By Veluppillai Thangavelu –

Veluppillai Thangavelu

President Sirisena Is Repudiating His Own Promise Not to Allow the January 8th Revolution Revoked

The curtain fell on United Nations Human Rights Council (UNHRC) 34th sessions on March 24th, 2017. On the previous day the UNHRC adopted a consensus resolution 34/1 on Sri Lanka without a vote. The resolution 34/1 gave Sri Lanka 2 more years to fulfil its commitments for reconciliation and transnational justice.

Resolution 34/1 in effect is a roll-over which asked Government of Sri Lanka (GoSL) to implement UNHRC resolution 30/1, and the need for further significant progress. The Council identified many measures that are still outstanding;

Earlier, during the Interactive Dialogue, the High Commissioner for Human Rights Zeid Ra’ad Al Hussein expressed concern over Sri Lanka’s slow progress in establishing transitional justice mechanisms to address accountability and emphasized the need of an agreement on a comprehensive strategy, with a time-line and detailed benchmarks, to address all the transitional justice pillars identified in resolution 30/1 of 2015, which was co-sponsored by Sri Lanka, calling for “full implementation”.

Resolution  34/1 requested the Office of the High Commissioner (OHC)  and relevant special procedure mandate holders, in consultation with and with the concurrence of the GoSL, to strengthen their advice and technical assistance on the promotion and protection of human rights and truth, justice, reconciliation and accountability in Sri Lanka.

The resolution also requested the OHC to continue to assess progress on the implementation of its recommendations and other relevant processes related to reconciliation, accountability and human rights in Sri Lanka, and to present a written update to the Human Rights Council (HRC) at its 37th session, and a comprehensive report, followed by a discussion on the implementation of Council resolution 30/1, at its 40th session. Thus, Sri Lanka has been given a further period of two years to implement resolution 30/1.

Tamil Diaspora groups expressed opposition to give any extension to Sri Lanka, but to refer Sri Lanka to the UN General Assembly/UNSC. Referring Sri Lanka as suggested is not easy. Even if a majority of countries vote for a resolution, it is not binding on the UNSC. The General Assembly has a total of 193 countries and not one member is likely to move a resolution against Sri Lanka.
Further more, if UN Assembly is approached, then the process in UNHRC comes to a halt. The High Commissioner will cease to submit any reports on Sri Lanka as stated in resolution 34/1.  Generally speaking to take a country to the United Nations Security Council (UNSC) that country must be a global threat to peace and security. Obviously, Sri Lanka is not a country threatening peace and security. The only cases now before the UNSG based on threat to peace and security is Libya and Sudan. North Korea is one country that is issuing threats to neighbouring countries, including US. It is threatening an all out nuclear war with the US and claims its deadly inter-continental missiles can hit US and kill millions. Japan is calling for new laws to allow Tokyo to launch pre-emptive strikes against an increasingly aggressive North Korea.

When the maverick Republican nominee Donald Trump triumphed at the polls to emerge as the US 45 th President many thought he will go easy with troubles in small countries like Sri Lanka. To confirm such speculation President Trump has proposed cutting   funds for   State Department   by  30% while increasing defence spending by another US$ 64 billion taking the total to US$ 610 billion. Second place China’s defence budget is just US$ 216.4 billion.

As soon as Donald Trump won the election, President Maithripala Sirisena told SLFP membership in Galle on November 28, 2016 that he will write to Trump asking his administration to drop the war crime allegations against Sri Lanka. “I will write to President Donald Trump to ask him to free us from these accusations, I was able to save the former President Mahinda Rajapaksa and our valiant soldiers by giving the UNHRC the necessary messages.” Sirisena was referring to the leniency shown by the US and the international community after he came to power in January 2015.

