Human Rights Day: Importance Of The UDHR

By Laksiri Fernando -December 9, 2012 

Dr Laksiri Fernando

The adoption of the Universal Declaration of Human Rights (UDHR) on 10 December 1948 by the United Nations, 48 countries voting in favour, 8 abstaining and none against, has marked a new era in human history creating the possibility of modern societies moving towards achieving a wide range of important human rights through legal enactments supported by institutional and policy changes not only in the sphere of civil and political rights but also in the realms of economic, social and cultural rights. What we celebrate this year is the 64^th anniversary of the UDHR.

The importance of the UDHR, succinctly written in 30 articles with an equally lucid preamble, as a social manifesto is perhaps higher than the importance of the Communist Manifesto proclaimed a century ago in 1848 by Karl Marx and Frederick Engels. If the Communist Manifesto attempted to achieve the objectives of socialism, the UDHR combines both liberal and socialist aspirations and sets forth some primary conditions or minimum “common standards of achievement for all peoples and all nations.” The UDHR in this sense is the culmination of two movements in human history: liberalism and socialism.

Preface  

If John Locke was the philosopher who first emphasised the ‘right to individual freedom’ in modern times in his two Treatises of Government (somewhere after 1681),[1] who even referred to Ceylon, Thomas More was the thinker who emphasised the ‘right to social equality’ as a modern social aspiration in his Utopia (1516). He also referred to Ceylon. In terms of democratic transformation, one may say that the UDHR in its formulations took more inspiration from the American Revolution (1777) and the French Revolution (1798); but inspiration from the Russian Revolution (1917) is also evident in the text. More clearly, the work of the International Labour Organization (ILO) since 1919 on labour and economic rights was a decisive influence. That is his how a combination of both ‘political rights’ and ‘economic rights’ are present in the UDHR, although one may say in an unbalanced fashion.

Mahatma Gandhi writing on an initial draft of the UDHR in 1947 briefly emphasised the importance of human duties; an Asian concern so to say. I asked one of the drafters of the UDHR, John Humphrey, in 1987 in Malta when I met him there, whether they could consider Gandhi’s views in finalising the UDHR and he pointed out Article 29 (1) which says: “Everyone has duties to the community in which alone the free and full development of his personality is possible.” This is something that the UN should elaborate and develop. However, the rights in the UDHR are not conditioned on duties of any sort; conditioning is the modus operandi of many authoritarian regimes throughout the world.

There was a particular context within which a declaration of human rights was necessary with a future and a universal vision. That was the advent of several forms of fascism (Germany, Italy and Japan) and the horrendous human rights violations perpetrated during the Second World War. While around 20 million died in direct military confrontations, civilian casualties were double of that amount including those died of war related diseases and famine. The Holocaust claimed 11 million lives; and Japanese invasions at least around 6 million in Asia. As the Preamble of the UDHR noted “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.”

With the above brief preface, this article attempts to critically assess the contents of the UDHR for mainly educational purposes, keeping the human rights issues in Sri Lanka constantly in mind.

Preamble                                                          Read More

TID interrogators fabricate accusation against 14 students in Jaffna

[TamilNet, Sunday, 09 December 2012, 01:28 GMT]
The ‘Terrorist’ Investigation Department operated by the Sri Lankan Defence Ministry is engaged in fabricating a false accusation against 13 students of the University of Jaffna and a few other students in the peninsula, informed sources close to paramilitary circles in Vavuniyaa said. The TID interrogators were working on a false accusation that ‘instructions’ and ‘money’ were provided by the Tamil diaspora in the West to observe Heroes Day in the homeland. Already, nine students of the University of Jaffna are illegally detained by TID interrogators at Vavuniyaa. According to news sources in Jaffna, two student leaders chose to seek humanitarian protection with the SL Human Rights Commission office in Jaffna on Friday. Two more students from the ‘wanted list’ of the TID are yet to seek protection, news sources in Jaffna said. 

SL Police in Jaffna has no idea of the ongoing investigations by the TID division operated from Colombo.

A Sri Lankan TID operative had handed over a ‘wanted list’ consisting 10 names to the administration of the University of Jaffna on Wednesday. 

On Thursday, six students of the Medical Faculty, Abarajithan Tharmaraja (24) from Point Pedro, Janahan Selvarasa (25) from Jaffna, Sanjeevan Kanagarasa (24) from Kanakaampikai-ku'lam, Prasanna Sathiyamoorthy (26) from Punnaalaik-kadduvan, Sabesvaran Paranthaman (24) from Nalloor and Sasikanth Sinnaiah (25) from Pa'ndaarik-ku'lam in Vavuniyaa were handed over to the investigators of the Sri Lankan ‘Terrorist’ Investigation Department.

The 6 students of the Medical Faculty were handed over to the Sri Lankan ‘Terrorist’ Investigation Department (TID) by the Medical Faculty Dean, two lecturers of that faculty and the parent of one student, amid protests by the student representatives and University teachers. 

On Friday, the leader of the Student Union of Jaffna University, S. Bavananthan from the Science Faculty and the leader of the Science Faculty Student Union S. Venuraj chose to seek humanitarian protection from the Sri Lankan Human Rights Commission office in Jaffna, where hundreds of Tamils had sought security between 2006 and 2009 when abductions by the SL military intelligence operated white vans were rampant in the peninsula. 

