• Bribery Commissioners and Judges
  The law, in seeking to provide for the independence of the Bribery Commissioners, provides that they may only be removed for misconduct or incapacity. The procedure to be followed shall be the same as that for removal of a Judge of the Supreme Court or Court of Appeal. On the face of it, this is an excellent provision. Unfortunately, however, the removal procedure for judges of the Supreme Court and Court of Appeal is, in the view of CRM, gravely defective, and its very constitutionality is in doubt. It is in urgent need of remedy as CRM has pointed out to Select Committees on Constitutional Reform set up by both the present and the previous governments.
• The Indian example
  Resignation and Removal of Judges from office
• Kadi on slippery slope: Godage responds
• L E G A L W A T C H
  Will tough marine pollution law be implemented?
• How G. G. Ponnambalam outwitted SJV in garlanding Dudley Senanayake
• Clinton and Jiang strengthen a pivotal relationship

The process set in motion to remove the two members of the Bribery Commission gives rise to concerns as to law and basic principle, says a statement issued by the Civil Rights Movement. These concerns are not new but have been expressed on earlier occasions by CRM in a different context.

The law, in seeking to provide for the independence of the Bribery Commissioners, provides that they may only be removed for misconduct or incapacity. The procedure to be followed shall be the same as that for removal of a Judge of the Supreme Court or Court of Appeal. On the face of it, this is an excellent provision. Unfortunately, however, the removal procedure for judges of the Supreme Court and Court of Appeal is, in the view of CRM, gravely defective, and its very constitutionality is in doubt. It is in urgent need of remedy as CRM has pointed out to Select Committees on Constitutional Reform set up by both the present and the previous governments.

Neville Samarakoon
This issue surfaced when an attempt was made, in 1984, to remove from office the sitting Chief Justice Neville Samarakoon QC. Chief Justice Samarakoon and his counsel S. Nadesan QC took objection to the constitutionality of a Select Committee of Parliament being charged with the investigation and proof of alleged misbehaviour or incapacity. In his written statement of defence Samarakoon CJ said:

"In Sri Lanka, Parliament is precluded from exercising judicial power except in the matter of its own privileges. Accordingly, Parliament is incompetent to adjudicate not only on the truth or otherwise of the allegations made in the notice of the resolution presented by members of Parliament but also on the legal question of whether the facts proved constitute misbehaviour under Article 107 of the Constitution. Such adjudication is a judicial process".

A minority of the Select Committee, consisting of Anura Bandaranaike, Dinesh Gunawardena, and Sarath Muttettuwegama, felt there was "considerable cogency" in this argument, and asked that the issue be referred to the Supreme Court for an advisory opinion as is possible under Article 129 (1) of the Constitution. This minority also felt "strongly that the procedure that Parliament finally adopts should be drafted along the lines of the Indian provisions where the process of inquiry which precedes the resolution for the removal of a Supreme Court Judge should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose" However the views of this minority went unheeded.

The CRM statement points out that since then the UN Human Rights Committee, which monitors Sri Lanka's compliance with the International Covenant on Civil and Political Rights, has also expressed its "concern about the procedure set forth in Article 107 of the Constitution read with Standing Orders made by Parliament". It has therefore recommended "that the State Party review the existing procedure relating to the removal of Supreme Court judges and judges of the Court of Appeal with a view to its amendment as a means to further secure the independence of the judiciary".

CRM has asked that a system analogous to that of the Judges (Inquiry) Act of India be adopted. In the event of any doubts still being entertained as to the constitutional position, CRM asks that as a minimum the President refer this issue to the Supreme Court for an advisory opinion under Article 129 (1) of the Constitution.

The full text of the statement follows:

The process set in motion to remove the two members of the Bribery Commission gives rise to concerns as to law and basic principle. These concerns are not new but have been expressed on earlier occasions by the Civil Rights Movement in a different context.

The law, in seeking to provide for the independence of the Bribery Commissioners, provides that they may only be removed for misconduct or incapacity. The procedure to be followed shall be the same as that for removal of a Judge of the Supreme Court or Court of Appeal. On the face of it, this is an excellent provision. Unfortunately, however, the removal procedure for judges of the Supreme Court and Court of Appeal is, in the view of CRM, gravely defective, and its very constitutionality is in doubt. It is in urgent need of remedy as CRM has pointed out to the Parliamentary Select Committees on Constitutional Reform set up by both the previous and the present governments.

The attempt to remove Chief Justice Neville Samarakoon in 1984
This issue surfaced when an attempt was made, in 1984, to remove from office the sitting Chief Justice Neville Samarakoon QC.

The Constitution provides that a judge of the Supreme Court or Court of Appeal may be removed from office only on the ground of proved misbehaviour or incapacity. It further provides that all matters relating to the presentation of an address for the removal of a judge including "The investigation and proof of the alleged misbehaviour or incapacity" shall be provided for by Parliament "by law or by Standing Orders". Article 107(3).

It was thus open to Parliament to pass a law providing for an independent judicial tribunal to inquire into such allegations, such as has been provided by the Judges (Inquiry) Act of 1968 in India (see Annex A). Instead, Parliament made a new Standing Order entrusting to a Select Committee of Parliament the investigation and proof of the alleged misbehaviour or incapacity.

