SCORING POINTS INTERNATIONALLY MUST BE SUPPLEMENTED BY NATIONAL APPROACH ON THE GROUND--Jehan Perera
- Created on 29 September 2014
The lack of unanimity within the UN Human Rights Council on the issue of the investigation into Sri Lanka continues. The government has continued to stick to its position that it will cooperate with the UN in general but not with the investigation into war crimes. The Indian government’s representative has queried how the investigation can go ahead without the cooperation of the Sri Lankan government. He has urged transparency in the investigation process noting that “The composition of the OHCHR investigation team, its work methodology and sources of funding have also not been shared with the Human Rights Council.” This Indian position is a strong criticism of the investigation as currently being adopted by the UN. The findings that come out of a process that is problematic will be liable to be challenged in the future.
The absence of transparency in the process is a problem. Except for the coordinator of the investigation team, the identity of the rest of them is unknown. This is not a transparent process and it will not lead to the confidence building necessary for acceptance within Sri Lanka. It adds to the perception of an international conspiracy that the government has been alleging. The inability of the UN system to deal with gross human rights violations in other parts of the world, in particular the Middle East, where strategic Western interests are at stake, is indicative of a selective targeting of Sri Lanka, which is the stuff that conspiracy theories are made of. This point was made by President Mahinda Rajapaksa when he addressed the 69th Sessions UN General Assembly last week.
- Created on 22 September 2014
It may have been due to serendipity that the visits of Japan’s Prime Minister Shinzo Abe and China’s President Xi Jinping occurred within a fortnight of each other. As a result there seemed to be a competition between these two economic giants to be more generous to Sri Lanka. If China has reached the number one spot in terms of economic assistance to Sri Lanka today, Japan has historically been the most generous to the country in the long haul since Independence in 1958. Almost all of Japanese assistance has come in the form of outright grants or concessional and low interest loans. Therefore a basic sense of gratitude, which Sri Lankans are known to possess, would dictate that Sri Lanka’s leaders should be sensitive to Japanese concerns. This requires mindfulness on the part of Sri Lanka’s leaders.
While the Prime Minister of Japan, Shinzo Abe was in Sri Lanka, the first Japanese prime minister to visit the country in 24 years, a Chinese warship and a submarine docked in the Colombo International Container Terminal (CICT) at the Colombo Port. According to media reports the two People’s Liberation Army (PLA)-Navy vessels were berthed from September 7 to 13 and left Colombo Port for international waters on September 13, three days prior to the Chinese President’s arrival. The media also reported that the two PLA naval vessels were due in Colombo again in October and thereafter in November and has sought official clearance for these visits with approval already being granted. It was after a two week hiatus that the mainstream media reported the entry into Colombo Port of these naval vessels.
It may have been a coincidence that the entry of the Chinese naval vessels into Sri Lanka occurred during the visit of the Japanese Prime Minister. It may also have been the case that the entry of the Chinese ships into Colombo Port during the visit of the Japanese Prime Minister was beyond Sri Lanka’s control. Japanese concerns were made clear in the joint statement of Prime Minister Abe and President Rajapaksa at the conclusion of the Japanese Prime Minister’s visit to Sri Lanka on September 7, the day the Chinese ships entered into Colombo Port. The significance of Sri Lanka’s physical location was a prominent feature of the Japan-Sri Lanka Joint Statement. It pointedly referred to Sri Lanka’s geographical relationship to the sea and was titled “A new partnership between maritime countries.”
- Created on 15 September 2014
It has become routine to say that today Sri Lanka is more polarized than ever before. For the past two years there has been anxiety within the Muslim community about anti Muslim propaganda and the possibility of targeted violence against them. Now this has found expression in the newly appointed UN High Commissioner for Human Rights Zeid Ra’ad Zeid al-Hussein’s inaugural speech to the UN Human Rights Council. He said, “I am alarmed at threats currently being leveled against the human rights community in Sri Lanka, as well as prospective victims and witnesses. I also deplore recent incitement and violence against the country’s Muslim and Christian minorities.” Although the new Human Rights High Commissioner is reputed to be moderate in his views, he appears to be following in the path that has been set by his predecessor in office Navanethem Pillay.
Thus it can be seen that the UN mandated investigation into the last phase of Sri Lanka’s war is going ahead despite the efforts of the government to short circuit it. The government has invested in lobbying in the capitals of several important countries, not least the United States, but with no visible results in halting or derailing the probe. Even the replacement of former UN Human Rights High Commissioner Navanethem Pillay has not had any impact on the probe which continues autonomously. The continuing momentum of the war crimes investigation will be causing anxiety in those in the government who are most likely to be at the receiving end of its strictures, and possible sanctions. The limited success of the government’s present lobbying efforts seems to have prompted a rethinking of the government’s approach to it.
