17th October 1999

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Untouched by spiritual vibes the killings go on!

By Kumbakarana

After the peace meditation at Vihara Mahadevi Park, recently A.T. Ariyaratne gave a strange answer to a question asked by a journalist. The journalist asked since there is no fighting in Colombo or Kandy would the war in Mullaitivu and Vedithalthivu come to an end as a result of meditation? To this Mr. Ariyaratne said there are no geographical boundaries in the universe to the spiritual vibrations arising in the mind. What he meant was that the spiritual power through meditation in Colombo would turn Prabhakaran's mind towards peace!

But the events in Periyamadu, Ampara, Batticaloa and Negombo show that instead Prabhakaran's mind has turned to blood-letting. But what is most amazing is the reaction of the government when Tigers massacre unarmed civilians in the East and other parts of the country. It says that they do not have sufficient forces to protect these villages.

The government also says there is a poor response to the recruitment drives of the armed forces. On the other hand ministers like Mangala Samaraweera and Dilan Perera tell the youth that they should not join the Army to fight this wretched war. Indika Gunawardene who was jailed in 1986-87 under the Anti-terrorism Act now joins Batty Weerakone to dissuade the youth from joining the armed forces. And the government is turning to divine power through the Muturajawela Ram kovil and appeals through Pujas of the Dolukanda Nandavimala thero.

But these appeals strengthen rather than weaken Prabhakaran The recent blood-letting is proof of this. The result is that the south is immobilized, the soldiers in the field are mown down by mortars, and women and children are hacked to death.

Meanwhile Prabhakaran without the slightest concern for the consequences of war, shows no response to the peace and meditation business and is pursuing his plan to link up the Wanni, the Hill Country and Colombo.

Is it accidental that the people who are now chanting peace anthems were the very people who played martial music in 1987-1989. What has happened to the LSSP and CP is clear. For five decades they opposed capitalism, privatisation, globalisation, and now they have to swallow these same concepts hook, line and sinker. Even though they threaten now and then to leave the government they will never do so. They are silent on the indiscriminate privatisations taking place.

When necessary they turn anti-Sinhala, raise peace slogans to please their western donors on whom they are totally dependent. The same people who hailed the Indian incursion are today betraying the country by calling for foreign mediation.

The Norwegian ambassador in Jaffna said that Norway and Britain were drawing up a plan to establish peace in Sri Lanka. When foreign intervention was called in Somalia it was NGO's like Oxfam and Care which did so. In Sri Lanka NGO's both old and new are trying to garner funds for their upkeep by these peace efforts - which in fact is the rationale of their peace chants.

People who used death squads like PRAA to crush the JVP in 1987/1989 should first cleanse themselves of those bloodstains before they try to change the attitudes of the masses with the peace mendicancy. If they genuinely need peace we propose that they go to Mallawi and Mullaitivu to belt out their peace slogans.

Ministers and MPs with their entourages of trained soldiers move about in intercoolers, making 'ape handa' noises, while injured soldiers in the field are transported in tractors, given tambili water in place of saline and unprotected villagers flee their homes in fear of terrorist attacks. They ask the youth not to join the armed forces. Just as they exploited the tears of mothers of the dead in 1994 through the Mothers Front, now they are making use of the tears of the mothers of soldiers who are missing in action.

Because of the failure to strengthen media freedom, the delays over the devolution package- all to please the Western donors, the Sinhalese are being hammered. With scant regard for his life Lakshman Kadirgamar, Minister of Foreign Affairs has brought about an immense improvement in our image and a comprehensive understanding of our problem at international level. This achievement is being betrayed by the peace circuses which have become a joke.

If the West wants to send so-called peace keeping forces like they sent to East Timor, neither the government, nor the opposition or Prabhakaran could stop them. Only a Sinhala peoples' movement supported by India and China can stop such an attempt.

Rajiv killers to be hanged on Nov. 5

CHENNAI- Execution of the death sentences on four persons convicted for Rajiv Gandhi's assassination has been provisionally fixed for November 5 by a designated trial court here.

