DHARSHAN WEERASEKERA

I have been involved in some of the actions that a number of Sinhala organizations have been taking in Geneva to counter resolution 30/1, so I hope I have some credibility to speak on the related issues.  To the best of my knowledge, there are at present two schools of thought on how the next Sri Lankan President or ‘Leader’ (whoever that might be) ought to handle resolution 30/1.  The first is to renegotiate the resolution, keeping whatever is good in it, rejecting what is undoubtedly bad, and proceeding thereon.

The second is to reject the resolution completely, and if the UNHRC balks at this to file for an Advisory Opinion at the International Court of Justice (ICJ) obtain the relevant rulings and proceed thereon.  Much of the work that I have been involved with re Geneva over the past year or so has been in establishing the factual basis along with compiling the relevant documents to make this second option possible, if and when a future Sri Lankan ‘Leader’ were to decide to take it.

There is a rumour of an effort by some to undermine, dilute or belittle this second option and take it off the table for the next Sri Lankan ‘Leader,’ who everyone is confident will come to power with an overwhelming mandate from the Sinhalas, and therefore have the power to initiate inter alia fundamental changes to the Constitution including, at long last, repeal the 13^th Amendment.

I am not saying that the next Sri Lankan ‘Leader’ must invariably and inevitably reject resolution 30/1, only that it must be one of the main options open to him or her when he or she takes power.  In this article I shall briefly point out what I see as the drawbacks of the first ‘school of thought’ and reiterate the positives in the second.

OPTION NO.1:  RENEGOTIATE RESOLUTION 30/1

The main problem with the first option is that even if one renegotiates every single paragraph of resolution 30/1 but leave the final paragraph, Paragraph 16 intact – Paragraph 16 calls for constitutional reform involving devolution of power and the full implementation of the 13^th Amendment – the Sinhalas still lose in the long run, because they will never again be able to make a run to repeal the 13^th Amendment.

To the best of my knowledge, the persons urging the renegotiation of resolution 30/1 have never advocated changing Paragraph 16.  Paragraph 16 says:

‘[The Council] Welcomes the commitment of the Government of Sri Lanka to a political settlement by taking the necessary constitutional measures, encourages the Government’s efforts to fulfill its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population; and also encourages the Government to ensure that all Provincial Councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka.’[1]

If Paragraph 16 is re-affirmed by a future Sri Lankan Government, one with an overwhelming mandate from the Sinhalas themselves, it will be impossible not to carry out what the international community demands, and any attempt to do so might raise the presumption for a right to self-determination by the Tamils, something which they will no doubt exploit to the fullest in order to get the international community to endorse a move for secession.

The most controversial if not hated provisions of resolution 30 at least as far as Sinhalas are concerned are the recommendations for:

1. a) A ‘Truth Commission, (Para 4)
2. b) An Office for Reparations, (Para 4)
3. c) An Office of Missing Persons, (Para 4)
4. d) Ratification of the International Convention on Enforced Disappearances, (Para 13)
5. e) A ‘Special Court’ to try Sri Lanka’s military and civilian leaders for purported war crimes, (Para 6)
6. f) Amending the domestic criminal statutes to permit prosecution of persons even without the aforesaid ‘Special Courts,’ (Para 7)
7. g) A ‘political settlement’ involving devolution of power as a means of addressing the problems of the minorities. (Para 16)

Let’s now turn to the issue of renegotiating resolution 30/1.  The question is, ‘What exactly is there to renegotiate?’  Note that, of the matters set out above, the OMP is already established, the Convention on Enforced Disappearances ratified, the Office of Reparations (we are told) is in the pipeline, as are the amendments to the criminal statutes.  That leaves the Special Courts, the Truth Commission and the ‘Political Settlement’ involving devolution.

Special Courts are now redundant because much of what was sought to be achieved through them can now be done through the OMP and the relevant provisions under the Convention on Enforced Disappearances including extradition of our people for prosecution before international tribunals.

So, if by ‘renegotiation’ what our folks mean is getting the Council to remove or modify the recommendations on Special Courts and the Truth Commission in return for a renewed commitment by us to the full implementation of the 13A, Sri Lanka’s enemies will be quite happy to cut that deal because they lose very little and gain everything.

Meanwhile, from the point of view of the Sinhalas, the aforesaid ‘deal’ is not a deal at all but a trap.  For these reasons I maintain that renegotiating resolution 30/1 is not in the best interest of the Sinhalas.

OPTION 2:  REJECT RESOLUTION 30/1 LOCK, STOCK AND BARREL

The Eelamists wanted to achieve two things through the Geneva ‘accountability’ process:   first, to get revenge from key Sinhala political and military leaders for defeating the LTTE; and second, to ‘create the conditions for international recognition of Tamil self-determination,’ which is to say, to create the conditions for an international endorsement for Eelam.

I quote below a statement by Vishvanadan Rudhrakumaran one of the most hardcore of Eelamists and head of the self-proclaimed ‘Transnational Government of Tamil Eelam’ operating out of the United States,’ from an article in 2013, that is, at the very onset of the aforesaid accountability process in Geneva.  He says:

‘The Tamil struggle in Sri Lanka for an independent and sovereign State has two dimensions. One is to create conditions for international recognition and full realization of the Tamils’ right to self-determination and the other to bring to light what happened in the final stages of the war in 2009…..

