Sri Lanka: Throwing baby out with bath water

Image result for the United Nations Human Rights Council (UNHRC) resolution purportedly giving the Nation two more years to bother about 30/1 of 2015
Image credit: Sri Lanka Brief

N. Sathiya Moorthy  26 March 2019

In the end, the United Nations Human Rights Council (UNHRC) resolution purportedly giving the Nation two more years to bother about 30/1 of 2015 has helped avoid further embarrassment for the sponsors. By co-sponsoring the toothless extension resolution (as proved over the past three years), Sri Lanka now has the cake and has eaten it too. Foreign Minister Tilak Marapana’s stout defence of the war-time Government and the Nation’s security forces, so, very defiantly and definitely is something that the international community (West) may not have anticipated, to say the least.


It is not unlikely that the international community did not expect this one from a ‘friendly government’ in Colombo. After all, they had stood by Prime Minister Ranil Wickremesinghe when he was in the Opposition, both wanting war-time President Mahinda Rajapaksa out of the way, but for their own separate reasons. If the international community confused itself on the varied priorities of the two parties at the time, Wickremesinghe was/is not to blame.


More recently, when Wickremesinghe was in trouble viz, President Maithripala Sirisena, whom they both identified together, encouraged together and ‘elected’ together, reneged on the unwritten promises from a forgettable past in contemporary national history, again the international community stood by the former, and relentlessly so. As news reports from the recent past (October/November 2018) would show, until the international community came on board, Wickremesinghe seemed unsure of his own next step, and had possibly given up the fight, even without joining it, so to say.


Take a walk


The international community may have had its own reasons to give Sri Lanka more time to work on 30/1. That may have included the presidential polls due by year-end and the parliamentary polls in August next year, not to forget the long-forgotten Provincial Council (PC) Elections, in between or afterwards. It is anybody’s guess if the international community was also concerned about the ‘Sri Lankan issue’ becoming an electoral talking point in neighbouring India, where the ‘Big Two’ Dravidian parties in southern Tamil Nadu have since added the same to their manifesto for the upcoming parliamentary polls across the Nation.


But, when the chips were really down, the international community has since learnt to its possible dismay and shock that this is not the Wickremesinghe that they knew and this is the Wickremesinghe they should have known. Not stopping with docilely seconding the Geneva draft of theirs as in 2015, his leadership has walked an extra mile, not to accommodate them, but to hit out at them.


There is no vagueness in what Minister Marapana, a former Attorney-General back home, said at Geneva. He shot straight from the hip, and left no one in doubt. The UNHRC would have to accept what Sri Lanka promises on war crimes. Or, else, ‘take a walk’ seems to be the Colombo message this time. The international community would now be wondering as to who was ‘worse’ between the two, war-time President Mahinda Rajapaksa that they had targeted relentlessly, or their ‘friend and ally’ in incumbent Premier Wickremesinghe.


Vehemence


It’s not without reason that the international community should feel concerned and upset, though it may (or, may not) take time for them to reconcile to the realities of the Nation’s domestic politics that they had taken for granted all along. This was more so after their man could unseat war-time hero Rajapaksa in an election fought on their western democratic principles, and without many flaws and much complaints.


After President Sirisena’s ‘constitutional coup’ that did not happen, the international community would have been more relaxed about Wickremesinghe being on their side, wholly and fully, if not eternally thankful to them for doing what they thought he owed them, for a second time in four years. The first of course was helping unseat Rajapaksa, whom Wickremesinghe could not defeat in a ‘straight’ contest in the pre-war presidential polls of 2005, nor would want to take on in the post-war polls, five years later.


But, when Minister Marapana spoke at Geneva, the Wickremesinghe Government was telling the world from inside the UNHRC portals what the Rajapaksa regime refused to do. Back home before Marapana spoke, his predecessor and present-day Finance Minister Mangala Samaraweera, knowingly or otherwise, chided Rajapaksa for not becoming a part of the UNHRC process when asked by the international community, and boycotted the vote from the unsure commencement in 2012 and co-sponsored resolution in 2015.


In doing so, Minister Marapana added ‘consensus weightage’ of sorts on many a point that the Rajapaksa regime, especially then Foreign Minister G.L. Peiris, had listed out. Peiris might have said all those things with vehemence, but with equal knowledge of the Nation’s constitutional, legal, and judicial systems, given his academic background and authority.


No locus standi


What should surprise even the worst critics of Wickremesinghe on his kowtowing to the West on issues of serious concern to the Nation is Minister Marapana’s outright dismissal of the much-hyped Darusman Report, at one go. Prepared purportedly for the eyes of then UN Secretary-General Ban Ki-moon, and leaked deliberately by his office without any follow-up investigation either on the figure or on the leak, the Report gave an unsubstantiated high count of 40,000 Tamils dead in the last phase of the war a decade ago, in 2009.


 The ‘unofficial report’ which Ki-moon formally forwarded to Geneva for follow-up action, thus formed the basis for UNHRC Resolution 30/1. Sri Lanka’s official rejection of the figure by successive Governments, and from within now, could well mean that all subsequent international community initiatives in the matter have no leg to stand on, locus standi, to use a legal terminology.


In more than one way, the Wickremesinghe leadership has done more than what the Rajapaksa regime might have done on this score. Critics said that the Rajapaksas had thrown the baby out with the bathwater. Now, the Wickremesinghe Government has not only thrown the bathwater, but also the bathtub, and has kept the baby in hand, though not necessarily consciously and conscientiously so, unlike the other.


