Bangladesh's PM rejects claims of repression: 'I do politics for the people'

Exclusive: Sheikh Hasina Wazed rebuffs claims curbs on opposition activists and the media are turning Bangladesh into a one-party state

Bangladesh’s prime minister has dismissed accusations that democracy and rule of law are being undermined by her increasingly authoritarian behaviour and by extensive human rights abuses by the police and security forces.

Simon Tisdall and Anna Ridout in Dhaka-Monday 21 September 2015

In a wide-ranging interview in Dhaka, Sheikh Hasina Wazed , Bangladesh’s formidable, long-serving head of government rejected claims that extra-judicial killings, numerous so-called “enforced disappearances”, mass arrests of opposition activists and Islamists, and new restrictions on media and internet freedoms were turning the world’s third most populous Muslim nation into a repressive, de facto one-party state.

Bangladesh's PM Rejects Claims of Repression 'I Do Politics for the People' by Thavam Ratna

Protesters and police clash in Nepal after adoption of new constitution

Nepalese President Ram Baran Yadav promulgates the constitution at the parliament in Kathmandu, Nepal September 20, 2015.

 BY ROSS ADKIN- Mon Sep 21, 2015

Police in Nepal shot and injured at least three protesters on Monday a day after the Himalayan nation adopted its first democratic constitution, dashing hopes that the historic event would put a stop to weeks of bloodshed in which some 40 people have died.

The demonstrators were in critical condition after police opened fire on an anti-constitution protest in the city of Biratnagar with blanks, rubber bullets and possibly live rounds, said Pramod Kharel, a deputy police superintendent in the Morang district of southern Nepal. A police officer was also wounded by protesters throwing stones, he said.

Nepal's new constitution was promulgated on Sunday despite fierce opposition from minority groups in the southern plains whose homeland provinces will be split up under the charter.

The violence has heightened tensions with neighbouring India, which had called for the new charter to be more inclusive of ethnic groups near its borders, where much of the violence has been focused.

New Delhi offered its "best wishes to the people of Nepal" on Sunday, but stopped short of congratulations on the new constitution.

"India has supported a federal, democratic, republican and inclusive Constitution," the Foreign Ministry said, adding curtly: "We note the promulgation today of a Constitution."

India also said it was concerned about the continuing violence in border regions.

Maoist party chairman Pushpa Kamal Dahal on Monday told a rally in Kathmandu to celebrate the constitution: "We want friendship with India, not to be its 'Yes Man'," according to local media.

Nepal's government says an imperfect document is better than nothing, and it can be amended to reflect the aspirations of dissenting groups.

Politicians had squabbled for seven years over the charter, but were finally galvanised to finish it by two earthquakes that killed more than 9,000 people in Nepal this year.

It creates seven states in a federal system, but is opposed by groups who want to re-establish Nepal as a Hindu nation, and others who feel it is unfavourable to people in the plains.

Celebrations were held around the country on Monday, including in Biratnagar, scene of the protests earlier in the day. A heavy security presence remained in some places, with a curfew in one district that saw clashes on Sunday.

A top aide to Prime Minister Sushil Koirala stepped down after writing an article last week that suggested India was meddling in Nepal's affairs.

"Given that the prime minister came under a lot of pressure from some external sources regarding this article, I decided that it would be easier for (him) if I stepped down," Prateek Pradhan told Reuters.

Nepal's other large neighbour, China, has welcomed the new constitution.

(Writing by Krista Mahr; Editing by Kevin Liffey)

Free Speech Crackdown, Ecuador Edition

BY MEGAN ALPERT-SEPTEMBER 21, 2015

The United Nations and leading human rights groups routinely bash Vladimir Putin’s Russia and Abdel Fattah al-Sisi’s Egypt for cracking down on the press and stifling free expression. Add a new strongman to the list: Ecuadorian President Rafael Correa, whose administration has waged an increasingly aggressive campaign against both the media and the free speech rights of ordinary citizens.

Ecuador’s most recent target? Quito-based Fundamedios, a group founded in 2007 to support journalists and safeguard freedom of expression and association, according to the organization’s website. The group collects statistics and issues reports on threats to journalists and media organizations. They also hold trainings, workshops, and events to educate the public about press freedom and the law.

But Correa’s government, which has broad power to regulate NGOs, isshutting them down over accusations that the organization deviated from its stated mission and broke laws that prevent NGOs from participating in partisan politics by re-publishing political blog posts. Fundamedios is attempting to fight the closure.