- Created on 08 September 2014
The appointment of a new UN High Commissioner for Human Rights, Zeid Ra'ad Al Husseinn, presents the Sri Lankan government with an opportunity to engage with the Office of the UN Human Rights Commissioner and to shed some of the negative baggage of the past. The government’s relationship with the former UN Human Rights High Commissioner, Navanethem Pillay, was acrimonious and mistrustful. It was bereft of the dialogue that could have helped to reconcile the differences that existed between the two sides. The main area of dispute has been the question of an international investigation into whether war crimes took place in Sri Lanka. The government would be hoping that the change at the top of the UN Human Rights Commission would mean that the UN investigation that has commenced might be stalled.
The appointment of an UN investigation team was not the former UN Human Rights Commissioner’s arbitrary decision. It followed a vote by the 47 countries represented on the UN Human Rights Council. In March 2014, the majority of countries in that body approved a resolution that called for the establishment of a UN investigation into the last phase of Sri Lanka’s war to ascertain whether war crimes and other serious human rights violations took place and to recommend a course of follow up action. This being the situation, it is unlikely that the new Human Rights High Commissioner will be able to stop the investigation. The decision of a collective body will not be overridden by the personal preferences of those appointed to head that body. It is unlikely that the new UN Human Rights High Commissioner would reverse the course taken by his predecessor.
In his opening remarks, the new UN Human Rights High Commissioner, Zeid Ra'ad Al Hussein, has said that ‘Moreover, I attach great importance to the investigation on Sri Lanka mandated by this Council, on which OHCHR (Office of the High Commissioner for Human Rights) will report later in the session. I encourage the Sri Lankan authorities to cooperate with this process in the interests of justice and reconciliation. I am alarmed at threats currently being levelled against the human rights community in Sri Lanka, as well as prospective victims and witnesses. I also deplore recent incitement and violence against the country's Muslim and Christian minorities.” These words do not suggest any significant departure from the approach of the previous Human Rights High Commissioner, Navanethem Pillay.
- Created on 01 September 2014
One of the many benefits of the end of the war is the ability of Sinhalese, Tamils and Muslims to mix with one another without the prospect of getting into trouble. During the time of war, such mixing was potentially problematic, as those who were Tamil could easily be suspected of having links with the LTTE. Therefore even those who were engaged in peace building were wary of bringing members of all ethnic communities together. There was also a second reason. This was the polarization that existed within the communities as they supported one side or the other. This was something that was far too volatile and controversial for anyone or any group to take up. So the issue of the war was, by and large, not discussed in multi-ethnic settings. It was safer to do so in mono-ethnic settings.
However, the end of the war has provided the opportunity for people from the different ethnic communities to come together and to discuss issues. There is less of a need to support one side or the other, as to seek ways to jointly address people’s minds to bringing reconciliation and a political solution which is a mutually shared goal. People at the community level are prepared and willing to engage in joint activities, whether it is discussing together or doing something concrete together, that will heal the wounds of the war. Discussing the causes of the war and how it was fought can still be polarizing. But the search for a solution can be undertaken jointly, as indeed it must, at both the community and national levels. In this context, it is unfortunate that civil society interactions to promote mutual understanding of each other’s sufferings and the way forward are being viewed by sections of the government with suspicion.
- Created on 25 August 2014
This is a very troubled period for civil society. The free space for activism that is outside of the government sphere has shrunk due to the policy of centralization adopted by the government. Institutions of the state that are meant to be relatively independent of the government have come under political control. This has had the effect of weakening the system of checks and balances that ensures good governance. It is not surprising that NGOs, which are part of that larger system of governance, and which focus on issues of governance and human rights should feel themselves to be under siege. The negative comments against NGOs by government leaders are part of a trend that seeks to make them a national security problem that requires a stronger governmental hand to control. Recently there have also been publication of regulations that seek to limit the space for NGOs to function, to interact with the media and to conduct their seminars and workshops.
The role of NGOs, which are a part of civil society, has now become a major national issue. There are media headlines and editorials on the allegedly anti national impact of their work. They are being condemned for working hand in glove with the international community to investigate the last phase of the war. The latest critique of them has come through the comment of Finance Secretary Dr P B Jayasundera. Usually it is his comments on the economy that are read and analysed to gain a better understanding of the country’s economy and future prospects. But delivering the keynote address at the opening session of the three day Defence Seminar 2014, which is an international conference organised by the Sri Lanka Army, held for the fourth consecutive year, he ventured beyond the economy to state that “the operation of NGOs in non regulated environments has become a threat to financial management, inclusive development and law and order itself.”
