By The Nation Online

The National Joint Committee (NJC) has issued a statement expressing regret at the initiative taken by the Government of Sri Lanka to co-sponsor the resolution at the United Nations Human Rights Council (UNHRC) in Geneva together with the United States.

The full text of the committee’s statement is given below:

STATEMENT OF THE NATIONAL JOINT COMMITTEE ON THE RESOLUTION CO-SPONSORED BY THE USA AND THE GOVERNMENT OF SRI LANKA

The National Joint Committee observes with regret the initiative taken by the Government of Sri Lanka (GOSL) to co-sponsor a resolution together with the USA;

1. recognizing with appreciation the oral update presented by the High Commissioner to the Human Rights Council at its twenty-seventh session, the report of the Office of the High Commissioner for Human Rights on promoting reconciliation and accountability in Sri Lanka and the report of its investigation on Sri Lanka requested in Human Rights Council resolution 25/1 including its findings and conclusions.

1. to commit the GOSL to cooperate with unspecified special procedure mandate holders” of the UN,

1. to request the UN High Commissioner on Human Rights to keep on assessing Sri Lanka on the implementation of his recommendations,

1. to establish a Judicial Mechanism with a special counsel” to investigate allegations of Human Rights violations and introduce a Judicial system with foreign judges defense lawyers and other unspecified prosecutors and investigators to allow trial and punishment of those responsible for crimes under the general principles of law recognized by the community of nations”,

1. to compel the GOSL to devolve power and to ensure” that all Provincial Councils, are able to operate effectively, in accordance with the 13^th amendment to the Constitution

1. to review the existing Public Security Ordinance and to repeal the Prevention of Terrorism Act.

Every sovereign country has the right to enact its laws and establish a structure of Government with a judicial system of its choice according to the mandate given by its people. Sri Lanka has shamelessly handed over that inalienable right of its people to these foreign intruders and aggressors.

The Resolution commits Sri Lanka to implement the 13^th amendment to the Constitution which was forced on us by the Government of India in 1987 under the purported Indo-Sri Lanka accord. This accord was signed under the threat of invasion by India. The 13^th amendment to the Constitution was not fully implemented by any Government, since its adoption, as the respective Governments opposed the implementation of the provisions relating to Police Powers to establish a police force under the control of the Chief Minister as it was a threat to our national security concerns. It is this 13^th amendment that allows amalgamation of the Northern and Eastern provinces of Sri Lanka in recognition of a separate territorial entity for Tamils on the false basis of an exclusive Tamil homeland. It is also this same 13^th amendment that provides for a separate Police Force for the North and other provinces equipped with arms, ammunition and explosives which will operate under the control of its Chief Minister. The 13^th amendment restricts Police officers of one province entering another province, even in pursuit of criminal elements (Item K of the Reserved List). The 13^thamendment has taken away the rights of the GOSL to repeal or replace laws enacted by a Provincial Council in the same way it could do with regard to its own laws. Even the investigation and prosecution of offences with regard to its ordinary citizens cannot be done by the GOSL, but by this pseudo Police force controlled by the Chief Minister. Even the National Police force is expected to be ordinarily in plain clothes within a province.

We note that the TNA has welcomed the passage of this resolution. The TNA statement expresses gratitude to the co-sponsors of the resolution for engaging with the TNA and accommodating their concerns and views. They have all the reasons to be so happy.

In the very first paragraph of the operative part of the resolution, Sri Lanka as a co-sponsor, has with approval, taken cognizance of the;

• the oral update presented by the High Commissioner to the Human Rights Council at its twenty seventh session,

• the Report of the Office of the High Commissioner for Human Rights on promoting reconciliation and accountability in Sri Lanka, and

• the Report of the Investigation on Sri Lanka requested in HRC Resolution 25/1 including its findings and conclusions.

This means that apart from the matters set out in the Resolution, the GOSL has agreed with the findings and conclusions of the aforementioned reports  in addition to the oral updates made at the 27^th session. Therefore it is necessary to have a closer look at this investigative report to ascertain the extent to which this country has been betrayed by our own Government.

