A question for Navi Pillai
Posted on August 27th, 2013

By:  Dharshan Weerasekera

Of the many questions that will be asked of UN Human Rights High Commissioner Navi Pillai on her week-long visit to Sri Lanka, I doubt anyone will ask the following.  Hence, someone should ask it.  The question is this:  “UNHRC resolution A/HRC/22/L.1/Rev.1, which mandates your visit, includes a clause which calls on the Government to fulfill its public commitments to devolution.  The specific words are:  “Calling on the Government of Sri Lanka to fulfill its public commitments to devolution of political authority, which is integral to reconciliation and full enjoyment of human rights by all members if its population.”  Can you please identify the specific occasions where you feel the Government made these “public commitments?”  If they were made in writing, could you ask your office to provide the specific documents, and if they were made orally, could you ask your office to provide audio or video clips of the commitments being made?”

I believe that if we Sri Lankans can get the above material, it would be possible to formulate certain legal remedies, which we can hold in reserve, just in case Ms. Pillai goes back to the UNHRC, and, either in the oral report she is scheduled to submit in September, or in the written report to be submitted at the sessions in March next year, decides to “whack” Sri Lanka by recommending further UN actions against this country.

A number of local commentators have identified two documents as being the places where the Government made the aforementioned commitments.  They are:  first, a 21 May 2009 Joint CommuniquƒÆ’†’© with India, and second, a 23 May 2009 Joint Statement between the Secretary General and President Mahinda Rajapaksa, made on the occasion of the SG’s visit to the Island just after the war.  It would be interesting to see if Ms. Pillai also identifies the above two documents, and no others, as her primary sources.

It is important to look at the relevant portions of these documents from which it may perhaps be possible to interpret that a commitment to “devolution was made.  Dayan Jayatillake has identified the relevant portions as follows.  From the Joint CommuniquƒÆ’†’© with India:  “Both sides also emphasized the urgent necessity of arriving at a lasting political settlement in Sri Lanka.”  From the 23 May 2009 Joint Statement with the SG:  “President Rajapaksa and the Secretary General agreed that addressing the aspirations and grievances of all communities and working towards a lasting political solution is fundamental to ensuring long-term socio-economic development”¦.President Rajapaksa expressed his firm resolve to proceed with the 13th Amendment, as well as to begin a broader dialogue with all parties including Tamil parties in the new circumstances, to further enhance this process and to bring about lasting peace and development in Sri Lanka.”  (India and Sri Lanka:  The road not taken, Dayan Jayatillake, 28/6/13, www.groundviews.org.)

If Ms. Pillai also picks the above portions as her “evidence,” I believe it can be shown quite easily that the UNHRC had no valid grounds to insert a call for “devolution” into resolution A/HRC/22/L.1/Rev.1.  (Note, in the relevant clause, “devolution” is posited solely and specifically, it is not qualified in any way, as for instance, “devolution and/or all other appropriate means,” or some other such phrase.)

First, the relevant statement from the Joint CommuniquƒÆ’†’© does not contain any reference to “devolution”:  it merely affirms the need for arriving at a “political settlement.”  A “political settlement” could involve “devolution,” and it could involve other arrangements, or a combination of all those options.  Either way, it does not justify isolating “devolution” as the preferred policy option.

The second and longer statement (from the Joint Statement with the SG) does contain a reference to the 13th Amendment, which obviously involves “devolution.”  So, the question is whether in that statement the President, and hence GOSL, made a commitment to “devolution,” by expressing a commitment to implementing the 13th Amendment.  I don’t think so, for the following reasons.  First, the statement does not say, “President Rajapaksa expressed his firm commitment to proceed with the 13th Amendment.”  It says instead, “President Rajapaksa expressed his firm resolve to proceed with the 13th Amendment.”  In diplomatic documents, as in legal ones, every word counts.  The people who drafted this document chose “firm resolve” over “commitment” for a reason.  Why?

I am not privy to the thoughts of the people who drafted the above document, but it seems to me there is a reasonable explanation.  The word “commitment” connotes a certain finality and irrevocability; the word “firm resolve” allows for a certain degree of flexibility:  when one “commits” to something, one is bound to it, one cannot pull-back, when one “firmly resolves” on something, one might, under dire enough circumstances, waver.  In other words, the people who drafted the above document wanted to preserve for the President some leeway, in case circumstances arose which precluded, or hampered, his implementing of the 13th Amendment.  Are there such circumstances?