- Created on 18 August 2014
The government is financing more lobbying companies in the US to change the minds of the US leadership. It has been the United States that has been most strongly pushing for an international investigation into the conduct of the last phase of the war. But it is not going to be so easy as influencing the President of the United States through lobbying companies. For the government’s efforts to be successful it has to show progress in two areas that convinces the international community. First, it has to come up with a superior alternative to the UN investigation that is now underway. Second, it has to show that it is serious about practices of good governance that will support such an alternative mechanism. However, the government is having setbacks in both areas which is not a recipe for success, but is one for failure.
The government’s bid to strengthen the national commission appointed by the President to investigate missing persons has induced it to widen the mandate of that body very significantly. As a result the priorities of the commission ay have to shift away from dealing with the issue of missing persons to other complex issues of international humanitarian law and war crimes that were not part of its original mandate. The Chairman of the Commission on Missing Persons has made it clear that the Commission itself did not ask for the international advisors to the commission who have been appointed. In fact they have yet to meet formally, even though a month has elapsed since the first three members of the international advisory team were appointed.
- Created on 04 August 2014
Addressing the Ceylon Chamber of Commerce, President Mahinda Rajapaksa explained to the country’s business leaders what his government had achieved in the past nine years. His government had eliminated the LTTE and created an environment in which business led development was possible. In addition, the government had invested massively in infrastructure. Government leaders frequently report on the rapid strides that the country is taking to achieve its development goals. They are able to show concrete evidence in the form of visible assets that include new expressways and many greatly improved roads, the newly opened Independence Square shopping arcade, and the new metropolis of Hambantota.
But there is a problem with the government’s development. This is its compartmentalization. Some sectors of society are prospering. They are rich, articulate and at the cutting edge of progress. But there are even larger sectors in the country, and of its people, that have been left out. This is a recipe for inequity and injustice, and for polarization and bitterness as its fruit. An example would be the hill country where the Tamils of recent Indian origin, also known as estate Tamils live. The towns populated by the estate Tamils are much like they always were. They look like fifty years ago. The gap between Hambantota and Hatton is even wider than the gap between Singapore and Sri Lanka.
- Created on 28 July 2014
The disruption of two media training programmes for Tamil journalists from the former war zones of the North in quick order makes it appear that they have become a target for suppression. In the space of less than six weeks there have been at least two attempts to prevent Tamil journalists from interacting with the larger civil society, to share their experiences and to benefit from the latest advances in methods of news investigation and dissemination. In this context the spokesman for the Free Media Movement has said, “A journalist needs to be trained so that they can do more for society. The government is stopping that from happening. What they want are journalists who will be their puppets.” He added that he had been threatened not to speak at the press conference convened to publicise the issue.
Six weeks ago, a workshop held in a hotel in Negombo on investigative reporting on the enforcement of the recommendations made by the Lessons Learnt and Reconciliation Commission (LLRC), which had been organized for the Northern Tamil journalists by Transparency International’s Sri Lanka Branch was disrupted by a mob who threatened the safety of the participants in violation of their rights to freedom of assembly and expression. The police had only been prepared to offer safe passage to the participants to leave the hotel when the workshop was prematurely stopped. But they were not prepared to ensure that the workshop continued with their protection. The right to free assembly and speech are protected in the Constitution and the police are obliged to protect these rights of the people, but this did not happen.
- Created on 25 July 2014
A delegation from the National Peace Council met the Parliamentary Select Committee established to make recommendations for a political solution to the ethnic problem, on the 6th July at 3 pm. The delegation had met the Committee on an earlier occasion and had been asked to make further submissions and clarify certain matters in the written submissions which follow:
The 13th Amendment was passed in 1987. It provided for devolution of power to Provincial Councils and the subjects and functions devolved to the Provincial Councils were set out in the List.—
Executive Power- The 13th Amendment Article 154C says. “Executive power extending to the matters with respect to which a Provincial Council has power to make statutes shall be exercised by the Governor of the Province for which that Provincial Council is established, either directly or through Ministers of the Board of Ministers, or through officers subordinate to him, in accordance with Article 154F.
154F.(1) There shall be a Board of Ministers with the Chief Minister at the head and not more than four other Ministers to aid and advise the Governor of a Province in the exercise of his functions. The Governor shall in the exercise of his functions act in accordance with such advice except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion”.
So there is provision for the Governor to exercise his Executive powers only on the advice of the Chief Minister and the Provincial Council except where under the Constitution he is required to act in his discretion.
But the Provincial Councils Act No 42 of 1987 has gone beyond the constitutional requirement and given the Governor wide powers to act in his discretion without consulting the Chief Minister. Under Art 15(2) the decisions of the Governor are also deemed to be the actions of the President.
But the Provincial Councils Act No 42 of 1987 departed from the principles under-lying the Constitutional Amendment.
All contracts entered to by the Governor in the exercise of his executive power are to be treated as contracts and executed in the name of the Provincial Council and any actions (legal) in relation to the exercise of such executive shall be brought by or against such Provincial Council( Art 16(1) and (2).