By

Rasika Jayakody

When the government decided to launch a full-scale investigation into journalist Prageeth Eknaligoda’s disappearance, it stirred up a hornet’s nest where the country’s defence circles are concerned.
Many senior military officers were vehemently against such an investigation, saying it would jeopardize the intelligence wing of the Sri Lankan military. They said an inquiry of that nature would “expose” intelligence wing members and secret informants to the outside world.

It was a political gamble the new government had to take as some parties even went on to draw parallels between Eknaligoda’s investigations and the Millennium city issue in 2002. Top-notch members of the government were fully aware of the fact that Eknaligoda’s investigation would be a double-edged sword as it dealt with highly sensitive security related matters.

Two main figures of the government, President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe, insisted that the investigations into journalist’s disappearance should continue. On the other hand, the Sri Lankan government was not in a position to turn back on the matter as the international community had already raised concerns over the inaction on Eknaligoda’s matter.

It was in this context that the CID launched inquiries into the disappearance and arrested 11 suspects over the incident. All of them were members of the intelligence wing of the country’s military and some of them were high-ranking officers who had major responsibilities in the Army. As investigations progressed, there was resistance from senior authorities in the defence establishment.

Fingers were pointed at former Defence Secretary B.M.U.D. Basnayake for delaying the issuance of orders to detain the suspects of Eknaligoda’s disappearance. After the Parliamentary election in August, the government replaced Basnayake with Karunasena Hettiarachchi, a senior official in the public sector. It was in the grapevine among cocktail circles of Colombo that Basnayake’s behaviour on Eknaligoda’s investigation was one of the key reasons behind his removal in September.
Even after the new Defence Secretary’s appointment, there were concerns among the CID officers handling investigations into the case that certain top authorities in the defence establishment were attempting to stand in the way of the inquiry. This has created a cold war of some sort between the CID and some members of the military who have an ultra-protectionist approach towards their intelligence wing members.

Apart from the cold war, it has also given rise to the debate whether such cases should be investigated under the media scrutiny, exposing ground level intelligence wing members to the public.

Needless to say the military intelligence wing, especially under the Rajapaksa rule, operated as a tool in the hands of top echelons of the government. In addition to anti-terror activities, there were allegations that the intelligence group members were used for “personal projects” of top figures of the previous government. It was common knowledge that telephones of opposition politicians, journalists and critiques of the government were tapped under the previous government and the intelligence wing members were closely monitoring their movements.

Even some of the key figures of the ruling party were under microscopes fearing that they would, at some point, pose a threat to the Rajapaksa rule. Maithripala Sirisena, when he challenged Rajapaksa’s third term presidential bid, had to “circumvent” hawk-eyed intelligence wing members to keep his defection as a closely guarded secret.

Need for an oversight mechanism for intelligence bodies

This ongoing debate over the conduct of intelligence wing members has drawn the government’s attention towards formulating a legal and constitutional framework for activities of the state intelligence apparatus. Such framework have been adopted in countries like the US, the UK and India where there are highly vibrant intelligence arms serving the state.

An oversight mechanism of that nature will introduce much needed checks and balances to the intelligence bodies, enabling them to operate in a constitutionally and legally accepted framework, without being a mere tool in the hands of politicians. The investigation into Eknaligoda’s disappearance and several other criminal investigations have given an opening to the government to bring about reforms that will make the defence apparatus of the country more transparent and apolitical.

In the United States, both the executive and legislative branches of the government share the oversight of intelligence bodies. Oversight, in this case, is the supervision of intelligence agencies, and making them accountable for their actions – the exact mechanism Sri Lanka lacks at the moment. Generally oversight bodies look at general issues such as following policymaker needs, the quality of analysis, operations, and legality of actions.

Oversight in the executive branch, headed by the US President, usually focuses on covert action and espionage. Under the country’s Intelligence Authorization Act and Hughes-Ryan Act, the President must approve all covert actions. The President also has the power to appoint commissions, which can be used to assess intelligence topics such as the National Commission on Terrorist Attacks or The Iraq Intelligence Commission.

While the constitution gives the executive branch preeminence in dealing with intelligence matters, it nevertheless provides Congress with an important oversight role. The Congress’s most important source of leverage is the power to authorize programmes and appropriate funds. During the authorization and appropriations process, Congress can signal its intelligence and policy priorities through both the allocation of funds and the inclusion of non budget-related clauses in the authorization and appropriations bills.

Constitutional framework of UK intelligence wing

The Intelligence and Security Committee of Parliament, a committee appointed by Parliament of the United Kingdom, oversees the work of the intelligence machinery of the United Kingdom.