Hastily adopted
This procedure was adopted hastily after Chief Justice Neville Samarakoon made a speech at an award-giving ceremony of Sinnathuray's Commercial Tutory, held at the Sea View Hotel, Kollupitiya, in March 1984. It is not necessary for present purposes to go into the content of this speech. The speech was made on 14 March 1984, the Standing Orders Committee of Parliament met on 24 March and made its report to the House recommending the new Standing Order 78A, which was adopted by Parliament on 4 April 1984.

Subsequently a resolution requesting the removal of the Chief Justice was signed by 57 members of Parliament, and a Select Committee was accordingly set up under the new Standing Order 78A to investigate and report to Parliament. This Select Committee, by a majority decision, held that the Chief Justice's speech, while not amounting to "proved misbehaviour", constituted "a serious breach of convention and has thereby imperilled the independence of the judiciary and undermines the confidence of the public in the judiciary".

The majority consisted of Lalith Athulathmudali (Chairman), Ranjith Atapattu, Festus Perera, C. Rajadurai, M. A. Abdul Majeed and E. P. Paul Perera. A minority of the Select Committee however did not agree with the majority report and made a separate report, in the course of which it said:

"We have given careful thought to the speech and its contents as also the circumstances under which it was made. We cannot find anything in the speech and in its contents even remotely possible of being interpreted as proved misbehaviour".

Parliamentary Series No. 71 page 186

This minority consisted of Anura Bandaranaike, Dinesh Gunawardena and Sarath Muttettuwegama.

It was significant that this division of opinion between the majority and the minority coincided with the division between members of the Government and Opposition. The impression this could create was exacerbated by the fact that the 57 MPs who signed the original resolution setting in motion the process for the removal of the Chief Justice were all Government MPs.

Of special importance for present purposes, however, is the question of the constitutionality of the procedure adopted.

The Chief Justice objected to the constitutionality of the Select Committee. In his written statement of defence he said:

"36. In Sri Lanka, Parliament is precluded from exercising judicial power except in the matter of its own privileges. Accordingly, Parliament is incompetent to adjudicate not only on the truth or otherwise of the allegations made in the notice of the resolution presented by members of Parliament but also on the legal question of whether the facts proved constitute misbehaviour under Article 107 of the Constitution. Such adjudication is a judicial process. Under Article 107 (3) Parliament has to make the necessary provision for a judicial tribunal to determine the truth or otherwise of the allegations made by one-third of the members of Parliament in the notice of resolution presented to them. If such a tribunal finds the allegations established and holds that they are valid ground for the removal of a Judge, then only can the Judge be removed for proved misbehaviour or incapacity.

37. Parliament has no power to pass any law which undermines part of the basic structure of the Constitution, namely the independence of the judiciary. Neither can it by Standing Orders erode into an important constitutional provision to give itself jurisdiction to exercise judicial power directly and thereby interfere with the independence of the judiciary. Standing Order 78A in so far as it enables Parliament to exercise judicial power is ultra vires the Constitution, and accordingly it is my position that the Select Committee has no power to investigate the allegations that have been made against me".

The Chief Justice proceeded to state further objections to the Select Committee adjudicating in his case. He then continued:

"40. For the foregoing reasons I have to register my protest against the Select Committee proceeding with this inquiry. I consider it my duty as Chief Justice to do so at the very outset of these proceedings as I do not want to be a party to the erosion of the independence of the judiciary of which I am the Head".

Written statement of defence sent by the Hon. N. D. M. Samarakoon Q.C., Chief Justice on the 17th September, 1984. Parliamentary Series No. 71 pages 118 to 119.

The minority report of this Select Committee also considered both the constitutionality and the desirability of the procedure adopted by Parliament. It said:

"An important preliminary objection was raised by Mr. S. Nadesen, Q.C. Senior Counsel for Mr. Samarakoon. Briefly the point made by Mr. Nadesan, was that to bring Standing Order 78A into the list of Standing Orders and in seeking through this Select Committee to act under provisions of Standing Order 78A the Constitution of Sri Lanka was in fact being violated.

The point made by Mr. Nadesan, was that in the context of a Constitution such as that of our country, in which the separation of powers was jealously protected, this Committee in seeking to go on with this inquiry as to whether or not Mr. Samarakoon was guilty of "proved misbehaviour", was violating the provisions of Article 4(c) of the Constitution which stipulates that except in matters concerning parliamentary privileges the judicial power of the people shall be exercised exclusively through the courts.

The signatories to this statement, while conceding that Mr. Nadesan's argument have considerable cogency — are not in a position to come to a definite conclusion on this matter. We would urge that H.E. the President could refer this matter to the S.C. for an authoritative opinion thereon — under Article 129(1) of the Constitution.

The signatories to this statement however feel strongly that the procedure that Parliament finally adopts should be drafted along the lines of the Indian provisions where the process of inquiry which precedes the resolution for the removal of a Supreme Court Judge should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose. We therefore urge the House to amend Standing Order 78A accordingly".

Parliamentary Series No. 71 page 185

The plea for seeking an opinion from the Supreme Court made by Anura Bandaranaike, Dinesh Gunawardena and Sarath Muttettuwegama was in view of the following provision of the Constitution:

"If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such a nature and is of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon".

