Legal Avenues to Prosecute a US Citizen for War Crimes-The Case of Gotabaya Rajapaksa - By Ryan Goodman

Road Map II: Legal Avenues to Prosecute a US Citizen for War Crimes-The Case of Gotabaya Rajapaksa - By Ryan Goodman

Wednesday, July 30, 2014 at 1:13 PM

This is the second post arising out of a presentation I made at a congressional briefing earlier this month on issues of accountability in Sri Lanka. The analysis below is also drawn from my opening remarks, and the further refinement of my ideas in light of discussions following the briefing.

[The first "road map" dealt with more general issues of accountability in Sri Lanka: "Road Map I: What More Congress (and the Administration) Can Do to Promote Accountability in Sri Lanka"]

Here I highlight the various laws that might assist the Justice Department and other agencies in prosecuting US citizen, Gotabaya Rajapaksa. In another post back in May, I described some of the evidence in the public record about his alleged involvement in mass war crimes-for which the US government is interested in seeking accountability.

Sometimes the cover-up is more easily proven than the crime. And Gotabaya may also be guilty of witness tampering. At the end of this post I therefore include a detailed, "Timeline: Was US Citizen Gotabaya Rajapaksa Involved in Witness Tampering in a US War Crimes Inquiry? You Decide."

The following analysis may be helpful to members of Congress as well as the administration. The Justice Department and other agencies are not able to comment on ongoing investigations. Accordingly, it would be helpful, I imagine, if members of Congress simply sent a letter to relevant offices within the administration expressing interest and hope that they will pursue with full rigor any information and all legal avenues that establish criminal or civil liability for the most serious violations of US federal law by individuals subject to our jurisdiction.

So, what legal avenues might be available to the administration in the case of Gotabaya?

A. Justice Department

1. Criminal Liability: War Crimes Act

As discussed in previous posts by Beth Van Schaack (here) and by me (here), the most obvious federal criminal statute is the War Crimes Act of 1996, which applies to U.S. citizens like Gotabaya.

2. Civil/criminal liability: Civil RICO

If there were insufficient evidence for a criminal indictment (e.g., intercepts that could not be produced at trial), the Justice Department could also consider pursuing civil liability. Consider, for example, Civil RICO - a vehicle for addressing organized criminal activity including international crimes.

Here is a sample of predicate offences (i.e., forms of "racketeering") which might apply to Gotabaya:

1) Torture committed by a US citizen abroad of foreign nationals [18 U.S. Code § 2340A]

2) Serious bodily harm or murder of any Sri Lankan with (dual) US nationality committed outside the United States [18 U.S. Code § 2332]

3) Tampering with a witness or an informant [18 U.S. Code § 1512]

4) Retaliation against a witness or an informant [18 U.S. Code § 1513]

The last two on the list deserve elaboration with respect to how they might apply to Gotabaya. For that purpose, see the Timeline below.

[Of course these predicate acts for the purpose of RICO could also be prosecuted as independent charges under federal criminal law. The purpose of the present analysis is to identify potential civil liability, to which RICO lends itself.]

B. Justice Department and other agencies

1. IRS: Tax evasion

The Al Capone strategy: It may be worthwhile to investigate Gotabaya's assets compared to any tax documents that he might -or might not - have filed with the IRS as a US citizen living abroad.

2. DHS - Human Rights Violators and War Crime Unit: Immigration fraud.

As with past successes in similar cases (see also here and here), the government might prosecute Gotabaya for failure to disclose material information-involvement in past crimes-in his application for U.S. citizenship.

The key here is conduct prior to his acquisition of citizenship. For example, consider that in December 2012, excavators uncovered a mass grave in the Matale district dating back to the Sri Lankan Army's counterinsurgency operations in the late 1980s. What has that to do with Gotabaya? He was Coordinating Officer of the Matale District and the Commanding Officer of the 1st Battalion, Gajaba Regiment during the late 1980s.

In sum, the menu of options for prosecuting Gotabaya is not short. Now let's turn to the timelin ...