Again, I can only speculate, but in my view there are.  For instance, suppose that certain segments within the minority communities that stand to gain the most from provincial devolution continue to harbour hopes for a separate state.  Suppose also that one of the main political parties of the aforementioned communities retained a demand for a separate state in nothing less than its party Constitution.  (The Illangai Tamil Arasu Katchi (ITAK) the main constituent of the TNA, reportedly retains such a demand in its party Constitution.  For instance, in an article in The Hindu, Indian journalist R.K. Radhakrishnan has said that as of May 2012, the ITAK had refused to amend its “Separate-State Constitution.”  (Sri Lankan Tamil Party retains “Separate-State Constitution”, The Hindu, 27 May 2012.) Of course, the ITAK is welcome to rebut these allegations by producing a copy of its Constitution, preferably in an English or Sinhala translation, so that the rest of us can find out what it says.)  Suppose also that prominent members of the aforementioned political party, if one were to believe the newspapers, have been in the habit of attending Eelam rallies in foreign countries!

I believe that under such circumstances, any reasonable person’s “firm resolve” to implement the 13th Amendment would waver, and justifiably so.  In any event, my point is that the relevant statement in the aforementioned document covers such contingencies, and therefore, even on the face of it, it doesn’t imply that the President made an irrevocable “commitment” to implementing the 13th Amendment.

My second reason is more general.  Pronouncements made in CommuniquƒÆ’†’©s, Joint-Statements, and so on, even if they profess commitments, are not legally enforceable under international law, unless the person making the pronouncement is the sovereign of a country.  In Sri Lanka, sovereignty is in the people, and is inalienable (Article 3).  As a citizen, I take that very seriously.  It is not possible for public officials, no matter how high, to make agreements or “commitments,” that impinge or bear in any way on the sovereignty of the people, without at a minimum submitting those agreements to ratification by the “representatives” of the people, which is to say Parliament.

I am not saying that public officials can trivialize or make a mockery of joint communiquƒÆ’†’©s, statements, and so on.  Nevertheless, such pronouncements are ultimately declarations of intent only, and the responsibility for carrying through that intent remains with the declarer.  Treaties and other formal covenants, on the other hand, are different.  They impose legal obligations that must be met, irrespective of any subsequent change in circumstances.  In this country, the Constitution and other laws set out the procedures for establishing treaties, covenants, and other formal agreements binding on the country as a whole.  If the Secretary General, or anyone else, wants to hold Sri Lanka to “devolution,” they need to follow those procedures.  Perhaps they already have.  But if so, I for one would like to see the documents.

To return to Navi Pillai, as I said earlier, a specific clause has been inserted into resolution A/HRC/22/L.1/Rev.1 that calls on Sri Lanka to honour “public commitments” made to “devolution.”  If such commitments were not made, it means that the UNHRC has made a formal demand of Sri Lanka which it has no legitimate right to make.  In other words, the UNHRC has tried to interfere in the internal affairs of Sri Lanka, which raises the spectre of a violation of Article 2(7) of the UN Charter.  It is imperative, therefore, to find out where and how the aforementioned “public commitments” to “devolution” were made, and to find it out not from local commentators, but from the UNHRC itself. Since the High Commissioner herself is in the island at the moment, we should take the opportunity to ask her directly.

 Dharshan Weerasekera is an attorney-at-law.  His book, “The UN’s relentless pursuit of Sri Lanka, and the need for effective counter-measures,” was published recently by Stamford Lake.

9 Responses to “A question for Navi Pillai”

  1. Lorenzo Says:

    Good points.

    NO WHERE in the damn 13 amendment you find the word DEVOLUTION!!

    DEVILUTION is a mroe dangerous piece of dirt WORSE than damn 13 amendment.

    SL NEVER made ANY commitment for DEVOLUTION.

  2. Senevirath Says:

    RAJITHA , DILAN , G.L , WIKRAMABAHU AND OTHER MARXISTS ARE VERY HAPPY TO RECEIVE THEIR ”’madam pilliya”””” CUT THROAT HAKIM MUST HAVE ALREADY KISSED HER ASS DURING THE INTERVIEW
    THEY CALL DEVOLVE FOR DISSOLVE

  3. Sooriarachi Says:

    Even if a leader of a nation gives an undertaking to do something, he has the right to change such undertaking, taking into account new developments and in the best interest of the country.
    In this instance whatever undertaking the president may have given Ban Ki Moon the UNSG, such undertaking is not set in concrete. On the contrary the UNSG who gave an undertaking to the President that his Dharusman Panel report (not authorised by the UN) was a private document for his information only, he went on to violate this assurance by making it a public document by distributing copies to UN delegates. Now the forces hostile to Sri Lanka in the UN and elsewhere are trying to refer to the Dharusman report as a UN document, to deceive the international community. So why should the President keep his supposed to be commitment, to people such as this?
    Another question to Navi Pillai could be, in her opinion what is the status of the Dharusman Panel and its report.

