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Open Letter to US Secretary of State

Written by Panduka Herath and Mahanama Siriwardena behalf of the The Democratic Youth Front

Ms. Hillary Diane Rodham Clinton
Secretary of State,
United States of America.
Dear Madam,

(August 18, Colombo, Sri Lanka Guardian) The Democratic Youth Front is the youth arm of the Retd General Sarath Fonseka’s political movement. We’ve inaugurated our operations in 2009 (during his run for the Executive Presidency) focusing building up a strong youth force around Mr. Fonseka.

We would like to bring couple of things for your attention.

1. Unauthorized arrest and the court martial decision against the Retd General Sarath Fonseka

You might be aware of the fact that Retd General Sarath Fonseka was subjected to court martial since last Saturday and not entitled to any of his military ranks or the honors since then.

We do not accept the decisions of the first court martial due to certain ambiguities of the whole court martial process and not seeing a real reason behind the court martial decision than a mere political revenge from the Rajapakshes.

Current constitution of the Sri Lanka clearly stated the fact that no one should be discriminated on his political views. Its elaborates the procedures to be followed when taking someone to custody and conducting a hearing, but none of those procedures were followed when they took the Retd General Sarath Fonseka to the house arrest on the eve of Presidential Elections day and then to the military arrest by few weeks later.

According to the constitution of the Democratic Socialist Republic of Sri Lanka no one should be discriminated due to his political belief.

Right to equality.

12. (1) All persons are equal before the law and are entitled to the equal protection of the law.

(2) No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds:

Provided that it shall be lawful to require a person to acquire within a reasonable time sufficient knowledge of any language as a qualification for any employment or office in the Public, Judicial or Local Government Service or in the service of any public corporation, where such knowledge is reasonably necessary for the discharge of the duties of such employment or office:

Provided further that it shall be lawful to require a person to have sufficient knowledge of any language as a qualification for any such employment of office where no function of that employment or office can be discharged otherwise than with knowledge of that language.

When taking someone to the custody, it should be complying with the following sentences of the same;

Freedom from arbitrary arrest, detention and punishment, and prohibition of retroactive penal legislation.

13. (1) No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest.

(2) Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law.

(3) Any person charged with an offence shall be entitled to be heard, in person or by an attorney-at-law, at a fair trial by a competent court.

(4) No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law. The arrest, holding in custody, detention or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment.

(5) Every person shall be presumed innocent until he is proved guilty:

Provided that the burden of proving particular facts may, by law, be placed on an accused person.

(6) No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed.

Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

It shall not be a contravention of this Article to require the imposition of a minimum penalty for an offence provided that such penalty does not exceed the maximum penalty prescribed for such offence at the time such offence was committed.

(7) The arrest, holding in custody, detention or other deprivation of personal liberty of a person, by reason of a removal order or a deportation order made under the provisions of the Immigrants and Emigrants Act or the Indo-Ceylon Agreement (Implementation) Act, No. 14 of 1967, or such other law as may be enacted in substitution therefore, shall not be a contravention of this Article.



However, Mr. Rajapakshe government failed to adhere to the constitution of this country not once but many times.

General Fonseka’s arrest came after a bitter campaign for the Presidency and it was sheer evidence on how this government is discriminating the opposition on the grounds of their political opinion. Throughout the campaign and thereafter they labeled and harassed General Fonseka as a traitor due to his decision of becoming the joint opposition candidate for the Presidency.

Later on the General had been taken to the custody without letting him know about the charges and conducted a court martial without the presence of his lawyers.

This provides clear evidence on how brutal is the Mr. Mahinda Rajapakshe’s revenge against their political rivals and how they violate the constitution on their own will.

Since 2005, Mr. Mahinda Rajapakshe managed to sideline his political rivals using the kind of unconventional tactics, either by killing or by labeling them as the traitors or the terrorist activists. He and his associates are very harsh on the opponents and using all the dirty tricks to silence the voice against them.

