A still valid tripartite agreement on foreign judges: Foreign Ministry’s role (Part II)
Posted on January 30th, 2019

by Shamindra Ferdinando Courtesy The Island

Part I of this article appeared last Wednesday (Jan. 23)

Sri Lanka’s pathetic failure to exploit Lord Naseby’s disclosure in the House of Commons must be examined against the backdrop of an assurance given by the government of Sri Lanka to the US in late June 2016.

The Lord made his revelation in mid–Oct. 2017 whereas the US received an assurance from Sri Lanka as regards its readiness to accept a hybrid war crimes investigation mechanism in June 2016.

Tamil National Alliance (TNA) Jaffna District lawmaker M.A. Sumanthiran revealed the existence of a tripartite agreement on such a war crimes probe in June 2016. The TNA’s partner the Global Tamil Forum (GTF) revealed that this tripartite agreement had been the basis for the Geneva Resolution co-sponsored by Sri Lanka.

Interestingly, no one knew of the secret agreement, the Office of the then Opposition Leader R. Sampanthan disclosed the circumstances leading to the unprecedented agreement.


Did Foreign Ministry play a part in this agreement? Did anyone or a group of Foreign Ministry officials contribute to this project? And most importantly, when exactly, was consensus reached on foreign judges and other foreign personnel on the accountability process?

MP Sumanthiran, now in the centre of controversy over moves to introduce a new Constitution, can set the record straight.

The TNA made available Sumanthiran’s statement to The Island soon after he delivered it at the ‘Congressional Caucus for Ethnic and Religious Freedom in Sri Lanka’ in Washington. On behalf of the TNA, Sumanthiran claimed to have reached a tripartite consensus in respect of foreign judges, defence attorneys, investigators etc., in a Sri Lankan judicial mechanism to probe war crimes. This agreement was reached before the Geneva-based United Nations Human Rights Council (UNHRC) unanimously adopted a resolution to pave the way for inquiry.

Sumanthiran told the gathering that the government of Sri Lanka, the TNA and the US had been involved in the negotiations leading to the agreement.

The declaration was made in the presence of the then Sri Lanka’s Ambassador in Washington Prasad Kariyawasam.

The event was moderated by Sadhanand Dhume of the American Enterprise Institute, a Washington-based think tank. The Caucus is an initiative launched by United States House of Representatives Bill Johnson of Ohio and Danny Davis of Illinois, in Nov, 2013.

In his brief remarks, Ambassador Kariyawasam provided an overview of the measures taken by Sri Lanka to promote its two-pronged policy of reconciliation and development since the January 2015 election of the current government and reiterated in detail, measures taken by the government to vindicate its commitment to these processes and explained the several challenges that militate against government efforts. A statement issued by the Sri Lankan embassy in Washington didn’t make any reference to Sumanthiran’s shocking disclosure.

Even after two years, the government never referred/responded to Sumanthiran’s claim. However, the TNA contradicted its own statement amidst severe criticism of Sumanthiran’s declaration. The following is the full text of a TNA statement dated July 03, 2016 sent to The Island: “The Tamil National Alliance rejects the rumors that have been appearing in the public media stating that the TNA, Government of Sri Lanka and the United States have come to an agreement with regard to the implementation of the UN resolution 30/1, especially with regard to the accountability processes.

The Tamil National Alliance has always held the position that the resolution must be implemented both in letter and spirit and there has been no change in this position. We will remain committed and take all necessary steps to ensure that the resolution is implemented fully in the future.

The TNA wishes to urge all Sri Lankans not to get carried away by these rumors and to remain united in restoring justice and equality among all citizens and to work towards reconciliation and building a united undivided Sri Lanka.”

Obviously, the TNA lied in a bid to deceive the public. Perhaps, the UNP advised TNA leader R. Sampanthan and his right-hand man Sumanthiran to issue a statement.

