Much about Dr. Kohona’s Case

Palitha Kohona -File Photo
by Gaja Lakshmi Paramasivam

Dr. Greg French
Assistant Secretary, International Legal Branch
Department of Foreign Affairs and Trade
R G Casey Building
John McEwen Cres
Barton 0221
05 April 2011

Dear Dr. French,
(April 06, Melbourne,Sri Lanka Guardian)Thank you for you response dated 31 March to my letter dated 11 March to the Prime Minister, on the basis of statements by our Prime Minister at the United Nations. I felt valued when I read the substance of your response on behalf of the Prime Minister. Your response confirms to me that that part (International Legal part) of the Prime Ministerial position is appropriately held by yourself. I believe that as a democratic Australian fulfilling the part of ‘democratic citizen’ in the position of Prime Minister – I have the earned right to express, on equal footing, my assessment of various other parts of the Prime Ministerial position.

You say in your response ‘Australia takes allegations of war crimes very seriously. Australia has repeatedly called on the Sri Lankan Government to investigate all allegations of war crimes, as well as violations of international human rights law. The Sri Lankan Government has an historic opportunity to build a lasting peace through reconciliation. In Australia’s view, the proper and transparent investigation of allegations of war crimes and human rights abuses is an important step towards such reconciliation.’

I take the above as being the response by our Prime Minister. I do however feel strongly that the Sri Lankan Government needs the help of Governments such as Government of Australia – towards achieving harmony. To the extent Australians gave refuge to war victims from Sri Lanka, Australia has earned the moral right to participate in the prevention of future wars through development of Peace initiatives – not only in Sri Lanka but also here in Australia between Sinhalese and Tamils.

You refer to peace through reconciliation. To my mind, each one of us of Sri Lankan origin, need to first identify with the differences that exist within us – mostly habitually and sometimes through conscious calculations outside merit basis. The other day, at a meeting of the ‘Sri Lanka Reconciliation Forum Sydney’, I urged fellow participants to do this, so we would find the solution as if we ARE the two sides in Sri Lanka. Both sides of this group do have influence with the locals in Sri Lanka – Sinhalese through official mechanisms of the Government as well as through family and community groups and Tamils largely through family and community groups. This was evidenced through the recent appointment of Professor Vasanthi Arasaratnam as Vice Chancellor of the University of Jaffna.

Members of the Tamil Diaspora actively participated in the appointment, through various avenues available to us. Close observation of ‘what happened’ and the Faith groups that the participants belonged to – would confirm that the Tamil Diaspora is able to influence outcomes within Sri Lanka’s Tamil dominated areas. Common Faith works Naturally and is beyond the direct control of particular person/s. On the basis of that Common Faith as Australians – we also would be able to reconcile and then share that with local Sri Lankans – most of whom are driven more by Faith and less by merit. I therefore submit that the cure is not going to be fully through’ transparent investigation of allegations of war crimes and human rights abuses.’

You state in this regard ‘Sri Lankan authorities have made attempts to start processes for the investigation of war crimes and human rights abuses. Australia is concerned, however, that the October 2009 President’s Expert Committee did not report its findings, despite its self-imposed 30 April 2010 deadline. In this context the Government is closely watching the process of the Sri Lankan Lessons Learnt and Reconciliation Commission, which is currently it its seventh month of public hearings. The Government also awaits any repots that might be handed down by the United Nations Secretary-General’s Panel on Sri Lanka.’

As stated above, majority Sri Lankans are driven by Faith rather than merit. Release of President’s Expert Committee report without internal reconciliation in the best interest of all Sri Lankans may lead to academics hijacking the issue, with Sri Lankans effectively going back to today’s version of Colonialism – a disease against which the UN introduced Anti Racial Policies through the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) which includes the following declaration: ‘Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end’

Dr. French, I submit that there is a place for academic discussions and conclusions, but that this must happen only on the basis of work, loss and pain that has been raised to the international level. That exercise itself is the responsibility of educated Sri Lankans of all races – including the likes of Dr. Palitha Kohona who to me, seems to be lacking in common faith in Global Governance at reality levels.

In regards to the Lessons Learnt and Reconciliation Commission (LLRC), to my mind, Australia does not have enough depth at the Government level to appreciate what was truly communicated through those sessions. The same statement would be interpreted by different parties, including global agencies differently. The Australian Government’s credit in this regard is closely linked to agencies such as the Australian Human Rights Commission, which are our everyday parallel to the LLRC. As you may be aware, Section 46PH(1)(i) of the Human Rights and Equal Opportunity Commission Act 1986 provides that ‘The President may terminate a complaint on the grounds that the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation’

Despite this provision, the Commission, terminated my complaints under Section 46PH(1)(c ) which states : ‘The President may terminate a complaint on the grounds that the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance’ One of my complaints was against the NSW Police who arrested and sent me to prison for Peaceful Assembly. As per my interpretation of the Inclosed Lands Act 1901, there was no legal provision towards this. My complaint to the Human Rights and Equal Opportunity Commission was dismissed under 46PH(1)(c ) and not 46PH(1) (i). (Federal Magistrates Court of Australia – matter SYG 584 of 2007).