2. Corruption charges against the Rajapakshe (during the presidential elections)

No one except the Rajapkshes and their close allies accept the results of the Presidential Elections held during the 2010 hence there is a petition in the Supreme Court, requesting that the re-election of Mahinda Rajapkshe as President of Sri Lanka at the Jan. 26 polls be declared void. The petition requested the Court to declare the return of Mahinda Rajapkshe as undue and to declare Sarath Fonseka the duly elected President of Sri Lanka. The petition said that due to a violation of election laws and corrupt practices committed by the first respondent, Mahinda Rajapkshe, the majority of electors had been prevented from electing the candidate of their choice, namely Fonseka, and/or the result may have been affected by acts of intimidation, violation of laws and the commission of corrupt practices.

The alleged acts of misconduct committed by Rajapkshe, includes,

* General intimidation of electors from December, 2009 to January 2010, treating of persons to food and drinks between the period November 11, 2009 to January 26, 2010, at Temple Trees, at the Kandy President's House and the Anuradhapura President's House.
* Acts of Bribery during the period November 23, 2009 to January 26, 2010, use of State Resources, making of false statements, regarding the personal character of Fonseka, and non-compliance with the presidential election laws.
* The petition said Rajapkshe was guilty of corrupt practice of treating, under section 77, read together with section (1)(c) of the Presidential Election Act.
* Rajapkshe was guilty of corrupt practice of Bribery under section 79 read together with section (1)(c) of the Presidential Election Act.
* Rajapkshe was guilty of making false statements under section 80(1)(c), read together with (1)(c) of the Presidential Election Act.
* Rajapkshe was guilty of misconduct under various other circumstances, stated in Section (1)(a) of the Presidential Election Act.

Therefore declared result should be voided.

3. Space for the Democracy

As for today there is no democracy in this country. There is no freedom for the public to gather and to launch a peaceful protest against the government policies. No one can express their views against the government policies, or they have faith on either the Police department or the Judiciary. Repetitions of the incidents in the similar nature build up doubts on their minds.

Following statements of the constitution are limited to the books and not in practical life.

Freedom of Speech, assembly, association, movement, &c.

14. (1) Every citizen is entitled to -

(a) The freedom of speech and expression including publication;

(b) The freedom of peaceful assembly;

(c) The freedom of association;

(d) The freedom to form and join a trade union;

(e) The freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching;

(f) The freedom by himself or in association with others to enjoy and promote his own culture and to use his own language;

(g) The freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise;

(h) The freedom of movement and of choosing his residence within Sri Lanka; and

(i) The freedom to return to Sri Lanka.

You may have noticed the double standards of the Rajapakshes` lead police against the government and the opposition supporters. One of the close associates of this government Minister Wimal Weerawansha organized a massive protest outside the UN Office at Thimbirigasyaaya. Those protestors were so violent and taken UN Officers as hostages for more than 4 hours. They attacked the police officers including a Senior DIG (deputy Inspector General) attached to the Sri Lanka Police. But no one was there to dissolve the mass gathering outside the UN Office or to arrest any of the goons attack on the police officers.

However the orders were different against the peaceful protestors from the opposition parties and the student unions. The latest incident reported from Galle where the opposition parties organized a peaceful rally demanding a fair hearing against their beloved General Sarath Fonseka. First the Police Forces obstructed the peaceful protestors by not letting them to march towards the place where they planned to hold the rally. Then the police attacked the protestors using tear gas and rubber bullets violating the standard norms of their usage. Herewith we are sharing some photos from Galle where the Police fired these canisters targeting the individuals, especially towards the cameramen who were there to cover the rally.

Police officers attached to the Galle Police refused to note down the complaints from two parliamentarians and a provincial councilor and then brutally assaulted the three before taking them to the custody on false allegations. Regardless the government we could not let the Sri Lankan Police department to practice such biased and heavily politicized actions against the opposition supporters and the law makers. If this continues, no one will trust the law and order and be there to corporate with the police officers to establish peace and harmony.

Our General concluded the war against terror focusing establishing a log lasting peace among the communal groups speaking different languages. He had a master plan in mind to speed up the re-settlement and then to build up a trust relationship from north to south. But the power hungry government de-railed all these plans by prematurely removing him from the Army Commanders office and cornering him as the Chief of Defense without declaring the duties for the post. If a four star General who fought valiantly in the war against the terror is unable to expect a justice from this government then how can anyone expect the mercy for those who are spending their lives in IDP camps at the moment?

