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25th July 1999

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Last rites for presidential commissions

By Kishali Pinto Jayawardena

When the Special Presidential Commis-sions of Inquiry Act was enacted way back in 1978, its vengeful authors might never have imagined that disgruntled police officers would play a major role in its eventual discrediting.

This is how it has precisely turned out to be now. As the findings of the Lalith Athulathmudali Commission against Deputy Inspector General A.S. Seneviratne bit the dust early this month, the Supreme Court indictment against the workings of the Lalith Commission was severe.

"(Seneviratne) was condemned by the Commission without being given an opportunity of refuting what was being urged against him ……….. without hearing what he had to say, (the Commission) nevertheless came to the conclusion that (Seneviratne) was 'beyond all reasonable doubt' guilty of criminal and official misconduct."

DIG Seneviratne, along with other police officers, had been found by the Commission to have "assisted in the (Athulathmudali) assassination and the plot to fabricate evidence".

The Report of the Commission released last year implicated former President Ranasinghe Premadasa as being directly involved in the assassination of Mr. Athulathmudali. His political confidante, former UNP minister Sirisena Cooray was recommended imposition of civic disability on the basis that he had committed contempt of the Commission by not appearing before it when summoned to do so.

In the alternative, it was said that due to his conspiring with several others to assassinate Mr. Athulathmudali, this penalty should in any case be imposed.

An assortment of strange characters with stranger names were recommended indictment under the Penal Code. A number of senior police officers were also put on the mat and the IGP asked to investigate their conduct in handling the murder investigation.

DIG Seneviratne was among these police officers. In the language of the Commission report as DIG Seneviratne and the other police officers were "public officers, no doubt acting under the influence of their political masters, the Commission has refrained from making any recommendations as to their civic rights but wherever they have committed offences under the Penal Code, they should be prosecuted and in any case, disciplinary action should be taken against them by the Police Department".

The Report was first successfully challenged by Mr. Cooray resulting in the Supreme Court ruling that the findings against him were "flawed and unreasonable" and in breach of the principles of natural justice.

This was followed by DIG Seneviratne's objections being raised on the ground again that the basic rules of fair procedure had not been followed, leading to the second and equally harsh indictment on the Athulathmudali Commission this month.

The reasoning of the Supreme Court was fairly straightforward. Once allegations were made against Seneviratne by the investigators of the Commission, the Commission should have itself questioned DIG Seneviratne with regard to these allegations. Handing over this responsibility to the team of police officers authorised by the Commission to investigate and record the testimony of persons was not sufficient. Neither could the Commission take refuge behind the defence that it would have been impracticable for the Commission itself to hear and interrogate the large numbers of police officers who were questioned.

In this case, DIG Seneviratne was implicated by the findings of the investigators and he ought to have been so informed and heard by the Commission before any recommendation was made on such findings. He moreover had the right to be represented by an attorney at law, if he so wished.

That he was not given this opportunity was enough to set aside the findings against him. Arguments to the contrary that the need for secrecy and to preserve the name of the Police Department prevented such hearings were also summarily dismissed. The Commission was empowered by law to hold inquiries behind closed doors. It should have made use of this facility if public hearings were not possible. As the Court caustically pointed out, public hearings might have conceivably hurt the interests of the Police Department less than the publication of findings against police officers in this manner without testing the credibility of the allegations against them.

The July judgement of the Supreme Court is fundamentally important in two respects. From one perspective, it follows the now familiar trend of police officers coming to court and pleading a violation of their fundamental rights over Commission findings and consequent action.

The Seneviratne decision is in the footsteps of last September's decision of the Supreme Court again with regard to police officers aggrieved this time by the findings of the Batalanda Presidential Commission.

In that case, eleven police officers arrested and detained in connection with proceedings of the Batalanda Commission declared that their fundamental rights had been violated. Action had been taken against them on the basis of the Batalanda report. They had not seen the report, nor did they know what exactly they were accused of. They had therefore been treated arbitrarily.

Upholding their rights, the Supreme Court pointed out that rights protection was held available to all, even alleged rights violators. The language of the Court was, indeed, exceptionally stern.

"It is true that allegations of misconduct against police officers must be dealt with promptly and effectively and that the respondents were purported to be acting in order to prevent the subversion of the course of justice before a Commission inquiring into unlawful arrests and unlawful places of detention. However, it is distressing and disturbing that the entire process of arrest and detention of the petitioners has been contrary to basic constitutional safeguards." the Supreme Court stated.

Both the Batalanda judgement and the Seneviratne judgement this month could therefore be said to point to a welcome development in the fundamental rights jurisprudence of this country in affirming the principle that police officers are entitled, like all citizens, to have their rights upheld.