To me therefore, Australian authorities are as bad as the Sri Lankan authorities in relation to such Reconciliation processes. To most of them it is just another job. In effect, the Government of Sri Lanka is dismissing the International Community as lacking in substance in relation to its problems. That is their reality as this is ours. True Reconciliation needs the two sides to first know their own Truth and bring that Truth to the common table. The UN’s Panel on Sri Lanka is helping by endorsing that Tamils have a valid complaint. But the solution through this could only be worked out by those committed to Racial Equality at Global Level. I just learnt from the Australian Human Rights Commission that there was no mechanism to investigate my complaint against Dr. Kohona through Racial Discrimination Act 1985 (RDA), on the basis that the RDA applies to acts or practices that have occurred in Australia. I need to find out whether this interpretation is valid. But in practice, we do seem to be very much limited to ‘local’ attitudes. That means we lack international substance in such issues.

You say in response to my comments concerning Dr. Palitha Kohona in particular “the Government is aware of media reporting indicating that the ICC’s Office of the Prosecutor (OTP) has received communications alleging that Dr. Kohona has committed war crimes. Such communications do not initiate an investigation automatically. Under the Rome Statute of the International Criminal Court the Prosecutor can start an investigation on the basis of information provided in such communications. This first requires the Prosecutor to form the view that there is a reasonable basis to proceed. The OTP’s practice is to open a preliminary examination of situations the OTP is studying in order to make a judgment in this regard. The OTP has not announced the opening of any preliminary examination in relation to Sri Lanka to date. If the Prosecutor forms the view that there is reasonable basis to proceed, he must next seek the Pre-Trial Chamber’s authorization to initiate an investigation. This requires the Prosecutor to satisfy the Pre-Trial Chamber that the threshold of a reasonable basis to proceed has been met. The Chamber must also be satisfied that the case appears to fall within the jurisdiction of the Court. Depending on the outcome of an investigation, the OTP may decide to seek an order from the Pre-Trial Chamber issuing an arrest warrant or a summons to appear against specific individuals.”

Dr. French thank you for sharing all that with me. I will in turn share it with my groups of common faith. I take your substantive response as valuation of my investment in this issue. I do believe that as a truly self-governing Australian, I also should have had the parallels of the above protections and more, before being sent to prison as a criminal and later being labeled as a mentally ill criminal. The most scary part of the experience was when I was threatened with enforced medication. I prayed to the God/Truth within me and believe that that helped me save myself. Later, I felt that it happened because a fellow Australian Lady who prayed every day to Our Lady, and who was being given medication for mental illness, came out of prison because she took advice from me. That to me, is how Natural Justice works. We help each other any way we can. Lest you think that we are seeking to transform only the likes of Dr. Kohona, please see Appendix 1 which is an example of our work towards raising our side to International Standards (thanks also to Australia) – confirming that we are transparent even when we take up the position of opposition internally.

Your communication is part of that sharing with genuine victims. We would be happy for the Australian Government to share with us through its own avenues. Some of it is likely to go towards Global Structures but all genuine contribution would empower the individual at Global level. They are the real Solution.

Thank you again
Yours sincerely,

Gaja Lakshmi Paramasivam
CC: All Concerned

Appendix 1

TGTE &  Democracy

I respond to the article ‘Diaspora In-fighting VOLCANIC’ by Ranga Jayasuiya, published in Tamil Daily News.
As per this report ‘Transnational Government of Tamil Eelam (TGTE) has split after Vishwanathan Rudrakumaran, the ‘prime minister of TGTE’ last week expelled a group of dissidents from the council.’
Usually Council members cannot be expelled through an Administrative process or the discretionary powers of the CEO. Those who are elected should not be expelled through an Administrator claiming to use merit basis. This is the reason why we have the requirement to follow the Doctrine of Separation of Powers between the Executive Government and the Judiciary. Merit on the one hand and Faith on the other, are capable of delivering their own outcomes / judgments / governance respectively, independent of each other. . If both were done with genuine commitment to their origins – they would both be right – the merit base showing form and the Faith base strengthening Unity. When the two are mixed indiscriminately – they interfere with each other, causing divisions and damaging the work of others who are also committed to the cause of self governance.

When I learnt that the TGTE was going to be formed I urged all concerned to ensure that there was a strong Administrative system to support it. My call was ignored including by fellow Australian – Professor Damien Kingsbury who seemed to support the formation of the TGTE. Yesterday we had the following discussion amongst those committed to Higher Education. The example used was the University of Jaffna towards whose progress the TGTE has shown very little contribution:

Professor Sathananthan an Australian Tamil leader within the Diaspora wrote:

Dear Gaja and Friends
There were serious allegations in the Press against the past VC and some Staff of the University of Jaffna. Will these be investigated by the current VC or the Ministry of Higher education in due course?
If the allegations are not true, we as academics from the original University of Ceylon, expect these persons to come forward and defend themselves to protect the good name of Jaffna University its Staff and Students and, of course, the Tamil Community at large in Sri Lanka and abroad.