1. Recognition and agreement of the GOSL with the Report of the OHCHR investigation on Sri Lanka

1. Establishment of a Hybrid Court.

Item No.20 of the Recommendations of the Report provides as follows;

Adopt specific legislation establishing an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, mandated to try war crimes and crimes against humanity, including sexual crimes and crimes committed against children, with its own independent investigative and prosecuting organ, defence office, and witness and victims protection programme. Resource the court so that it can effectively try those responsible.”

Although much was said about the Government’s achievement of removing the requirement of setting up of a hybrid court” the fact is that theGovernment has in fact agreed to all the findings and recommendations of the OHCHR Report which specify the requirement of having a Hybrid Court with international judges, prosecutors, lawyers and investigators mandated to try war crimes and crimes against humanity. Therefore although there is no reference to a hybrid court” in the resolution per-se, the GOSL has accepted such an arrangement with the adoption of the UN Investigative Report, which provides for a hybrid court”. In any event the resolution itself provides for one without the label of a hybrid court” as it accommodates foreign judges, lawyers and prosecutors.

1. Compelling Sri Lanka to invite OHCHR to establish a full fledged country presence to monitor Human Rights situation and Invite special procedure mandate holders and others to Sri Lanka.

Item Nos.3 and 5 of the Recommendations of the Report provides as follows;

Item No.3:

Invite OHCHR to establish a full-fledged country presence to monitor the human rights situation, advise on implementation of the High Commissioner’s recommendations and of all HRC resolutions, and provide technical assistance”.

Item No.5:

Ensure full cooperation with the Special Procedures of the Human Rights Council. Invite the Special Representative of the Secretary-General on conflict related sexual violence and the Special Representative of the Secretary-General on Children and Armed Conflict, the Special Rapporteurs on extrajudicial killings and torture, the Working Group on Arbitrary Detention and other relevant Special Procedures mandate holders to make early country visits”.

These recommendations will accommodate a full-fledged secretariat in Sri Lanka to oversee the internal affairs of Sri Lanka. We need to look at this proposal in the context of UNHRC arrogating to itself, matters far beyond the mandate they have received. OHCHR investigation on Sri Lanka derives its mandate from the Human Rights Council resolution 25/1 to undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka”. However the UN has embarked upon a journey to devolve political powers and to oversee the working of the 13^th amendment and the Provincial Councils established under it. The proposed country presence” is nothing but an attempt to have a supervisory mechanism over the Government of this country.

Through this resolution, the GOSL has thus allowed these foreign elements to interfere with the internal affairs of Sri Lanka.

• Compelling to initiate action to review decisions of the Supreme Court.

Item No.8 of the Recommendations of the Report provides as follows;

Initiate action to seek Supreme Court review of its decision in the Singarasa case [NallaratnamSingarasa v. Attorney General, SC Special App (LA) No.182/99 decided on Sept 15, 2006] to affirm the applicability of international human rights treaties in domestic law and reinstate the competence of the UN Human Rights Committee to consider individual complaints”.

The OHCHR has the audacity to call upon the Supreme Court of Sri Lanka to review its judgments entered upon the exercise of judicial power of the people of this country.

1. Suspending military personnel on mere suspicion pending investigation.

Item No.9 of the Recommendations of the Report provides as follows;

Issue clear, public and unequivocal instructions to all branches of the military and security forces that torture, rape, sexual violence and other human rights violations are prohibited and that those responsible, either directly or as commander or superior, will be investigated and punished. Subject to due process, anyone suspected of being involved in such acts should be immediately suspended until an effective investigation has been completed. Order an end to all surveillance, harassment and reprisals against civil society actors, human rights defenders and journalists”.

The report recommends the suspension of members of our security forces, even before an investigation is commenced, on a mere suspicion. This is against due process and accepted standards of judicial procedure. It is apparent that whenever their Special Procedure Mandate Holders raise some suspicion, the GOSL, even before an investigation has commenced, would be obliged to suspend members of our security forces. The report requires Sri Lanka to end all surveillance. Every country has the right to have its surveillance mechanisms in place to meet their national security concerns. To end such surveillance is a serious threat to the sovereignty and territorial integrity of Sri Lanka.