Three students were already in the custody of the TID at Vavuniyaa after the SL Police and SL military intelligence arrested them after the students observed Heroes Day remembrance at the hostel of the Jaffna University on 27 November. 

Two students, Solaman Sanmugam and Jenamajenth Kanagasundram, accompanied by a lawyer and lecturers of the University had presented themselves on 29 November at Koappaay Police and handed over to the TID. On 30 November two other students Tharshaananth Paramalingam and Sutharsan Kanesamoorthy, were arrested by Koappaay Police at their temporary residences and subsequently handed over to the TID. One of the students, Mr Sutharsan, of Medical Faculty was later released. 

In the meantime, an 18-year-old student of Valveddith-thu'rai Chithampara College, reported missing since Wednesday, was being interrogated by the TID, according to a message conveyed to the parents of the missing youth. 

The occupying SL military has stepped up the terror campaign against the students of Jaffna university as well as students of schools in Jaffna, despite the wide scale protests from the university teachers, Tamil political parties, trade unions and the civil society in the island, and despite protests in the diaspora. 

23 religious leaders, 24 civil groups, media associations and women groups and more than 50 influential individuals across the island have voiced in support of the University Teachers Association of Jaffna and called on the Sri Lankan authorities to immediately release the detained students and to provide assurance in order to create a more secure and conducive environment for teaching and learning within the University that no further student arrests will be made. 

During the last week, demonstrations have also taken place in 7 countries outside the island. 

• Full text of the statement by civil groups across the island [dated 06 December]

Sri Lanka Not Serious About Tamils’ Rights, Says Canadian Tamil Congress

News East-West

TORONTO: Citing a recent piece in the local National Post about a defected Sri Lankan soldier exposing atrocities committed by Sri Lankan forces during the last stages of the ethnic war, the Toronto-based Canadian Tamil Congress has said that Colombo is not serious about addressing Tamil grievances.

In a statement, the CTC said the Sri Lankan soldier’s story comes just after the release of a highly critical UN internal report in Nov which blamed the UN for not preventing the mass atrocities that took place in Sri Lanka. According to the report,  the death toll in the final stages of the war could be as high as 70,000.

The CTC also cited the recent visit by “two individuals for their work in documenting and broadcasting the stories of people who have suffered first-hand as a result of the tragic war in Sri Lanka. Former BBC correspondent Frances Harrison’s book “Still Counting the Dead” is about shocking and heart wrenching stories she personally gathered from survivors of the war.  Norwegian filmmaker Beate Arnestad’s film entitled “Silenced Voices” has vividly captured the stories of three journalists who are now living in exile in Europe after fleeing persecution in Sri Lanka. The movie was successfully screened in Toronto during the third week of November.”

It also alleged police highhandedness against Tamil students in Sri Lanka’s northern parts, saying that students from Jaffna University were forced to go on a two-day boycott of classes recently after clashes with police after cops entered student hostels and threatened them with firearms.

Alleging that some students have been arrested for the protest, the  CTC said it “remains deeply concerned about the students who do not feel safe after several were beaten and injured in what can be described as the worst political disturbance since the civil war ended in 2009.  Furthermore, recent moves to impeach the Chief Justice and intimidation of the judiciary by the Sri Lankan Government has further eroded all Sri Lankans’ confidence in judicial independence.  We call upon the international community to take action to safeguard these students.”

The CTC called upon Canada, the United Nations and its member states to convene an International Independent Investigation into allegations of war crimes and crimes against humanity committed during the final stages of Sri Lanka’s war.

CALL TO BOYCOTT SRI LANKAN CRICKET TOUR

December 9, 2012 

Critics of Sri Lanka’s human rights record are calling for a boycott of the national cricket team’s tour of Australia and say the Boxing Day Test will be an opportunity to protest.

Two groups have called for a boycott ahead of the first Test in Hobart this week, prompting a scathing rebuke from Sri Lankan high commissioner Thisara Samarasinghe.

Claiming inspiration from the former anti-apartheid sporting sanctions against South Africa, the Tamil Refugee Council and the Refugee Action Collective in Victoria are pushing for the boycott.

‘‘There will be a stain of injustice that won’t wash out of the cricket whites if the human rights abuses of the ruling Sri Lankan regime pass unremarked,’’ the groups say in an open letter.

Mr Samarasinghe branded their call unworthy of attention, saying of the Sri Lankan team: ‘‘They have not come from the back door. They have been welcomed by your government and everybody in the system, so don’t let this great country be spoiled by people like this.’’

The call has provoked a mixed reaction from refugee advocates, with some arguing that the Boxing Day Test represents an opportunity to get information to a mass audience, and they plan to distribute leaflets attacking Sri Lanka’s treatment of Tamils to cricket fans.

Former Australian prime minister Malcolm Fraser has called for an independent assessment of the situation in Sri Lanka, including whether members of the Tamil minority are being persecuted and how those sent back from Australia after coming here by boat are being treated.

If an inquiry found that Tamils were still being persecuted and if verifiable commitments were not given that this would stop, ‘‘then the international community has got to take action’’, Mr Fraser told Fairfax Media.