In a letter to the group’s executive director, César Ricaurte, the office of the Secretary of Communication wrote that the organization “demonstrates a clear intention to become a political actor that seeks to generate public mistrust regarding issues outside their jurisdiction.”

That sparked fierce criticism from the United Nations and the Inter-American Commission on Human Rights, which on Thursday issued a joint statement condemning the move.

This is not the first time in recent history that Ecuador has prompted international hand-wringing over their free speech practices.

Carlos Lauria, who coordinates programs in the Latin America for the Committee to Protect Journalists told Foreign Policy that Ecuador “has one of the worst freedom of speech records in Latin America.” Below, FPcompiled a list of five key moments in Correa’s campaign against free speech:

June 25, 2013: Correa’s government passed a sweeping communications law purporting to address the very real problem of media bias in the country. According to Reporters Without Borders, the privately-owned press had been “tendentious if not actually oppositional.”

However, the law also included a ban on “media lynching,” a requirement that all news coverage be “verified, balanced, contextualized and opportune,” and a “right to correction” for anyone who feels they have been treated unfairly by the press. The vague nature of the law has worked to the government’s benefit: According to Lauria, it has allowed the government to issue more than 100 sanctions against media companies and journalists in the past two years.

December 2013 – January 2014: Government forces searched the home of journalist and activist Fernando Villavicencio. When Ecuadorian daily El Universo published a cartoon depicting the search, the government fined the newspaper 2 percent of sales profits from its fourth quarter, which reportedlyamounted to $90,000. Authorities also ordered cartoonist Xavier Bonilla, the cartoonist, to issue a correction. Bonilla was sanctioned and forced to apologize again in 2015 when he published a cartoon the government labeleddiscriminatory.

December 2014 – February 2015: Correa began to attack those who criticized him on the Internet and social media during his weekly Saturday addresses to the nation. His main target, Gabriel Gonzalez, anonymously ran a humor website called Crudo Ecuador that published photo montages and videosmaking fun of everything from Valentine’s Day to footballers to Correa himself. Gonzalez was outed on Twitter, followed and photographed, and received an apparent threat against his family in the form of a bouquet of flowers. The anonymous note attached to the bouquet congratulated him on his “beautiful family,” referred to his wife and sons by name, and read “believe me, you can count on our interest and attention as long as your bravery lasts.”

Aug. 13, 2015: Franco-Brazilian journalist Manuela Picq was beaten by police and arrested while covering protests against Correa. Picq, who had lived in Ecuador for eight years, was jailed and stripped of her visa. She was charged with violating the terms of her cultural exchange visa, which precluded her from taking part in political protests. Picq maintains that she was not part of the protests, but had gone to observe as a journalist.

Aug. 15, 2015: Correa declared a “state of exception” due to the pending eruption of Cotopaxi, a large volcano near Quito, the country’s capital. Claiming it would defuse citizen panic, Correa also issued a decree of “prior censorship,” which prohibits the sharing of “unauthorized” information about the volcano — whether in public, private, or on social networks. “Citizens will only get information from the official bulletins of the Coordinating Ministry of Security,” the decree reads. This apparently precludes ordinary citizens, or even scientists, from sharing unofficial information about the volcano.

Photo credit: Rodrigo Buendia/AFP/Getty Images

Survey: More than 1 in 5 female undergrads at top schools suffer sexual attacks

Lyra Bartell, right, of Richmond, Va. hugs her friend, Irene Burgoa, grey top, in front of the undergraduate admissions building at the University of Virginia in Charlottesville, Va., Monday, Nov. 24, 2014. The door of the building is littered with notes relating to sexual assault allegations. (AP Photo/Steve Helber) (Steve Helber/AP)

By Nick Anderson, Susan Svrluga and Scott Clement September 21 

More than 20 percent of female undergraduates at an array of prominent universities said this year they were victims of sexual assault and misconduct, echoing findings elsewhere, according to one of the largest studies ever of college sexual violence.

Survey More Than 1 in 5 Female Undergrads at Top Schools Suffer Sexual Attacks by Thavam Ratna

 Half of parents fear their children are addicted to screens

The explosion in tablet computers and smartphones has turned British children into a nation of technology junkies, according to an exclusive Channel 4 News poll released today.

