By Shamindra Ferdinando Courtesy The Island

October 30, 2018, 8:41 pm

Newly appointed Premier Mahinda Rajapaksa congratulating new Education and Higher Education Minister Dr. Wijeyadasa Rajapaksa, PC, one of the four elected on the UNP ticket at the last parliamentary polls in August 2015 to join the Sirisena-Rajapaksa administration. Wijeyadasa Rajapakse quit the SLFP-led UPFA during Mahinda Rajapaksa’s first tenure (2005-2010) as the President (Pic by Sudath Silva)

Justice Minister Thalatha Atukorale profusely appreciated Prime Minister Ranil Wickremesinghe for accommodating her in the 10-member Constitutional Council (CC).

The UNPer declared that she was the first woman named to the CC, chaired by Speaker Karu Jayasuriya – elected from the Gampaha District at the 2015 August parliamentary polls. Parliament and political parties constituted the first CC by way of enactment of the 19th Amendment to the Constitution.

The Ratnapura District MP said so at a Sirikotha meeting on the morning of Oct 12, 2018. Atukorale said that she had to leave the Sirikotha meeting early to attend a CC meeting to decide on the next Chief Justice. The CC recommended Nalin Perera, a career judge, fourth in line for the top job. President Maithripala Sirisena endorsed that appointment.

Obviously, Atukorale hadn’t been aware of one-time Under-Secretary General of the United Nations, Radhika Coomaraswamy, being a civil society member of the CC until late Sept., 2018. Coomaraswamy functioned as the Special Representative of the Secretary General on Children and Armed Conflict from 2006 until her retirement in 2012.

Attorney-at-law Atukorale, a leading member of the UNP, obviously hadn’t been interested in the CC. Had she been, she couldn’t have missed Coomaraswamy’s role in the CC where she served it as one of the three civil society representatives.

Coomaraswamy, before her term here ended as CC member, in Sept, 2018, flayed Myanmar’s political and military leaderships for the current situation there. Coomaraswamy joined hands with Marzuki Darusman and Christopher Sidoti to call for war crimes probe targeting Myanmar. The call was made on behalf of the UN. Marzuki Darusman, one time Attorney General of Indonesia, is no stranger to Sri Lankans. Darusman spearheaded the UN project, targeting Sri Lanka, leading to the hotly disputed Panel of Experts (PoE) Report put out in late March 2011.

A section of the international media quoted Coomaraswamy as having said at the launch of the UN report on Myanmar: “The scale, brutality, and systematic nature of rape and violence indicate that they are part of a deliberate strategy to intimidate, terrorize, or punish the civilian population. “They’re used as a tactic of war that we found, include rape, gang rape, sexual slavery, forced nudity and mutilations.”

How could our Justice Minister completely miss Coomaraswamy’s role in the CC when such statements were made?

When the writer queried Justice Ministry media on the afternoon of Oct 12, 2018, as to how Atukorale didn’t know there had been a woman on the CC before her inclusion, courtesy Wickremesinghe, the ministry issued an amended statement in which Atukorale described herself as the first woman parliamentarian to serve the CC. But, the original video is clear. Atukorale really believed she is the first woman on the CC. The original CC comprised Speaker Karu Jayasuriya, Prime Minister Ranil Wickremesinghe, Opposition Leader R Sampanthan, President Sirisena’s nominee Patali Champika Ranawaka, Prime Minister’s choice Dr. Wijeyadasa Rajapakse (subsequently WR was replaced by Tilak Marapana), Opposition Leader’s nomination John Seneviratne, Parliament’s nomination Vijitha Herath and civil society members, Coomaraswamy, A.T. Ariyaratne and the late Shibly Aziz, Attorney General 1995-1996.

Atukorale predecessor Wijeyadasa Rajapakse quit the CC in late Dec 2017 after losing the Justice and Buddha Sasana portfolios in late Aug 2017. Rajapakse earned the wrath of Wickremesinghe by publicly criticizing the handing over of the Hambantota Port, on a 99-year lease, to China. Rajapaksa was also accused of shielding the Rajapaksas. The President’s Counsel is on record as having alleged that his removal was meant to sweep the mega treasury bond scams under the carpet.