The Australian Tamil Congress’s Bala Vigneswaren supported the boycott call, saying the Australian Cricket Board should apply the same standard to Sri Lanka that was applied to South Africa when that country was boycotted.

The boycott call came as opposition immigration spokesman Scott Morrison announced that he and foreign affairs spokeswoman Julie Bishop would travel to Sri Lanka for meetings with government officials at the end of January.

‘‘We’ll also go up and visit the Tamil areas in northern Sri Lanka and see things on the ground there,’’ Mr Morrison told Sky News on Sunday.

Mr Samarasinghe has previously dismissed claims of continued persecution of Sri Lanka’s Tamil minority, describing those who have attempted to come by boat as ‘‘economic opportunists’’. Those talking of boycotts had a vested interest and should not be taken seriously, he said.

The two groups defended their action. ‘‘Sporting boycotts have been important in building international pressure against cruel regimes and human rights abuses before. There is no good reason Sri Lanka should escape this pressure,’’ they said. – The Age

A Tricky Moral Dilemma: Egypt’s Hastily Drafted Constitution

By Kumar David -December 8, 2012 

Prof Kumar David

The power struggle in Egypt is moving at the speed of greased lightening. A draft constitution has been rushed through by a Muslim Brotherhood dominated, elected, Constitutional Assembly (boycotted by others) to beat a move by the Constitutional Court, dominated by Mubarak era judges, to dissolve it. President Mohamed Morsi issued a decree, a few days previously, assuming powers to override the Court in case it attempted to intervene. That is, he protected the Assembly and prevented disruption of constitution writing. Nevertheless, the Court may have ignored the decree and ordered termination, thus creating a constitutional crisis between itself, the President and the Assembly. Hence the rush to draft in extreme haste and pose a fait accompli. Morsi promptly called a referendum on 15 December to ratify the draft.

The Court was forced to climb down because it dared not prevent a referendum by the people, but in pique it has refused to monitor the referendum. My hunch is that the referendum will say ‘yes’. Compared to the Mubarak era, this albeit imperfect instrument, is a great advance. I will select the most important features and explore whether supporting its adoption is proper.

Consider first the complexity of the political universe. The Arab Spring has had the expected outcome, but its processes have been thoroughly unpredictable. Everywhere old dictators have tumbled and in Syria in death throes. This outcome is like fixed and immovable stars, everywhere, Tunisia, Egypt, Libya, Yemen and soon Syria. In contrast, ground events could not have been more different and unpredictable from case to case. Contrast Tunisia with Libya, Egypt with Syria, or any one with another; the pathways have been incredibly different; Egypt has been the most complex, with surprising twists and turns. A revolution saw off Mubarak, Morsi sent the army back to the barracks. Now the streets, as lively as a carnival, denounce Morsi as a new Pharaoh.

The crucial change in Egypt is not in the structure of the state, which is still fluid and open-ended, but the rise of street power. Gone is fear, the gene is out of the bottle; no one can intimidate or cow down post-revolutionary Egypt. Splendid, but it makes consensus, compromise and agreement on a constitution difficult in a nation so divided. Recall the political kaleidoscope; Morsi polled 51.8% to Ahmed Shafiq’s 48.2% in the June 2012 runoff; in the first round in May, Morsi and Shafiq polled 25% each, while a multitude of radical candidates collected 50% between them.

Schizophrenia Egyptian style                             Read More                

Fein: U.S.'s immunity determinations flout due process

[TamilNet, Saturday, 08 December 2012, 14:43 GMT]
In the final legal brief filed with the United States Court of Appeals in the case against Sri Lanka's President Mahinda Rajapakse for civil damages on war-crimes charges, appellants, Dr Manoharan et al.'s attorney Bruce Fein asserts that "[n]either the Constitution, nor the Torture Victim Protection Act (“TVPA”), nor customary international law (“CIL”) crowns the Executive with exclusive authority to determine whether a sitting head of state is immune from a TVPA suit founded on the grisly and universally abhorred crimes of torture or extrajudicial killing under color of foreign law," and argues that the Court should reject the U.S. State Department's contention that "when the Executive speaks on immunity, the judiciary is ousted of jurisdiction to interpret the law, [and that the] Adjudication of the case moves from Article III courts to the Article II President." 

• Appellants' Final Reply brief

No United States Supreme Court decision supports such a startling usurpation by the Executive of the customary duty of the judiciary to interpret the law under the Constitution’s separation of powers, the brief said, pointing to Chief Justice John Marshall's forceful statement in Marbury v. Madison: “It is emphatically the province and duty of the judicial department to say what the law is."

Rajapakse attorneys legal response, as happened in the proceedings in the lower court, depended entirely on the Department of Justice's reassertion of the "suggestion of immunity," to save Rajpakse from criminal charges resulting in civil damages.