Timeline: Was US Citizen Gotabaya Rajapaksa Involved in Witness Tampering in a US War Crimes Inquiry? You Decide

1. May 18, 2009

Gotabaya may have ordered the commander of the army's 58th Division to execute all surrendering members of the LTTE leadership at the close of the civil war (widely known as the "white flag" incident and discussed in State Department reports to Congress).

2. October 28, 2009

Sri Lanka's then-Army Chief Sarath Fonseka (who happens to be a long-term permanent resident of the United States) was in the United States on a personal visit. He was contacted by the Department of Homeland Security to schedule a special interview and was reportedly told by the DHS that "the intention behind the request for the interview is to use him 'as a source against human rights violations done by Secretary/Defence.'" The interview was scheduled for November 4. [See also here]

3. November 2, 2009

In person and in an aide memoire, Sri Lanka's Foreign Minister told the US Ambassador in Sri Lanka that the interview should not take place and that "the Department of Homeland Security should forthwith desist from any endeavor in this direction."

4. On or before November 4, 2009

Fonseka left the United States before the scheduled interview.

5. December 13, 2009

In an interview with the newspaper The Sunday Leader concerning the white flag incident, Fonseka stated that Gotabaya had given the order on May 18, 2009 that "they must all be killed."

6. December 14, 2009

Fonseka confirmed and confided the same information about Gotabaya to the US Ambassador.

7. February 8, 2010

Fonseka made a statement that he was prepared to testify in international courts about the war crimes. As the BBC reported:

"Gen Fonseka had said he was prepared to give evidence in international courts on any war crimes charges brought in relation to the civil war. 'I am definitely going to reveal what I know, what I was told and what I heard. Anyone who has committed war crimes should definitely be brought into the courts,' Gen Fonseka said."

Later that day Foneska was arrested by military police (under the jurisdiction of Gotabaya).

8. February-May 2010

The Sri Lankan military brought court martial proceedings against Fonseka. The government also filed a separate civil charge against Fonseka on the ground that he had incited unrest due to his interview with The Sunday Leader.

9. May 5, 2010

Speaking to reports inside Parliament, Fonseka stated: "I will go out of my way to expose anyone who has committed war crimes;" "I will not protect anyone, from the very top to the bottom;" he said the government was "hell bent" on silencing him. [Agence France-Presse]

10. May 6, 2010

In an interview with a national newspaper, Gotabaya reacted to Fonseka's willingness to assist an international war crimes investigation. Gotabaya stated: "Any Sri Lankan promoting an agenda which is detrimental to the country is nothing but a traitor," he referred to Fonseka's effort to fast track a "sinister campaign" in supporting an international war crimes probe, and he said such tratiors deserve capital punishment.

To this day, Gotabaya's interview is proudly displayed on his Department of Defense's website with the title, "Traitors should be given Capital punishment.' [This is also consistent with another statement by Gotabaya to the BBC, "I am not allowing any investigations in this country. There is no reason. Nothing wrong happened in this country."]

11. June 6, 2010

In an interview with BBC's Hardtalk, Gotabaya was told that Fonseka said he would testify against Gotabaya before an independent war crimes investigation. Gotabaya responded:

"He can't do that. He was the commander.... That is a treason. We will hang him if he do[es] that."

[also discussed in State Dep't report to Congress]

12. November 18, 2010

A Colombo High Court found Fonseka guilty of spreading the "white flag" rumor, which "could arouse communal feelings," and sentenced him to three years' imprisonment.

[The State Department's report suggests the trial was illegitimate]

13. May 21, 2012

Fonseka is released from prison.

14. Now

You decide. Is the case against Gotabaya worth pursuing?

My take: The US government has poured its credibility into promoting accountability in Sri Lanka. The United States now cannot afford to stand by when its own citizen is directly interfering with prospects for independent war crimes investigations.