July 8, 2016 (Panadura) – President asserts he will not agree to foreign judges

President Maithripala Sirisena today emphasized that he will not allow any foreign court, judge or organization to interfere in the internal administration and judiciary in the country. President was speaking at the 70th National Upasampada Vinayakarma (Higher Ordination) ceremony of the Sri Lanka Ramanna Maha Nikaya, held today (July 8) at the Town Hall Playground in Panadura. He said he will not allow any national or international activity to take place which challenges the freedom, independence and the territorial integrity of the country. It is the policy of the current Government to act according to the advice and guidance of the venerable Maha Sanga in its every activity related to national security and other matters, he said.

February 26, 2017 (Polonnaruwa) – No room for foreign judges says President Sirisena

President Maithripala Sirisena reiterated that he has put an end to the arguments and discussions over the issue of bringing foreign judges for the proposed judicial mechanism to investigate the allegations of war crime and human rights violations by convincing the international authorities and its leaders that such process is not needed in Sri Lanka.

Addressing a ceremony in Polonnaruwa new town after laying the foundation stone for a court complex in Polonnaruwa, President Sirisena pointed out that he had conveyed this message to UN Secretary General, High Commissioner of the UNHRC and also to the leaders of the powerful nations in the West.

“According to the legal framework of the country and constitution of our country there is no room to bring any foreign judges to Sri Lanka to hear any case. If we are to bring them here we need to change the laws and also the Constitution of the country,” he added. The President said that the judges of Sri Lanka in terms of education, intelligence, knowledge and experience are not second to other judges in the world and they are capable of handling any issue locally or internationally. Therefore, there is no necessity to obtain the service of foreign judges to hear the cases about Sri Lanka he added. He said the Government will improve the standards of the judiciary and the judges of the country.

Unfortunately, Tamil leaders and people do not share the trust and confidence President has about the judiciary. On 27 July, 2016   the court acquitted six former army Corporals who were accused over the massacre of Tamil civilians including 13 women and 9 children below the age of 12 allegedly by the Sri Lankan army in a village called Kumarapuram. The massacre took place on February 11, 1996. The accused were tried before a pan Sinhala jury. Similarly, all 5 accused, including three navy intelligence officials and two members of the paramilitary Karuna group, in the assassination of former MP Nadarajah Raviraj and his body-guard driver were acquitted on December 24. 2016.  Raviraj was assassinated on November 10, 2006 in Colombo.

Major advances in enforcing the rule of law through the 19th  Amendment were undermined when President Sirisena forced the head of the bribery commission, Dilrukshi Dias Wickremasinghe, to resign, saying he publicly condemned her for the prosecution of three retired admirals and the former defence secretary Gotabhaya Rajapaksa. He felt ‘disgust’ that ‘military commanders who led the successful campaign to crush separatist Tamil Tiger rebels in 2009 should not be humiliated by bringing them to court’ he said. (EconomyNext, 17.10.2016.)

President Sirisena blasted those who took the former Defence Secretary Gotabaya Rajapaksa and three former Navy Commanders for taking them to court. “I totally condemn the action of taking the Navy Commanders who fought the war to courts,” the President said at a function at the Sri Lanka Foundation Institute in Colombo. He described on the ongoing bribery and corruption probe that they were “politically motivated”.

“I condemn the actions of FCID (Financial Crimes Investigations Division), the CID (Criminal Investigations Division) and the Bribery Commission. They should not work according to political agendas, if they do, I will have to take stern action against them. I deplore their recent actions and I want to express my disgust,” Sirisena said, stressing that the Independent Commissions established under the 19 th Amendment should keep him informed about their actions. He also berated the FCID, CID and the Independent Commissions for acting beyond their mandate and humiliating the war heroes by taking actions against them.  (President official website)

This is a far cry from the lofty statements President made to mark the completion of 100 days in office in March. 2015.  “Let us take the Judiciary. You are aware of how the rule of law was so badly damaged. Did the people have confidence in the Judiciary? The Commission on Bribery or Corruption, the Supreme Court and all these institutions were subjected to telephone calls of those who were in power. You know very well how persons associated with various crimes obtained freedom at that time; how judgments in cases were obtained. Did the Attorney General have the power at the time to act according to his office? Today, with the appointment of the Chief Justice, the Commander of Army, all who serve in those sections have a clear acceptance that these appointments had been made on seniority and suitability for such positions. Therefore, we have strengthened the Rule of Law, which is essential for freedom and democracy” said President Sirisena. He also used to say that he will not allow the gains from the January 8th revolution to be reversed.