Bruce Fein, former US Associate Deputy Attorney General

Mahinda Rajapakse (Photo: AP)

Dr Manoharan's Reply brief provides supporting arguments for the appellant's position that militates against providing immunity to Rajpakse from the alleged universional crimes. The brief focuses on the following five legal issues:

1. Neither the Constitution, nor the Torture Victim Protection Act (“TVPA”), nor customary international law (“CIL”) crowns the Executive with exclusive authority to determine whether a sitting head of state is immune from a TVPA suit founded on the grisly and universally abhorred crimes of torture or extrajudicial killing under color of foreign law.
2. The TVPA Creates a Cause of Action Against Sitting Heads of State for the Universal Crimes of Torture or Extrajudicial Killing Under Color of Foreign Law.
3. Supreme Court foreign sovereign immunity decisions concerning in rem actions against foreign government vessels have been misinterpreted and misapplied to confer sitting head of state immunity for unspeakable extrajudicial killings in violation of CIL.
4. CIL Rejects the Executive’s Optional Sitting Head of State Immunity Power for TVPA Suits Resting on the Universal Crimes of Torture or Extrajudicial Killing.
5. Unconstitutional Takings. The Supreme Court indicated in Dames & Moore v. Regan, 453 U.S. 654 (1981), that an executive order of the President that extinguished pending legal claims in federal court required payment of just compensation under the Takings Clause of the Fifth Amendment.

• US Department of Justice Amicus brief

• Appellee Rajapakse's Response brief

• Appellant Dr Manoharan, et al.'s Opening Brief in Rajapakse war crimes appeal

Attorney Adam Butschek and Mark Potkewitz assisted Bruce Fein acting for the Plaintiffs-Appellants. Tamils Against Genocide [TAG], a US-based activist organization which seeks legal redress for Tamil victims of Sri Lanka's civil war, serves as power of attorney for the plaintiffs and is the sponsor of the litigation.

The complaint was filed first in 2011 at the District Court for this case alleged multiple violations of the Torture Victims Protection Act (TVPA) based on Sri Lanka's President Rajapaksa’s command responsibility for the extrajudicial killings of Ragihar Manoharan, the son of Plaintiff Dr. Kasippillai Manoharan, of Premas Anandarajah, a humanitarian aid worker for Action Against Hunger, and husband of Plaintiff Kalaiselvi Lavan, and four members of the Thevarajah family, all relatives of Plaintiff Jeyakumar Aiyathurai.

Old Left Or Dead Left – Betrayal Of Sri Lankans

By Members of the Sri Lankan Spring -December 9, 2012 

Tissa, DEW and Vasu

The Old Left movement comprising mainly of the Lanka Sama Samaja Party (LSSP) and Communist Party (CP) was initiated in the 1930s to fight colonial rule and associated exploitation of the working class. Today the key custodians of these parties which began with noble ideals have sacrificed the key principles upholding the ethos of Socialism.

Vasudeva Nanayakkara, Tissa Vitarana and DEW Gunasekera have betrayed the people and socialist principles in the most insulting manner, which have driven away the little support they enjoyed in the past. In fact these double tongued, so called men of calibre, act out the drama in any way that is beneficial to them. Even going as far as using certain platforms that are not politically related to justify the behavior of the current regime, thus ridding themselves of any chance of  “guilt” of abdicating responsibility towards the people.

This trio of a fully educated lawyer, a partially qualified one and a scientist of repute should have some finesse and principles, when compared to most of the jokers in parliament. They are also comparatively wealthy belonging to old landed families in comparison to the “noveau riche or trying to get rich by any means” parliamentarians. So why  bumsuck and sacrifice their principles by aiding and abetting bad governance?  Is it for the benefits  and perks they are receiving and the resultant comfortable  style of living or for the political prominence they receive easily as they could not achieve this through their failed political  parties that are out of sync with progressive thinking, serving the needs of a modern society?

These leaders were really nurtured for socialist leadership by countries such as Cuba and Russia who invested in training, education, trips for exposure  for such leaders. These supporting  countries and the international socialist movement too have been betrayed by them.

But the greatest disservice has been a dereliction of duty by the people and the mechanism for good governance. In the recent struggles, many which occurred under the current regime where were these saviours? They would not give a statement nor speak up for the  rights of fisher folk nor for the Free Trade Zone workers nor for FUTA nor for undue process in the current fracas between the judiciary and parliament. In fact many statements are made to justify why such struggles should not happen or are not necessary and that the government is taking the right stance. Of course they have to remain in government. Occasionally a small phrase of support to the oppressed would be given in order to be on the fence saving themselves on both sides.

It would be assumed that  this so called intelligentsia within parliament, coming from the intellectual left would have really stood up for the independence of the judiciary. But the last straw was DEW Gunasekera askingChandrasiri Gajadeera to sign the blank paper of the impeachment motion and quietly slipping away without signing it himself. The subsequent withdrawal of signature does not count after the deed was done. The irony is that especially this trio of which two have a legal background did not stand up for the independence of the judiciary, let alone all the other lawyers in parliament.

What perhaps is the most tragic abdication of responsibility is the recent cold blooded killing in the Welikada Prison. The prison comes under the purview of Chandrasiri Gajadeera of the Communist party in his capacity as Minister of Rehabilitation and Prison Reforms. He holds one of the only two portfolios given to the communist party. What steps has Minister Gajadeera taken to bring justice in this situation? Of course there is speculation that orders to kill from a “list” of certain selected prisoners have been given by the ruthless and chilling Gotabaya Rajapaksa, contrary to all other interpretations given by the media.