(Article 129 (1) of the Constitution)

It is difficult to think of a more appropriate situation where this consultative jurisdiction of the Supreme Court could and should have been invoked. But it was not so invoked, nor have the Standing Orders been amended as the minority members of the Select Committee suggested.

Not only is the present procedure unsatisfactory and unconstitutional; it is also in contravention of our obligations under international human rights law. Since the Neville Samarakoon case, the provisions in question have come under authoritative international scrutiny.

We refer to the UN Human Rights Committee, which is the body that monitors the extent to which States Parties have complied with their obligations under the International Covenant on Civil and Political Rights. After examining Sri Lanka's third periodic report at a public hearing held in Geneva in July 1995, the Committee said:

D. Principal subjects of concern
19. With respect to the independence of the judiciary, the Committee expresses its concern about the procedure set forth in Article 107 of the Constitution read with Standing Orders made by Parliament.

* * * * * *

E. Suggestions and Recommendations

34. The Committee recommends that the State Party review the existing procedure relating to the removal of Supreme Court judges and judges of the Court of Appeal with a view to its amendment as a means to further secure the independence of the judiciary.

extract from concluding comments/observations of the UN Human Rights Committee on the Third Periodic Report of Sri Lanka under the International Convenant on Civil and Political Rights

It should be remembered that as a State Party to the Convenant Sri Lanka is bound by international law to implement its provisions.

CRM urges that the recommendation of the minority members in the Neville Samarakoon case be implemented even now, by

— adopting in the first instance a system analogous to the Indian provisions by amendment of Standing Order 78A;

— thereafter incorporating them permanently into the new Constitution

In the event of any doubts still being entertained as to the constitutional position, CRM asks that as a minimum the President refer this issue to the Supreme Court for an advisory opinion under Article 129(1) of the Constitution.

A Judge of the Supreme Court or of a High Court may, by writing under his hand addressed to the Peesident, resign his office, but he cannot be removed from his office except by an order of the President passed after an address by each House of Parliament in the prescribed manner.

The address for the removal of a Judge, whether of the Supreme Court or a High Court, can be presented to the President only on the ground of 'proved misbehaviour' or 'incapacity'. Such an address has to be presented to the President in the same session in which it is passed by each House of Parliament supported by a majority of the total membership of each House and also by a majority of not less than two-thirds of the members of each House present and voting. If the address of both the House is in comformity with the aforesaid provision of the Constitution the President issues an order for the removal of the Judge from office.

The procedure for the investigation and proof of the misbehaviour or incapacity of a Judge and for the presentation of an address to the President has been prescribed by the Judges (Inquiry) Act, 1968.

Under the procedure laid down by the Act, a notice of a motion for presenting an address to the President for the removal of a Judge, if given in Lok Sabha, is to be signed by not less than one hundred members of the House and if given in Rajya Sabha, by not less than fifty members of that House. The Speaker or the Chairman, as the case may be, after due consideration and consultation, may admit or refuse to admit the motion.

Consequent on the admittance of the motion, the Speaker or the Chairman, as the case may be, will constitute a Committee of three members, one each from (i) the Chief Justice and other Judges of the Supreme Court, (ii) Chief Justices of the High Court, and (iii) distinguished Jurists. In case the notices of motion are given on the same day in both the Houses, the Committee will be constituted only if the motion has been admitted in both Houses and thereupon jointly by the Speaker and the Chairman.

The Committee will frame definite charges against the Judge on the basis of which investigation is proposed to be held, and will have the powers of a Civil Court in respect of summoning persons for examination on oath, production of documents, etc. In a case of alleged physical or mental incapacity and where such an allegation is denied, a Medical Board will be appointed for the medical examination of the Judge by the Speaker or, as the case may be, the Chairman or, where the Committee has been constituted jointly, by both of them.

At the conclusion of the investigation, the Committee will submit its report to the Speaker or, as the case may be, to the Chairman, stating therein its findings on each of the charges separately with such observations on the whole case as it thinks fit. The report will thereafter be laid before the respective House, or the Houses where the Committee has been appointed jointly by the Speaker and the Chairman.

If the Committee absolves the Judge of any misbehaviour or incapacity, the motion pending in the respective House or Houses, as the case may be, will not be proceeded with. If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, the motion will, together with the report of the Committee, be taken up for consideration by the House or the Houses in which it is pending.

In the event of the adoption of the motion in accordance with the constitutional provisions, the misbehaviour or incapacity of the Judge will be deemed to have been proved and an address praying for the removal of the Judge will be presented in the prescribed manner by each House of Parliament in the same session in which the motion has been adopted.

Before the procedure was laid down by law, notices of motions for the removal of a judge on the ground of misbehaviour or incapacity were on occasions tabled by members. Whenever a notice was received from a member of his intention to move such a motion, the Speaker discussed the matter with the member and examined the material on which the allegation was based to ensure that there was a prima facie case to proceed in the matter. He asked the member not to make the contents of his motion public: in fact, a strict secrecy about the matter was ensured. After the Speaker had satisfied himself that there was a prima facie case, he sent a copy of the complaint to the Chief Justice of the concerned High Court and to the Chief Justice of India to look into the matter. A copy was also sent to the Minister of Home Affairs for his comments. The Speaker adopted this procedure in order to resolve the matter without its being raised on the floor of the House.

