Courtesy Island

*Disquiet within Sinhala community over OHCHR report
*Gazetting of ministry functions and institutions delayed further
*IMF warns of ballooning budget deficit and makes strict ‘recommendations’
*Rupee slides, stock market stagnates & higher interest rates on the cards
*Mutterings of discontent within UNP

September 19, 2015, 7:48 pm

The release of the OHCHR report on Sri Lanka by the Office of the High Commissioner on Human Rights (OHCHR) has further compounded a complicated situation in Sri Lanka. What counts in this report are not the so called ‘findings’ because none those have been proved or even established to have occurred at all, but the recommendations which provide a course of action for the government of Sri Lanka to follow. As The Island editorial said last Friday, the ‘findings’ of the OHCHR report have been couched in more careful language than the amateurish report on Sri Lanka put out in April 2011 by the UN Secretary General Ban ki-Moon and it may well be the legal opinions expressed by a team of eminent international lawyers and specialists in the law of armed conflict led by Sir Desmond de Silva QC that made the OHCHR more guarded in what they said.

Other experts who contributed written opinions on the Sri Lankan case include Sir Geoffrey Nice QC, Rodney Dixon and Professors Paul Newton and David Crane. These legal opinions were exclusively published in The Island can be accessed on the following link. http://www.island.lk/index.php?page_cat*article-details&page*article-details&code_title*121960# Until The Island made these documents public, these were secret documents lying in the drawers of government bureaucrats. Sir Geoffrey Nice wrote a legal opinion on the UN Secretary General’s report of 2011 which appears to have had a salutary effect on the OHCHR. Even though the UN Secretary General’s report had mentioned a figure of 40,000 civilian deaths, the OHCHR report has been more guarded by not putting a number on the civilian fatalities, but said instead that, “Counting or estimating the exact number of civilian casualties during the different stages of the armed conflict is impossible without full access to the areas and communities affected, in particular in Sri Lanka. Yet, on the basis of the information compiled by OISL, there is no doubt that thousands, and likely tens of thousands, lost their lives…”

An open letter to President Maithripala Sirisena issued on Friday by a group of eminent Sri Lankans including V.Anadasangaree, Tamara Kunanayakam, Dayan Jayatilleke, Kumar Rupesinghe, T.Gunaruwan and others had faulted the government for not officially handing over to the OHCHR the comprehensive study of the law of armed conflict and humanitarian law done by these international lawyers in relation to the allegations against Sri Lanka. If it had been handed in officially, there is little doubt that the OHCHR would have been forced to at least acknowledge the matters raised by those international lawyers.

The most important recommendation made in the OHCHR report is of course the one advocating the establishment of an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, to try war crimes and crimes against humanity. This hybrid court as envisaged by the OHCHR is supposed to have its own independent investigative and prosecuting organ, defence office, and witness and victims protection program. What this envisages is an entire criminal justice system outside the present system in the country. From the statements that have been made, we gather that the government is not averse to the suggestion of ‘hybridizing’ the domestic mechanism they were talking about earlier. Obviously, these things will take time to implement and the final shape of whatever mechanism comes into being will depend on the political situation that prevails at that moment in this country. One thing that is certain is that any mechanism to investigate war crimes will have a politically destabilizing effect. This is a situation that this government can ill-afford, but they don’t seem to realize that they can’t afford it!

Revenge with a vengeance

Dayan Jayatilleke was the first to point out the most vicious and vindictive recommendation in the OHCHR report, which was an open request to member states of the UN to investigate and prosecute those allegedly responsible for torture and war crimes under universal jurisdiction. This is clearly a case of overkill. If a hybrid war crimes court was going to be set up, then why should other nations duplicate that function by opening their own trials under universal jurisdiction? Minister Champika Ranawaka has obviously not seen this recommendation because he was shown on TV saying that the risk of our war heroes being arrested by foreign governments for war crimes under universal jurisdiction has now receded because of this report! In fact the very opposite is true. There are international war crimes tribunals for the former Yugoslavia, for Rwanda and hybrid tribunals in Lebanon, Sierra Leon and Kampuchea but we have never heard of any country exercising universal jurisdiction in relation to a case that should rightfully come under one of those courts.