What has happened with the comprehensive COPE report that was prepared by DEW Gunasekera after investigating 229 public enterprises? Amidst giving statements and interim reports on a number of issues such as Greek bonds, DEW acknowledges that to take COPE further the committee has no power. Well what is he doing about this?

Vasudeva jumping ship on issues is the “peice de resistance”. What is hs stand on the impeachment. Comrade Nanayakkara of the  legal profession. Do you believe in Latimer House or Medamulana rules? This has never been answered clearly by Mr Nanayakkara. The reason for staying with the government is said to be part of a plan to rise as progressives against the imperialist. Yet by staying within a government that is supporting racing cars over hand tractors, city beautification vs protection of railway crossings, building malls instead of developing schools, supporting Sinhalisation in the North and East, supporting a sinking Airline called Mihin Lanka and many other white elephants of the Rajapaksa regime, it is unclear if he understands the meaning of progressive vs imperialist. Is this the Vasudeva who went to court to save the Sri Lanka Insurance Corporation?

It is high time people realize the duplicity of the Leftist comrades of the dead left and left them severely alone to go to their grave together with their lack of principles. They should be severely sidelined and not given undue prominence as nothing has of value has been delivered to the people for many years.

Special funds allocation from Sri Lanka government is necessary, to build the lives of Tamil speaking people. Mawai Senathiraja urge

Tamil National Alliance parliament member Mawai Senathiraja urged the necessity of government’s special funds allocations to build the lives of north and east people.

 

The 2013 budget was proposed without considering the difficulties and hardships of the north and east people, was alleged by him yesterday in parliament.

 

While he addressed the debate for finance, planning ministries group discussion, he said, three years have gone after the end of war, but  poverty is still prevailing in the north and east and now it has got augmented.  Without considering the hardships of northern people, economy ratings are carried out in Sri Lanka.

 

Still a situation has not risen for the north and east people, to do a job in their own land and to live from its income.

 

Two third areas in our land are constructed with military camps. The military occupation in the north and east should be reduced. The lands which are confiscated by the military should be withdrawn.

 

More lands are confiscated by the military; hence two lacks of Eelam refugees sheltered in India are not able to return to their native land.  One lacks of people are displaced internally.

 

A citizen who has lived from his birth in the same place, should be resettled is established in the UN Human Rights Council's declaration.

 

We did not ask to remove the military but we are again and again requesting to reduce the military occupation and to withdraw from the lands confiscated.

 

2 lacks and 18 thousand houses should be constructed for those affected by war. Out of this 50 thousand homes are constructed by the Indian government. Some world countries and non-government organizations are building 100 houses. This is not sufficient.

 

Government's systemized activities necessary to build the lives of north and east people. 0.03 percent finance is allocated in the 2013 budget for the Resettlement Ministry. Is it enough to build the lives of people?

 

 

Meanwhile to construct houses for the military 1,000 million rupees are allocated. Their parents are given special allowances. We are not objecting this, but similarly more attention should be focused in regard to north and east people which we appeal was mentioned by him.

Sunday , 09 December 2012

More Countries Are Now Breathing Down Sri Lanka’s Neck And It Is A Good Sign

By Paul Newman -December 9, 2012 

Dr Paul Newman

The Universal Periodic Review (UPR) is a process in the United Nations Human Rights Council in which member countries need to review their human rights records periodically once in four years. The review would be conducted by a Troika of 3 countries. The first submission of Sri Lanka was made in 2008 subsequently after four years Sri Lanka’s turn came for reviewing its glorious human rights record came this November 2012. India, Benin and Spain reviewed the performance of Sri Lanka over the past four years.

The leakage of the Charles Petrie report commissioned by the UN to review the failure of the UN in protecting the civilians took the centre stage and overshadowed the coverage of the UPR. During its first review in 2008 Sri Lanka in all got 95 recommendations from 39 countries. In all it accepted 52 recommendations to be implemented over a period of 4 years and rejected 25 with no clear position on 8.

The very next year Sri Lanka set out on a path to destroy the Tamils ending its successful campaign ending  with the Mullivaikal carnage of innocent Tamil civilians in May 2009. The then mute International community has woken up to see the cruel treatment of the Tamils in the ‘war without witness’ with a series of expose’ in the International media. It is reflected in the participation of 99 countries in the UPR of Sri Lanka. 29 NGOs and INGOs made their submissions along with 17 joint submissions by individuals.