As a result of the adoption of this procedure in such cases, either the Judge concerned retired voluntarily or the defect was soon rectified and thus unpleasant controversy which might have lowered the prestige of Judiciary was avoided on the floor of the House, and the cases complained of were resolved before the matter could be raised in the House.

Extract from Practice and Procedure of Parliament by M. N. Kaul and S. L. Shakdher, 1991 (4th edition) page 942-943.

For two years have I written on the all important subject of our relations with our great neighbour, without being able to provoke a useful debate. In the circumstances, I am more than pleased that two words in particular, "shambles'’ and the omission of the word "only", in the sentence "depending for our security in all its forms (only---my interpolation) on the goodwill of foreign leaders was not only naïve but dangerous. We render ourselves wholly vulnerable", and also observations on the demarche of the 27 Tamil Nadu MPs to the Indian PM, has served to bring the establishment and the public into the debate on our India policy.

The response of the high commissioner was a valuable one on the whole. I would be the first to agree that harmonious personal relations between political leaders are vital, but these relationships are ephemeral and as history has shown, if we depend solely on such relationships for our security, we do so at our peril.

Personal relations between Shri Nehru and Chou-en-Lai were said to have been excellent at the time the Chinese attacked India. Be that as it may, in our circumstances, there is no substitute for a Framework Agreement based on mutual respect, which would define our relationship. We need to set aside the Indo-Lanka Accord that was imposed upon us.

It may be recalled in this regard that despite the extremely close personal relations that existed between Mrs. Gandhi and the Soviet leadership, she nevertheless chose to enter into a formal agreement to order their relations.

To revert to the high commissioner’s response, whilst the ‘proof’ adduced by him was certainly reassuring, I submit that despite the claimed closeness of relations, the LTTE is still receiving support in various forms from certain sections in Tamil Nadu to enable them to continue the war.

In this regard I wish to set out obligations spelled out in article 2.16b of the Indo-Lanka Agreement, "The Indian Navy/Coastguard will cooperate with the Sri Lanka Navy in preventing Tamil militant activities from affecting Sri Lanka." This cooperation seems to be inadequate, or is it not forthcoming?

How else would the LTTE have brought in the high explosives in MV Swenee from the Ukraine (said to have been brought in when the present government was indulging in peace talks with the LTTE) and the shipment of mortar bombs from Zimbabwe in May ’97? There would no doubt have been other shipments too that would have got through, not to speak of the daily logistical run from Kilali to Rameswaran in South India.

No malice
I must make use of this opportunity to assure the high commissioner that there was no malice whatsoever intended as implied by S.W. in a letter to the Sunday Island. I am indeed sorry if the high commissioner, for whom I have the highest regard, was in any way pained by my remarks.

Today our relationship with India is dependent on so called friendships the leaders of our countries appear to have cultivated. This to me is entirely superficial. I am constrained to point out that we are dealing with hard boiled politicians who pursue their national interest with single-minded dedication. They will look after their interests, we have to look after ours.

I have in all my writings on our ‘India policy’, acknowledged the fact that "this government and the foreign minister restored the relationship …..". It is an acknowledged fact that relations between India and Sri Lanka had been mishandled on both sides of the Palk Strait after 1977, with Sri Lanka being particularly culpable. It was this government that made the ‘course correction’, in what was till then a misguided policy of veiled hostility instead of partnership. Though our president enjoys immense popularity in India, we have not exploited the opportunities that have been available to us.

Mrs. Bandaranaike had carefully developed the relationship with India to a level not reached in the past 50 years. She cultivated the closest of relations with India and achieved unprecedented gains for this country.

Though this has been recalled many a time before it nevertheless bears recall and re-mention that it was Mrs. Bandaranaike who through the Sirima –Shastri Pact had India agree to take back over 600,000 Tamils of Indian origin.

It was Mrs. B who was able to get India to withdraw its spurious claim to Kachchativu. She allowed Pakistan soldiers to fly through Colombo to what was then East Pakistan, without losing the friendship of India. She was also able to conclude a Maritime Agreement with China shortly after the 1962 Indo China war without (once again) antagonizing India. These were tremendous achievements.

I flag these ‘triumphs’ to mark the level at which the relationship should be. Relations with India were conducted with a certain dignity which seems absent today. There are security concepts of a bygone era being enunciated today. It is being stated that India being the preponderant power in the region, she is therefore also the policeman of the region. Further, that india's security interests must always be paramount and to that extent our sovereignty would be circumscribed.

It was exactly these concepts propounded by K.M. Pannikar and his ilk that drove the leaders who took us to Independence to conclude a Defence Agreement with the UK. There is no doubt that Inida has the ability to destabilize this country if we give her cause to do that. That is why we should redefine our relations on mutually acceptable terms and conduct our relations with dignity.

I have been accused of directing "stinging personal remarks at the foreign minister.'' I am indeed sorry if my remarks were taken as such for that was never the intention. It was Benjamin Franklin who said "critics are our friends for they point out our mistakes.''