The committee’s formal responsibilities are to examine the expenditure, administration and policies of the security and intelligence agencies as laid down in statute; the Secret Intelligence Service, the Security Service and Government Communications Headquarters. It has also extended its oversight responsibilities to include the Defence Intelligence Staff and the Joint Intelligence Committee.

The members of the committee are notified under the Official Secrets Act 1989 and are given access to highly classified material in carrying out their duties. The committee holds evidence sessions with Government ministers and senior officials (for example, the head of the Security Service.) It also considers written evidence from the intelligence and security agencies and relevant government departments.

The oversight committee’s work is confidential, though an unclassified annual report is issued. The committee also produces reports on issues of particular concern, either on its own initiative or at the request of government ministers. But the committee makes sure that activities of intelligence bodies do not go beyond their “mandate.” It also protects intelligence units of the defence establishment from undue political interference.

Proposed parameters for intelligence bodies

In India, various intelligence agencies such as the Research and Analysis Wing, and the Intelligence Bureau are creations of administrative orders, and are not subject to scrutiny by Parliament. This is in direct contrast to the practice of the Legislature’s oversight of intelligence agencies in countries like the US and the UK.

A study titled “Making Intelligence Accountable: Legal Standards and Best Practice,” conducted by Hans Born and Ian Leigh, captures the best components of Parliamentary oversight of intelligence bodies. Some of these are:

1. The entire intelligence community, including all ancillary departments and officials, should be covered by the mandate of one or more parliamentary oversight bodies.

2. The mandate of a parliamentary oversight body might include some or all of the following (a) legality, (b) efficacy, (c) efficiency, (d) budgeting and accounting; (e) conformity with relevant human rights Conventions (f) policy/administrative aspects of the intelligence services.

3. The recommendations and reports of the parliamentary oversight body should be (a) published; (b) debated in parliament; (c) monitored with regard to its implementation by the government and intelligence community.

4. The resources and legal powers at the disposal of the parliamentary oversight body should match the scope of its mandate.

5. Parliament should be responsible for appointing and, where necessary, removing members of a body exercising the oversight function in its name.

6. Representation on parliamentary oversight bodies should be cross-party, preferably in accordance with the strengths of the political parties in parliament.

7. Government ministers should be debarred from membership (and parliamentarians should be required to step down if they are appointed as ministers) or the independence of the committee will be compromised. The same applies to former members of agencies overseen.

8. The oversight body should have the legal power to initiate investigations; Members of oversight bodies should have unrestricted access to all information which is necessary for executing their oversight tasks.

9. The oversight body should have power to subpoena witnesses and to receive testimony under oath.
The oversight body should take appropriate measures and steps in order to protect information from unauthorised disclosure.

10. The committee should report to parliament at least yearly or as often as it deems necessary.

11. The oversight body should have access to all relevant budget documents, provided that safeguards are in place to avoid leaking of classified information.

A careful examination of oversight mechanism adopted by other countries highlights Sri Lanka’s lazy approach on accountability of intelligence bodies. This has left enough space for politicians wielding power to misuse the country’s intelligence bodies for various purposes, beyond their call of duty. This problem aggravated under the ten year long Rajapaksa rule as the military was under the grip of powerful members of the first family.

PM appoints Dr. Batagoda to probe into HNDA issue

The Police attack of Higher National Diploma of Accountancy (HNDA) students last Thursday sent shock-waves across the country’s political circles. The photographs and video footage taken during the protest showed the manner in which some policemen assaulted protesting students with batons and rods in a foolish attempt to control the situation.

Some members of the ruling party went on to assume that the attack was a deliberate attempt by some senior Police officers affiliated with the former first family to discredit the government. However, no concrete evidence has so far been found to establish this claim.

Prime Minister Ranil Wickremesinghe, over the weekend, held an urgent meeting with Public Order Minister Thilak Marapana to discuss about this unexpected situation. He also instructed authorities to conduct an immediate inquiry into the incident and present him a report.

Prime Minister Wickremesinghe also appointed a special committee headed by Dr. B.M.S. Batagoda to probe into the attack. The decision was made after a special discussion held over the matter on Monday morning.
The Prime Minister’s committee was independent from the three-member committee appointed by the National Police Commission to inquire into the same matter. The Police Commission, headed by Professor Siri Hettige, questioned Acting IGP cum Western Province Senior DIG Pujith Jayasundara and Colombo District DIG Gamini Mathurata, on Monday, over the incident.

“While the Police Commission will investigate into the conduct of the Police, the Prime Minister’s commission will look into the broader issue. It will also propose recommendations to resolve the problem,” a senior government spokesman told the Daily News on Monday, explaining the government’s position on the issue.