Sumanthiran told the Washington gathering that the resolution was moved in Geneva following an understanding that the participation of foreigners wouldn’t be contrary to Sri Lanka’s Constitution. Declaring that he had been personally involved in the negotiations with the United States of America and also participated in that particular process, Sumanthiran said: “There were some doubts created, as to whether the Constitution of Sri Lanka would allow for foreign nationals to function as judges and we went into that question, clarified it, and said yes they can”.

Sumanthiran told the Congressional Caucus that the resolution accepted at Geneva had been negotiated and they settled for a hybrid model though they originally asked for an international inquiry.

The writer raised Sumanthiran’s Washington declaration with Marapana after the President’s Counsel addressed the media at the Foreign Ministry. The UNP brought back Marapana to the cabinet in Aug 2017 at the expense of Ravi Karunanayake. Standing next to Marapana was the then Foreign Secretary Prasad Kariyawasam, who had been our previous Ambassador in Washington. Kariyawasam sat next to Sumanthiran when the latter revealed the existence of a secret tripartite agreement on foreign participation in the accountability process.

In his lengthy presentation to the Congressional caucus on June 14, 2016 Sumanthiran discussed a range of issues, including the role of the US and India in the resolution of the national issue.

In response to the writer’s query, Marapana declared that the 1978 Constitution wouldn’t permit the inclusion of foreign judges in the proposed domestic Judicial Mechanism under any circumstances.

A confident Marapana strongly disputed the writer’s assertion in respect of the inclusion of foreign judges in the proposed JM in accordance with the Geneva Resolution 30/1.

Marapana quite conveniently had forgotten that a government appointed body in January endorsed the Geneva Resolution. The Consultation Task Force on Reconciliation Mechanisms (CTFRM) called for full participation of foreign judges, and other personnel, including defence lawyers, prosecutors and investigators, in transitional justice mechanism to address accountability issues.

The CTFRM released the controversial report on the eve of the third anniversary of President Maithripala Sirisena’s victory over his predecessor Mahinda Rajapaksa.

Those who had been propagating the lie that war winning President Rajapaksa’s defeat, at the January 2015, presidential polls, would automatically save Sri Lanka from the humiliation of being probed by the international community, ended up with egg on their faces. The well compiled dossier backed calls for foreign participation in the judicial process. The writer is also of the view that the victims should not be deprived of a proper inquiry. The Yahapalana government cannot ignore its own recommendations.

The CTFRM comprised Manouri Muttetuwegama, Dr Paikiasothy Saravanamuttu, Gamini Viyangoda, Prof. Sitralega Maunaguru, Dr Farzana Haniffa, Mirak Raheem, Prof. Gameela Samarasinghe, Visaka Dharmadasa, Shantha Abhimanasingham, PC, K.W. Janaranjana and Prof. Daya Somasundaram.

The Foreign Ministry owed the country an explanation as to its role in the Geneva process leading to first ‘yahapalana’ foreign minister Samaraweera co-sponsoring the 2015 resolution. The Foreign Ministry, obviously, approved Sumanthiran’s controversial Washington declaration and subsequently did everything possible to ensure the continuation of the project. Sri Lanka’s despicable decision not to utilize evidence available for its defence at the right place should be examined in this background.

Contrary to numerous presidential declarations and public assurances, President Sirisena, who is also the Commander-in-Chief of Armed Forces is yet to take tangible measures to have unsubstantiated allegations re-examined. President Sirisena never acted on Lord Naseby’s disclosure made in October 2017 though a letter of appreciation was sent to the British politician.