From another perspective, the Seneviratne judgement undoubtedly signals the final nail in the coffin of the Athulathmudali Commission in particular and all Presidential Commissions in general. It is fundamentally ironic that public calls to the executive from the Jayewardene times to repeal the Act — under which these Commissions are allowed to function with all their lamentable excesses — went unheeded by political regimes of varying colours who used the Act for their own benefit.

Now, the numerous indictments by the Supreme Court against all the Commissions have destroyed their credibility in all but the most myopic of eyes. Repealing the Act would therefore, in present times, admittedly amount to a mere technicality. Nevertheless, it remains to be done as a final and crucial act of absolution.

Future Watch - The Sunday Times today begins a new series to mark the arrival of the new millennium

To touch the globe again…

By Susantha Goonatilake

At the time of Christ's birth, the two greatest civilizations on either side of the world were China in the East, and Rome in the West. In the middle was another centre of civilization South Asia, including Sri Lanka.

Writing in the first century AD, the Roman historian Pliny records the visit to his country of four ambassadors from Sri Lanka. The leader of this Sinhalese delegation was Rachia. Rachia's father had also travelled to China. And Rachia repeats to the Romans his father's descriptions of China.

So this one Sinhalese household of Rachia from Anuradhapura jointly held more geographical knowledge than any European family until the time of the Italian Marco Polo in the 13th century, and probably until the European Voyages of Discovery, a few centuries later. And when one considers that other inhabitants of Anuradhapura knew intimately the other major civilization of South Asia, one realizes that the Sinhalese were perhaps the first global citizens in the ancient world.

Recognizing this key position of Sri Lanka, the Romans called the country 'Mediatrix', the meeting place of East and West. This special position was illustrated in the first known map of the world by Ptolemy the Greek, in the 1st century. This map shows Sri Lanka as large as India. Modern European geographers have suggested that this distortion reflects the large image of Sri Lanka held by Europeans at the time.

The geographic importance of the country for South Asia was also seen in its choice as the place the Indian meridian went through. To our part of the world, Lanka was like Greenwich in England, a convenient place to keep measure. In the works of Indian astronomers, Lanka, Sinhala and Ruhuna appear as places of observation for the skies.

But there are in the realm of ideas, yet other signs of our global membership. In the first century one of our sons Aryadeva, was a cofounder of Mahayana philosophy. In the fifth century Buddhaghosa coming from North India translated our literature to the international language of Pali. Other numerous texts from the Sinhalese intellectal tradition went to define Theravada. In the Mahayana, other Sinhalese figures such as Sinhalaputra, Lankadeva and Lanka-Jayabhadra were all well-known scholars. An important one in Tibet was the nun Chandramali who helped compile the Tibetan Triptaka.

Chinese travellers coming from around the fifth century have recorded their observations on us as well as details of our own many visits to China. One important set of Sinhalese visitors was our nuns who in the fifth century established the bhikkuni order in China. They must be the women sea travellers who had made the longest sea journey, anywhere in the world up to that time. It is however in South East Asia — Thailand, Vietnam, Burma, Cambodia and Laos — that numerous proofs exist of our influence as monks and travellers went there to and from our country.

The Sinhalese intellectual presence had extended from Rome to China and from Tibet to Java and many countries in between.

Even when we were past our glory, our global reach is seen in our literature. The Butsarana (13th Century) refers to several countries and their indigenous languages including Java, Borneo, China, Burma, Cambodia, the Malay Peninsula and the Andaman Islands. Pujavaliya (13th C) refers to 44 countries; the Dambadeni Asna (14th C.) lists 60 foreign countries. The Parakumba Sirita (fifth C) refers to Korea. Kustantinu Hatana (17th C ) lists soldiers from twelve different countries including Ormus of the Persian Gulf, Kaffirs, Abyssinians, Arabs, Parsees, Javanese and Chinese, while Rajavaliya (17th C) lists 43 countries including Germany, Borneo, China, Naples, Portugal, Spain, Italy and Greece.

Apart from these later texts, earlier literature from the previous millennium specially of the Mediterranean, continued to be read in these more recent centuries. So our common geographical knowledge remained large.

Ours was not the world of a village which commentators in the 20th century reacting against our colonial city imagined it to be. Our "village" was partly the world.

With the advent of Christianity in Europe, the greatness of Greece and Rome died. From the fourth century to thousand years later, Christian darkness enveloped Europeans. Its Dark Ages were only finally dispelled after it broke through Christian superstitions and attempted to reach back to its pre-Christian glories.