How meaningful are Jayalalitha's love letters to Narendra Modi? (The article that caused a diplomatic blunder from the part of Sri Lanka)

By Shenali D Waduge

Hell hath no fury like a woman scorned they say and that aptly puts to context the feelings of Jayalalitha towards Sri Lanka. But, the BJP high powered delegation led by Dr. Subramaniam Swamy who arrived in Sri Lanka at the invitation of the Bandaranaike Centre for International Studies recently made explicitly clear that Tamil Nadu would not come between Indo-Lanka relations and also thanked the Sri Lankan President for arresting but releasing the Indian fishermen while confiscating the boats. It was the boat owners that forced the Indian fishermen to poach into Sri Lankan waters because the Indian side had no fish. These are some realities that the Chief Minister of Tamil Nadu cannot ignore and her tantrums are dampening the otherwise positive outlook of the Modi-led BJP Government. She should be advised to stop her tantrums and start looking at how the Indian fishermen can be absorbed into a new avenue of livelihood if there are no fish to fish in Indian waters. 

The International Maritime Border Line drawn up in 1974 and 1976 is a bilateral agreement between India and Sri Lanka and Tamil Nadu Chief Minister can cry and hoot but she cannot change the legality of this agreement honored by the 2 sovereign nations. 

Katchchetivu came under the jurisdiction of Sri Lanka following the IMBL and Sri Lanka's claim to Katchchaitivu was made in 1924 while as far back as 1876 the island was referred to as belonging to Sri Lanka even the colonial invaders regarded the island as belonging to Sri Lanka. 

Thus, with a bilateral agreement in place it is Tamil Nadu fishermen who are violating the IMBL and the arrest of fishermen poaching into Sri Lankan waters cannot be faulted on Sri Lanka. 

We realize that the issue at hand is as a result of the Indian side of the marine bed affected as a result of internationally banned bottom trawling. It is because commercial fishing has ignored to look after the source from which it makes money that there are no fish on Indian waters along the Tamil Nadu coast. Sri Lanka is not to be blamed because there are no fish in the Indian waters. The Tamil Nadu Government must take blame for allowing internationally banned bottom trawlers to operate. 

We are well aware that India had been making millions from poaching into Sri Lankan waters using bottom trawlers and stealing the shrimps, prawns and fish that ideally belong to the fishermen of Sri Lanka. These poached fish calculated into years would account for theft and loss of millions of revenue to Sri Lanka. This cannot go on not just because it is a violation of territorial rights, theft of fish that do not belong to India but more importantly the manner of fishing will end up totally ruining the marine environment and destroying marine life and eventually lead to no fish on Sri Lankan waters as well. 

The environmental impact and future of marine life is what should take prominence in any diplomatic discussions. 

The Tamil Nadu Government and its Chief Minister should accept fault on several angles. 

Tamil Nadu fishermen violating internationally recognized IMBL and bilateral agreement between India and Sri Lanka 

Tamil Nadu fishermen using bottom trawlers that are internationally banned 

Tamil Nadu coast marine bed destroyed because of bottom trawling and so no fish for the Indian fishermen to fish 

If the Indian coast had no fish as a result of the Indian fishermen destroying the marine life, should the Tamil Nadu authorities have taken measures to look into how the Indian fishermen and their families would survive? The solution is not to poach on waters that belong to other nations. It is not a long time solution or a viable solution. It is as a result of Tamil Nadu authorities not taking to account these realities that their fishermen are facing a predicament of no livelihood and Sri Lanka cannot be blamed for this. 

Would Indian fishermen be allowed to poach in territorial waters that belong to other nations just because the Tamil Nadu Chief Minister comes out with a list of reasons giving them right to? 

The BJP Government is commended for taking a stand and appreciated for approving the measures taken by Sri Lanka in arresting and releasing the Indian fishermen but confiscating the boats. Tamil Nadu seem to have forgotten that it is the Sri Lankan Tamil fishermen whose livelihood was affected as a result of Tamil Nadu fishermen poaching on Sri Lankan waters. The TNA ever ready to find fault with the Sri Lankan Government has not come to the rescue of its own fishermen or brought up the grievance of the Sri Lankan fishermen denied livelihood and this speaks volumes of the sincerity of the TNA towards its own people too. 

With the latest letter of the Tamil Nadu Chief Minister directed at demanding the release of the boats, we can but wonder whether some of these may belong to her or her supporters!