But prison officials said execution of the black warrants would await the President's decision on the mercy petitions the four were expected to send in a day or two. They are lodged in the Vellore prison, where the executions are to be carried out before 5-30 a.m. on that day. A five-member Bench of the Supreme Court on October 8 confirmed the death sentence on Nalini, Murugan, Santhan and Perarivalan.

Official sources said the designated court Judge was only following a routine order for execution of the death sentences. A Designated TADA court had in January 1998, handed down death sentences for all the 26 living accused.

Focus on Rights

Arguing against a 'proper' Judiciary

By: Kishali Pinto Jayawardene

For Sri Lankans caught up in the mesh of a steadily collapsing society, there are curious parallels with recent happenings in Zimbabwe. Here, the arrest, detention and torture of two journalists from The Standard, a Harare based independent newspaper early this year sent reverberations throughout the country. The two journalists were arrested for reporting about an aborted coup plot by the army against President Robert Mugabe and charged with publishing "false news likely to cause alarm and despondency" under the Law and Order (Maintenance Act), an Act which the Zimbabwean government had itself once described as being draconian.

Although the High Court issued orders for the release of the two journalists, military officials refused to comply, asserting that the court did not have jurisdiction over army matters. This hardline position changed only after national and international media condemnation and The Standard continued going to court, subsequent to which the court threatened to arrest the Defence Minister. The journalists were released and found to have been brutally tortured while in custody for refusing to divulge their source of information.

Immediately following their release however, the managing editor of the paper was arrested and released only after a protracted three-day battle in court amidst strong lobbying by civil society groups. What was interesting was however, the stand taken by the Zimbabwean judiciary in this respect. Appalled by the incident, three Supreme Court judges and one High Court judge wrote to President Mugabe, asking him to publicly assure Zimbabweans that his government still observed the rule of law, that it did not condone arbitrary detention and torture and that the armed forces have no power under the Defence Act to arrest and detain persons other than soldiers. Responding, a furious Mugabe stated that "the judges have assumed both a judicial and a quasi political role.they have no constitutional right whatsoever to give instructions to the president on any mattertheir petition is an outrageous and deliberate act of imprudence."

In a special address to the nation, Mugabe then asked the judges to resign. Later on however, faced by mounting public pressure, fuelled in part by the boldness of the judges in challenging Mugabe, he was compelled to admit that the arrests of the journalists were not proper. Mugabe then went on to claim that he personally should not be blamed for their illegal arrest and detention as "he was not even in the country when it happened."

The Zimbabwean experience holds important lessons for other countries. However much the unprecedented action taken by the Zimbabwean judges might shock an enthusiast of strict constitutional theory, their response well illustrates the fact that like the famed Rubik's cube, it is a multi-faceted question as to how much one can expect the judiciary in a particular country to respond to particular situations of extraordinary crisis. In a functioning system, it is all very well to maintain that "judges ought to be judges and not interfere beyond their constitutional mandate" But, what of states that have failed, are steadily failing or are plagued with corrupt administrations? Can it be said that the same rule applies, even in instances where there has been a clear wrong done to an individual and the executive balks at correcting such wrongs? One of the more spectacular instances where this "proper role of the judiciary" has been departed from is in India where for over three decades, the judges have been engaging in a particularly unique type of litigation. The Indian courts have been the forum of fights against exploitation of remand prisoners, slum and pavement dwellers, bonded labourers, sex workers, women in protective custody and such other disadvantaged persons. Interest groups such as the consumer movement, the environmental movement, the women's movement and the human rights movement have used the court to put forward their own causes. Indeed, the flood of litigation has far exceeded the limits to which Sri Lankan fundamental rights law has presently been pushed and has not noticeably caused the country any harm. On the contrary, it has transformed Indian administrative and public policy. This transformation has, of course, had both its fervent admirers and obstinate critics. Thus it was that scarcely two years ago, Upendra Baxi, the Indian jurist known the world over for spearheading public interest litigation in his country, on one of his rare visits to Sri Lanka, showed a momentary annoyance when asked if the Indian courts have, in fact, been wrong in being activist. "What do you mean by being activist?" he asked " Activism means making sure that the law is applied in situations where it is not so. Courts have to be activist. Otherwise, they would not be fulfilling their responsibiliti

es, specially in countries like ours." Through the years however, the Indian court has performed a skilful balancing act in preserving the benefits of such 'activist' litigation which has given help to millions of vulnerable Indians, while not resulting in an impossible legal order. When as is inevitable, frivolous and useless cases are brought before the Court, they have been summarily rejected.