I hope you will kindly communicate this to the Vice Chancellor and Chancellor of this great University. Satha


University of Ceylon
La Trobe University
Monash University
I responded as follows:

“Thank you Satha. Will do my best to help bring about outcomes that would uphold genuine contributions of all investors. In terms of upholding the dignity of our University, it is appropriate that we help any victim who seeks to defend him/herself. But in doing so, we need to take every step to not damage the reputation of others and in particular the University itself. I believe that the action in not appointing the previous VC has rectified that damage. If the previous VC had demonstrated outstanding skills as VC - these allegations would not have mattered. These allegations on their own have little value beyond this publicity. It is up to the victims to take necessary actions. If we keep responding to all news reports against us - we would be poor governors.
As you know, I myself brought legal action against the then VC of UNSW whom I considered to be responsible for my pain and loss. The VC was responsible through his negligence. Beyond that I left it to the 'system' to balance it. The system did balance it - through the Bruce Hall matter which cost the UNSW millions of dollars in money and much more in reputation. Those complainants against Professor Hall, were right for themselves and I was right for myself. I did not choose their path of going to the media before exhausting the Due Administrative and legal processes and they did not choose mine - the Administrative and legal paths at the higher levels. Our choices indicate the investments we have respectively made in the 'Administrative' system. If any victim sought the Administrative path - I would most certainly share my wisdom with them in the best interests of the University and the Public Service. But this could involve also - suing the media as well as Dr. Hoole, who openly slandered the previous VC as well as the new VC. As per my current knowledge, the accusations against the new VC were based on information gained by Dr. Hoole when he was part of the UGC. It is inappropriate to publicize it for personal advantage. If the Sri Lankan legal system were strong enough in this regard, it would already include provisions to sue the breacher of such 'confidentiality'. To my mind, by doing the above, Dr. Hoole acted like the complainants against Professor Hall. Overall, to me it was well deserved by the UNSW because of my pain and loss. But I would not do it. My gain by such restraint/discipline - has been the goodwill of many University staff and most importantly my own ability to draw on my wisdom about our University system. We are the Judge and we are the judged.

Dr. Hoole himself has value to offer in relation to the establishment of the Engineering faculty. I feel confident that if he is genuine, the new VC would cooperate towards this. As for the reputation of the University of Jaffna, many Australian Universities keep going after such damages. That is also their strength. Truth always empowers us. I am confident that with us as part of the University of Jaffna, our University system also will come out stronger for the experience.

Thank you again for your caring advice which is highly valued by me. Will communicate your feelings to the new VC and the Council and help them find ways to make opportunities of such problems in the future. “

As stated above ‘Our choices indicate the investments we have respectively made in the 'Administrative' system.’

TGTE Prime Minister – has established that his investment in Administration and indeed the system of democracy is weak. He therefore needed to use the Faith system – irrespective of whether he liked the outcomes or not. In fact under the Faith system one must not be conscious of objectively measurable outcomes at all. Mr. Rudrakumaran to my mind is the parallel of migrant staff of the University of NSW who sought the media (ABC Radio and TV) instead of using their academic powers to research and find the Truth and then educate – a path that I have followed – more strongly after the Administrative and Legal paths failed to produce the outcomes that would have upheld my real investment in the University system and self governance. Both groups – Rudrakumaran and the migrant staff who complained against Professor Bruce Hall of University of NSW – lacked investment in the common Administrative systems to govern themselves at the higher levels of society.

The Tamil Diaspora, like the Migrant Community in Australia, includes many who are strongly committed to the values of Higher Education. Some have the qualifications but not the commitment. The deeper the root of our investment the wider the vision.

Faith is developed individually through depth and/or collectively through common life with others. Mr. Rudrakumaran is reported to have said that TGTE was about two things – skills and loyalty. True right to loyalty is earned when one is genuinely loyal to the other. TGTE without appropriate Public Administrative systems and academic research and education - is not being loyal to those whose pain and loss gave the LTTE the mandate to fight against the Government. The loss and pain happened through unjust discrimination in Public Service and University entrance. Prabaharan did not earn it as an individual. To the extent Prabaharan felt the pain of those Tamils as his own, he had the mandate but only on community basis. Not as an individual. This is why he did not structure a strong Public Administrative system but needed individual and personal supervision. Mr. Rudrakumaran seems to be following in those footsteps. To my mind, I earned strong opportunities to restructure Public Administrative systems, precisely due to my commitment as an individual – to Racial Equality here in Australia. Hence I urged the Tamil Migrant community seeking to lead – also to invest in that Administrative system and not just promote leaders who would deliver as per their wishes.

Tamils had the right to fight only to the extent they had invested more than the government and its agencies through which those injustices happened. Anything more would damage the person / group individually. TGTE seems to be an early example of this damage.

Tell a Friend