Tuesday, August 3, 2021

Government by, for and with the UNHRC or the people?

By Malinda Seneviratne

Last week we wrote that it’s time for the Geneva Circus and that it would come with molehills and mountains. Well, now we have it all in a single document. The report of the High Commissioner for Human Rights on Sri Lanka is now in the public domain. A dismissing observation frequently used by high school debaters in another era is apt: ‘It reminds one of a Texan bull — a point here, a point here and, yes, a lot of bull between.’

As expected the report waxes eloquent over Resolution 30/1, one which the then Government in its wisdom (read ‘a combination of arrogance, ignorance and pernicious intent’) co-sponsored and from which this government duly withdrew. That co-sponsorship was severely criticized by the then opposition and it is reasonable to assume that the defeat of the Yahapalana Government had a lot to do with that intemperate move. It is not surprising that apart from the aghast of the likes of Mangala Samaraweera and the pro-resolution NGO adjuncts of that government, the decision to withdraw was barely even commented upon in Sri Lanka. Had to be done, was done. That was the message.

The UNHRC report then talks of ‘emerging threats to reconciliation, accountability and human rights’. Flag that word ‘emerging.’ We’ll get back to it presently. The implementation of Resolution 30/1 is commented on. Conclusions and recommendations are offered.

Here are the ‘threats’: a) militarization of civilian government functions, b) Reversal of Constitutional safeguards, c) political obstruction of accountability for crimes and human rights violations, d) majoritarian and exclusionary rhetoric, e) surveillance and intimidation of civil society and shrinking democratic space, f) new and exacerbated human rights concerns.

Appointment of ex-military officers as heads of certain state institutions doesn’t constitute ‘militarization.’ They are, for all intents and purposes, civilians and have the same legitimacy as, say, some NGO backer of a particular government being appointed to head, say, the State Pharmaceutical Corporation. However, the extensive role of the security forces in responding to the Covid-19 pandemic can certainly be construed as ‘militarization.’ The report divests comment of context. If Sri Lanka has had any success in managing the pandemic, it is on account of two factors: a strong health infrastructure dominated by state agencies and the absolute commitment at great risk of security forces in tracking and tracing operations over and above the daily grind of ensuring that basic safety protocols are maintained.

It reminds one of the hue and cry over the relief centers set up in anticipation of the end of the conflict and gradually downsized as per lessening requirements following resettlement of the displaced. ‘Concentration camps!’ screamed the objectors, who, not surprisingly are still to go-to people for information when reports such as this are compiled and who, again unsurprisingly, were ardent backers of the Yahapalana government whose ‘performance,’ again unsurprisingly, is (mildly) applauded in the report. Just imagine a bunch of NGOs handling that unprecedented situation where hundreds of thousands of civilians previously held hostage by the LTTE had to be fed, clothed, housed and most importantly connected with families torn apart as the LTTE corralled and moved them to maintain its ‘human shield’. Just imagine a single ministry or department handling the same. It would have been a disaster.

The High Commissioner is ‘particularly troubled’ by the appointment of Lt Gen Shavendra Silva as Army Commander and Maj Gen (rtd) Kamal Gunaratne as Secretary, Ministry of Defence, because ‘it is ALLEGED (note the word) that they are implicated in ALLEGED (that word again) war crimes and crimes against humanity.’ Governments cannot punish anyone by denying seniority-driven promotions on account of allegations, and certainly not those submitted by individuals and organizations with dubious agenda based on statements/claims that are unsubstantiated. That’s with respect to the Army Commander. As for Gunaratne, he is, as pointed out above, a civilian and the objections on account of allegations are of no worth for the very same reasons mentioned with respect to Silva’s appointment.