A recent case in which the Indian Supreme Court was asked to consider a petition containing allegations that the Government had constructed a five star hotel without consideration for environmental concerns indicates the current mood of the Court in appreciating the difference between judicial activism and judicial insurgency. Dismissing the petition on the basis that the Government had taken all the relevant considerations into account, Justice Khalid observed that " Public interest litigation has now come to stay. But one is led to think that it poses a threat to courts and public alike. Such cases are filed without rhyme or reason. It is therefore necessary to lay down clear guidelines and to outline correct parameters for the entertainment of such petitions. If courts do not restrict the free flow of cases in the name of public interest litigation, it is justice itself that will ultimately suffer"

Such statements have however been carefully made, without prejudice to the sustaining of worthy petitions by the Court or a negation of the whole concept of public interest litigation itself. The fundamental necessity for such litigation has been best explained in a case involving the shooting by the police of an unarmed student in the Delhi market after the Mandal Riots. The petition, filed by two advocates, alleged that the shooting was illegal and further alleged that the police was also to blame for not immediately taking the student to hospital after he was shot. Compensation was asked for his subsequent death and for the death of another 15 year old boy, killed outright in the shooting. Exploring what was meant by PIL, the Court said thus; " Writ petitions in the nature of PIL can be filed where substantial issues of accountability of those entrusted with the responsibility of the administration are raised. Public Interest Litigation, in other words, means nothing more than what the words themselves state viz., it is a litigation in the interests of the public. PIL is not that type of a litigation that is meant to satisfy the curiosity of the people but is a litigation which is instituted by public spirited organizations or people with the desire that the court could be able to give effective relief to the whole or a section of the society." For Sri Lanka, like India, "litigation in the interests of the public" is necessary, indeed imperative. In that process, one cannot but be compelled to engage in an argument against a "proper judiciary", whose "properness" can only be cast deeply in doubt when a country is breaking and its people along with it.

JSC Secretary states

This statement is being issued in view of certain misleading and damaging news items that appeared in certain newspapers last Sunday regarding the interdiction by the Judicial Service Commission of M. G. Wijetunga in order to set out the correct circumstances relevant to the matter.

The Judicial Service Commission received a complaint on behalf of Ahmed Reyaz Farook of No. 33, Mcleod Road, Colombo 05 and Mrs. Farook of the same address on 07.06.1999, that M. G. Wijetunga, Magistrate Colombo Fort had issued warrants for their arrest in the first instance itself in case No. 80833 on 29.03.99 and that they were arrested on the same day and produced before court. The warrants were issued by the Magistrate in the said case which was initiated by filing a private plaint by one Harris Chin Chen Yen of No. 2401, Hilton Towers, No. 200, Union Place, Colombo 02. The allegations disclosed in the private plaint were that of cheating and criminal breach of trust, offenses said to be punishable under Sections 403 and 386 of the Penal Code.

The 1st accused in the said case, Mr. Farook further alleged that the Magistrate having accepted the plaint remanded him till 30.03.99 and has failed to make any order either remanding or enlarging on bail his wife, the 2nd accused. On 30.03.99 the Magistrate is alleged to have granted cash bail in a sum of Rs. 100,000 in respect of Mr. Farook and Rs. 500,000 surety bail in respect of Mrs. Farook.

It has been further alleged that the Magistrate without any written order also impounded the passports of the two accused contrary to law.

The above complaint was tabled before the Judicial Service commission on 07.06.1999 and order was made directing the case record be called.

After the receipt of the case record the Commission decided to call for the observations of the Magistrate regarding his conduct.