Interestingly, Rajapakse was replaced in the CC by National List MP Tilak Marapana who quit the Law and Order portfolio, in early Nov 2015, following accusations of his involvement with Avant Garde Maritime Services (AGMS) that is alleged to have received privileged status under the Rajapaksas. Some of his ministerial colleagues accused him of protecting AGMS owned by retired Army Commando Maj. Nissanka Senadhipathy.

On the night of Monday (Oct. 29) UNPer Wijeyadasa Rajapake retained his cabinet portfolio – Education and Higher Education. Rajapakse was among four UNPers, Wasantha Senanayake (Minister of Tourism and Wildlife), Suresh Vadivel (State Minister of Plantation Industries) and Ananda Aluthgamage (Deputy Minister of Tourism and Wildlife) to join the Sirisena-Rajapaksa administration. Wijeyadasa Rajapakse quit the SLFP-led UPFA during Mahinda Rajapaksa’s first tenure (2005-2010) as the President.

Following Marapana’s resignation, the former Attorney General was quoted as having told the media: “I never interfered with the ongoing investigations. But there is a doubt among people and parliamentarians that the Police investigations are being affected because of me. That’s why I decided to resign from my ministerial portfolio.”

Those who found fault with Marapana for allegedly representing the interests of AGMS did not oppose him on the CC – the highest body responsible for making recommendations for all independent commissions in addition to key appointments to the Supreme Court, Courtof Appeal, etc.

Now, Marapana has been succeeded by Atukorale who didn’t at least know the composition of the original CC.

Second CC in turmoil

Having repeatedly alleged that he would have been buried by the Rajapaksas if defeated at the 2015 January presidential election, President Sirisena last Friday appointed Mahinda Rajapaksa as the Prime Minister. Wickremesinghe has strongly challenged the Sirisena-Rajapaksa move, vowing to prove his majority in parliament. In spite of rhetoric, the UPFA wouldn’t find it easy to prove they have a majority in parliament. However, the coming showdown in parliament could result in a debilitating setback for one party and one emerging victorious, the CC will be in dilemma as regards the status of the Prime Minister.

As far as President Sirisena is concerned, Wickremesinghe is no longer the Prime Minister with effect from Oct. 26 and therefore he didn’t belong to the CC.  At the time of Friday’s stunning move, the Second CC comprised Speaker Karu Jayasuriya, Prime Minister Ranil Wickremesinghe, Opposition Leader R. Sampanthan, President Sirisena’s nominee Mahinda Samarasinghe, Parliament’s nominee Bimal Ratnayake, Prime Minister Wickremesinghe’s nominee Thalatha Atukorale, Opposition Leader Sampanthan’s nominee Chamal Rajapaksa and three civil society nominees, Jayantha Dhanapala, Javid Yusuf and Naganathan Sellvakumaran. With President Sirisena recognizing twice President Rajapaksa as Premier, he is automatically a member of the CC.

The Constitutional Council/Parliament will have to decide whether Thalatha Atukorale can continue as the PM’s nominee as Wickremesinghe no longer holds that position.

It would be pertinent to mention that some decisions, taken at the last CC meeting on the afternoon of Oct 25, before President Sirisena divorced the UNP, didn’t go down well with President Sirisena. Having met at 1.30 pm, the CC announced the endorsement of two of the four names recommended to the Supreme Court by the Office of the President. The CC also approved one of the four names recommended by the Office of the President as judges of the Court of Appeal.

Appointments to the CC are effective for a period of three years.

In case the Sirisena-Rajapaksa duo manage to prove their simple majority, in parliament, next month and the UNP is forced to recognize Rajapaksa as the Prime Minister, the CC will find a different environment to work in. In the event they succeed, the TNA will lead the Opposition Leader’s post. In that case, the Constitutional Council/Parliament may have to decide on the Opposition Leader’s nominee, currently Chamal Rajapaksa.