During this period of darkness, Christian fanatics killed thousands. In the Crusades, it killed those who stood in its way. During the Inquisition, simple searchers of the truth like Galileo were hounded or burnt alive. (Centuries after these shameful events the Pope apologized).

From the 16th century, this hateful aspect of practical Christianity spread to Asia, Africa and America. Genocide was now done in its name. As the first country in Asia to suffer this Christian help, our people were killed by the Portuguese, our libraries burnt and our temples — both Buddhist and Hindu — looted. (The Pope and the Portuguese have still to apologize and pay us compensation).

This sadistic streak continued. In the biggest genocide in the world, during World War II, the Vatican indirectly helped the elimination of Jews. (The Pope recently showed regret). Although its close ties with the Tamil Tigers are a reminder of its past, this marauding Christianity seems now to have reformed itself.

In today's Europe, the churches are emptying, although in the middle reaches of America and its South, Christian fundamentalism is still booming. Some European scholars have begun to say that Christ in fact did not exist. Others say that he stole his ideas from the Buddhists. But in many parts of the Third World, Christianity is still being pushed through Western money and forced conversions.

In a few months, we commemorate the two thousand years of the founding of Christianity. To its adherents, it is an important occasion. To non-believers, the year 2000 is a convenient time to take stock.

Ours is a time when unprecedented changes are occurring. New ideas and new discoveries envelop us. New relationships bring us together in a global embrace.

If, in the beginnings of the Christian era, we in Sri Lanka were a culture truly open to the then known globe, then we are very much more so now. It may not be well recognized, but we are today one of the worlds' most international of communities. Let me elaborate.

About ten percent of the Sri Lankan population live abroad at any given time today. Probably twice that number has been at least once to a foreign country. And there is hardly a family in Sri Lanka who do not know either a friend or a relative who has been to a foreign country.

Our people live in the Middle East, in various parts of Europe, America, Asia, Africa and even in South America. I personally have met them in all these continents. Some are there as masons, maids and mechanics while others as doctors, scientists and engineers and many in between. There are students and monks, too.

Today there are as many students abroad as in some Sri Lankan universities. In Australia, India, America and Europe, the number of Sri Lankan students count in the thousands, more than the total university population in Sri Lanka a few decades ago. They are mastering the knowledge that will shape the globe's future.

In our earlier era as global citizens, Buddhist monks traversed the then known world. Today it is not very different. Without formal money and organizations like the Muslims and the Christians, individual monks are today found heading temples in America, Europe and Asia. For example in Europe, from the frozen North of Sweden to the South in Italy, from Britain in the West to Austria in the East.

Several are there as students learning the languages of European natives and refining their skills. As the churches close down in Europe, many are there filling the new European thirst for Buddhism.

But all our compatriots living abroad are products of our recent history. They have all been aware of their rights since their grandfathers first exercised the vote in 1931. After their fathers first tasted free education in the late 1940s, they are also well educated.

In the 19th century Sri Lanka and other Theravada countries had a higher literacy rate than that of Britain. Since that time Buddhist monks had demanded the spread of modern education. Walpola Rahula who got hundreds of thousands of signatures in support of free education, defeated the machinations of the Catholic church which got only ten thousand signatures opposing it.

It is for this promise of education that many poor mothers laboured to get their children through school. It is some of these children of free education seeing the high competition in Sri Lanka who now spend their life's savings to send their children abroad. It is for this same duty to their children that mothers and fathers labour in the truly barbaric social conditions of countries like Saudi Arabia.

The present globalizing world is not only placing our people all over the world, the world is also streaming into our homes. The world streams in through the many channels of our TV. The telephone connects each other in Sri Lanka as well as to many of our compatriots around the world. Computers and the Internet are spreading to every small town. And as these devices spread, it will by pass-the gate keepers to what we could know.

Stooges of feudal relics in politics like Chandrika Bandaranaike Kumaratunga and Ranil Wickremesinghe can in the future no longer put in front of us lies supporting their masters. In 50 years' time, our descendants will wonder how, insulting both democracy and free education, such feudal anachronisms became our leaders. The first condition of seeing the world correctly is to switch off the childish prattle of our feudal politicians.

Searching for democracy and freedom, our people have struggled in several ways. Some trusting existing institutions have done it in peaceful ways. Some in a hurry and distrustful of the existing avenues have revolted. Many have been thwarted. Thousands have died. Many have been disappointed. In approaching our second era of globalization we should not simply react to others' initiatives. Like the first era of our global life, we should reach to the world in confidence and joy. And to do that, we must know where we came from, and what is in store in the future. And such questions require further discussions.

inside the glass house:

UN being 'privatised'

NEW YORK— The United Nations is trying to practise what the World Bank and the International Monetary Fund (IMF) have long preached to the world's poorer nations: privatize or perish.