His observations were called by the letter of the acting Secretary dated 13.07.99.

(i) as to why he failed to comply with the provisions of Sections 136(i) and 139(i) and (ii) of the Criminal Procedure Code, before issuing a warrant in the first instance, in that, he had to record the evidence of the complainant or some material witness before doing so

(ii) as to why he failed to remand or release on bail the 2nd accused (Mrs. Farook)

(iii) where and in whose custody was Mrs. Farook from 29.03.99 to 30.03.99

(iv) as to why their passports were impounded without a lawful order.

Subsequently, Mr. Wijetunga forwarded his observations by his letter dated 20.07.99 which was tabled at the Commission meeting held on 03.09.99 and it was decided to frame charges against him as the commission found his explanation to be unsatisfactory and unacceptable in the given circumstances. This was informed to Mr. Wijetunga by the letter of the acting Secretary dated 14.09.99 and the matter was referred to the Hon. Attorney General to frame charges.

In the meantime there was another serious complaint made by two Attorneys-at-Law to the acting Secretary of the JSC on 03.08.99 regarding an incident which took place on 03.08.99. The complaint related to case No. 49228 in which their client was produced before Mr. Wijetunga at his residence around 2.00 pm on a working day.

The accused in that case was charged with having committed an offence of illegally tapping water, an offence punishable under Section 2 of Act No. 13 of 1992.

The two Attorneys-at-Law alleged that their application for bail on behalf of the accused was refused.

As there was no prescribed form to commit the accused to the custody of the prison authorities the court sergeant was sent to the Magistrate's Court office to bring one such form. According to the two Attorneys the court sergeant before he left for the court office has told the two lawyers that the last trump is in his hands and that he would do the needful.

The court sergeant at that point of time has traveled from the Magistrate's bungalow to the court office in the company of the accused also in the car belonging to the accused, leaving the two Attorneys outside the Magistrate's residence.

On his return with the prescribed form the sergeant has gone inside the Magistrate's bungalow alone and after a little while has come out and informed the accused that he got bail for him.

The accused thanked the court sergeant and shook hands with him while the two Attorneys were watching the incident.

This letter was tabled at the JSC meeting held on 16.08.99 and the

Commission decided to call for the case record and requested the two Attorneys-at-Law to submit affidavits to support their allegation. The two Attorneys-at-Law have submitted the affidavits on 30.08.99 affirming to the correctness of the allegations.

Thereafter, the JSC called for the observations of the Magistrate on 14.09.99 and directed him to send them within 10 days.

Thereupon Mr. Wijetunga sent his observations and the same was tabled before the Commission.

On 08.10.99 when the two matters came to be discussed at the Commission meeting, the Commission decided that the explanation of Mr. Wejetunga was totally unsatisfactory and that his conduct in issuing the warrant in the first instance in case No. 80833 is contrary to law and established practice.

The circumstances under which Mr. Wijetunga remanded the accused in case No. 49228 and thereafter bailing him out was also highly suspicious and on the face of it unbecoming of a judicial officer.

Considering the gravity of the conduct of the Magistrate and the relevant circumstances which created a high degree of suspicion of improper conduct transcending mere mistake or error of law the Commission decided to place the Magistrate under interdiction as the Commission was of the view that the interest of the Judicial Service require that he should cease to hold office forthwith and should be kept under interdiction. Consequently Mr. Wijetunga was summoned by the Secretary to the Judicial Service Commission on the same day around 5.00 pm and the charge sheet and the letter of interdiction were served on him affording him an opportunity to reply to the charge sheet on or before 22.10.1999.

When Mr. Wijetunga submits his explanations it would be forwarded to the Commission for appropriate action.

Why a civilian set-up won't work

By Pervez Hoodbhoy

International reaction to last Tuesday's coup has, predictably, been negative. The European Union, Canada, and several other countries have outrightly condemned it. The UN secretary-general has deplored it, and the IMF director has declared that loans to Pakistan will be suspended until democracy is restored.

