By Dayan Jayatilleka –

Dr. Dayan Jayatilleka

“Makes me sick, motherf*****, how far we done fell.” – Detective ‘Bunk’ Moreland to Omar in ‘The Wire’

UN Human Rights High Commissioner Zeid Ra’ad Zeid Al-Hussein, referring to the Report on Sri Lanka which he plans to release on Wednesday, made comments which are dangerous, saying:

“…Its findings are of the most serious nature. I welcome the vision shown by President Sirisena since his election in January 2015, and the commitments made by the new Government under his leadership. But this Council owes it to Sri Lankans – and to its own credibility – to ensure an accountability process that produces results, decisively moves beyond the failures of the past, and brings the deep institutional changes needed to guarantee non-recurrence”.

What Mangala Samaraweera and this government must remember is that the UN Human Rights Council is not the government or State of Sri Lanka. Sri Lanka is governed primarily by its own Constitution. In the absence of an international government, international law is subordinate and secondary to a country’s Constitution. The main duty and responsibility of the Sri Lankan government, state and armed forces were and are the defense of its citizens from an armed enemy and the defense of its sovereignty, independence, territorial integrity and unity—then, during the war, and now, in peacetime. That is the Social Contract. The UN Human Rights Council and most certainly the Office of the High Commissioner do not constitute a world government or state! There is no such entity! Therefore, neither the Council nor the Office of the High Commissioner have either a right or mandate to “ensure an accountability process that produces results…and deep institutional changes” in any sovereign country. That is primarily an internal matter, and in a country like Sri Lanka which is at peace and does not constitute a threat to regional still less international peace, it is a purely internal matter.

Meanwhile Mr. Mangala Samaraweera seemed to forget where he was when he addressed the United Nations Human Rights Council in Geneva today, September 14th. He seemed to have woken up and thought he was in the Sri Lankan parliament. I say this because he spoke so much about Sri Lanka’s domestic political and electoral events and processes in his address to the UN HRC, where no one, especially not distinguished visiting speakers at Ministerial level, talks at any length or any degree of concrete detail, about local politics and electoral outcomes.

In short, Mangala made a blatantly partisan political speech, which is in violation of the norms of discourse at the UN HRC. But that was the very least of his transgressions.

The word ‘Tamil” appears four times in Mangala’s speech. Now that in and of itself is unexceptionable, but a non-Sri Lankan child listening to his speech would think that there were only Tamil people in Sri Lanka, because he made no reference to any other community living here— the words Sinhala or Muslim never appear in Mangala’s discourse.

He talked twice in his speech of “the necessity of reaching a political settlement that addresses the grievances of the Tamil people” (paragraph 6) and “a political settlement that addresses the grievances of the Tamil people (paragraph 16). He pledged a new constitution through a constituent assembly, in the near future, in order to address the grievances of the Tamil people, which indicates that it is only the Tamil people who have grievances worth addressing; that Sri Lanka’s ethnic problem can be resolved by addressing only the grievances of the Tamil ethnic community; that it is not incumbent upon the Tamil, Sinhala and Muslim peoples to arrive at consensus through compromise (above all which reflects the demographic realities of the island). We seemed to have moved from the deplorable formula of “Sinhala Only” to the no less deplorable one of “Tamil Only”!

His pledge also reveals that the primary aim of the new constitution is to address Tamil political grievances, and that logically, the proposed solution would be one that cannot be accommodated within the existing Constitution, even by serious reform such as the 19th amendment. So what could be the change that requires a brand new constitution to address Tamil grievances and aspirations but one that goes qualitatively beyond the parameters of the existing solution, namely the 13th amendment?

I say ‘qualitatively’ because a mere adjustment to the 13th amendment would only require an amendment. Whatever lies beyond the 13th amendment, also resides—if one is to go by the Supreme Court’s determination of 1987 on the 13th amendment—outside the framework of the unitary state.

One must recall that the unitary state was deemed necessary for Sri Lanka by two stellar legal intellects during the Constitutional debate of 1972 with Mr. SJV Chelvanayakam, and none of the two were Sinhala Buddhist chauvinists: Dr. Colvin R de Silva and Mr. Felix Dias Bandaranaike. Dr. de Silva, a Marxist of Trotskyist persuasion, argued from his scholarly vantage point as the winner of the prize for the best results for the subject of History in the British Empire, that given Sri Lanka’s history and geography, a unitary state was imperative to maintain its unity.