Among the Second CC are two persons – Jayantha Dhanapala (former United Nations Under-Secretary-General for Disarmament Affairs (1998-2003) and Javid Yusuf (attorney-at-law and former Ambassador to Saudi Arabia) who was involved in the Norway-led peace process that led to all-out war in August 2006. Norway finalized the Ceasefire Agreement between Sri Lanka and the LTTE on Feb 21, 2002 close on the heels of the LTTE attempt to assassinate President Chandrika Bandaranaike Kumaratunga who was having talks with the group. Yusuf functioned as the Director General of the Muslim Peace Secretariat at that time. The Muslim Peace Secretariat struggled to secure the LTTE’s consent to participate in the Norway-mediated talks overseas and to tackle problems faced by the community, especially those driven out of the Northern Province during Ranasinghe Premadasa’s presidency.

Dhanapala headed the Secretariat for Coordinating the Peace Process (SCOPP) tasked with coordinating, facilitating, and strengthening the Norway-led peace process. Dhanapala, a retired career Foreign Service officer, succeeded B.A.B. Gunatilleke as SCOPP chief in 2004.

The writer believes of all those who appeared before the Lessons Learnt and Reconciliation Commission (LLRC), Dhanapala, made the two most important recommendations on the subject of International Humanitarian Law (IHL) and the controversial issue of responsibility to protect concept.

The writer was among the media present at the Lakshman Kadirgamar Institute of International Relations and Strategic Studies (LKIIRSS) to cover Dhanapala’s presentation. It was named in memory of our late Foreign Minister Lakshman Kadirgamar assassinated by the LTTE in 2005 Aug. Today, it is called the Lakshman Kadirgamar Institute (LKI).

Dhanapala asserted that IHL should not apply to Sri Lanka’s war against the LTTE and that a conventional army couldn’t be bound by IHL in fighting a terrorist organization.

Sri Lanka paid a huge price for the previous government’s failure to properly examine accountability issues and also neglecting its responsibilities in this regard. The Sirisena-Wickremesinghe combination in October 2015 treacherously co-sponsored the Resolution against Sri Lanka, thereby paving the way for direct Western intervention in the constitutional making process.

Impact on Constitutional making process

President Sirisena and Kurunegala District MP Rajapaksa made their surprise move ahead of the presentation of the second interim draft, prepared by the Steering Committee tasked with preparing a draft constitutional proposal for Sri Lanka. With President proroguing parliament the interim draft cannot be presented to parliament on Nov 5 as planned. Parliament will meet again on Nov 16.

Wickremesinghe in his capacity as the head of the Steering Committee, was scheduled to present the report to the Constituent Assembly. Now that President Sirisena has unceremoniously sacked Wickremesinghe, who would be at the helm of the Steering Committee to lead the constitution making process? Having repeatedly berated the Sirisena-Wickremesinghe duo for giving into Western and Indian pressure to introduce constitutional changes, Rajapaksa will find it extremely difficult to continue with the process. It would be pertinent to mention that the National Freedom Front (NFF) quit the Constituent Assembly in July last year claiming the process posed a grave threat to Sri Lanka’s unitary status. However, Wimal Weerawansa’s NFF couldn’t convince Rajapaksa to quit the Constituent Assembly as well as the Steering Committee. Two Joint Opposition seniors serve the Steering Committee. Against the backdrop of the UPFA factions shedding their differences, it would be interesting to see whether they seek a consensus on the constitution making process. In spite of the NFF quitting the Constituent Assembly, the UNP continued with the project though the Constituent Assembly should consists of all 225 elected and appointed lawmakers.

The NFF parliamentary group, in a letter to Speaker Jayasuriya, said: “As per the motion passed in Parliament for the setting up of the Constituent Assembly, it is mandatory that all MPs in Parliament become its members. When we leave the assembly, that condition is violated and the legitimacy of the Constituent Assembly is now in question. We hope the Speaker would inform Parliament that the legality of the Constituent Assembly is now in question with our exit.”

“We, as representatives of the public, accept the call by Mahanayakes of all three chapters that the present situation is not suitable for a new constitution or amending the constitution. The Mahanayakes conveyed that message to the government, all MPs and the general public in a statement dated July 04, 2017.