Constitutional safeguards. The reference is to the 20th Amendment and talks of ‘democratic gains of the 19th Amendment’. The key ‘issue’ for Michelle Bachelet, the High Commissioner, is ‘[the erosion] of the independence of key commissions and institutions on account of procedures to select, appoint and dismiss. The 19th, she says, made for a constitutional council of ‘eminent persons’. The CC was severely tinted in favor of politicians. Their eminence, we don’t have to talk about. As for ‘civil society representatives’ they were all political addicts of the then government. They rubber stamped the will (whims and fancies, really) of the then Prime Minister. The 20th has a Parliamentary Council. All politicians. As eminent or otherwise as those in the CC. And look what they’ve done! They approved the promotion of the six most senior judges of the Court of Appeal to the Supreme Court! How appalling, eh? Then they approved the top most senior judges of lower courts plus a highly respected senior lawyer plus a person from the AG’s Department to fill vacancies in the Appellate Court. Appalling, that!

To be fair, not all appointments to the various commissions followed the same logic. Partisanship has been a factor. However, nothing in these appointments are ‘worse’ than those we saw during the yahapalanaya years; those appointments didn’t provoke as much as a murmur from the bosses of the UNHRC at the time. Telling!

As for ‘democratic space,’ the government has not held the long-postponed provincial council elections. True, they are white elephants. True they are the outcome of the most pernicious piece of post-independence legislation (the 13th Amendment). It’s part of the constitution though. Hold them or amend the constitution, that’s what is logical. Apart from this, it is silly to say that democratic space has shrunk. Elections were held just a few months ago. No complaints of any wrongdoing there. NGO activists can claim to be scared to speak. Claim. It is useful to say ‘scared’.

The report talks about political victimization. Now there are two sides to this coin. The gripe is about cases filed during the previous regime being withdrawn. Fair enough. However, the UNHRC has not bothered to consider the possibility that there were thousands who were hauled before the FCID during that period, many put behind bars etc., but no one found guilty. Whether this is due to some back-house deal among politicians or simply lack of evidence, we don’t know. However, it is no secret that the FCID was run by a few pro-UNP lawyers who used the mechanism to harass one and all who they imagined were Rajapaksa loyalists. If indeed THAT was victimization, offering relief is certainly not out of order. The report makes much of the Shani Abeysekera case, forgetting that he was in the thick of things in the vendetta circus of the previous regime.

The report takes issue with the ‘Commission on Victimization’. The High Commissioner alleges, ‘The Commission has also interfered in other criminal trials, including by withholding documentary evidence, threatening prosecutors with legal action, and running parallel and contradictory examinations of individuals already appearing before trial courts.’ It’s up to the Commission to respond to these charges, which are certainly serious.

Then it talks of ‘majoritarian and exclusionary rhetoric’. First off, we’ve had a nauseating load of ‘minoritarianism’ and minoritarian-driven ‘exclusionary rhetoric’. Secondly, the allegations are nothing more that perceptions and demonstrate a woeful lack of appreciation of history, heritage and most importantly demographic realities.

For example, the report says, ‘In June 2020, a Presidential Task Force was established on the sensitive issue of Archaeological Heritage Management in the Eastern Province, consisting almost entirely of Sinhalese members, including two Buddhist priests, despite the diverse population and heritage of the region.’ Here’s the truth. The vast majority of archeological sites in the island that are ‘Buddhist’ in character so happen to be in the Northern and Eastern Provinces. The vandalism of the same at the hands of the LTTE is very well documented. The Government could have included Muslim and Tamil historians and/or archaeologists in this Task Force, true, but the UNHRC statement seems to confuse the past and present. This is archaeology. Period.

As one might expect, the issue of disposing the bodies of the Covid-19 dead has been mentioned. This is a contentious issue with respect to which the Government has not covered itself in glory. However, the politicization of the issue has not been the preserve of the government or the majority community. Not a single all-Muslim community has come forward to say ‘bury them here, right here in our village!’ That ‘lack’ indicates how politicized the issue is, over and above the constant shifting of goal-posts regarding this issue by Muslim representatives (first it was ‘our religious right’ and when that was sought to be affirmed by arranging burial in the Maldives it was ‘we want to be buried in our motherland; now God’s Kingdom now and now Motherland!). Anyway, the UNHRC alleges ‘impact on religious freedom’ and talks of the Covid-19 pandemic ‘exacerbating the prevailing marginalization and discrimination suffered by the Muslim community’.