When Tamil Nadu Chief Minister is aware that the Tamil Nadu fishermen are violating internationally demarcated waters and poaching while also using internationally banned bottom trawlers, it is unjustified to ask the Indian Prime Minister to take action against Sri Lanka. Obviously she is attempting to dent the popularity of the Indian Prime Minister while also disturb the amity that is being built between the two nations. Her actions are obviously aligned to the undiplomatic and unscrupulous policies followed by the Sonia-led Congress Government where the Central Government of India was virtually kept strangulated and on a noose by successive Tamil Nadu Governments. 

Tamil Nadu Chief Minister may learn sooner than later that Narendra Modi is not a puppet to dance to her tantrums or threats. She should not attempt to embarrass Mr. Modi by her unjustified outbursts. It will not look good on the new Indian Prime Minister if he were to demand that Indian fishermen be allowed to cross the IMBL into Sri Lankan waters is this the mischief that Jayalalitha is upto? 

With the Modi mantra directed towards better and practical governance it is best that Tamil Nadu Chief Minister directs her attention at how to meet the livelihood challenges of Indian fishermen who have no fish to fish on Indian waters. Poaching is not the solution. 

Is deporting Pakistan national refugees from Sri Lanka a diplomatically ethical move?

Sri Lanka Controller of Immigration and Emigration Chulananda Perera said that all overstaying foreign nationals including the Pakistan and Afghan nationals who had applied for refugee status would be deported.

Deporting overstaying foreigners is normal but how ethical is deporting who have sought refugee status from a third party while overstaying in Sri Lanka as a temporary measure. 

Last week, the government took steps to deport five Afghan nationals who had been overstaying in Sri Lanka, said the Controller of Immigration and Emigration. 

He further stated that there were 1450 Pakistan nationals and 40 Afghan nationals overstaying. They have applied for refugee status from the UNHCR office of Colombo and their applications are being processed.

They expect to migrate into another country after their application for political asylum is accepted. 

Sri Lanka police has already arrested some of these Pakistan and Afghan nationals. They are held in Boossa and Mirihana detention centers and interrogated to find any links with terrorism. 

Many of these Pakistan nationals belong to Ahmadiyya Muslim sect and they claim that they are under constant threat of the mainstream Sunni Muslims. Pakistan is a Sunni Muslim state that has prohibited practicing Ahmadiyya Islam. Ahmadiyya Muslims are constantly under threat of attack. 

Sri Lanka has not signed the international conventions regarding accepting refugees from other countries but it contributes to mass exodus of refugees from the home country bound developed nations. 

The refugees from Pakistan arrive here, obtain on arrival visa, apply for refugee status from UNHCR office of Colombo and overstay here for years sometime until the understaffed UNHRC office processes their applications and grant them visa to migrate to another country.  The practice of deporting them is very unethical. They can be economic migrants per se the claim of the Pakistan government. What if they are actually threatened people?

Sri Lanka government compelled to do so, I think, due to pressure from the Indian government. Indian Prime Minister Narendra Modi said as he met the Sri Lankan President after his swearing in ceremony that the Muslim extremists who are in Sri Lanka are a threat to Indian security. 

Sri Lanka government says that Muslim extremists also arrive in Sri Lanka under the guise of threatened communities. 

Logical base for Sinhalese's fear of Muslim domination

I found this blog post when searching for the Sinhala and Muslim demographic statistics.

I think this article logically presents the fears the Sinhala Buddhists have and the extremists use to spread communal hatred.

I think that the leftists and other progressive elements that struggle for ethnic harmony and peace must consider these facts in their search for a more pragmatic approach in progressive politics.

Is there a Muslim Issue in Sri Lanka? An Objective Analysis

(adapted from —discourssions blog)

There is a verbal and action packed tug of war in Sri Lanka these days between its people ideologically divided into two opposite groups on this particular question. It has already created a pandemonium, even among political parties, and it was reported Muslim Congress is considering resigning from the government coalition, for government’s inefficiency to address the issue.

However, one of the salient features of this debate is that no party or a person to the question was able to put forward facts to support their positions rather than placing their ideological positions on just opinions and claims. It has become a battle of words, not facts.