The writer raised the issue with the Joint Opposition, the Sri Lanka Podujana Peramuna as well as Yuthuma organization. Their spokesmen steadfastly asserted that they should remain in the constitutional making process. JO heavyweight Bandula Gunawardena once told the writer that the decision to remain in the Constituent Assembly and the Steering Committee had been taken at a meeting chaired by Mahinda Rajapaksa.

Nationalist Groups backing Mahinda Rajapaksa, too, believe that the JO should have quit Wickremesinghe’s project along with the NFF. Against the backdrop of the complete change in the political environment, President Sirisena and Premier Rajapaksa will have to review the UPFA’s stand on the constitution making process.

In terms of the Geneva Resolutions 30/1 and 34/1, Sri Lanka will have to fulfill obligations in relation to accountability issues by March 2019 Geneva session.

Now, it would be the responsibility of President Sirisena and Premier Rajapaksa to take tangible measures to clear Sri Lanka of unsubstantiated war crimes allegations. Both the Rajapaksas and the Sirisena-Wickremesinghe duo cannot absolve themselves of the responsibility for depriving Sri Lanka of best possible defence much to the disappointment of the people who enjoyed genuine peace.

US-led Western powers and India went to the extent of facilitating the change of government in January 2015 as part of their overall strategy to do away with the Rajapaksas relationship with China. They achieved success in January 2015 after experiencing defeat in January 2010 when General Sarath Fonseka lost badly.

Will they simply allow President Sirisena’s move to jeopardize a high profile project in which interested parties invested millions of USD. Bringing the constitution making project to a successful conclusion will certainly offset the battlefield debacle the LTTE suffered on the Vanni east front with its bloody end militarily at Nandikadal in May, nearly a decade ago.

Former UNHRC Chief Zeid-Hussein, at the 32 session of the Geneva sessions, on June 28, 2016, dealt extensively with Sri Lanka. The former Jordanian career diplomat, in a statement captioned ‘Promoting reconciliation, accountability and human rights in Sri Lanka’, explained, in no uncertain terms, what Geneva expected Sri Lanka to do.

Let me reproduce verbatim what Zeid-Hussein stated in his June 28, 2016, address in Geneva:

* “Significant momentum has been achieved in the process of constitutional reform. On 10 March 2016, Parliament adopted a resolution establishing a constitutional assembly to draft and approve a new constitution or amendments by the end of 2016, which would then be put to a referendum in 2017. The drafting process has benefited from an inclusive public consultation process overseen by a Public Representations Committee that received submissions and held district level consultations in the first quarter of 2016.”

* “From a human rights perspective, the constitutional reform process presents an important opportunity to rectify structural deficiencies that contributed to human rights violations and abuses in the past and reinforce guarantees of non-recurrence. These could include a more comprehensive Bill of Rights, stronger institutional checks and balances, enhanced constitutional review, improved guarantees for the independence of the judiciary, effective individual complaints mechanisms and greater direct enforceability of international human rights treaty. Also, as demonstrated by other countries’ experience, is the strengthening of civilian oversight over the military in the form of multiple oversight and accountability mechanisms over defense policy, discipline and promotion, budgeting and procurement. The new Constitution will also be important in facilitating the establishment of the transitional justice mechanisms envisaged by the Government, for instance the criminalization of international crimes in national law or allowing for the involvement of international judicial personnel. At the same time, the High Commissioner hopes that the political process of adopting constitutional changes will not involve tradeoffs and compromises on core issues of accountability, transitional justice and human rights.”

Sri Lanka needs to be watchful and move swiftly and decisively to obliterate allegations with real evidence and accept responsibility for individual battlefield excesses in case there were any during the eelam war IV (2006 – 2009). Taking up Lord Naseby’s revelations in Geneva can be the first step in a daunting task, something Sri Lanka cannot afford not to do. Strategic thinking is necessary as Sri Lanka has already fulfilled some of the key measures prescribed by Geneva, including Office for Missing Persons and Office for Reparations.

To be continued on Nov 7