For him, in other words, in the concrete case of Sri Lanka, there could be no daylight between ‘unitary’ and ‘ united’; united and unitary were coterminous; ‘unitary’ was the condition, indeed the precondition, of unity and territorial integrity.

Mr. Samaraweera made certain other dangerous promises with regard to accountability, a concept which he uncritically embraced. He indicated that there would be new laws to create new legal mechanisms, which he attempted to justify and cover up by a reference to the special legislation which set up the Criminal Justice Commission in the early 1970s.

This undemocratic piece of retroactive legislation was severely criticized at the time by the Civil Rights Movement and it led to a split initiated in the government’s ranks, by Dr. SA Wickramasinghe and Sarath Muttetuwegama of the Communist Party.

More importantly, Mangala is being manifestly dishonest because that new legislation was deemed necessary for a very simple reason—the JVP rebels of April 1971 had to be prosecuted for the offense of “bearing arms against the Queen”, which was highly anomalous. There was no law on the books under which they could be prosecuted. Under such highly exceptional circumstances, exceptional laws were arguable necessary.

What on earth could be the need for such new laws and new mechanisms today, when there is manifestly no such exceptional situation? Any wrongdoing during or after the war can be investigated and prosecuted under existing laws and by existing institutions which have been rendered more independent by the 19th amendment. What is it that cannot be done under the normal law and by the existing framework? What is the need for new laws and institutional mechanisms, except to initiate a witch-hunt, with foreign involvement and participation?

Mangala also pledged a Truth and Reconciliation Commission with the involvement of South Africa. South Africa’s TRC was in lieu of punitive, lacerating prosecutions. It was itself an accountability mechanism, not an addition to another one. Mangala has just pledged a South African type TRC, not in lieu of but together with a new, special mechanism for accountability!

Sri Lanka’s Minister of External Affairs took a sideswipe in his speech at the concept of “sovereignty”. It would have been alright to criticize an erroneous use or even an erroneous notion of sovereignty while simultaneously reiterating one’s own commitment to the concept and its defense, in keeping with the use of that concept in the founding Charter of the United Nations and the platform of the Non Aligned Movement to which Sri Lanka belongs. Significantly Mangala did no such thing.

Quite significant was the fact that the full text of Mangala written speech (doubtless distributed to the Council) contained pledges which his spoken address omitted. In it he pledges “security sector reform”, “the repeal of the PTA” and the review of the Public Security Ordnance– which dates back to 1947. The full text reads: “Additionally, Mr. President, the Government is committed to … disengagement of the military from commercial activities; undertake security sector reform …review and repeal the Prevention of Terrorism Act and replace it with anti-terrorism legislation in line with contemporary international best practices; review the Public Security Ordinance Act…” (https://www.colombotelegraph.com/index.php/sri-lankas-response-to-unhrc-the-full-text-of-foreign-affairs-ministers-speech-today/)

Listening to Zeid Al Hussein and Mangala Samaraweera, I was reminded of the Special Session of May 2009 in which Sri Lanka earned the support of a near two-thirds majority of the Council’s members for our defense of our sovereignty, unity and territorial integrity. During the war years we had successfully fended off, with the support of the Council, two High Commissioners for Human Rights— Louise Arbour and Navi Pillay. Today I was struck by the difference between Sri Lanka—and Sri Lanka’s UN diplomacy– then and now. What immediately sprang to mind were the lines of the character Detective ‘Bunk’ Moreland (modeled on a real veteran of the Baltimore Police Force) talking to the criminal anti-hero Omar, the favorite character of President Obama, in what was his favorite TV series at that time, The Wire: “…As rough as that neighborhood could be, we had us a community…Makes me sick, mother******, how far we done fell.”

*Dayan Jayatilleka, PhD, was Ambassador/Permanent Representative of Sri Lanka to the United Nations Geneva 207-2009 and a vice President of the UN Human Rights Council 2007-2008