The Sirisena-Wickremesinghe government warmly welcomed the UK headquartered Global Tamil Forum (GTF), an organization working closely with the TNA. The TNA and the GTF, established official contact in 2011, two years after the conclusion of the war and essentially followed the same agenda. They agreed on the Geneva Resolution. The writer raised with UK based GTF spokesperson Suren Surendiran, some time ago, the possibility of them giving up the clause to have foreign judges and other personnel in judicial mechanism. Surendiran told the writer that agreement on the text of the Geneva resolution had been reached following negotiations among what he called the Core Group of members at the UNHRC, the government of Sri Lanka and representatives of Tamils. The agreement on a Sri Lankan judicial mechanism, including the special counsel’s office of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators was certainly not negotiable, Surendiran stressed.

Both MP Sumanthiran and Surendiran are on record as having repeated that they expected the full implementation of the UNHRC resolution.

Foreign Ministry strategy

Foreign Minister Tilak Marapana and Foreign Secretary Ravinatha Aryasinha recently dealt with their strategy at a certificate awarding ceremony on January 11, 2019 of the two-week long Public Diplomacy and Media Relations training programme, organized by the Ministry for its officials in collaboration with the Sri Lanka Press Institute (SLPI). According to the ministry the project was meant to enhance public diplomacy and media relations skill of the officers of the 2018 intake of the Sri Lanka Foreign Service and some of mid-level officers serving in the Ministry.

Last week, we discussed Marapana’s address at the certificate awarding ceremony.

The ministry, in a statement issued two days after the certificate awarding ceremony quoted Foreign Secretary Aryasinha as having said: “…the Ministry of Foreign Affairs has a pivotal role to play in public diplomacy both at home and abroad and this rigorous training programme has equipped  several groups of foreign service officers at different levels with the necessary skills to execute the public diplomacy agenda of the government for the next twenty years.”

While emphasizing the necessity  for diplomats to build relationships with the media, Aryasinha said the programme provided a platform for the diplomats and the journalistic community to engage in understanding each other’s perspectives, paving the way for an enduring relationship.

The Foreign Ministry said: “The programme which aimed at helping participants understand the concepts and methods of public diplomacy, its dimensions, and its role in the information age, was oriented to train officials in the practical application of different public diplomacy tools in their line of work. It included lectures on theoretical aspects of public diplomacy and media relations by senior journalists, Colombo-based foreign diplomats, experts and practitioners, covering a wide range of issues including the history of public diplomacy, the role of media in shaping public opinion, social media, interaction with media and the freedom of expression in the context of the RTI Act.”

“It also included sessions with experts and practitioners including resident foreign correspondents and diplomats , on the practical aspects of public diplomacy such as news release writing, conducting press conferences, giving interviews and using social media effectively, with participants facing mock press conferences and interviews on camera. They also visited the Sri Lanka Rupavahini Corporation, the Sri Lanka Broadcasting Corporation and the Associated Newspapers of Ceylon Limited (Lake House) to gain first-hand experience of the functioning of a ‘news room’.”

“The participating officials also had discussions with journalists as to how Sri Lankan diplomats could do better in media relations and on the needs of media in Sri Lanka and abroad with respect to the Ministry of Foreign Affairs and Sri Lanka Missions overseas.”

The Foreign Ministry efforts in this regard should be appreciated. However, the country is in such a sorry state, a super human effort is required to change Sri Lanka’s direction. The country is certainly heading for a catastrophe, thanks to a corrupt political party system. Marapana must have realized the pathetic situation and desired improvement, hence his call to his ministry to depict Sri Lanka as a civilized nation. In other words, one-time Attorney General and President’s Counsel Marapana admits Sri Lanka is not a civilized nation.

The writer was among those invited by the SLPI to address the officers at its Kirulapone office. The opportunity was used to remind those present how successive governments, including the present one neglected their responsibilities much to the disappointment of the vast majority of people. Their failures finally led to yahapalana administration co-sponsoring a resolution against the country. Sri Lanka will be dealt in terms of the Oct 2015 Resolution when the human rights council convenes in March 2019.