Rajapkshes are tying up with non democratic nations across the world as a precaution or a move to prepare a shield against a possible force from the democratic world. As a result of Rajapkshes’ foreign policies, the country is becoming a distant part from its traditional friends and the democratic world. Derailing the region’s political and security stability, Rajapakshes’ let the Chinese to assemble and station their Indian Ocean Naval Fleet on waters close to upcoming port at Dondra Head (Hambantota) of the island’s southern tip. Government’s reports revealing the fact that the new harbor is getting build on BOT basis and Chinese will control it for more than 20 years. They will have a reasonable stake and control even after the initial lease. Government and the Chinese authorities laid necessary foundations to make this port a strategic place for the Chinese maritime supremacy on the Indian Ocean by making the Hambantota a service hub for their ships in any means (food, water, refueling).

Almost 2/3rd of the registered voters rejected this government by casting their vote against them or by not turning in at the general elections held on 2010. (Please refer the graph at Annexure -2)

Almost 8 million voters rejected or against the government’s moves towards suppressing the democracy and the freedom but many have their valid reasons or fears for not voice against it, none of them do not accept the current foreign policies from the Rajapakshes’. This government and their supporters terrorize the opponents by showing the vengeance of their own freewill hence there is a vacuum for the democratic movements.

Therefore as a peace and democracy loving movement Democratic Youth Front is gearing up to educate the public and end the tenure of fear by establishing the democracy across the nation. We would like to request your support towards achieving this goal successfully. Democratic Youth Front expects the supportive hands from the traditional friends of this country to join hands with us in this struggle for the freedom and the democracy. Together we can voice against these barbaric moves of the Rajapakses and their government and can empower the public to fight against it and making this tiny land a peaceful destination where everyone can live in peace and harmony.

Annexure 01 – Chapter 3 from the Constitution of the Democratic Socialist Republic of Sri Lanka

THE CONSTITUTION OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

CHAPTER III - FUNDAMENTAL RIGHTS

Freedom of thought, conscience and religion.

10. Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.

Freedom from torture.

11. No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Right to equality.

12. (1) All persons are equal before the law and are entitled to the equal protection of the law.

(2) No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds:

Provided that it shall be lawful to require a person to acquire within a reasonable time sufficient knowledge of any language as a qualification for any employment or office in the Public, Judicial or Local Government Service or in the service of any public corporation, where such knowledge is reasonably necessary for the discharge of the duties of such employment or office:

Provided further that it shall be lawful to require a person to have sufficient knowledge of any language as a qualification for any such employment of office where no function of that employment or office can be discharged otherwise than with knowledge of that language.

(3) No person shall, on the grounds of race, religion, language, caste, sex or any one such ground, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels, and places of public entertainment and places of public worship of his own religion.

(4) Nothing in this Article shall prevent special provision being made, by law, subordinate legislation or executive action, for the advancement of women, children or disabled persons.

Freedom from arbitrary arrest, detention and punishment, and prohibition of retroactive penal legislation.

13. (1) No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest.

(2) Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law.

(3) Any person charged with an offence shall be entitled to be heard, in person or by an attorney-at-law, at a fair trial by a competent court.

(4) No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law. The arrest, holding in custody, detention or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment.

(5) Every person shall be presumed innocent until he is proved guilty:

Provided that the burden of proving particular facts may, by law, be placed on an accused person.

(6) No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed.

Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

It shall not be a contravention of this Article to require the imposition of a minimum penalty for an offence provided that such penalty does not exceed the maximum penalty prescribed for such offence at the time such offence was committed.

(7) The arrest, holding in custody, detention or other deprivation of personal liberty of a person, by reason of a removal order or a deportation order made under the provisions of the Immigrants and Emigrants Act or the Indo-Ceylon Agreement (Implementation) Act, No. 14 of 1967, or such other law as may be enacted in substitution therefore, shall not be a contravention of this Article.