Marginalized? In what way? Discrimination? In what way? Has Bachelet been advised on privileges enjoyed by the Muslims that are denied to other religious communities? Has the UNHRC talked of the privileges embedded in Muslim Marriage and Divorce Act and of course the rank sexism in that community affirmed by the same? Is the marginalization and discrimination of ‘Muslims women’ not an issue for the UNHRC?

The section on surveillance and intimidation of civil society is laughable. Are these actors, with sad and even corrupt histories, above the law? Can they not be questioned or investigated? In any event, all we have with respect to this ‘issue’ are (we assume for lack of any other evidence), complaints. The complainants, as is well known, need to paint a picture of woe to remain relevant (and their organizations to remain financially viable). What’s wrong in checking on funding sources in a world where international organizations are used as cat’s paws by certain countries to destabilize others, especially when the governments in power are not ‘friendly’. This government is certainly not malleable. The previous one was not just malleable but seemed to consider genuflection an article of faith!

The section on Hejaaz Hizbullah is not without merit. There were technical errors committed in the arrest. He’s under a detention order. The UNHRC is upset that he might go for 10 months without being charged. It is indeed revealing of the true political will of the UNHRC that it found no compulsion to comment on the case of Pilleyan (who went 5 years (!) without being charged!).

‘Mysterious deaths under custody’ is an issue. It is a long-standing issue. The 2015-2019 period saw many such cases. UNHRC noted some of these cases but didn’t make a song and dance about it. Molehills were left as molehills. However, such ‘incidents’ scar the government. It’s something the Government does not need.

It is then a report that is full of exaggeration and in a sense a regurgitated whine over Resolution 30/1. It is a report that is built on a long history of falsehood and exaggeration furnished almost exclusively by actors who are certainly not dispassionate nor apolitical but rather had heavily invested in certain outcomes that have nothing to do with human rights or democracy. It is, nevertheless, an official report which charges the government among other things of not responding to queries submitted to it. The Foreign Ministry needs to respond comprehensively.


On the face of it, one might say that this report is just one of the many things that came up this week, but considering the history of such documents and the possible impact, it does warrant extensive response. For example, while the UNHRC report tutors the government on do’s and don’ts, it calls upon the Human Rights Council and member states to do much more than knuckle-rapping.

It wants the Council and member states to explore possible targeted sanctions such as asset freezes and travel bans against credibly alleged (cute term, that!) perpetrators of grave human rights violations and abuses (yes, guilty until proven innocent, over and above the fact that allegations have been submitted by individuals and organization that have pernicious agenda, the fact that substantiation is weak and reliability of witnesses worth little more than toilet wash). They want to stringent vetting procedures applied to Sri Lankan police and military personnel identified for military exchanges and training programs. Based on allegations, yes.

But here’s something cuter. The Council and member states are urged to ‘prioritize support to civil society initiatives and efforts to reparation and victims’ assistance and prioritize victims and their families for assistance in their bilateral humanitarian, development and scholarship programs.’ Rewards for those who follow the script? The UNHRC could but will not revisit the term ‘civil society’ with respect to Sri Lanka.

Meanwhile a gazette was issued on Thursday by the President’s Secretary Dr P.B. Jayasundera notifying the public of the appointment of a three person Commission of Inquiry (Supreme Court judge A.H.M.D. Nawaz, as Chairperson former IGP Chandra Fernando and retired District Secretary Nimal Abeysiri) to investigate all allegations of human rights. The Commission has been given six months to report findings. The gazette notification alludes to the government’s decisions from withdrawing from Resolutions 30/1, 40/1 and 34/1, notwithstanding which pledges to work with the UN and its agencies on accountability and human resource development to achieve sustainable peace and reconciliation.

The government will not be applauded by the UNHRC. That’s for sure. However apart from this ‘basic’ and the basic of comprehensive response, it is important for the government to retain the confidence of the citizens. That’s not only about the UNHRC circus, however. It’s about delivering promises, being acutely aware of and sticking to mandate. In the end, that’s what will matter most.

Source: island.lk

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