Unkindest cut or what


Not stopping with quoting British diplomatic despatches from war-time Sri Lanka, and also Lord Naseby’s parliamentary statements back home, Minister Marapana might have also inflicted an ‘unkindest cut’ at the erstwhile colonial rulers, though unintentionally, all the same. In doing so, not only has he proved critics back home wrong, he also ensured that he did use the Naseby ‘revelations’ at the appropriate time, at the appropriate place, and in the appropriate context, which the Government’s critics were saying, the Wickremesinghe leadership was not doing.


That all of it coincided with the time when the UK was made to sponsor the UNHRC resolution this time round, taking off from where the American cousin from across the Atlantic had left earlier, the Sri Lankan reassertion made it all incongruous, but well-designed. Considering that then British Prime Minister Gordon Brown went out of the way to shout across the Palk Strait that he was the first global leader to visit the war-torn northern Jaffna during the Commonwealth Summit in 2013, the current upturn could be even more upsetting.


Referring to the hasty OHCHR conclusions on the ‘Mannar mass graves,’ for instance, and citing an American forensic laboratory report on the specimens, the Minister recalled for the benefit of Geneva, how the tests have shown that those specimens were proved to have been from the ‘colonial era.’ Of course, Marapana did not mention the UK by name, nor could it have been so.


Leave aside the relative fairness of the British colonial rulers of the time, the American lab has also said that the specimens might have belonged to a three-century period, from the fifteenth to the eighteenth. History tells us that four different European colonial powers ‘ruled’ parts of Sri Lanka, then Ceylon, during the period, and it could have belonged to any of those eras, but again there is no knowing if they were at all involved.

Setting the agenda


Minister Marapana did not stop there, either. Reiterating his UNHRC observations from last year, Minister Marapana mentioned the LTTE and said how the “action by the Sri Lankan security forces was against a group designated as a terrorist organisation by many countries, and not against any community. The modus operandi of this terrorist group deliberately targeting civilians, has now been adopted by terrorist groups all over the world.”


If anyone back home, say the TNA, for instance, wanted any response from the Government that they have been backing to the hilt since before Elections-2015, this was it. Not stopping there, and though addressing the international community specifically, Minister Marapana observed, “Conventional wisdom teaches us that when facts do not fit a theory, the theory has to change. However, conventional wisdom does not seem to be applied to Sri Lanka’s case. It seems that even if the theory is disproved through hard evidence that absolves Sri Lanka, as in the case of the Mannar graves.”  


Back home, the security forces especially and the ‘Sinhala majority’ otherwise, can breathe easy, over the tone and tenor of Minister Marapana’s Geneva statement. Premier Wickremesinghe’s UNP supporters too are less confused, but then his international non-governmental organisation (INGO) backers may have felt let down. However, many of them are unsure if they want ‘transitional justice’ of the kind that the international community want in Sri Lanka or they want the Rajapaksas alone out of power-centres.


Yet, the Rajapaksas, Wickremesinghes, and Sirisenas of the Nation have proved them right, though belatedly and long after they themselves had lost out on the very same cause. But then, Mahinda Rajapaksa has already set the Nation’s upcoming agenda on the UNHRC front. Whoever is in power two years from now, when the UNHRC’s extended deadline for Sri Lankan compliance comes up in March 2021, will need to address Mahinda’s pointers if they have to have the backing of the ‘Sinhala majority’ ahead of the upcoming poll-series.


In a statement issued ahead of Marapana’s Geneva visit, Rajapaksa said the Government “must also repeal Acts No. 14 of 2016, No. 5 of 2018, and No. 24 of 2018, passed by the Nation’s Parliament at the instance of the incumbent Government. According to him, these laws, passed to give effect to UNHRC Resolution 30/1, were “highly detrimental to Sri Lanka’s sovereignty and the fundamental rights of its citizens.”


As Mahinda Rajapaksa recalled in his statement, Act No. 5 of 2018, for instance, titled ‘Prevention of Enforced Disappearances Act,’ “incorporated into local law, the provisions of the International Convention against Enforced Disappearances,” enabling investigation and prosecution in a foreign country, “as if it was an offence committed in that country” or even handing over the arrested Sri Lankan to the International Criminal Court. 

Likewise, Act No. 24 of 2018, was a further enabler, “facilitating cooperation between Sri Lanka and foreign countries in locating witnesses or suspects,” as desired by UNHRC Head, Michelle Bachelet, ahead of the current session.


Mahinda Rajapaksa’s statement also referred to Parliament passing the ‘Office on Missing Persons Act’ in August 2016, in “partial fulfilment of the numerous pledges given in Resolution 30/1” and “after a farcical debate of less than 40 minutes.” As he pointed out, the law empowers Office on Missing Persons (OMP) officers to “search any Police station, prison or military installation at any time without a warrant and seize any document or object they require.”


It is anybody’s guess if a ‘tribunal’ of a kind as Rajapaksa says it effectively, would stand judicial scrutiny inside the country. The law did/does, does not say much about what the OMP could do viz., Nations where such other ‘missing persons’ may be wandering about freely under aliases and/or as local citizens, with local legal protection against extradition, at times from Sri Lankan laws and criminal justice system.

It is the kind of legitimate power and authority that OMP would require after the West simply pooh-poohed the half-hearted attempts of the Rajapaksa regime through the Justice Paranagama Commission, but does not have. It is also the kind of power that the Government has given other Nations under the two pieces of legislation last year, to have Sri Lankan citizens arrested and arraigned either before their own Courts or even before the International Criminal Court. 

http://www.ceylontoday.lk/print-edition/8/print-more/27159

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