In this backdrop, I think it is prudent to submit an objective analysis, so that everybody can make use as a common base to understand the question (if there one) and to formulate solutions.  I think proper identification of the question is the first  essential stepping stone for a proper solution.

One of the allegations against the Muslim community of Sri Lanka is that they have a higher population growth rate that would be a threat to the other communities of the country. However, though this is a thing that is verifiable with ease,  no one has opted for that alternative rather than engaged in a blind quarrel.

So with the available demographic statistics of Sri Lanka, we will undertake the task.

Please go through the following link.

http://en.wikipedia.org/wiki/Demographics_of_Sri_Lanka

There the table-1 is Population of Sri Lanka by ethnic group 1871 to 2012 and the table-2 is Population of Sri Lanka by religion 1881 to 2012.

The last census of the country was held in 2012 and the previous one to it  was held in 1981. Statistics given in the tables for 1989 and 2001 are estimates and therefore do  not represent exact figures.

Following data is from the table-1

	Sinhalese (no)	Sri Lankan Tamils(no)	Sri Lankan Moors (no)
1981 Census	10,979,400	1,886,900	1,046,900
2012 Census	15,173,820	2,270,924	1,869,820

Above population changes were taken place during the 31 years between 2012 and 1981.

Now we will calculate the (average) population growth rates of the ethnic groups.

Sinhalese — [(15,173,820-10,979,400)/ 10,979,400/31] x100     = 1.2323%

SL Tamils — [(2,270,924-1,886,900)/1,886,900/31] x100             = 0.6565%

SL Moors — [(1,869,820-1,046,900)/1,046,900/31] x100             = 2.5357%

According to the above, population growth rate of Moor community is over two (2) times of Sinhalese and almost four (4) times of Tamils.

Therefore it is apparent that if these ethnic population growths continue, the Moor community of Sri Lanka passes the populations of SL Tamils one day and Sinhalese some time after that.

Population growths follow Exponential Progressions.

With the use of Mathematics, it can be shown that Moor population in Sri Lanka will surpass the Tamil community in ten and a half years (10.5 years) and Sinhalese community in 163.65 years. *****

Now look at the Table-2 of the above link.

	Buddhist	Hindu	Muslim	Christian
1981 Census	10,288,300	2,297,800	1,121,700 (7.56%)	1,130,600 (7.62%)
2012 Census	14,222,844	2,554,606	1,967,227 (9.71%)	1,509,606 (7.45%)

At the glance of the table you will be able to see that Muslims have already surpassed Christians during the period under  consideration.

Now as we did for the communities in the above we will calculate the growth rates of religions.

Buddhist—[(14,222,844-10,288,300)/ 10,288,300/31] x100 = 1.2336%

Hindu— [(2,554,606-2,297,800)/ 2,297,800/31] x100           = 0.3605%

Muslim—[(1,967,227 -1,121,700)/ 1,121,700/31] x100         = 2.4153%

Now applying the Mathematical formula as before, we can conclude that Muslim religion will pass Hindus in 12. 89 years and Buddhists will be passed in 170.45 years.

Another salient feature that should be noted is that though the most of the Malay community in Sri Lanka are Muslims, their population is declining. Their population has declined from 47,000 to 40,189 during the period under consideration.

Now the concerned parties can use these objective data in their action for  planning a violence free peaceful country.

*******************************************************************************************************************************

Mathematics

For instance say, this year’s population of a particular community is “A” and the growth rate is d,

If present population is denoted by T0, population after one (1) year is denoted by T1, 2nd year by T2….. and so on, Then,

T0=A

T1=A+Ad=———————–          =A(1+d)

T2=A(1+d)+ A(1+d)x=A(1+d)(1+d)———–=A(1+d)to the power 2

T3=A(1+d)(1+d)+ A(1+d)(1+d)d————-=A(1+d)to the power 3

…………..

…………..

Similarly,

Tn=————————————–=A(1+d)to the power n

That is if one community overtakes the other community in “n” years, Tn for both communities must be equal.

Now suppose, present Moor, Tamil and Sinhalese populations as a, b and c respectively and their growth rates as x, y and z respectively.

