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.