An overwhelming 210 concrete recommendations were made by these 99 countries. Sri Lanka accepted 110 of those recommendations and rejected an overwhelming 100 recommendations, nearly half the recommendations made. This is the highest rejection by a member state in the history of UPR. In all Sri Lanka rejected the recommendations of 45 countries. Some of the most concrete suggestions which would have gone a long way in Sri Lanka mending fences with the Tamils, Muslims and the International community that were rejected are :

• Accede to the Rome Statute of the International Criminal Court (ICC) and draft a law on cooperation between the State and the Court
• Accede to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
• Sign the International Convention for the Protection of All Persons from Enforced Disappearance
• Fully incorporate the Convention on the Elimination of Discrimination against Women into its domestic system
• Abolish definitely death penalty
• Adopt the draft bill on witness and victim protection
• Adopt legislation on appointments that would ensure the independence of the Human Rights Commission
• Fully implement the recommendations of the LLRC, in particular steps to ensure independent and effective investigations  into all allegations of serious human rights violations , in the context of Sri Lanka’s civil war and its aftermath
• USA sought removal of the military from civilian functions, creation of mechanisms to address cases of the missing and detained, issuance of death certificates, land reform; devolution of power; and disarming paramilitaries
• Expedite implementation of reconciliation measures in the North. This would include removing oversight of humanitarian and NGO activities from the  purview of Ministry of Defense to a civilian body,  reducing the intrusiveness of military presence on civilian life in the North and setting a specific date for free and fair Northern Provincial Council elections
• Adopt a national policy to provide human rights defenders with protection and ensure investigation and punishment  of threats or attacks against them
• Fully cooperate with United Nations Human Rights mechanisms Create a reliable investigation commission consisting of professional  and independent investigators to identify, arrest and prosecute the perpetrators of the Muttur murders
• Publish the names and places of detention of all the imprisoned persons
• Take action to reduce and eliminate all cases of abuse, torture or mistreatment by police and security forces
• End impunity for human rights violations and fulfill legal obligations regarding accountability
• Strengthen judicial independence by ending government interference with the judicial process, protecting members of the judiciary from attacks and restoring a fair, independent and transparent mechanism
• Grant due process rights to all detainees held in both military and police facilities, including those held in administrative  detention; disclose all unofficial detention sites; and facilitate effective and independent monitoring of detainees
• Allow the International Committee of the Red Cross unrestrictive access to detention centres
• Undertake measures that would allow citizens to have access to public information, in particular on alleged violations of human rights
• Ensure that all human rights defenders, including individuals cooperating with UN HR mechanisms, are protected effectively from unjustified criminalization, harassment or intimidation and can perform freely their legitimate duties.

These recommendations if accepted would have helped Sri Lanka in addressing issues of War crimes, Crimes against humanity and Genocide.

Sri Lanka is a tiny island, why should more than half the member nations of the UN make these recommendations? The participation of so many countries clearly shows that Sri Lanka is on the wrong path. Already a resolution against Sri Lanka was passed in March 2012 to mend its ways in treating the Tamils. The UPR process is to help countries to correct their past mistakes and morally accept responsibilities. It is also to usher in a new beginning through democratic processes and plan a better future.

Sri Lanka by rejecting these concrete suggestions has once again proved that it is not ready to listen to the sane advices given by other UN member nations and is walking towards the path of deluge. It is also the beginning of good signs for the Tamils who have suffered a lot which is now seen by the International community hopefully bringing peace and a just solution to their problems.

*The author holds a Doctorate of Philosophy on ‘Internal Displacement and Human Rights situation in Northern Sri Lanka from Bangalore University. He was one of the four public speakers at the Permanent People’s Tribunal on War Crimes against Sri Lanka.

Indian foreign policy, ground realities and mixed messages

By Lasanda Kurukulasuriya-Sunday, December 09, 2012

A talk by Dr Arvind Gupta, Director General of the Institute for Defence Studies and Analysis, New Delhi, held at the Lakshman Kadirgamar Institute for International Relations and Strategic Studies on Thursday marked an interesting development in the trajectory of local research activity in international relations. It was the first time such an event was organized jointly by the Bandaranaike Centre for International Studies (BCIS) and the LKIIRSS.

Dr. Gupta delivering his lecture on Wednesday. Picture courtesy www. kadirgamarinstitute.lk

Introducing the speaker, Sunimal Fernando, Advisor to the President and member of the BCIS’s Board of Studies indicated that the two think tanks planned to work together and ‘provide complementarities’ to each other in the future. Both institutions were concerned with the study of international relations in the context of Sri Lanka’s national interest. His observation that Indo-Lanka relations were ‘structurally imbued with tensions’ which it was imperative to resolve, perhaps had relevance to other issues discussed by Dr Gupta in his talk on “Trends in Indian Foreign Policy.”

The foreign policy stance articulated by Gupta has been spelled out by previous visiting Indian diplomats as well. The gist of their message is that India seeks cooperation rather than competition, engagement rather than confrontation, and that the prosperity of its neighbours is in the interests of India’s own prosperity. Even as he spoke however, the ripples resulting from a statement made by India’s navy chief Admiral D.K. Joshi regarding readiness to deploy ships in the South China Sea – where India has interests in oil exploration – were being felt across the wider Indo Pacific region.

Joshi reportedly made the remarks at a press briefing in Delhi on Monday, days after China announced laws that allowed police in its island province of Hainan to board and search vessels which it considered to be ‘illegally’ entering the South China Sea. China asserts sovereignty over most of the South China Sea and its islands, but these claims are contested by Vietnam, Philippines, Brunei, Taiwan and Malaysia. The area’s rich resources in oil, gas and fish, as well as its shipping lanes, have made it a flashpoint in the region in recent times.