As for Mr Kadirgamar, he has certainly gone beyond the call of duty in his dedicated service to this country, even if he has, in the process antagonized his own community. I have no doubt this would be appropriately acknowledged at the proper time. Meanwhile let me say that men in public life must be prepared to accept criticism of what we, the public, perceive to be their mistakes.

All this aside, I sincerely hope that the government would have ‘in house’ (or with knowledgeable outsiders, interested parliamentarians and businessmen) brain storming sessions to examine all available options on our India policy.

K Godage

By Nayana
It is a safe guess that the "Marine Pollution Prevention Act No.59 of 1981" is not one of our better known laws, despite the fact that it imposes some of the most stringent civil and criminal liabilites found in any piece of Sri Lankan legislation.

However the MPPA - an abbrievation that fits both the Act and the Authority it created - looks set, for better or worse, to become considerably better known after recent events.

The Marine Pollution Prevention Authority headed by its Chairman Dhanapala Weerasasekera is the body in charge of implementing the law which includes measures for prevention, damage control and punishment. However once pollution occurs, the concurrence of the Authority is not required for affected members of the public to avail themselves of the provisions relating to civil liability, i.e. claims for damages.

There is nothing ambiguous in the Marine Pollution Prevention Act, which makes quite clear its intention that anyone who pollutes Sri Lanka’s maritime waters without a very good excuse must pay for it.

The emphasis is on "oil or other pollutants" and it covers not only the liability of ships but also the operators of off-shore installations and pipe lines, off-shore explorations and places on land which discharge pollution into the sea.

Criminal liability is strict. Where there is a discharge or escape from a ship, the owner, operator, master or agent of the ship can be held liable, while a discharge from a pipe line or an apparatus used for transferring oil or other pollutant renders the owner or person in charge of the pipe line or apparatus liable.

Intention to cause pollution or even negligence does not have to be proved. Mere causation of pollution is sufficient to give rise to criminal liability, subject only to certain limited statutory defences which it will be up to the accused to establish. These relate to dumping in the interests of safety, provided reasonable care has been taken to limit the damage; pollution resulting from damage to a ship, provided again, that all reasonable precautions have been taken to minimise the damage after it was discovered; and leakage, provided it was not due to any want of reasonable care and steps were taken to minimise the escape as soon as practicable. Sabotage by a person who was at the place without the express or implied permission of the owner is also a defence.

The penalty upon conviction is a fine not exceeding one million rupees. By prescribing a fine rather than imprisonment, the Act leaves the way open for corporate bodies to be held liable as they are also legal persons. This obviates the need to prove lapses on the part of any particular individuals within a corporate institution.

There is a parallel civil liability under the Act which includes payment for the damage caused and the cost of damage control measures. Liability can arise for the physical damage to the water or foreshore, or damage to any related "interests", i.e. economic and other non-physical loss. These "interests" are defined to include fisheries and other coastal or marine activities; the promotion of tourism and the development of tourist attractions including coral reefs; the health and well-being of the coastal population; and the protection and conservation of marine life.

There is a monetary limit of Rupees 750 million (or its equivalent in IMF special drawing rights) placed on civil liability under the Act, with an added limit in the case of ships of Rs.7210 for each metric tonne of the ship’s tonnage - a provision which ensures a graded scale of liability depending on the size of the vessel.

The special defences available in a civil action (where, once again, negligence does not have to be proved) are different to those in a criminal action and consist of proving that the discharge, dumping or escape resulted from an act of war, hostilities, civil war or insurrection, or a natural phenomenon of "an exceptional, inevitable and irresistable character".

Any ship entering or passing through Sri Lankan waters carrying more than 2000 metric tonnes of oil in bulk is required to be insured against such liability. However there are no compulsory insurance provisions in the case of off-shore installations, pipe lines or other operations.

The MPPA is entitled to inspect ships, off-shore installations and apparatus, and any relevant places on land to ensure compliance with the Act. In the event of pollution occurring or being imminent, the Authority can issue directives to owners and operators to take necessary measures for prevention, control or cleaning up and such person is bound to assist.

Both the Police and any specially authorised officer of the MPPA may exercise powers of arrest for offences under the Act. Prosecutions are handled by the Attorney-General’s Department.

Last week’s pollution along the Colombo coastline is the first major incident to occur after the Marine Pollution Prevention Act was passed, although the Authority has had occasion to give preventive directions on at least two previous occasions. The first was to the owners of a ship marooned off Galle in 1986 where the owners were directed to remove the oil in its tanks. According to information available, nothing was done and the ship with its oil still remains. The other was last year’s sinking off Pulmoddai, suspectedly by the LTTE, of a ship carrying ileminite. Once again MPPA efforts to get the owners to clear out its freshly loaded tanks have proved unsuccessful.

Sources point out that it is open to the MPPA itself to get such work done but the cost may be a prohibitive factor unless there is a practical possibility of recovering the money from the owners.