Freedom of Speech, assembly, association, movement, &c.

14. (1) Every citizen is entitled to -

(a) the freedom of speech and expression including publication;

(b) the freedom of peaceful assembly;

(c) the freedom of association;

(d) the freedom to form and join a trade union;

(e) the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching;

(f) the freedom by himself or in association with others to enjoy and promote his own culture and to use his own language;

(g) the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise;

(h) the freedom of movement and of choosing his residence within Sri Lanka; and

(i) The freedom to return to Sri Lanka.

(2) A person who, not being a citizen of any other country, has been permanently and legally resident in Sri Lanka immediately prior to the commencement of the Constitution and continues to be so resident shall be entitled, for a period of ten years from the commencement of the Constitution, to the rights declared and recognized by paragraph (1) of this Article.

Restrictions on fundamental Rights.

15. (1) The exercise and operation of the fundamental rights declared and recognized by Articles 13 (5) and 13 (6) shall be subject only to such restrictions as may be prescribed by law in the interests of national security. For the purposes of this paragraph “law” includes regulations made under the law for the time being relating to public security.

(2) The exercise and operation of the fundamental right declared and recognized by Article 14(1) (a) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence.

(3) The exercise and operation of the fundamental right declared and recognized by Article 14(1) (b) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony.

(4) The exercise and operation of the fundamental right declared and recognized by Article 14(1) (c) shall be subject to such restrictions as may be prescribed by law in the interests, of racial and religious harmony or national economy.

(5) The exercise and operation of the fundamental right declared and recognized by Article 14 (1) (g) shall be subject to such restrictions as may be prescribed by law in the interests, of national economy or in relation to -

(a) the professional, technical, academic, financial and other qualifications necessary for practicing any profession or carrying on any occupation, trade, business or enterprise, and the licensing and disciplinary control of the person entitled to such fundamental right, and

(b) the carrying on by the State, a State agency or a public corporation of any trade, business,, industry, service or enterprise whether to the exclusion, complete or partial, of citizens or otherwise.

(6) The exercise and operation of the fundamental right declared and recognized by Article 14 (1) (h) shall be subject to such restrictions as may be prescribed by law in the interests of national economy.

(7) The exercise and operation of all the fundamental rights declared and recognized by Articles 12, 13(1), 13(2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society. For the purposes of this paragraph “law" includes regulations made under the law for the time being relating to public security.

(8) The exercise and operation of the fundamental rights declared and recognized by Articles 12 (1), 13 and 14 shall, in their application to the members of the Armed Forces, Police Force and other Forces charged with the maintenance of public order, be subject to such restrictions as may be prescribed by law in the interests of the proper discharge of their duties and the maintenance of discipline among them.

Existing written law and unwritten law to continue in force.

16. (1) All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter.

(2) The subjection of any person on the order of a competent court to any form of punishment recognized by any existing written law shall not be a contravention of the provisions of this Chapter.

Remedy for the infringement of fundamental rights by executive action.

17. Every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right to which I such person is entitled under the provisions of this Chapter.

Source: http://www.priu.gov.lk/Cons/1978Constitution/Introduction.htm

Annexure 02 – Analysis of the Election Results (2010 General Elections)
% (Against Registered Electors)
Registered Electors 14,088,500 100.00%
Total Polled 8,630,689 61.26%
United People's Freedom Alliance 4,846,388 34.40%
United National Front 2,357,057 16.73%
Tamil National Alliance 233,190 1.66%
Democratic National Alliance 441,251 3.13%
Total - Opposition Votes 3,031,498 21.52%
Total - Not Turned In 5,457,811 38.74%
Total - Against The Government 8,489,309 60.26%

Source: http://www.slelections.gov.lk/parliamentary_elections/province.html

References:

* http://www.priu.gov.lk/Cons/1978Constitution/Introduction.htm
* http://www.slelections.gov.lk/parliamentary_elections/province.html
* http://aceproject.org/regions-en/countries-and-territories/LK/case-studies/presidential-elections-act-no-15-of-1981.pdf/view
* China in the Indian Ocean: A Case of Uncharted Waters

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