Faced by a hostile international environment, and with its lifeline of foreign loans and aid in serious jeopardy, Pakistan's military rulers appear inclined towards appointing an interim government to be followed by general elections. While this seems to be what the rest of the world wants, it actually amounts to a recipe for continued instability that shall further deepen the crisis of state and society in Pakistan.

While the motives for demanding an immediate return to democracy are perfectly understandable and laudable, this demand is based on an inadequate recognition of one fact so important that it overshadows all else. State power in Pakistan has always been distributed so that key goals have been set and prioritized by the military, and civilian governments have had the job of implementing them. This unnatural separation between goal-making and execution makes for a system that has crashed frequently in the past, and is destined to keep crashing in the future. The military has sometimes been invisible, and at other times visible, but has been ever-present as the hand behind the system. At this critical juncture of Pakistan's history it needs to accept responsibility for having contributed to the country's present political and economic situation, and be permitted to lead it out of the morass.

My contention is that setting up a caretaker government will be a fruitless endeavour doomed to fail. Selected by the military from a fractious lot of political aspirants with generally dubious credentials and no credible programme of action, it will have no mandate or authority to address issues of real national significance. In 1967, Field Marshal Ayub Khan had written disparagingly of the Combined Opposition Parties as being like "nine cats with their tails tied together". Since his time the countrywide population of these prolific felines has almost doubled; there are at least sixteen in the Grand Democratic Alliance. When their tails were untied on Tuesday, the free-for-all race began. The fundamental problem is that, for all past civilian governments, three critical areas have remained wholly or largely closed to intervention, and to an extent even inspection. These are, in order of increasing opacity, the economy, foreign policy, and nuclear and defence affairs.

Nuclear and defence matters have always been closely controlled by the military while civilian governments have played a supportive role. However, their power to make decisions of substance has been very limited. In fact, it is doubtful if such governments would, if they had demanded it, have had access to critical information such as the number and location of nuclear weapons and their delivery vehicles, the detailed chain of command, fissile material inventories and production rates, future plans, and so forth.

The second key area is Pakistan's foreign policy. For 52 years nothing has occupied our energy, time, resources and emotions more than relations with India. Three wars (unless Kargil can be called the fourth), punctuated with only brief periods of cooperation and coexistence, have hardened attitudes on Kashmir on both sides. Brutal suppression of Kashmiri human rights by Indian security forces, and a guerilla war waged by heavily armed Mujahideen trained in camps across the border, has established a tragic pattern that has inflicted enormous suffering and claimed tens of thousands of lives.

It is far from clear how and when the stalemate can ever be broken. What is perfectly clear, however, is that any accommodation on Kashmir with India, though far from a final resolution, must be negotiated directly with the Pakistan military and not a civilian government. No civilian government can dare close down the offices or training camps of any Mujahideen group. On the other hand, the mujahideen withdrawal from Kargil on the orders of the military has conclusively established the extent of control that the military exercises upon them.

Thirdly, and finally, is the question of economic rescue. Pakistan's current budget is split between debt servicing and defence, with barely 20 per cent left for all else. Yet, in spite of its pre-eminent size, defence spending is a simple one-liner. The Economic Survey of Pakistan, the official document of the ministry of finance, lists only the total amount. One presumes that reasons of national security are supposedly responsible for this total opacity. But how is a rational allocation of expenditures possible in such circumstances?

For better or for worse, the military has broken an 11-year old taboo of directly intervening in national politics by having dismissed a corrupt and dictatorial, but democratically elected leader. As yet no restrictions on civil liberties have been imposed, nor have the dreaded military courts been imposed. There is no justification for these. But now, instead of resorting to back-seat driving once again, the Pakistan military must take full responsibility in steering Pakistan out of its present state of crisis, a crisis for which it also bears much responsibility. Putting up a front government will achieve simply nothing.

- Courtesy Dawn, Pakistan

Liberals are not liberal at all

By Melonie Phillips

Without a shadow of doubt, the most sinister reason for the muddle that passes for our current political debate is the mind-twisting misrepresentation of what it is to be liberal. Liberals claim a monopoly of moral virtue because they are associated with freedom and tolerance.