After justice is done to our people, we want the UN to deliberate, similar to its deliberations pertaining to Kosovo, about the measures that should be taken to prevent reoccurrence of genocide on the island of Sri Lanka.

In all the referendums held in recent years, whether it is Kosovo, South Sudan or even East Timor, the Diaspora was entitled and allowed to vote. Tamils inside the island of Sri Lanka and those outside it are indeed like two sides of the same coin, namely the nation of Tamil Eelam.’[2]

I must now say a word about devolution of power.  To the best of my knowledge, for the Tamils, ‘devolution of power’ means they get to ask for as much power as they want, and the Sinhalas have to give it, and if they don’t the Tamils reserve the right to cry ‘Foul!’ and demand self-determination.   Here, for instance, is R. Sampanthan from a well-known speech in April 2012.  He says:

‘Our expectation for a solution to the ethnic problem of the sovereignty of the Tamil people is based on a political structure outside that of a unitary government, in a united Sri Lanka in which Tamil people have all the powers of government needed to live with self respect and self-sufficiency….Our acceptance of this position does not mean that we consider the 13^th Amendment to be an acceptable solution, nor that, in the event of our right to internal self-determination is continuously denied, we will not claim our right under international law to external self-determination.  It only means that this is the only realistic solution today.’[3]

Note that, Sampanthan wants all the powers of government needed to live with self-sufficiency,’ and it is the Tamils themselves who are to decide how much power that is.

If one combines the observations of Rudhrakumaran and Sampanthan, and bring to mind Paragraph 16 of resolution 30/1, it is clear that they have got exactly what they want. All that they have to do is to keep insisting that Paragraph 16 be fully implemented, and if it isn’t to ask the international community to recognize a purported right of Tamils in Sri Lanka to self-determination under international law.

If there’s international recognition of a purported right of Sri Lankan Tamils to a specific and defined area of land within Sri Lanka, no Sri Lankan Government will be able to resist the subsequent pressure by the international community to allow a referendum on secession (the option that Rudhrakumaran is plugging) or some other mechanism to achieve formal separation.

Let’s now look at Paragraph 16 from the point of view of the Sinhalas.  In Paragraph 16 the Council asserts that ‘devolution of political authority’ is integral to reconciliation and the full enjoyment of human rights by all members of its population, meaning that, in the Council’s opinion, whatever final political settlement is reached between the minorities and the Sinhalas, if it is to be viable, it has to involve devolution of power.

(If devolution of power is integral to reconciliation, one must presume that, without it, no reconciliation is possible, i.e. the purported political settlement will be a failure.  Therefore any solution, if it is to be viable, must involve devolution.)

So, if Paragraph is allowed to remain – or more important is re-affirmed by a future Sri Lankan Government – it will permanently lock the Sinhalas into accepting devolution as the solution to the purported ‘ethnic problem,’ even if the Sinhalas after due reflection on the relevant issues formulate alternatives to devolution, alternatives that in their view better serve the interests of the country. In short, it will make devolution non-negotiable for a future Government.

As far as I’m concerned, persons such as Rudhrakumaran, Sampanthan and others of their ilk are not interested in a ‘solution’ to the purported ‘ethnic problem, or rather, the only solution they are interested in is Eelam.   Devolution is a trap and a shibboleth they are using in order to keep the Sinhalas dancing to their (i.e. the Eelamists’) tune.

The point is this.  The next Sri Lankan ‘Leader,’ who as I mentioned earlier everyone is confidant will come to power with the overwhelming support of the Sinhalas, if he or she is to vindicate the trust and faith placed in him or her by the Sinhalas, must solve the purported ‘ethnic problem’ once and for all.  It cannot be postponed or handed over to the next generation.

(I realize that many Sinhalas dispute that there is any such thing as an ‘ethnic problem’ in this country, and that if there was a problem at all if was a terrorist problem.  Fine.  But in that case, the next Sri Lankan ‘Leader’ still has to establish before the world, with cogent evidence, that there is no further problem, and that continuing cries by the minorities especially the Tamils that they are being subjected to shabby treatment is baseless.  Either way, the point remains the same.  The matter must be decisively settled.)

If the aforesaid ‘leader’ is to do the above, he or she must have all options on the table, and if all options are to be on the table, then by definition it must include the possible repeal of the 13^th Amendment.  Besides, the 13A was never subjected to a referendum, and it is only fair that the Sinhalas be given a shot at it.  If Paragraph 16 remains intact, it will preclude the next Sri Lankan ‘Leader’ from even considering that option, so I cannot countenance renegotiating resolution 30/1.  It is far better to reject the resolution in toto.

[1] A/HRC/RES/30/1, 15^th October 2015 Paragraph 16, www.ohchr.org

[2] ‘Diaspora Tamils should be a part of U.N. referendum on Eelam, ‘ Vishvanadan Rudhrakumaran, The Weekend Leader, www.theweekendleader.com, 3^rd April 2013

[3] ‘Address of R. Sampanthan at the 14^th National Convention of ITAK in Batticaloa,’ www.dbsjeyaraj.com  27^th May 2012