1. Repeal/Review of Prevention of Terrorism Act / Public Security Ordinance.

Item No.16 of the Recommendations of the Report provides as follows;

Initiate a high level review of the Prevention of Terrorism Act (PTA) and its regulations and the Public Security Ordinance with a view to their repealand the formulation of a new national security framework fully complying with international law”.

Under the 13^th amendment to the Constitution the Executive President could intervene when a Provincial Council is conducting its affairs against the provisions of the Constitution in a manner detrimental to the affairs of the State only if the provisions of the Public Security Ordinance is in force (vide Article 154 L, 154 J and 154 K of the Constitution).

This proposal is made to cripple the ability of the GOSL to safeguard the sovereignty and territorial integrity of Sri Lanka.

1. Re-hearing of concluded cases by courts of law.

Item No.24 of the Recommendations of the Report provides as follows;

Review all cases of detainees held under the PTA and either release them or immediately bring them to trial. Review the cases of those convicted under PTA and serving long sentences, particularly where convictions were based on confessions extracted under torture”.

This recommendation is made on the false assumption that our Judiciary has convicted all LTTE suspectson confessions made by them which are not voluntary, and that the judiciary has shirked their duty in examining the voluntariness of any confessions.

• Dispensing with the current Presidential Commission on Missing Persons on the basis that it is not credible.

Item No.25 of the Recommendations of the Report provides as follows;

Dispense with the current Presidential Commission on Missing Persons and transfer its cases to credible and independent institution developed in consultation with families of disappeared”.

The UN wants the GOSL to dispense with the presidential commission and replace it with an institution in consultation with families of disappeared”. On what basis is the UN objecting to a lawfully appointed commission operating in Sri Lanka? The objection to the presidential commission is only because of the well analyzed report of Sir Desmond Silva QC which has exposed the Darusman Report and the conduct of the members of his team in submitting a false and biased report against Sri Lanka, and the demand of the Tamil diaspora against the report of Sir Desmond Silva QC.

• Misrepresentation of facts in the Report of the OHCHR investigation on Sri Lanka

To begin with this report is based on false, misplaced and erroneous assumptions and facts. The report whilst ignoring centuries of suppression and violations of human rights of the Sinhalese by Colonial powers, complains that the GOSL has since independence marginalized and alienate the Tamil minority”. Why is it that the High Commissioner when describing the contextual background omits the atrocities committed by these western powers against the Sinhala majority? It says that we have engaged in majoritarian politics”. One might ask what type of politics is practiced in all those western countries including the U.K.? Sri Lanka has guaranteed equal protection of the law to all its citizens and even non-citizens in its constitution with provision to enforce them in a Court of law.

Just to give one example of the numerous false assertions made in this report is the allegation that 3000 Tamils were killed in the July 1983 riots. This assertion is absolutely false. This figure of 3000 Tamils being killed in July 1983 was concocted by C. V. Wigneswaran the Chief Minister of the Northern Provincial Council in his resolution titled Sri Lanka’s genocide against Tamils” calling for an international investigation few months ago. The GOSL in July 2001 appointed a Commission of Inquiry headed by no lesser person than SuppiahSharvananda, a former Chief Justice of Sri Lanka. This Commission of Inquiry released their report in September 2002. The report records at page 36 referring to the 1983 riots that the Government acknowledges death toll of nearly 350 in all, but Tamils claim the number of deaths to be over a 1000. We have no basis to report on the number of deaths or extent of damage to properties with any degree of accuracy”. The claim made by the Tamils before the said Commission multiplying the Government figures three-fold claiming the death toll to be over a thousand was exaggerated by Wigneswaran to be 3000 deaths, a figure SuppiahSharvananda was not ready to accept. The UN has obviously picked this figure from Wigneswaran’s resolution that fabricated the figures. This demonstrates to what extent the United Nations High Commissioner for Human Rights has deliberately tinkered with the true facts. These figures could have easily been ascertained from the published report of SuppiahSharvananda.