Meanwhile the Ceylon Petroleum Corporation’s single point buoy mooring system for the off-shore transfer of oil came in for criticism as being inherently unsafe at the time it was installed. In 1993 a leading environmental organisation made representations to a number of authorities including the Central Environmental Authority and the Coast Conservation Department on this subject. Ironically at that time the MPPA itself was reportedly without a Chairman.

by Kirthie Abeyesekera
Way back in 1968, in my crime reporting days, ‘Observer’ editor, Denzil Peiris, sent me on an assignment to Jaffna. A police Peugeot picked me up at the Palaly airport and drove me to the Northern capital's police headquarters. Superintendent R. Sundaralingam greeted me with literally open arms: "Welcome to Jaffna. Your name has preceded you here."

That was the start of a memorable relationship between a crime reporter and a police detective, based on trust and mutual respect. It also marked the beginning of a friendship.

When I left Sri Lanka for Canada in 1975, it was a parting of the ways. ‘Sunda,’ as we all knew him, retired as Deputy Inspector-General of Police in 1984 and went over to Interpol, the World Police Organization in France. But our friendship endured over the years.

It was therefore a great joy for me to have Sunda in my Toronto home when he visited here recently to participate in an international conference on "Asian Organized Crime" (Sunday Island, May 31).

Naturally, for the greater part of the family dinner, Sunda and I talked shop. We revived memories of an age gone by. An excellent story teller with a wonderful memory of his exciting career as a detective, Sunda served as SP, Jaffna from 1967 to 1972 — "the most peaceful era in the history of the North."

Here now was Sunda, the one time Peradeniya University student union leader who later led a mounted police squad to quell student riots in the same campus.

In 1957, when Sirima Bandaranaike's father, Barnes Ratwatte Dissawe passed away, Sunda was a young ASP at Ratnapura. Prime Minister S. W. R. D. Bandaranaike, fresh from his ‘social revolution’ the previous year, took personal command of the funeral arrangements for his father-in-law at Mahawalatenna, Balangoda.

He personally drew up a traffic plan after discussions with Sunda who had deployed over 300 policemen to handle the massive crowds pouring into the Sabaragamuwa town. The PM ordered Sunda to call the Governor-General, Sir Oliver Goonetilleke, and ask him to attend the funeral in full ceremonial dress. This gave the appearance of a state funeral. Sunda mimicked for me Sir Oliver's stuttering condolences to the PM and his wife.

As the personal security officer to the PM, Sunda was often in his company. Traffic and other arrangements were discussed at the Ratnapura rest house over breakfast that included ‘Kolikuttu’ plantains and Kraft cheese — Bandaranike favourities.

Maviddipuram
Sunda and I recalled the ‘sixties Maviddi-puram Temple dispute which I covered for the ‘Observer.’ C. Sun-theralingam, professor, civil servant and cabinet minister was determined to keep Harijans out of the Hindu temples. Face-to-face battles between ‘high-castes’ and ‘low-castes’ were fought.

Sunda and Jaffna Government-Agent, Vernon Abeysekera, were at he scene. Cameraman Raja Perera who was with me, captured these fights on film for the ‘Observer.’ C. Suntheralingam complained to Prime Minister Dudley Senanayake that Sunda was being partial towards the Harijans. The PM told him. "This is a battle of the Suntheralingams. You two fight it out."

Subsequently, when Mrs. Bandaranaike was prime minister, she sent a sub-committee comprising Leslie Goone-wardena, Pieter Keune-man and Cholomon-deley Goonewardena to look into the ‘social disabilities’ of the oppressed classes of the North. Sunda gave evidence before the sub-committee, highlighting some of the disabilities, such as denial of temple-entry and even the drawing of water from ‘high-caste’ wells.

Sunda spoke of Prime Minister Dudley Senanayake's first official visit to Jaffna in 1967 to lay the foundation stone for a new model market. Protocol and security were in the hands of Sunda and Vernon Abeysekera. There was a tussle between Tamil leaders as to who should garland the MP first on his arrival at the Palaly airport.

Federal party leader, S. J. V. Chelvanayakem claimed he should have the honour. Tamil Congress Chief, G. G. Ponnambalam, who was also Member of Parliament for Jaffna, said he should do the honours. Sunda and Vernon used diplomacy to diffuse what was seen as an explosive situation.

They decided that the first garland be placed by the village committee chairman for Myliddy which had jurisdiction over the Palaly airport.

But Ponnambalam was to outwit them all. When the prime minister emerged from the aircraft, Ponnambalam was right behind him, having wangled a seat on the prime ministerial plane. His garland, the first of over a dozen to follow, was already around the PM's neck.

Sunda recalled the massive motorcade preceded by a special police motor cycle escort for the PM and his entourage that included Local Government Minister M. Tiru-chelvam and his deputy, R. Premadasa. The 12-mile route to Jaffna town, with 28 pandals along the way, was lined by thousands of cheering Tamils in a spontaneous show of warmth and goodwill to a Sinhalese Prime Minister.

On his departure for Colombo from Palaly, Prime Minister Sena-nayake told Sunda and Vernon that he did not envy their jobs as administrators of the North. He probably had a premonition of things to come. "Good luck to both of your," he said as be bade them goodbye.

Sunda also recalled how Ponnambalam was once cross-examining a police witness in a criminal case. "Are you speaking the truth or are you telling lies?", Ponnambalam pounced on the witness. "Fifty-fifty, Sir," the man mumbled meekly.

