation as its preferred method  to dispose the remains of those who succumb to the dreaded scourge.

Even though few brief rays of light lit last month to end the Muslim anguish over the Government’s cremation only policy it was but fleeting, a mere firefly’s flicker that died no sooner it had shone.

Muslim hopes surged on February 9 when the COVID Minister Dr. Sudharshani Fernandopulle declared in Parliament that COVID is not a water-borne virus. That assurance, no doubt, given to the House after much research and scientific findings, shattered the myth that the coronavirus could spread through water. It was an old wives’ tale long dismissed by the World Health Organisation as having no scientific foundation.

Muslim hopes soared higher the following day, February 10, when Prime Minister Mahinda Rajapaksa rose in Parliament and, in brief reply to a question raised whether the Muslims would be allowed to bury their COVID dead, assured the House that thenceforth ‘’We will allow the bodies to be buried.”

But Muslim euphoria was short-lived. The following day, the Government paid no heed to the Prime Minister’s solemn assurance to Parliament but carried on regardless, maintaining the status quo.

GRAVES ISLAND: Over hundred families, many Tamil Catholics living in Iranathivu island, 7 miles off the Mannar coast, fear their life styles doomed as Government plans to turn their little patch of land into a cemetery for the Muslim COVID dead

Last Thursday night, the Government caved in to international pressure and gazetted an amendment to the existing regulation thereby providing for the burial of the COVID dead.

Incidentally, last Tuesday, the powerful Organisation of Islamic Cooperation representing 57 Muslim States raised at the ongoing UN Geneva sessions, the issue of mandatory cremation of COVID victims in Lanka as a denial of Muslim rights to be buried and urged the Lankan Government to lift the burial ban.

The Government not only granted OIC’s request to permit COVID burials by gazetting its approval two days later but, surprisingly, bent over backwards to please it by writing to the OIC Secretary General Al Othaimeen to say his wish had been the Government’s command and that it had been duly complied with, in 48 hours of it being made. In reply, the OIC on Saturday, commended the Government decision to allow burials.

But, alas, Muslim elation at the Government’s gazetted permission to bury their COVID dead was again destined to be short lived. Hardly had the printer’s ink dried off the published statutory notification, the Government queered the pitch it had earlier smoothed to the satisfaction of all by announcing that, whilst burial was, indeed, permitted, the bodies could only be buried on a little known islet patch 7 miles off the Mannar coast.

Short of dumping the bodies at sea, was this the region, the soil, the clime, the burial site the authorities in Colombo had chosen for all Lanka’s Muslim COVID dead?

Muslim sentiments were aghast. As, perhaps, were the thoughts of the Muslim members of the OIC whom the Government had so assiduously wooed and won by lifting the burial ban  as barter for their support at the ongoing  Geneva sessions?

Again the ‘expert opinion’ of the faceless government technical committee was paraded to show Iranathivu island as the identified ideal site. It, however, still maintains that the virus spreads through water, but determines Iranathivu safe. On Friday, to combat growing Muslim ire, two other ‘safe’ spots were identified in the East.  If going on their own reckoning, why weren’t these places identified months ago when Muslims were clamouring for the restoration of the funeral rites and the right to bury their COVID dead?

Secondly, how did this ‘expert’ committee decide on whether burial will result in the contamination of ground water without, as it has now been revealed, without a geologist on the committee to advise it on the ground water situation?

Thirdly, underlying the decision making process of this ministry in-house committee is the antediluvian premise that the coronavirus is waterborne when the entire body of scientific findings hold the contrary, including the view of COVID Minister Fernandopulle who stated ‘COVID’ is not waterborne, but airborne.’

But flying flagrantly in the face of accepted scientific findings as held by the WHO as the yardstick by which to gauge danger; travelling in the southern direction with bullish obstinacy, as if it was the sole possessor of the Covid Oracle of Delphi, while every other compass guided state on earth headed north may foul the government’s own credibility, cast suspicion on the sincerity of its motives in granting a right but affixing a condition that      nullifies the grant.

Worse. The Government has stumbled onto another humanitarian crisis. By choosing the remote, tiny island of Iranathivu as the ideal site to bury the COVID dead, the authorities have ignored the plight and fate of the 165 families, mostly Tamil Catholics, who live there.

If, as the technical committee still holds COVID is water borne, the authorities haven’t given a rat’s whisker of concern as to the possibility of the island’s wells getting contaminated with the virus denying the inhabitants access to their only source of fresh water. In their indecent haste to find safe ground to bury the ‘mandatory cremation’ issue and ward off international opprobrium, they had callously held the islanders, citizens of Lanka, as the expendables.

But the sudden prospect of seeing the narrow ambit of their tiny isle turned to a graveyard for the COVID dead, and having to live amongst the corpses, did not make the natives jump into the sea in despair. Instead, they reached for their cross to protect, for their church to defend and for their God to grant their right to live on the island, with their way of life undisturbed, praying that justice will be done. On Wednesday, they began their protest.

The COVID burial issue has dragged on for too long and is in danger of being further politicised. SLMC leader Rauff Hakeem charged this week: “Is there is no end to their sadistic pleasure in harassing a traumatised community. Pathetic racism prevails.’’

Chipping in was TNA MP Sumanthiran who said the decision to send Muslim dead bodies for burial at Iranathivu in a Tamil-dominated area was the Government’s idea to create a rift between Tamil and Muslim communities.

The Government will be wise to join the rest of the updated world and follow the universally accepted safety norms as outlined by the WHO and lay the burial issue to rest in peace. Or else not even a stake through the heart may be able to stave off the restless spirit of racial discord from rising again.

PS If COVID spreads through water, why are swimming pools at hotels and clubs allowed to stay open to the public?

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