Zeid Al Hussein’s arrival and the chaos of ‘yahapalanaya’
Posted on February 6th, 2016

Courtesy The Island

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Q. The UN Human Rights Commissioner who has been pressing for the setting up of a hybrid war crimes court in Sri Lanka is in the country now to promote his cause. On the eve of his arrival, the President and the Prime Minister of Sri Lanka were expressing contradictory views on the participation of foreign judges in such a process. The President expressed views in Opposition to the participation of foreign judges while the Prime Minister appeared to be in favour of the participation of foreign judges. By now we are quite used to the government talking in tongues in this manner but how do you think the UN Human Rights Commissioner is going to take it?

A. All this adds up to a picture of total confusion. This is hardly the way to prepare for a dangerous onslaught against this country. There is no coherence in our stand. In any case Paragraph 6 of the UNHRC resolution puts this matter beyond any doubt. It clearly refers to the participation of Commonwealth and other foreign judges, prosecutors and investigators.

This government has committed our country to that position. We must understand that this is not somebody else’s resolution. This is our own resolution because we have co-sponsored it and called upon other countries to support it. The countries that had supported us through thick and thin in the past could do nothing to help us.

Recently the US Ambassador to Geneva categorically said in a Tweet that there could not be a change in that matter. Now, when the President says we don’t need to import foreign judges; we have enough expertise in this country, and that he will not agree to foreign judges, he is repudiating his government’s own position taken in Geneva. The Prime Minister is taking a different view and saying that there is no change in the commitment made in Geneva. The President said in that BBC interview that there were no allegations of war crimes against Sri Lanka.

This is a case of deliberately shutting our eyes to the problem. There are, in fact, allegations of war crimes in the OHCHR report against Sri Lanka. The allegations include the ‘widespread’ unlawful killing of civilians, widespread and systematic enforced disappearances, rape, torture and the repeated shelling of hospitals.

Q. There are certain practical issues here. The President holds all the executive power, not the Prime Minister. Furthermore, if foreign judges are to participate in a Sri Lankan judicial process, the Constitution and some other laws will have to be changed and this has not happened. So, how is anybody to proceed with the commitments made in Geneva?

A. When the government committed itself to these positions in Geneva, it did not give any thought to the implications of what it was doing. If these commitments are to be implemented, there will have to be changes in Sri Lanka’s laws.

Q. Since no changes have been made in the Constitution and in the legal system to enable foreign judges to participate in a Sri Lankan judicial process, what the President says may hold true by default.

A. Yes. But, there are also attempts being made to circumvent it. A couple of days ago there was a statement by the Prime Minister that we couldn’t have foreign judges in terms of the Constitution, but he says that there is nothing against the participation of foreign judges in a different capacity. If that means that they are going to be appointed to a commission here that is equally objectionable because the report of that commission will lay the foundation for subsequent action. They may not be called judges and may be referred to as commissioners, but they will still be foreign.

Q. The contradictory positions taken by the President and the Prime Minister of Sri Lanka on a UNHRC resolution would be a unique experience for the UN Human Rights Commissioner, wouldn’t it? He will be experiencing for the first time what we have come to take for granted over the past one year.

A. Yes, because no other country operates in this haphazard fashion.

Q. While there is confusion at our end what is the credibility of the UN Human Rights Commissioner who is in this country to pontificate to us about our commitments? He heads the Office of the High Commissioner of Human Rights which functions as the secretariat of the UN Human Rights Council. The impartiality and objectivity of his office which is funded and staffed mainly by westerners is questioned at almost every session of the UNHRC and there is a regular resolution always passed with a two-thirds majority in the council demanding that the number of westerners on his staff be reduced and that his office should be less dependent on western funds. But, no change ever takes place. The UN Human Rights Commissioner spends half his time devising ways and means of dodging the implementation of UNHRC resolutions passed against his office – the OHCHR. If he is doing that why would it be wrong for us to do the same?

A. Many of his actions in relation to Sri Lanka go beyond his mandate. In his report on Sri Lanka which triggered all these developments, he holds that there are reasonable grounds to believe that Sri Lanka’s armed forces committed acts which constitute war crimes such as murder rape, abductions, shelling of hospitals, and the deliberate starvation of the people of the North. However all these allegations are based on evidence obtained from anonymous sources which will not be disclosed for twenty years! So what is the credibility of his report? The whole thing becomes a political exercise because there is no way of filtering the evidence that he is supposed to possess. That report was prepared in a manner we consider to be totally inequitable.

Q. Even the manner in which this so-called investigation against Sri Lanka was carried out by the Office of the High Commissioner on Human Rights was itself highly questionable wasn’t it? Usually, when the UNHRC institutes a Commission of Inquiry against a member state, it is the President of the UNHRC who is an Ambassador of one of the member states who appoints the three member commission. But, in relation to Sri Lanka, it was the highly tainted OHCHR that appointed the three-member panel and carried out the investigation.

A. That is so. The whole process was flawed from the beginning and contrary to the precedents and best practices of the UN system.

Q. If there is a deadlock in relation to the war crimes court in Sri Lanka due to the stand that the President has taken and the unresolved legal and constitutional and legal issues, can Sri Lanka go back and question the legitimacy of the whole process? We did register our protest at the beginning. We didn’t co-operate with the investigation.

A. As a matter of principle we can do that because we have adopted that stand from the beginning. But, now that the resolution has been passed in Geneva what we can do is to resist the implementation of it. The Joint Opposition will certainly do that in parliament at every turn. Where necessary we will invoke the jurisdiction of the Sri Lankan courts. In addition to all that there will have to be a widespread political campaign to inform the people as to what is going on.

Q. There were certain very invasive recommendations made in the OHCHR report on Sri Lanka such as for instance the repealing of the PTA and the removal from the armed forces by administrative action, any personnel suspected of having committed war crimes but against whom there is insufficient evidence to place before a war crimes tribunal.

A. The recommendations were certainly very invasive. In addition to the examples you have mentioned, there was also one about the total overhaul of the Public Security Act, how to deal with land issues in the North, the devolution of power and the powers of provincial councils. Then there are recommendations about bringing criminal laws with retrospective effect. All these amount to interference in the internal affairs of our country. No self-respecting country would tolerate this form and degree of interference.

Q. The international powers that sponsored the UNHRC resolution against Sri Lanka were also the same powers that sponsored regime change in Sri Lanka. One would think that they, in particular, would have an interest in safeguarding the government they brought into power. To burden the government with commitments that would make them unpopular would endanger the whole project. Then why do these foreign powers seem to be insisting on their pound of flesh regardless of the situation that their protégés would have to face on the ground by acceding to those demands?

A. There is no doubt that these forces played a major role in the change of government that occurred last year. I have been in politics since 1994 and in these two decades there was no other instance where there was this degree of external intervention in an election. So, it would certainly be in the interests of these forces to protect the government that they created. However, there are other considerations. They are under very considerable pressure from the Tamil Diaspora which has leverage with these governments. Suren Surenthiran of the Global Tamil Forum has clearly indicated that there cannot be any change in the resolution and that it has to be carried out to the letter. The TNA has also adopted that position. So, as much as these foreign powers would like not to cause difficulties to the government they created they also have to accommodate these other forces.

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