Drug expert
As Interpol's leading drug expert, Sunda went back to his Jaffna days of the ‘60s when he fought an ongoing battle with Valvettiturai smugglers. An in-depth study he made on ‘Indo-Sri Lanka smuggling,’ confounded India experts attending a Colombo conference, who did not even know the names of some smuggling points.

In his ‘70s heyday, Justice Minister Felix Dias Bandaranaike convened a conference of several arms of the justice system, including judges and lawyers. Representing the police were Tyrrell Goone-tilleke, DIG, CID, and Sunda, Detective Supdt. Colombo. The two-day meeting ended with a cocktail party at which Tyrrell and Sunda danced the ‘baila,’ prompting Minister Bandaranaike to quip: "These two guys have missed their vocation".

During the 1971 youth insurrection, Janatha Vimukthi Peramuna leader, Rohana Wijeweera was held in the Jaffna Fort Prison on the personal orders of Prime Minister Sirima Bandara-naike. Security was in the hands of Sunda who said that during the two years in the Jaffna prison Wijeweera learnt fluent Tamil.

Sunda and I spoke of many other things in his police and my reporting days. We spoke of some of our mutual police acquaintances too numerous to mention. However, Sunda singled out Police Chief, Eleric Abeygoonewar-dena as an excellent police officer and an honourable man who could not be swayed by political or other pressures.

Meeting Sunda after so many years brought both of us nostalgic memories of a happy past. He recalled my regular phone calls for many a scoop. He even quoted from some of my ‘Sunday Observer’ stories on city crime and the underworld. "Those were the days," he reflected. "All that is history."

He says life with Interpol is good for him, but he misses the Sri Lanka of the ‘60s and ‘70s. "I feel homesick very often, longing to get back to Sri Lanka, but I have no choice."

The experience and professionalism he gained in the Sri Lanka police, he says, have stood him in good stead in his continuing police work with Interpol. Sunda has particularly fond memories of 1973.

In that year, following the JVP uprising, the Sirima Bandara-naike government had set up the Colombo Detective Bureau with Sunda as its Head. He occupied a twin-apartment at Park Road, Havelock Town. His neighbour was a handsome young man who was soon to become a national figure. He had abandoned a police career to become a film star.

"Vijay Kumara-tunga was a warm and amiable man. We often discussed the Underworld and the Film World." Sunda recalls a nasty motor cycle accident the actor had at Kandana. On Sunda's advice, he gave up motor cycling and bought a Volkswagen.

Yet, Sunda's celebrated neighbour was a problem too. Apart from Sunda's detective duties, he also had to detail special police at the entrance to their joint-apartments to control the daily flock of female admirers wanting to catch a glimpse of their film idol with the beguiling smile — the ultimate charmer who, in real life, stole the heart of the woman who would one day, become the President of Sri Lanka.

by Dr. Stanley Kalpage
Bill Clinton was hawkish about China during the 1992 election campaign. He chided George Bush for "coddling" Chinese dictators and vowed that he would not restore normal trade relations unless "they stopped locking up people". But nearly half way into his second term as president, Clinton gauged correctly the crucial importance of the pivotal relationship between the world's most powerful nation and its most populous one.

Clinton deserves approbation for going ahead with his visit to China in the face of harsh criticism by Republican rivals, who questioned the propriety of an American president visiting a country whose human rights record, they said, was deplorable. Clinton thought otherwise. He felt that an American president should, at this moment in history, engage China in a 'strategic partnershp' rather than attempt to contain a large communist nation that was emerging as a great power. It was a bold and far-reaching step to take and it is likely to pay ample dividends for future regional and world peace.

Evolution of US-China relations
When Mao Zedong assumed power on the mainland of China in 1949, anti-communist fervour made it impossible for the United States to establish diplomatic relations with a communist state. The strained relations continued until 1971 when Henry Kissinger's ping-pong diplomacy resulted in president Richard Nixon recognising the Peoples Republic of China and her admission to the United Nations.

In 1972 Nixon visited China and signed the Shanghai communique subscribing to the existence of one China of which Taiwan was a part. It was not until 1979 that Jimmy Carter established formal diplomatic relations with China, downgrading ties with Taiwan to "unofficial" relations.

After the end of the Cold War in the late 1980s, China and the US drew closer together, but the road ahead was far from smooth. Relations froze in 1989 when the Chinese authorities crackd down on the student-led democracy demonstrators in Tiananmen Square. However, in the US-led militry assault on Iraq, China did not use her veto in the UN Security Council.

Again, in March 1996 the US disapproved of China's missile tests and war games in the Taiwan Straits at the time of Taiwan's first direct elections for president. Two weeks of extraordinary tension and anxiety resulted with undercurrents of nuclear menace. But that was the turning point — from escalating conflict to strategic partnership.

Improved relations received a boost in September 1997 with Jiang Zemin's week-long visit to the United States, despite Clinton reminding the Chinese president that whatever China's explanation was of the Tiananmen Square massacre, China was "on the wrong side of history".

Criticisms of China visit
Most Americans cannot erase the memory of the ruthless Tiananmen Square repression on 4 June 1989. US human rights activists were vociferous in asking Clinton not to make a formal appearance in Tiananmen Square. Some criticised China's alleged use of abortions to control population.