Now when Moors overtake Tamil population,

a(1+x) to the power n = b(1+y) to the power n

Therefore, b/a = (1+x) to the power n/ (1+y) to the power n

That is b/a = {(1+x)/ (1+y)} to the power n

Therefore, log (b/a) = log [{(1+x)/ (1+y)} to the power n]

Therefore, log (b/a) = n log {(1+x)/ (1+y)}

Therefore, n = log (b/a)/ log {(1+x)/ (1+y)} —————-(X)

 

Has the story of Manorani Saravanamuttu gone to the hands of killers and sellers?

Production of a film based on the character of the mother of assassinated famous Sri Lankan journalist Richard de Zoysa has been started recently under the patronage of President of Sri Lanka Mahinda Rajapaksa.

The film is based on the story of the untiring struggle of Richard's mother to seek justice against the perpetrators of the killing.

Richard de Soyza, a TV presenter, actor, dramatist, journalist and writer of English language,  was abducted and killed by police in 1989 during the time of President R. Premadasa. He was a sympathizer of the youth revolt in 1989 but he was not a racist.

Nilendra Deshapriya  who rose to fame with the introduction of reality programmes like Super Star in Sirasa TV directs the film while Minister Bandula Gunawardhana is the producer.

Internationally acclaimed actress Swarna Mallawaarachchi has been selected to act the role of Manorani Sarawanamuttu, the mother of Richard de Zoysa.

Richard de Zoysa is an icon of activism in progressive politics and Manorani Saravanamuttu is an icon of struggle for human rights.

Mahinda Rajapaksa is ........... ?

What about the others like Nilendra (He has been the first assistant director of some good films), Jackson Anthony and etc.

Artists or ................

Post war Sri Lankan society is increasingly precipitating into a crypto military and authoritarian state - Bar Association of Sri Lanka

The Bar Association of Sri Lanka said issuing a communique that it is appalled by the recent circular issued by the National Secretariat for NGOs in relation to the activities of the NGOs.

The BASL further stated that it considered that the repercussions of the said circular might have far reaching impact on a free and democratic society.

BASL charged that the post war Sri Lankan society was increasingly precipitating into a crypto military and authoritarian state. according to its observations.

BASL wished to state that the said circular violated the fundamental principles that governed a free and democratic society guaranteed by the constitution and said that it was completely militating against the rule of law principles of the country.

“The contents as well as the implications of the said circular is against the directive principles of state policy enshrined in the Chapter VI of the constitution as well as violation of freedom of Expression and Speech, freedom of Assembly and Association, Freedom of occupation as guaranteed by the Article 14 of the Sri Lankan Constitution.

We observe that this attempt is nothing but yet another effort to silence the alternative public opinion of the society through inculcating fear psychosis among the section of the society enhancing the autocratic writ to a fearful height,” BASL said in its communiqué.

Communiqué has been issued On July 7 2014 by the National Secretariat for NGOs, under the Ministry of Defense and Urban Development, to all NGOs preventing them from "conducting press conferences, workshops, journalism training and dissemination of press releases". The authority claimed such activities were beyond the mandate of NGOs.


The full communique is as follows:

Press release by

Bar Association of Sri Lanka

Communiqué has been issued On July 7 2014, the National Secretariat for NGOs, under the Ministry of Defense and Urban Development, to all NGOs preventing them from "conducting press conferences, workshops, journalism training and dissemination of press releases". The authority claimed such activities are beyond the mandate of NGOs. The Bar Association of Sri Lanka is appalled by this communiqué and considers that the repercussions of the said circular may have far reaching impact on a free and democratic society.

We observe that the post war Sri Lankan society is increasingly precipitating into a crypto military and authoritarian state.

Sri Lanka emerges as the most militarized country in the region ranked at 36 followed by Pakistan at 47, Afghanistan, 58 and India at 74. Nepal and Bangladesh occupy the 86 and 123 positions respectively while China comes at 84. These are the findings of the Global Militarization Index (GMI) 2013 published by Bonn International Center for Conversion (BICC) that is based on the data for 2012.