  4. Susantha Wijesinghe Says:

    WHY IS NAVI PILLAY GOING ONLY TO NOTHERN AREA, TO MEET TAMILS ONLY, AND TALK ABOUT HUMAN RIGHTS ?

    WHY IS SHE NOT GOING INTO THE SINHALESE AREAS TO FIND OUT HOW THEIR HUMAN RIGHTS WERE VIOLATED ? PADAVIYA, KEBBITIGOLLAWA, ARANTALAWA, EVEN CENTRAL BANK BUILDING. ~~~BLATANT DISCRIMINATION EH ?

    This term ” Human Rights ” can be selectively used to fit ones agenda. It appears that only Tamils have Human Rights. A UN delegate has come to Sri Lanka to check only on TAMIL human Rights. She does not care TWO HOOTS about others Human Rights. As NFF said, she should not have been invited to Sri Lanka to do a probe. UN is a corrupt body, and our political imbeciles are dancing around her, like doggies waiting for a bone. What servility is this ? It is time that Sri Lanka, Belarus get out of UN, and make many countries do the same.

  5. jay-ran Says:

    Susantha,It’s B’cause she is a SAKKILI TAMIL.How can she hold such a prestigeous position by being LAYAL TO THE TAMILTERRORISTS ONLY?
    As Shenali questioned in another article”Y THE HELL THIS WOMAN,TNAEtc Etc WERE SILENT WHEN MASS SCALE CIVILIANS KILLINGS,DESTRUCTIONS WERE TAKILG PLACE OVER THE LAST 3 DECADES???

  6. Susantha Wijesinghe Says:

    OH !!! Now I understand. Thanks Jay-ran. Only SAKKILI Tamils support Tamil Terrorists. NFF says that she should never have been invited here. Quite true. She was with the Tamils watching innocent people being torn to pieces. THAT IS SADISTIC FOR A PERSON HOLDING AN UN POSITION. The whole problem is, our politicians are like poodles. They beg and roll, when ordered.

  7. Mr. Bernard Wijeyasingha Says:

    The answer to the 13th amendment is simple. Will the 13th amendment in any way contribute to the creation of Eelam or to the idea of it? the answer to this rhetorical question is a resounding yes. If so then any amendment, regulation or law that places the integrity of Sri Lanka as a single sovereign state takes pressure.

    It is time that any nation, entity (like the UNHRC) to people like Pillay who may give a long list why the 13th amendment should be upheld must pass the test that the application of the 13th amendment also has the potential of reigniting the move for Eelam, and if so then all elements within the 13th amendment that would contribute to the vivisection of Sri Lanka be stripped from that amendment and replaced with sections that uphold the unity of the nation. Or simply put rewrite the 13th amendment which would favor a united Sri Lanka or failure of that then do away with it. India, the US, the UNHRC must be questioned on these parts of the 13th amendment such as devolution of powers including land and police whether there is a even a slim chance that they would contribute to the formation of Eelam.
    Refusing to answer then or giving answers that are not satisfactory are the reasons upon why the 13th amendment by the very acts of the UNHRC, India or the US of not giving a sufficient reason why it would not contribute to the formation of Eelam is reason enough to do away with it.

    Any problems the Tamil community has can be handled without the 13th amendment since it is not the only avenue to address any grievance of the Tamil community and this must be made clear to those who are pushing for the 13th amendment to be implemented.

  8. Mr. Bernard Wijeyasingha Says:

    Correction:If so then any amendment, regulation or law that places the integrity of Sri Lanka as a single sovereign state takes presidence.

  9. SA Kumar Says:

    Mr. Bernard Wijeyasingha
    The answer to the 13th amendment is simple. Will the 13th amendment in any way contribute to the creation of Eelam or to the idea of it? the answer to this rhetorical question is a resounding NO!

    13A for United Mother Lanka !!!

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