Again, Clinton was faulted for approving a Chinese satellite launch sought by a major Democratic contributor in an alleged breach of national security. Allegations were rife of illegal Chinese contributions to the Democratic Party in exchange for certain illegal concessions.

Despite such criticisms, Clinton refused to view China through a single lens. He realised that there were serious, significant problems that needed co-operation for any meaningful progress. He told his detractors that he planned to speak of China's human rights record and lobby for greater freedoms. With a $50 billion US trade deficit with China, he would try to promote further access to China's markets. His critics accused Clinton of putting commerce before principle.

Difficulties to sort out
Sure enough, there were outstanding problems between the two countries for sorting out. Clinton sought a deal to de-target the nuclear weapons that each country was aiming at the other. An agreement for controlling the proliferation of missile technology was on the cards. The US was concerned with China's assistance to Pakistan and Iran in supplying nuclear and missile technology. Clinton sought China's assistance in maintaining economic stability in Asia.

On Tibet, China maintains that the Dalai Lama who fled Tibet in 1959 must first recognise Chinese sovereignty over the region that China occupied in 1950. China's role on the Korean peninsula and her relationship with North Korea was also of concern.

Taiwan was a main issue at the Summit, China wanted Clinton to confirm the US's adherence to China's policy of peaceful re-unification on the basis that Taiwan is a province of China in accordance with the principle of "one China, two systems".

Two other factors impelled Clinton to consider the China visit as timely. On the one hand, Jiang seemed to have built his legacy on developing a stable and strong relationshp with the United States. On the other, the rising economic and military power of China was simply too big for the US to ignore.

A live TV news confernce
After the glittering official welcoming ceremonies in Tiananmen Square, the two leaders moved into the Great Hall of the People for the summit meeting, Painstaking negotiations resulted in a mixed bag of disappointments and modest gains. Clinton achieved a symbolic agreement that the United States and China no longer target nuclear missiles at each other.

After the summit, the Chinese authorities displayed an unprecedentd openness by telecasting live a Clinton-Jiang news conference to the Chinese public. In a verbal ping-pong match, watched by millions, the two leaders agreed occasionally and disagreed often.

They exchanged views on a number of controversial topics — human rights, the crackdown in Tiananmen Square, nuclear non-proliferation and nuclear tensions in South Asia, the financial crisis in Southeast Asia, the possibility of a rapprochment with the exiled Dalai Lama, and the US attitude towards Taiwan. Originally planned for half an hour the spirited news conference lasted nearly 70 minutes.

Clinton was at his articulate best, making his points with consummate skill. He said: "For all of our agreements we disagree about the meaning of what happened (at Tiananmn Square). I believe, and the American people believe, that the use of force and the tragic loss of life was wrong".

Jiang's rebuttal was unequivocal: "Had the Chinese government not taken the resolute measures then we could not have enjoyed the stability that we are enjoying today". Referring to the 2000 odd jailed dissidents Chiang said forcefully: "We have our laws in China and any law-breaking activities must be dealt with according to the law. I think this is true of any country under the rule of law".

A convivial atmosphere prevailed at the state banquet that followed. Both leaders took turns in conducting the military band of the People's Liberation Army.

Beijing University
At the 100-year old Beijing University, the launching pad of the 1989 pro-democracy protests, Clinton addressed hundreds of students — "the next generation of China's leaders" — about "the critical importance to your future of building a strong partnership between China and the United States". He praised the sweeping transformation taking place in China, leading to two decades of unprecedented growth.

Clinton emphasised the need to grow the economy while improving the enviornment. He discoursed on air pollution, deforestation, acid rain and water shortage. He referred to the information and communications revolutions and the need to understand "our common interests, our shared aspirations and our honest differences".

Lively discussion
During the question and answer session which followed Clinton's address, Chinese faculty and students responded with candour and probing questions. One student said: "It seems that the American people's understanding of the China people is nil as much as the other way round. May be they are only seeing China through several movies".

"That is why I have come here with few people from the news media", quipped Clinton, "so that my trip would help to show a full and balanced picture of modern China to the United States".

Another student pointed out that Clinton had questioned China's attitudes to democracy, human rights and fundamental freedoms. Saying that "these are of great interest to both the American and Chinese people", he posed the question: "Do you think in the United States today there are also some problems in the area of democracy, freedom and human rights, and what has your government done in improving the situation?"

With evident humility Clinton acknowledged: "Our country has had terrible problems in this area — keep in mind, slavery was legal in America for many years — and that we are still not perfect... I don't think it's right for any person to claim that he or she lives in a perfect country. We're all struggling toward ideals to live a better life. So I agree with the general point you make".

Clinton seemd to enjoy himself immensely. He reminded his youthful audience of what Benjamin Franklin had said: "Our critics are our friends, for they show us our faults". He said that he felt good about the exchange of views. "And from my point of view, the questions were far more important than my speech. I never learn anything when I'm talking. I only learn things when I'm listening".

Throughout Clinton's visit, subjects that were previously taboo were raised and discussed fully and frankly. As a result, a dramatic new openness has dawned in Sino-US relations.