As the cash-strapped world body cuts costs and trims its overgrown fat, the private sector is increasingly being touted as the new saviour — both financially and politically.

Although the UN is in no danger of being privatized at the hands of multinational giants, there is a growing interest on the part of the corporate sector to work closely with the world body.

Since he took office as secretary-general more than two years ago, Kofi Annan has attempted to build a substantive new relationship between the UN and the private sector — a relationship, which over the years, was never explored primarily for ethical reasons.

At a recent UN meeting of business leaders, the cast of characters included BAT Industries, Bata, Coca Cola, Goldman Sachs, Unilever, McDonald's, Rio Tinto and US West.

"We have shown through cooperative ventures — both at the policy level and on the ground — that the goals of the United Nations and those of the business community can be mutually supportive," Annan said

Mindful of some of the unethical business practices of the private sector — including human rights violations, environmental damage and exploitation of child labour — Annan challenged world business leaders to re-design their corporate practices and policies in tune with basic principles of human rights, international labour laws and environmental guidelines laid out by the world body.

Annan has proposed that both the UN and the business community jointly initiate a global compact of shared values and principles.

Jayantha Dhanapala, the Under-Secretary-General for Disarmament Affairs, last week called for a "creative partnership" between the UN and the arms manufacturing industry — more for political than financial reasons.

The arms industry, he pointed out, was "a strategic sector of the global economy" which can assist UN efforts to curtail illicit arms trafficking.

Arms manufacturers, he argued, could promote greater transparency, and curb wrongful uses of weapons that have been acquired to serve legitimate national security needs.

Dhanapala said there was particular need for a UN relationship with the arms industry as it was now being "globalised."

Annan told business leaders that three UN agencies — the International Labour Organisation (ILO), the UN Environment Programme (UNEP) and the Office of the UN High Commissioner for Human Rights — stand ready to assist them.

"Many of you are big investors, employers and producers in dozens of different countries across the world," he said. "That power brings with it great opportunities - and great responsibilities."

"We have to choose between a global market driven only by calculations of short-term profit, and one which has a human face," Annan said.

But the UN Children's Fund (UNICEF), which customarily blacklists companies selling cigarettes or exploiting child labour, has urged the UN and its agencies to be cautious in their dealings with the private sector.

"To begin with, it is dangerous to assume that the goals of the private sector are somehow synonymous with those of the United Nations, because they most emphatically are not," says Carol Bellamy, executive director of UNICEF.

The New York-based children's agency — whose international fund-raising activities are supported by Warner Brothers, British Airways, Turner Network Television, American Express, and the Sheraton and Westin Hotel chains — has the most extensive corporate involvement of any single UN body.

Bellamy argues that business and industry are driven by the profit motive — "as they should be and must be, both for their shareholders and their employees."

The work of the UN, on the other hand, is driven by a set of ethical principles that sustain its mission — principles set out in the UN Charter, in the Universal Declaration of Human Rights, in the Convention on the Rights of the Child, and elsewhere in the galaxy of international instruments and treaties that have been promulgated since the UN's founding in 1945.

According to Bellamy, it is perfectly right and legitimate for both to be pursuing their singular mandates — "and where they can work as partners, so much the better."

"But in coming together with the private sector, the UN must carefully, and constantly, appraise this relationship," she warned.

At present, the UNICEF buys millions of dollars worth of medicine, relief supplies, pharmaceutical products and vitamins from private companies throughout the world.

But it attaches "ethical strings" to its supply contracts, favouring companies that pledge to avoid links with such activities as landmine production and exploitative child labour.

"We do not deal with cigarette companies or accept contributions from manufacturers of infant formula," Bellamy said.

Kargil: when will they talk?

By Adrian D'Melo

Despite American pressure to resume the dialogue with India in the 'Lahore spirit', the Nawaz Sharif government in Pakistan is unlikely to enter into any negotiations with India now from a position of weakness.

Though it would loathe to admit this, Pakistan had to bite the dust in the Kargil misadventure having to withdraw ignominiously from the heights which its regular troops and irregular forces, masquerading as mujahideen or freedom fighters, had held for more than a month against heavy odds.

Having withdrawn as a result of relentless Indian pounding from the ground and the air, American arm-twisting and European cold shouldering, the government and the people of Pakistan are undergoing a kind of trauma which they experienced earlier only in 1971, when India helped East Pakistan breakaway.