The irony of this whole exercise is that the High Commissioner claims that witness statements and other confidential material stored in OISL’s archives are classified as strictly confidential details which could reveal the identity of victims or witnesses such as names, dates and places have been omitted in many cases described in the report in order to ensure that the victims, witnesses and their families cannot be identified”. If the Commissioner could have made false assertions in this manner, what kind of confidence then one could place on the facts and figures the High Commissioner has placed in his report, in the absence of any source from which he gathered this information, the world is called upon to sit in judgment against Sri Lanka without even disclosing the source of that information. The unfortunate thing is that the GOSL did not contradict any of these figures when the report was placed before the council.

1. Report of the Office of the High Commissioner for Human Rights on promoting reconciliation and accountability in Sri Lanka

The aforementioned report recommends that the Human Rights Council establish an international inquiry mechanism to further investigate the alleged violations of International Human Rights and Humanitarian Law and monitor any domestic accountability process” (vide paragraph 74). In addition to this recommendation, twelve other recommendations have been made in the said report which commits the GOSL to repeal the Prevention of Terrorism Act, to undertake criminal and forensic investigations with international assistance and to engage the civil society which in effect are NGO’s funded by the western powers [vide paragraph 75 (i)]. The most preposterous recommendation is to have a national day of commemoration and allow individual and group commemorations for memorialization (sic) for the victims of the war. This is nothing but to perpetuate the Maha-veeru ceremony conducted by the LTTE and its leader VellupillaiPrabhakaran.

The report in its conclusion states that Sri Lankan Courts have been compromised by politicization and interference by the Executive. The report further states Cases or presiding magistrates and judges are often transferred from one court to another, thereby delaying judicial proceedings”. This statement is a contemptuous remark on the Sri Lankan Judiciary and most specifically on the Chief Justice, which is unwarranted and uncalled for. It is pathetic that the GOSL had appreciated the findings and recommendations of this report.

1. Oral update of the High Commissioner for Human Rights

In paragraph 04 of the transcript of the said oral update, it is stated the office has repeatedly been accused in Sri Lankan media of lack of transparency for not revealing details of its investigation team or its sources, but such confidentiality will be a necessary measure to protect anyone who provides information to the investigation as well as to ensure the integrity of the investigation itself”. The GOSL has accepted this position when it co-sponsored the resolution moved by the USA. If any credible investigation or trial is to take place, the persons against whom allegations are made are entitled to know and should be provided with the authenticity and the source of the allegation and any evidence available against him. No suspect can expect a fair trial without knowing the identity of the witnesses who would testify against the suspect. It is unfortunate that the GOSL has decided to accept this unreasonable position not to disclose the evidence to the persons against whom that evidence will be used.

It is with utmost regret that we mention that a campaign is being floated by the GOSL informing the public that there wouldn’t be a hybrid court”, but only a local truth commission in the line that had been established in South Africa after dismantling the apartheid regime. Unfortunately the truth is exactly the opposite. The first operative paragraph of the resolution which approves the High Commissioner’s report of Investigation on Sri Lanka provides nothing but for a hybrid court” and we regret such misrepresentation of the truth, this is nothing but intellectual dishonesty.

Dr. PiyasenaDissanayake, Secretary, National Joint Committee.

Manohara de Silva, President’s Counsel,

Neville Ladduwahettiy,

Dr. Mrs. A. M. Ladduwahetty,

Nimal Jayawardena,

Dr. AnulaWijesundera,

Lt Col (Retd.) Anil Amarasekera,

Bernard Kulathilake,

Gamini Gunawardena,

Major General (Retd.) Lalin Fernando

Dr Gunadasa Amarasekera

Dr Wasantha Bandara

Dr Gevindu Kumaranatunga

Prof Shanika Hiruburegama

Dr Hema Gunathilaka

Tissa Devendra

Ruhunu Mithuru Sansadaya

Mr Chula Boange

Mr Suriya Gunasekera

Mr Gallage Punyawardena