Political crisis causing havoc

Perhaps, Sri Lanka entered a new phase of conflict with the Ceasefire Agreement between the government and the LTTE in Feb 2002. Norway arranged the CFA. The Foreign Ministry was largely overlooked in that endeavour. However, the ministry never examined the CFA even after the collapse of the one-sided agreement that seriously jeopardized national security. Sri Lanka paid dearly for the obvious negligence and the Foreign Ministry cannot absolve itself of the responsibility for the overall crisis thereafter leading to war winning Sri Lanka beinghauled up before the international community. The country coming up for discussion in March 2019 is a reminder of Sri Lanka’s dilemma.

In spite of the Foreign Ministry’s failure, serving Foreign Service officer Dr. Chanaka Talpahewa comprehensively dealt with circumstances leading to Eelam War IV in Aug 2006 in his ‘Peaceful Intervention in intra-state conflicts: Norwegian Involvement in the Sri Lankan Peace Process.’ Dr. Talpahewa’s work should be examined against the backdrop of a recent admission made by Norwegian Prime Minister Erna Solberg in New Delhi early this month. The statement couldn’t have been made at a better time for those who despised the Norwegian intervention here. Addressing the media on January 07, 2019, Soloberg acknowledged Norway’s engagement in the Sri Lankan peace facilitation was a fiasco. She was in New Delhi on a three-day state visit.

Foreign media quoted the Norwegian PM as having said: “nobody from the outside can make peace or make changes”. Acknowledging Norwegian efforts weren’t a success, Solberg said: “I’m sorry to say I don’t think our Sri Lanka efforts led to a big success and I’m still sorry for the way the conflict in Sri Lanka ended.”

Dr. Chanaka Talpahewa, dealt with a range of contentious issues, including the finalization of the CFA in February, 2002, under controversial circumstances, the assassination of Foreign Minister Lakshman Kadirgamar, in early August, 2005, as well as secret negotiations between the government and the LTTE meant to facilitate LTTE theoretician Anton Balasingham’s evacuation from Sri Lanka.. Dr. Talpahewa discussed Norway’s failure in Sri Lanka due to multiple reasons. The serving foreign service officer explained that the personal affinity between the Norwegians and the LTTE leadership, had a significant impact on the peace process.

Foreign Ministry neglected its responsibility to convince the government to commission a comprehensive study, soon after the conclusion of the Vanni offensive in May 2009. Instead, the previous government squandered massive sums of taxpayers’ money on expensive US public relations firms foolishly thinking they could change the mindset in Washington in our favour. The Lessons Learnt and Reconciliation Commission (LLRC), too, lacked the required mandate to conduct a comprehensive study, though some aspects of the Norwegian role were examined.

Did Talpahewa receive the required support for his efforts? Should he be commended for courageous no-holds-barred approach in examining an extremely sensitive issue?

Lord Naseby’s selfless efforts gave Sri Lanka an opportunity to defend itself in Geneva though our corrupt political set up squandered that chance. Sri Lanka did not take any notice of honour bestowed on Lord Naseby. Lord Naseby, on Oct 13, 2018, received the BRISLA (British Sri Lanka Association) award for being an Outstanding Friend to the British-Sri Lankan community from British High Commissioner to Sri Lanka and Ambassador to Maldives, James Dauris. Non-profit organization BRISLA recognizes achievements and contributions made in the spheres of Healthcare, Literary Arts, Performing Arts and Entrepreneurship. The Sirisena-Wickremesinghe government was represented at the recently concluded event by Sugeeshwara Gunaratna, the Acting Sri Lankan High Commissioner in the UK.

The inaugural BRISLA awards ceremony was held on Nov 15, 2015 at Grange St Paul’s Hotel in London. Sri Lanka cricket great Kumar Sangakkara was also among those honoured at the inaugural event.

Did Lord Naseby deserve Sri Lanka honours?

(To be continued on Feb 06)

Leave a Reply

You must be logged in to post a comment.



Copyright © 2023 LankaWeb.com. All Rights Reserved. Powered by Wordpress