This situation is further strengthened by the fact that since the lapse of emergency a regulation has been issued under section 12 of the Public Security Ordinance vesting Police powers on the Army, Navy and Air force covering the entire Country. We also of the opinion that the said regulation illegal, unjustified and ultravires. This gazette has been opposed by the BASL from its inception having foreseen the danger faced by the people.

According to the Worldwide Governance Indicators (WGI), a good governance template with regard to voice and accountability, Sri Lanka's position in 2012 is at negative 0.60, a fast deterioration from 2002 where Sri Lanka was at negative 0.15. Similarly in percentile ranking, Sri Lanka has fallen from 42 in 2002 to 30 in 2012. This indicates our level of, lost right to dissent, freedom of expression, freedom of association and media freedom.

"Men fear thought as they fear nothing else on earth – more than ruin, more even than death".Bertrand Russell

We as the Principal Body representing the legal fraternity in Sri Lanka and committed to uphold rule of law in the country, come forward to issue this statement with dismay and frustration over the deteriorating trend that has been continuing within our society without any check and balance.

We consider it fitting to be reminded that;

#. in a series of deaths approximately 33 in number that have taken place whilst in Police custody, No steps have been taken against those Police Officers responsible and the taking of steps to pass them off as justifiable homicides,

#. In another spate of killings by Police officers and forces with the full glare of public scrutiny, the officers responsible have not even been arrested and produced before a court of law,

#.  In Aluthgama, Beruwala and Dharga town in the presence of large contingencies of the Special Task Force nearly 75-80 houses, shops, factories and places of worship have been burnt and steps were initiated to destroy even the evidence available with the help of the same forces,

#. Independent commissions set up to curb Bribery and corruption are being interfered and tampered with, including transfers and appointments having been made in and out of the commission, arbitrarily and capriciously,

#.  Independence of the Judiciary has been compromised with unsuitable appointees over looking time tested criteria of seniority and eminence,

#.  Multi Million dollar contracts which are far in excess of the international norms are awarded to foreign Contractors on the basis of unsolicited bids arbitrarily.

The answer to these issues that have caused grave concern to the society is not to curb the media freedom in a shameless  manner but to put the system right and take action against those responsible.

According to Reporters sans Frontiers, in the world ranking, Sri Lanka stands 165th out of 175 countries in terms of press freedom, behind Uzbekistan, Rwanda and Libya. As far as Asia goes Si Lanka is the 35^th out of the 40 Asian countries listed. This is on the basis of known data and reported facts.

This was the situation prior to the issuance of this circular.

The impugned circular that has been issued under the auspices of the Ministry of Defense stifling the freedom of expression further with chilling effect is of no avail to our country to reach the standing of "the Miracle of Asia"  !

One of the former Presidents of the USA, Thomas Jefferson himself suffered greatly by the press during his presidency. He was a great believer in the ultimate triumph of truth in the free marketplace of ideas, and looked to that for his final vindication.

"The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter." -Thomas Jefferson – so he said in 1787.

We observe that the post war Sri Lankan polity has been in an acute and deepening crisis. The decline of democratic institutions and practices have become a reality of the day.

Edmund Burke an Irish Philosopher in the 17^th Century said, " The Triumph of the Evil is for good men to do nothing."

The effort of the National Secretariat for NGOs, under the Ministry of Defense and Urban Development, according to our opinion is a living testimony for this impending crypto military and authoritarian tendency of the country.

The Bar Association of Sri Lanka wish to state that the said circular violates fundamental principles that govern our free and democratic society, which is guaranteed by our constitution and it is completely militating against the rule of law principles of the country.

The contents as well as the implications of the said circular is against the directive principles of state policy enshrined in the Chapter VI of the constitution as well as violation of freedom of Expression and Speech, freedom of Assembly and Association, Freedom of occupation as guaranteed by the Article 14 of the Sri Lankan Constitution.

We observe that this attempt is nothing but yet another effort to silence the alternative public opinion of the society through inculcating fear psychosis among the section of the society enhancing the autocratic writ to a fearful height.

Therefore we condemn this so called circular issued by an officer within the Ministry of Defense in gross violation of the fundamental rights of the polity and urge the authorities to revoke this autocratic circular that has the effect of bringing further damage to the country Nationally and Internationally.