No nation with pride, and Pakistanis are a proud people, will ever talk to another which has inflicted such a grievous wound. The daily "Dawn" made this amply clear on July 22. "Indeed it is fair to say that public opinion in Pakistan will never accept the notion of entering into negotiations with India which is seen to act as holy and superior. A bit of modesty in New Delhi is, therefore, called for, although how this is to be impressed upon a leadership which thinks it has just won the fourth battle of Panipat is a baffling problem," the paper said.

Panipat here refers to a series of three battles which indigenous Indian armies had unsuccessfully fought against Afghan/Central Asian Muslim invaders in the turbulent history of the sub continent.

The trauma has triggered some sabrerattling. Speaking to reporters in Mecca, Foreign Secretary, Shamshad Ahmad, said that there was no chance of Pakistan's entering into a "useless and fruitless dialogue."

Trust could not grow in a vacuum, he held. India's conditions for talks, including the stopping of cross border terrorism, could not be accepted. In Pakistan's view, the cross border terrorists are freedom fighters from Indian held Kashmir.

Pakistan's Foreign Miniser Sartaj Aziz, said bilateral talks, which America had been urging, would not deliver the goods. He told parliament that mediation was the only way out.

Aziz also indicated that Pakistan had its own conditions for talks. India should withdraw from the Siachen Glacier, Chorbat La and Qamar, which he said, it had seized in 1972, 1984 and 1988.

According to Aziz, India has seized 25,000 sq.kms of 'Azad Kashmir' (Pakistani name for that part of Kashmir it controls).

He also pointed out that India should agree to respect the UN Security Council resolutions calling for a referendum in Kashmir, passed with unfailing regularity from 1948 to 1955.

Meanwhile, the leaders of the infiltrators based in Pakistan, resolved not to give up their 'Jehad' or holy war against India.

Hafiz Mohammad Sayeed, chief of the Markaz-ud-dawa-wal Irshad, said at a press conference in Lahore: "The Kashmir issue can be solved only by Jehad." Fighting in some important mountain positions was going on, and the mujahideen were actually in a better position, he claimed.

"In fact, we are planning to move towards India," Sayeed vowed. The Indian army, he said, had not been able to reoccupy posts because of stiff resistance and not because of mines planted by the 'retreating' mujahideen.

According to the Indian army, however, the intruders had withdrawn from every- where except three positions in Mushkoh, Drass and Batalik sectors. Here they are ensconced on ridges overlooking the Pakistani side and therefore shielded from the impact of continued Indian shelling.

The Indians have not been able to use aircraft to strafe and bomb them because these missions will involve crossing the Line of Control, which India is sworn not to cross. The Pakistanis had also planted non-metalic anti-personnel mines to prevent detection.

The Indian plan to move into the vacated ridges therefore would take time and casualties. But India is determined to re-occupy, even if the cost of doing so and staying there through the winter in 40 ft of snow is going to be astronomical.

The strategy of military incursion having failed, the Pakistanis are planning and executing a series of terrorist strikes against soft and hard targets in Kashmir and Jammu, especially in the border districts.

In the fourth attack on Hindu and Muslim civilians in the past month, fifteen itinerant road building workers camping in Lahuti village in Doda in Jammu were shot dead in cold blood in the dead of night.

In the fifth incident earlier this week, three village defense committee members were shot dead in Purana village in Jammu.

These killings have forced India to insist that there will be no talks with Pakistan unless cross border terrorism is stopped. But ironically this stand has strengthened the hawks in Pakistan who are itching for "war war" and not "jaw jaw".

The United States, in the meanwhile, has been trying to get the two sides to the negotiating table. Realising that the relatively moderate Nawaz Sharif regime is beleagured and under pressure from the jingoists and holy warriors, the US seems to be holding out a helping hand.

State Department spokesman James Rubin, for instance, refused to name the perpetrators of the gory deed at Purana village, even as he appealed to the government of Pakistan and all others with influence on the groups which perpetrate these deeds to press them to show restraint.

Rubin gave credit to Nawaz Sharif for withdrawing from the heights of Kargil saying that necessary steps had been taken to follow through on the commitments he had made to President Clinton on July 4.

In recognition of India's sensibilities, the US has kept saying that it is not interested in being a mediator. But if the conflict simmers and erupts again into a conflagration, as it may well do, the US may have to take a more pro-active role.

A Camp David may not be on the cards, but an innovative form of intervention cannot be ruled out to keep the peace in the sub-continent, contain Islamic jingoism in Pakistan and get Pakistan's help to meet the challenge from the virulently anti-American Taliban entrenched in neighbouring Afghanistan.

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