He said it was the first that a government took measures to probe into a Police attack on university students in the recent history. “Although the Police attack reflected badly on the government, we have at least taken measures to conduct a proper inquiry into the conduct. That is in line with the fundamentals of good-governance,” the spokesman said responding to claims made by various parties questioning the government’s bona fides on the good governance front.

Ruling party members irked by SSP Champika Siriwardena’s explanation

During various inner circle discussions within the government, the conduct of various Police officers came under serious criticism. The majority of them were of the view that the Police attack on HNDA students could not be justified on any grounds and the Police had gone beyond their limits when attacking the students. Their damage-control measures were even more disastrous and the Police Department ended up being a laughing stock in the eyes of the public when SSP Champika Siriwardena attempted cover up an attack on female students during the protest.

When questioned by media over photographs in which Police officers were seen assaulting female students, Siriwardena said they did not attack female students but tried to help some girls who fell on the road! The senior Police officer did not know that his claims were rubbished by the video footage of the incident, which went viral on social media over the past few days.

Police Media Spokesman ASP Ruwan Gunasekera too made a mockery of the collective intelligence of the public when he tried to defend the unrestrained behavior of some police officers during the protest. The remarks he made over the use of “minimum force” and “necessary force” to quell protests came under severe criticism during internal meetings of the government over the matter. Some even said spokespersons of the Police Department should be given a special training on handling crisis situations.
Had the Police tendered a public apology over the attack on HNDA students, the problem would not have grown out of hand, plunging the government into a serious trouble. Instead of tendering an apology, the Police went on to justify the unjustifiable, demonstrating their arrogance and immaturity.

It is important to see whether the government has the political will to take the bull by the horns and take action against Police officers who went beyond their limits during the protest last Thursday. If the government is serious about resorting to damage control measures, the only available option is to conduct a speedy inquiry over the manner and take action against responsible parties. Such a transparent process will only strengthen the Public’s faith in the government’s commitment to the concept of good governance.

UPFA crisis takes another turn

The UPFA, led by the SLFP, is heading towards a major crisis in its run up to the Local Government election, fixed for early next year. Although President Maithripala Sirisena has assured that he will lead the party’s election campaign at the Local Government polls, a group of MPs are exerting pressure on the party’s top-rung leadership to include former President Mahinda Rajapaksa in the campaign.

However, the top-rung leadership of the party does not see any logical reason to include the former President in the party’s election as the party has already run into major defeats at two national level elections under his leadership. The SLFP seniors believe the party needs a new beginning and that process should be led by President Maithripala Sirisena. Therefore, a serious division of opinion has arisen within the SLFP over its plans for the Local Government election.

Meanwhile, several political parties of the opposition have already held a discussion with former President Mahinda Rajapaksa on forming a “united opposition” before the Local Government election. According to UPFA Parliamentarian Vasudewa Nanayakkara the majority of them are minor stakeholders of the UPFA alliance.

Nearly 25 Parliamentarians of the Sri Lanka Freedom Party (SLFP) too attended the discussion, Nanayakkara told the Daily News on Monday.

“All parties of the UPFA coalition, except the SLFP, are on the same page about the matter. We need former President Rajapaksa’s blessings to proceed with this initiative,” Nanayakkara added.
The main objective behind forming a united opposition, Nanayakkara said, would be to form a common force against the UNP. The Parliamentarian said the SLFP was not ready to fulfill the duties of the opposition as it has already formed a coalition government with the UNP. “Therefore, we had to make a drastic move to form an alternate opposition” Nanayakkara added.

Meanwhile, highly placed sources of the UPFA said the new coalition would not be able to use the name and the official symbol of the UPFA of which the SLFP is the main stakeholder.

“The General Secretary is the ‘custodian’ of the party’s name and the symbol. President Maithripala Sirisena appointed General Secretary of the UPFA Prof. Vishwa Warnapala and the latter’s lies with the President. He will not encourage any move against President Sirisena. At the same time, the President still functions as the Chairman of the UPFA,” a UPFA Parliamentarian, who wished to remain anonymous, added.

Informed political sources told the Daily News members of the opposition alliance were in talks to name their coalition after former President Rajapaksa. It would be quite similar to the short-lived “Bosath Bandaranaike Peramuna” formed by former Parliamentarian S.D. Bandaranaike during the latter part of the 1950s.

According to their thinking, naming the alliance after the former President would allow them to gather the votes of die-hard Rajapaksa supporters, irrespective of his active presence in its election campaign.

Courtesy:Daily News