Liberals also promote progress, so anyone opposed to change becomes the object of their contempt and ridicule. They attack traditional values, therefore, are not only hostile to progress but to virtue itself. Anyone who resists change is a moral blight and their opinions must be suppressed.

Suppression of a point of view, however, is hardly a liberal characteristic--and this is the point. For many "liberals" are not liberal at all. They have hijacked the term to conceal the moral free-for-all that has become the orthodoxy among our elites.

For them, freedom has become an unchangeable end in itself. They believe nobody has the authority to tell anyone else how to behave. The result is a combination of turning a blind eye to harm while suppressing the freedom to protest. This is not liberalism, but anarcho-illiberalism.

Its claim to moral virtue is so mind-bending that it has even corrupted the churches. Thus the Archbishop of Canterbury sank into yet another mire recently when he gave the prime minister a "friendly warning" that morality couldn't be imposed. Nobody, he said, could tell people: "This is what you must do." Yet, at the same time, morality could be "taught and caught". If even the churches, though, can't tell people the right way to live, what can their teaching consist of except vacuous and pointless platitudes?

Genuine liberalism rests on a paradox: that freedom is only possible within rules and boundaries. Real liberals have never failed to distinguish between good and bad behaviour--and progressive politics cannot exist unless such a distinction is made. Contrary to Tony Blair's Bournemouth speech, the fault line doesn't lie between conservatism and freedom. It lies between the narcissistic therapy culture that excuses and justifies bad behaviour in the interests of personal freedom, and self-discipline on which social attachments depend.

In a startling lecture at the University of Toronto last year, the cultural commentator Michael Ignatieff claimed that radical selfishness was a liberal characteristic and an expression of moral virtue. Liberals, he said, had a duty to themselves and a right to freedom and happiness.

This offered "moral legitimacy" to the act of leaving a spouse. Liberal society, he said, must accord respect for an individual's needs "against the devouring claims of family life". How can it be liberal, though, to justify dumping your children on grounds that their need for their parents represents "devouring claims" on adults who have a right to slough them off?

As the writer David Selbourne has observed, corrupted liberal values have created a pervasive culture of "duties rights". Harm is not only ignored but is turned upside down and represented as virtue. Anyone trying to prevent harm to the vulnerable is damned as conservative or reactionary. So television can screen bestiality or movies can show explicit sex and violence, and any plea for self-restraint is denounced as censorship. Laws designed to stop neighbours from hell making poor people's lives a misery, or checks aimed at curbing epidemic drug addiction, are attacked as infringements on freedom.

The desire to govern ourselves as a nation is vilified as xenophobia, despite the fact that removing that freedom is the surest guarantee of racial conflict. Anyone who dares to disagree is smeared as an extremist. With dissent stifled by insults, lies and bullying, its space is occupied by the gesture politics of group rights, creating platforms for the politically correct while failing to protect the truly vulnerable.

This liberal McCarthyism has been promoted by a vanguard of post-Marxist think tanks, advisers and pressure groups. These have found a responsive audience among a middle-aged governing class that either hankers still after the swinging 1960s in which they grew up or consists of the guilt-ridden, soggy centre-left whose worst nightmare is to be called conservative. The result is that the top tier of politicians, civil servants, academics, journalists, judges and the rest of our elites are no longer conservative, as Tony Blair has claimed, but anarcho-illiberal.

Thus the Judicial Studies Board has produced recommendations, endorsed by the lord chancellor and the lord chief justice, that the courts should deal leniently with Rastafarians charged with drug offences, since smoking cannabis is a "sacrament" to them. So much for preventing the harm done to black people by drug addiction. Some things are worth conserving. Just as we should protect the physical environment, we should conserve the social and moral ecology based on family and community. Indeed, this kind of social conservatism lies at the heart of our concerns for each other and is therefore essential to any progressive politics worthy of the name. Progressive and ethical politics must concern themselves with people's behaviour, giving incentives for the good and discouraging the bad.

-The Times

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