By R.M.B Senanayake –
The Government has taken up the position that the UN has no mandate to inquire into the alleged violations of human rights during the war and that it is an encroachment on our national sovereignty.
At the UN’s founding Conference in San Francisco in 1945 this is what President Truman said “ We all have to recognize, no matter how great is our strength that we must deny ourselves the license to do always as we please.” Of course the USA has not always followed Truman’s suggestion. The Five Members of the Security Council agreed to be members of the UN only if they were given the right of veto and they have continued to exercise it depending on whether the UN intervention is against one of their allies or not. But they have not rigidly followed the principle of debarring UN intervention on the ground of national sovereignty.
The UN Charter was drafted in consultation with experts from all the main religions. U Thant represented the world’s Buddhist opinion. The core principles of holding government authority to account and placing the wishes of the people before the rulers is found in the philosophical traditions across the Asian continent, including in Confucianism. So the Charter has been accepted universally by States who are the Members of the UN.
There is a difference between the interests of the people and the interests of the rulers or those who govern a country. Rulers like to do as they please and do not want to be bound by laws. The principle of the Rule of Law came to be established among nations over a long period of history. The Rule of Law is contrasted with the Rule of a person. For a long time mankind has been ruled by kings who ruled according to their wishes and who refused to be bound by any other law than their own will and pleasure. But over the years the Rule of Law came to be accepted as binding on the ruler as much as the ruled. The King was held accountable for violating the law and one or two kings were executed for violating the law. Today the Rule of Law has become enshrined in the UN Charter.
The Universal Declaration of Human Rights of 1948 recognizes that all human beings have fundamental rights and freedoms, and states that … it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…”
For the UN, the Secretary-General defines the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies” (2004))
The OPA and the Bar Association have protested to the Government about the violation of the Rule of Law. The latest incident is with regard to the seminar which was to be conducted by Transparency International. These are violations of the Rule of Law. The representations of the Bar Association and other human rights organizations have been largely ignored by the authorities. What then should those interested in upholding the Rule of Law do?
The UN has recognized the right of persons concerned about the violation of the Rule of Law to complain to it. A petition can be submitted “by a person or a group of persons claiming to be the victims of violations of human rights and fundamental freedoms, or by any person or group of persons, including non‑governmental organizations, acting in good faith in accordance with the principles of human rights, not resorting to politically motivated stands contrary to the provisions of the Charter of the United Nations and claiming to have direct and reliable knowledge of the violations concerned. —- But Domestic remedies have to be exhausted, “unless it appears that such remedies would be ineffective or unreasonably prolonged”.
So the people have a right to complain to the UN if there have been violations of human rights and the Rule of Law. Nobody (except the Tamil Diaspora) seems to have resorted to this action despite the numerous day to day violations of the rule of Law. Even the UNP MPs who were attacked by thugs in Hambantota have thought it necessary so far to take the matter to the UN. Instead the MPs are now being called upon to declare that the UN has no right to intervene in cases of violations of human rights and the Rule of Law.
The Members of Parliament are supposed to represent the interests of the people they were elected to represent. The people like in most third world countries are ignorant of the values of modern governance. They once re-elected an MP who was found guilty of bribery. But it is the duty of the leaders to educate the people- a task our politicians have failed to do. So the question Parliament is asked to decide is bound up with the issue of whether the people’s right to appeal to the UN exists or not.
The UN has failed to intervene in several atrocities like the Rwanda genocide, the apartheid in South Africa, the conflict between Israel and the Palestinians, the genocide in Syria etc .The threat of Veto by the Big Powers came to play in several of such instances.
What is Sri Lanka’s stand on these issues in other countries? Whatever decision the Parliament takes will have a bearing on our foreign policy as well as and the rights of the people to the Rule of Law.