There are also several recommendations which will if implemented, turn this country into a virtual colony of the West. Foremost among them is the recommendation that the OHCHR be invited to establish a full-fledged country presence to monitor the human rights situation, and advice on implementation of the High Commissioner’s recommendations and to provide technical assistance. The OHCHR is a body that is funded and maintained by 10 to 15 Western nations and this office has come in for criticism from with the UN Human Rights Council itself for being biased towards the West. One way in which the non-Western member states of the HRC are trying to make the OHCHR reflect the international nature of the body it serves is by reducing the number of staffers from the Western nations serving in the OHCHR. If such an organization establishes a presence in Sri Lanka, that will be tantamount to turning SL into a colony of the Western powers.

Another recommendation in the OHCHR report is to seek Supreme Court review of its decision in the Singarasa case to accept the competence of the UN Human Rights Committee to consider individual complaints from Sri Lanka. Nallaratnam Singarasa v Attorney General (2006) was a case where a person convicted of terrorism related offences had made an application to the Human Rights Committee in Geneva under Optional Protocol I of the International Covenant on Civil and Political Rights (ICCPR) to have his conviction overturned. The Chandrika Kumaratunga government which was famous for its woolly headed confusion had signed Optional Protocol I of the ICCPR in 1998. This in effect gives the Human Rights Committee in Geneva a status akin to the Privy Council of old where Sri Lankan cases can be referred to that body for adjudication after all remedies had been exhausted in Sri Lanka.

When the counsel for Singarasa armed with a ruling from the Human Rights Committee in Geneva calling on Sri Lanka to overturn his conviction and to pay him compensation applied to the Supreme Court for the same, the SC flatly refused to allow the motion saying among other things that though the executive arm of the state may have signed Optional Protocol I of the ICCPR, that act alone does not make the SC subordinate to the Human Rights Committee in Geneva because the constitution in Sri Lanka has not been amended and the executive arm does not have the legislative power to change the constitution. So in the Singarasa case, the Supreme Court for good reasons refused to make itself subordinate to the Human Rights Committee in Geneva. Now the OHCHR wants the Supreme Court to voluntarily give up its role of being the ‘supreme’ court and to cede that status to the Human Rights Committee in Geneva!

Another recommendation made by the OHCHR is that the Sri Lankan government develop a fully-fledged vetting process to remove from office military and security force personnel and any other public official where there are ‘reasonable grounds to believe’ that they were involved in human rights violations. The question is how does one know whether any military officer has committed human rights violations if it is not proven that he has done any such thing? How can any government ‘remove from office’ any official on suspicion and hearsay? In any administrative set up, whether military or otherwise, leaders do make judgments about the suitability of certain individuals to hold certain positions depending on the inclinations and competencies of the individual. But it is not this routine administrative selection that is being recommended by the OCHRC. They are recommending nothing less than the drastic step of ‘removal from office’ based entirely on arbitrary criteria.

Another recommendation is to initiate a high-level review of the Prevention of Terrorism Act (PTA) and its regulations and the Public Security Ordinance Act with a view to their repeal and the formulation of a new national security framework fully complying with international law. The Public Security Ordinance was passed back in 1947 to maintain law and order in the country. With the rise of separatist terrorist movements in the 1970s the PTA was introduced to enable the state to deal with that challenge. Sri Lanka would not have survived as a state if not for these laws. If these laws are being reviewed, then they should be brought in line with the public security laws in the USA – the country that initiated this OHCHR investigation on Sri Lanka.

Ministers without functions

There was enough on our plate already without the OHCHR report complicating matters further. The political issues facing this country would by itself be enough to floor any nation. On the one hand, a parliamentary election was concluded over one month ago and even though a cabinet and team of ministers was named after a delay of over two weeks, the institutions and subjects to those ministries have not been gazetted as yet at the time of writing. As of now all that these ministers have are the names of their ministries and probably their cars and security personnel. As can be expected there was an unseemly scramble behind the scenes for the allocation of institutions and when the gazette notification comes out the real infighting between the UNP and UPFA partners in the government will begin. This is not a united cabinet but one riven with rivalries between political parties in addition to the ever present rivalries between individuals within all political parties.

This is a ticking political time bomb that will go off at some point. It should be borne in mind that the crossover of Maithripala Sirisena and the SLFP dissidents was never about matters of principle but about what these individuals got or did not get from the Rajapaksa regime. One thing that is certain is that if there are a certain number of ministers who were dissatisfied with what they got from the Rajapaksa government, there are several times that number of dissatisfied individuals in the present government. Last week even before the institutions were allocated to the ministries, Manjusri Arangala who was the sheet anchor of the UNP in the Colombo district during its long sojourn in the opposition was openly saying that the ‘jathika aanduwa’ is fast becoming a ‘vijaathika aanduwa’ to UNPers.