As late as March 02, 2017 President Sirisena claimed he has guts to dismiss a United Nations demand for foreign judges to probe the alleged war crimes committed during the conflict with the LTTE. “I have shown the strength of my backbone,” President Sirisena said while addressing the executive committee meeting of his Sri Lanka Freedom Party (SLFP).  His comments were seen as a response to criticism by his own SLFP party members. President went on to state “Two weeks ago, the UN Human Rights chief had said Sri Lanka must have international judges in the accountability mechanism. The following day, I had the guts to dismiss it,”

What makes President Sirisena to lose sleep is UNHRC resolution 30/1 together with UNHRC resolution 34/1 which calls for the creation of an international hybrid mechanism to try those accused of war crimes.  Operative clause 6 of resolution 30/1 which reads as follows:

6. Welcomes the recognition by the Government of Sri Lanka that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system, notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers, authorized prosecutors and investigators..

Unfortunately, President Sirisena cannot indulge in cherry picking. Having co-sponsored resolution 30/1 in 2015 and 34/1 in 2017 he cannot go back on it now.  If he did not agree with the resolutions, he should have declined to co-sponsor the resolutions or took action to remove or amend Operative Clause 6 of resolution 30/1.  President Sirisena cannot eat the cake and have the cake. He cannot dodge the implementation of the resolutions fully. The inclusion of a hybrid judicial mechanism is the outcome of a tripartite agreement reached between Sri Lanka, US and TNA in 2015.

Since 2011, the US has moved 5 Resolutions that calls for civil war accountability, transitional justice, The UNHRC took a 180 degree turn in 2015 compared to 2009 -2014.

“Sirisena’s remarks are worrisome and alarmingly reminiscent of speeches by his rival and predecessor Mahinda Rajapakse,” the International Crisis Group’s Alan Keenan told AFP.  Human Rights Watch (HRW) has said it will back the resolution on Sri Lanka calling for the participation of foreign judges and prosecutors because of a history of failure by local judges and prosecutors, particularly in dealing with sensitive war crimes allegations.

Amnesty International’s Secretary General Salil Shetty had called the Government to deliver on the commitments made on accountability while appreciating the positive improvements made with the human rights situation over the last two years. Highlighting that the Government had given a commitment to the UNHRC to bring accountability for past human rights abuses, Shetty said the Government was now “running out of time.” “Based on the human rights analysis, we are now calling on the Government to say that we are now running out of time. The UN HRC has given two years and now is the time for action. The GoSL must publish a timetable of action for delivering accountability.

Now President Sirisena not only remains adamant, but also has upped the ante many notches. He is speaking the language of his predecessor Mahinda Rajapaksa, strongly rejecting the proposal made by the UNHRC to bring foreign judges. The President stressed that the present government will not bow down to the whims and fancies of Non-Governmental Organizations functioning under the foreign influence and charges the members of the three armed-forces. The President emphasized that the country’s sovereignty and territorial integrity are his priority and he will always appear responsibly on behalf of the war heroes to protect their honour and safety during his tenure as commander-in-chief.

An English translation from his speech posted on the President’s website said; “Whatever allegations are made, we will reject them. There was a proposal made demanding that Sri Lanka must have foreign judges to investigate allegations against the war heroes. I clearly said that I am not ready to accept that. There are some Sri Lankans who work through NGOs and reach wrong conclusions for the sake of money. They carry out wrong campaigns against the armed forces. I am not ready to govern the country in accordance with their wishes. I am not prepared to bring allegations against the armed forces in accordance with their wishes. I am not willing to hear cases according to their wishes.”