Last year India signed a pact with Vietnam for oil exploration in the disputed waters. “Where our country’s interests are involved, we will protect them and we will intervene,” NDTV reported Joshi as saying.
Referring to a subsidiary of India’s oil exploration company Oil and Natural Gas Corp (ONGC), the Indian Express quoted Joshi as saying: “�. when the requirement is there, for example in situations where our country’s interests are involved, for example ONGC Videsh etc, we will be required�to go there and we are prepared for that. Are we preparing for it? Are we holding exercises of that nature? The short answer is yes.”

China’s announcement of the new laws came after a dispute between Chinese fishing boats and a Vietnamese ship in an area where both countries have overlapping claims. The two countries have different versions of the same incident. Vietnam accuses Chinese fishermen of cutting a seismic cable that was being towed behind a Vietnamese survey vessel, while China maintains that Vietnam chased away its fishermen engaged in legitimate fishing activity, the reports say.

More recently, China’s Foreign Ministry spokesperson Hong Lei, referring to Joshi’s remarks said that China “hopes relevant countries respect China’s sovereignty and national interests,” the Hindu reported. However India’s National Security Advisor Shivshankar Menon on a visit to Beijing had downplayed Joshi’s comments, saying the issue did not figure in his talks with the Chinese leadership, the Hindu report added.
Needless to say, this kind of verbal sparring between the two rising powers is not reassuring for smaller states in the region that can nowhere match the military might of the nuclear armed Asian giants. Any Indian assertiveness in the South China Sea would also need to be seen in the context of the US’s ‘pivot to Asia’ that will see 60 percent of US naval assets deployed in the Asia-Pacific by 2020 – a shift of focus widely seen by analysts as a move to counter the rise of China.

The thrust of these developments, if interpreted by China as provocations, could further undermine stability in the region, increasing the risk of war.

Responding to a question after the talk on the Indian navy chief’s remarks, Gupta said there was a need to see the issue in the context of the security of sea lanes, and that “confrontation was not the only way.”
In his talk he said India’s foreign policy had ‘changed beyond recognition’ since the end of the cold war, adapting to the new realities as it prepared to play a part in shaping the new world order. The US’s relative decline and the rise of new powers like China were among those changing realities. Opening up of the economy in 1991 and going nuclear in 1998 were developments that had far reaching consequences. With globalisation India was increasingly integrating with the outside world. But globalization also made India more vulnerable to external shocks. India was considering strategic partnerships that were unthinkable 10 years ago based on national interest, not ideology, he said.

Gupta also referred to the increasing importance of the maritime dimension of India’s foreign policy. The ‘rediscovery of the maritime dimension’ outlined by him needs to be considered against the backdrop of complex ground realities.

Noting that India could not afford to ignore the Indian Ocean, he referred to the Indian navy’s work in combating terrorism, in responding with assistance following the Indian Ocean tsunami, and in helping contain the LTTE’s activities at sea. While India sought to project its role as non-threatening and as a ‘net security provider’ in the region, he said the question was ‘would this be acceptable?’ The attempt to answer that question perhaps brings us back to Sunimal Fernando’s comments at the beginning of the event, on the inescapable tensions that beset India’s relationships with its neighbours.

Not The End Of The Road Though; Opposition Plays Deaf And Blind

By Kusal Perera -December 9, 2012

Kusal Perera

“Reason has always existed, but, not always in a reasonable form” - Karl Marx

The Leader of the House, Minister Nimal Sirirpala de Silva, also a member of the Parliamentary Select Committee (PSC) investigating 14 charges against the Chief Justice (CJ) had told parliament on Saturday, 08 December (2012) that only 05 of the charges were investigated, while the rest of the charges against the CJ were dropped. He had further told parliament that charges 01, 04 and 05 against CJ Shirani Bandaranayake had been proved. This was after the Chairman of the PSC, Minister Anura Priyadarshana Yapa handed over the PSC report to the Speaker of parliament, the same morning.

Immediate reaction of MP Lakshman Kiriella, one of the two UNP parliamentarians who sat in the PSC, was to say they “reject the report” while the JVP member in the PSC went a step further by calling the people to protest against it. The TNA parliamentarian Sumanthiran was heard against the impeachment, though his leader, veteran politician Sampanthan sat through the PSC and walked out with other opposition members, sans any comments to date.

Kiriella was totally contradicted by his colleague in the PSC, MP John Amaratunge the Chief Opposition Whip in parliament, who wants a debate on the same report that Kiriella rejects. Amaratunge no doubt voiced the decision of his leader. The Speaker said the report would be included in the Order Paper with a promise of 10 days for the debate on the report after one month.

In such controversy and contradictions over the whole PSC and its report, it is of worth to summarise the role of the Opposition, mainly that of the UNP.