Dilip Wedaarachchi, the new State minister of fisheries said on the day that he assumed duties in his ministry that the UPFA and UNP organizers of the Tangalle electorate in the Hambantota district had been appointed the minister and state minister of fisheries respectively, and that they needed to be given tuition how to work together without killing one another. He wanted separate functions to be allocated between the cabinet minister and the state minister – a very sensible suggestion given the fact that they represent two different political parties. Unless Maithripala Sirisena and Ranil Wickremesinghe succeed in making an allocation of institutions in a manner that will satisfy all stakeholders, we are in for considerable political turbulence. The blame for any conflicts, splits, and even fisticuffs between members of the newly appointed ministerial team will rest squarely with President Maithripala Sirisena who did not give the UNP a free hand to form a government.

Last week in fact, Arangala complained publicly that the best ministries have been taken by the UPFA. It is quite clear that the UNP leadership has lost control of things. They probably resent party members who come complaining about problems for which the UNP hierarchy has no remedy. If this had been the only challenge facing the government, it would have been daunting enough in itself. But this is only one of many problems. In the middle of being saddled with a dysfunctional government, there is a looming economic crisis gathering momentum. This once again is a reason why the UNP should be given a free hand to govern the country and if necessary to make unpopular decisions to keep the country on even keel. In December 2001, the reason why the UNP government was able to at least keep the economy steady without a total collapse is because they had a free hand to make the tough decisions that had to be made.

IMF pin to burst yahapalana bubble

An IMF team led by Todd Schneider concluded a study tour in Sri Lanka last Friday and their remarks highlighted the grave economic crisis faced by Sri Lanka. Among the observations they made were the following:

1.      The increase in consumer spending due to the sharp rise in public sector salaries has contributed to an increase in imports thus vitiating the advantage of lower fuel import costs.

2.      This has upset the trade balance and become a drain on foreign exchange reserves during the first eight months of the year.

3.      Core inflation, (ie. prices of goods excluding items like fuel and food,) has been rising steadily since the beginning of the year.

4.      Market forces should be allowed to determine the exchange rate. (In other words, the rupee should be allowed to depreciate further until it finds it’s true value.)

5.      A tight monetary policy meaning higher interest rates, and less printing of money is recommended. An increase in the interest rate will result in all those who have taken loans having to pay more in terms of interest.

6.      The IMF also wanted the government to borrow less and to reduce the yawning budget deficit and they want the process to begin from the next budget (due in November) itself!

7.      They want ‘durable’ reforms to enhance government revenue, instead of one off exactions like the super gains tax and the mansion tax that were proposed in the mini-budget earlier this year.

8.      The IMF has also stressed the need to eliminate tax reductions that had been made with a view to becoming popular and that the tax system should be fair, simple and efficient. When the IMF team was here earlier this year, they recommended that the proposals made by the tax reform committee appointed by the Rajapaksa government should be implemented.

9.      The IMF also recommended market based pricing of fuel and electricity.

10.  State enterprises should be allowed to make market based pricing decisions to prevent them becoming a burden on the budget.

After saying all this, there was no mention by the IMF of any money being on offer for the Sri Lankan government. If the government was expecting cheap credit from the IMF to take their ‘win votes with handouts’ policy forward, that is obviously not happening. Any assistance that the government gets will be predicated on the implementation of these recommendations without which Sri Lanka will become a drain on the IMF! The government is thrashing around looking for ways to increase government revenue without the general public feeling it and the yahapalana welfare bubble bursting. Treasury Secretary R.H.S.Samaratunga told a daily newspaper a few days ago that legislation may belatedly be brought in to charge the super gains tax that was introduced in the mini-budget. The government was expecting to rake in Rs. 50 billion from this super gains tax which means that virtually all the top companies in the country will have to fork out hundreds of millions of rupees on past profits. Little wonder there is bearish sentiment bourse.

The stock market is bearish, the rupee is depreciating, foreign money is exiting from the bond market and the stock market, exports are down, imports are up, the government is short of money, the IMF is breathing down their necks, the budget deficit is out of control and nobody seems to know what to do about it. With all these unresolved issues in the background, the government has taken upon itself the task of setting up a hybrid war crimes tribunal, making amendments to the constitution to devolve power in response to Tamil demands. On top of all this the Indian media is talking about the Sri Lanka government having agreed to finalize the CEPA agreement in a matter of months, and initiate a project to permanently link Sri Lanka to India via a bridge! For even the most powerful and politically stable government presiding over an economic boom to undertake any one of these tasks would be ambitious. But for the present government to undertake all these tasks together is nothing short of madness.