Falling in line with President, Prime Minister Ranil Wickremesinghe is also singing a different tune now. He has publicly acknowledged not only that having foreign judges in a hybrid court was impossible under the present constitution, but that a constitutional amendment to make way for it was not acceptable either. Addressing Buddhist monks at a religious ceremony in Weeraketiya he said “Our judges have taken oaths (prathignawa) in this country, foreign judges have not. There is no provision for it. If the constitution is amended what happens? There would have to be a referendum. Then what would happen is that we will lose the referendum like David Cameron. If we take the constitutional route we will lose in a referendum. So we have said this cannot be done either.” Wickremesinghe went on to say that if any in the tri-forces have broken the law, action could be taken under the tri-forces law or national law, and stressed that the need of the hour was to reach a settlement (rata samathayakata path kireemai). So the prime minister has realized the futility of expecting reconciliation to come about through this path. He reiterated these points in parliament.

Not willing to be left behind, Foreign Minister Mangala Samaraweera finally decided to march to the drums of his masters. In his speech to the UNHRC 34th sessions, he sheepishly avoided any reference to foreign judges, defence lawyers, authorized prosecutors and investigators. Such arguments are ridiculous and bordering on idiocy. This despite the fact the   Consultative Task Force on Reconciliation (CTF) has in its report dated January 3, 2017 after public hearings and discussions across Sri Lanka, recommended a “hybrid court” with both local and foreign judges to prosecute war crimes. However, former President Chandrika Kumaratunga who is the Chair of the Consultative Task Force on Reconciliation Mechanisms (CTFRM) has also repudiated this key recommendation of the Task Force she appointed. Tamils must be wondering whether history is repeating itself.

In regard to progress in releasing both state and private lands to the rightful owners, Mangala Samaraweera had a sorry tale to tell the Council. He said 5,515.98 acres of state land and 2,090.03 acres of private land were released in 2016; and 1,383.51 acres of state land and 30.54 acres of private land were released in January 2017. What he failed to inform the Council is that according to statistics compiled by the CTF 21,349.69 acres of state land and 5,880.78 acres of private land totalling 27,230.47 acres of land remain occupied by the armed forces in the North. To this figure another 24,000 acres of land belonging to the Forest and Wild Life department and occupied by armed forces should be added.

What all these mean is the government of Yahapalanaya is displaying lack of back bone to bring in reconciliation as pledged during the presidential and parliamentary elections. Government is dilly dallying not only in regard to creating  a Hybrid Court to try those accused of committing war crimes, but also in regard to investigations into fraud,  financial corruption, waste and mismanagement. Two years have elapsed but not one person has been convicted and sent to jail so far. The Government, especially the President and Prime Minister have no stomach  “dismantle the repressive structures, institutional culture of impunity, full restoration of rule of law and a solution to the national question through extensive devolution of power  and deeply entrenched decades of erosion of human rights.”

In the meantime, Mahinda Rajapaksa who was responsible for several murders, involuntary disappearances, misappropriation of state property, and misuse of office threatens to topple the government very soon. With the government in disarray, Ministers fighting among themselves, bonds scam, openly  challenging the UNGRC that it will not  implement the key Operative Clause 6 of  resolution 30/1 Mahinda Rajapaksa’ may have the last laugh.

Sadly, President Sirisena has ceased reminding people about the ‘silent revolution’ of January 8 that swept a dictatorial and corrupt regime out of power. In his own words he said “I did not enter politics randomly or abruptly – my experiences in politics spans close to 49 years. I will not let any party decision tarnish or harm the transformations that occurred in this country after January 8 – I will protect it.” Despite brave words there is mounting criticism as the country is sliding back to the dark era under Mahinda Rajapaksa.

The UNHRC resolutions of 30/1 and 34/1 are not pieces of paper; they are solemn commitments by the GoSL to take the country on the path of reconciliation and transitional justice. There are dire consequences and no escape if the government fails to comply with UNHRC resolutions.

Unfortunately, President Sirisena himself is repudiating his own resolve not to allow the January 8th Revolution revoked.