1. The UNP and Opposition leader agrees for a PSC as constituted according to the likes of the Rajapaksa regime, with 07 from the ruling alliance and 04 from the Opposition, instead of 06 to 05. NO serious opposition to such constitution was ever seen.
2. Despite their proposals on how the PSC should conduct its inquiry as an impartial, fair and just manner, giving the accused reasonable opportunity to defend herself against the charges were rejected by the Chair of the PSC, the UNP and the other opposition members sits through the PSC. It was a foregone conclusion that the whole case was being designed and executed as the Rajapaksa regime wanted it, BUT the UNP and the Opposition sat through giving it the necessary legitimacy.
3. The 04 Opposition members walk out only after the CJ decides, “enough is enough” of this indecent inquiry that gives her absolutely no chance of presenting her defence. By then the Opposition had only made very meek statements on the injustice meted out in carrying through the investigation, but had allowed time for the Rajapaksa regime to get its act together.
4. The UNP and its collective of smaller political parties and NGO activists that went round as the “Platform for Freedom” (PfF) was a conspicuous absentee in all protests against the impeachment. No were there any official statements or media briefings from PfF, or by their main allies.
5. The UNP leadership that reiterates its claim to form the next government even before 1916, never played any leadership role in society during the whole impeachment episode to date, at least to establish the fact that this society needs an independent judiciary and thus, political intrusions into the judiciary have to be opposed.

I wouldn’t want to believe, the men (and women if any) in the UNP leadership are mere ‘babes’ in parliamentary politics to have played such an indifferent role. But for now they have left themselves as complete subordinates to their leader Wickramasinghe in making decisions, during the next 06 years. That is how and where the decision to allow the Rajapaksa regime to take total control of the judiciary through this PSC was taken. Thus the unwanted legitimacy given to the PSC, while trying to make themselves look as opposed to the injustice and indecency in how the PSC conducted itself.

Though Kiriella would want to reject the PSC report, the UNP would give credence and constitutional legitimacy to the final decision of the parliament, being part of the debate. Do I or any one else have to tell the UNP that the report would definitely request the parliament to vote in impeaching the CJ and resolve to remove the CJ ? Do we have to tell the Wickramasinghe leadership that taking part in the debate would only give Rajapaksa’s decision, its due share of constitutional legitimacy, it doesn’t deserve ?

Wickramasinghe and the whole UNP and even most men and women on the street know, its a political decision taken by the Rajapaksa regime and would be carried out by the majority in parliament, under any circumstance. The whole world knows all those in the government benches would simply say “Aye” when they are called to vote. Including those like former liberal Rajiva Wijesinha and Senior Ministers Vitarana and DEW Gunasekera, who for now keep saying the PSC was not independent for very many of their own reasons. Its a political decision of the Rajapaksa family regime and none of these men would want to lose their perks and privileges earned by being with this nauseatingly corrupt and arrogant regime. Wickramasinghe too would not disagree on that, for sure.

The only compromise the regime is prepared to have on the impeachment is for Shirani Bandaranayake to resign from her post as CJ during the coming month, before the next parliamentary sessions begin on 08 January, 2013. “I will give her some other position somewhere. “Tell her to resign. I think there has been some injustice done to her husband as well. All that can be dropped,” Some web news sites reported PresidentRajapaksa himself telling, CJ Bandaranayake’s lawyer, Attorney Neelakandan of Neelakandan and Neelakandan Associates, over the phone on 06 December. A mainstream English language print media this Sunday confirmed the offer sans President’s name. That would not be. Shirani Bandaranayake as CJ, refused such offers before the impeachment process began and was determined to go through without any compromises. Thus its for the parliament to remove her now on a majority vote.

No protests, no petitions, nor even threats on emotions by lawyers they would not accept a new Chief Justice, could now turn the wheel back now. The ordinary man knows the lawyers’ profession is not that political to sacrifice their daily “Guinea” for too long. The UNP avoided the possibility of socially challenging the regime on the impeachment by simply calling the parliament supreme, when it has no independent voice outside that decided by the Executive. This parliament is neither sovereign nor representative of the people. That sovereignty and independence was usurped by the Executive long time ago and became more a place for slander and gullibility, wholly irrelevant to representative governance. More after Sarath N Silva as CJ gave his perhaps politically motivated interpretation in allowing cross-overs, buy-overs and sell-overs of any number of MPs. The Executive now controls the legislature. Its almost taken over.

Today, the impeachment against the CJ is the next move in trying to hold a crumbling State together by taking over the remaining part of the three part State, the Judiciary. As argued once before in a separate article (Economics of Impeaching Chief Justice in the Absence of the Opposition), for the UNP and Wickramasinghe, “it is their responsibility to save the system on which they would have to live and take over.” That is reason why the UNP would take part in the parliamentary debate on the PSC report and make it legitimate by voting against it.

The challenge for politically active social activists who wish to defeat the impeachment therefore becomes doubly difficult. They nevertheless have one way forward and one more month to go. To prove to the society and to the world that everything this regime does is illegitimate and unconstitutional. That needs getting the Opposition out of parliament, more as a decision of the people. “Citizens” as a political collective now have to pressure every UNP and Opposition member in Local Government (LG) bodies, in Provincial Councils and even MPs and electoral organisers, to demand their own party leaderships including Wickramasinghe, to walk out from the debate on the PSC report. That would then leave the Rajapaksa regime without any legitimacy in carrying out its pre planned eviction of Shirani Bandaranayake from the high seat of Chief Justice.

It is a new situation, a new era, where the people would have to decide what the Opposition MPs representing them in parliament should do and should not do. It can not be the other way round now. Thanks to the “impeachment”, an era of people making decisions have been opened up, IF we want to capitalise on that political space.