MONDAY 21 SEPTEMBER 2015

43 per cent of parents say they think their children are addicted to screens, and 47 per cent believe their children spend too much time in front of them.

But many parents believe the benefits of technology outweigh the disadvantages, with 84 per cent of parents believing there are educational benefits to having access to tablets and smartphones.

The poll of more than 1000 parents carried out by ComRes for Channel 4 News reveals the average British child spends two hours and 56 minutes in front of screens every day.

The vast majority use screens mainly to play games (54 per cent) and watch videos on YouTube (38 per cent).

A quarter of parents suggest social media is one of the three most common use of screens for their children. Just 19 per cent say their children mostly use screens for schoolwork and homework.

A 'good distraction'

But despite concerns, almost two thirds of parents admitted "iParenting". Some 63 per cent of parents said that screens are a good distraction for their children when they are busy or tired.

The research also reveals that the majority of parents use their phones regularly in front of their children and use access to screens as a way of controlling their children's behaviour.

Some 66 per cent say they use tablets, smartphones or computers when they are with their children, while 59 per cent stop their children from using devices as a punishment for bad behaviour, but 51 per cent say they should not be used as a reward for good behaviour.

Parents also revealed their main fears about their children's use of technology. Access to sexual content is the biggest fear, with 54 per cent of parents concerned.
Violent material (52 per cent), meeting strangers online (52 per cent), online bullying (49 per cent) and online grooming (49 per cent) are the main concerns.

Lack of guidance

Despite the explosion in cheap technology meaning British children have more access to the internet than ever before, there is still no official government guidance for parents on managing their children's screentime.

The ComRes poll showed that 59 per cent of parents had no idea what levels of screen time are appropriate.

Professor Sonia Livingstone, from the London School of Economics, said: "I think parents themselves don't quite know where to turn for guidance. It feels to me a bit like with the internet we've given our kids the tools but we haven't given them a map."

Professor Livingstone has just completed a Europe-wide study of how families cope with young children's screen time.

Tech savvy

She found British, Belgian and German parents were more restrictive, Finnish and Czech parents more easy going. The most confident parents were the most tech-savvy but also the ones who took the most time to understand what their children were doing online.

She added: "Parents who understand the internet better and can advise their children better on how to make those judgements on what's safe, what's not safe, what's interesting, what's less exciting and so on, will have children who themselves feel more confident and more skilled and better able to make judgements."

The poll comes as the latest Ofcom data reveals just how widespread technologies have become in British homes.

An analysis of Ofcom's 2015 data carried out by Channel 4 News shows 73 per cent of children in the UK have access to tablets alone.

But despite ready access and the hours that British children are spending online, only one per cent of 12-15 year olds are concerned that future employers or teachers might see something untoward about them posted on social media.

UN officials outraged at accounts of Sri Lanka war crimes, stress need for accountability

Amantha Perera/IRIN' border=1>Vijitha Pavanendran holds a photo of her husband who was killed by unknown attackers during Sri Lanka's civil war. Photo: Amantha Perera/IRIN

17 September 2015 – Senior United Nations officials today expressed outrage at the very serious accounts of war crimes and crimes against humanity that were allegedly committed between 2002 and 2011 by all parties to the conflict in Sri Lanka, including Government security forces, affiliated paramilitary groups and the rebel Liberation Tigers of Tamil Eelam.

The comments by the Secretary-General’s Special Advisers on the Prevention of Genocide, Adama Dieng, and on the Responsibility to Protect, Jennifer Welsh, follow the release yesterday of a report by the UN human rights office (OHCHR) that identified patterns of grave violations, including indiscriminate shelling, extrajudicial killings, enforced disappearances, harrowing accounts of torture and sexual violence, and recruitment of children.

Welcoming the report, Secretary-General Ban Ki-moon hoped that its recommendations will help support the efforts of the people and the Government of Sri Lanka “to carve a durable path towards long-lasting peace and stability and respect for human rights, through a genuine and credible process of accountability and reconciliation that meets international standards.

“The victims of all communities, their families and the Sri Lankan nation itself demand no less than a full and proper reckoning,” he added in a statement issued by his spokesperson.

Indeed, the report recommended the establishment of a hybrid special court to ensure that justice is served.

“Sri Lanka has gone through a very dark period of its history during the years of the conflict, which has caused immense suffering for all communities,” the Secretary-General’s Special Advisers stated.

“Accountability is not just a matter of justice; it is also a matter of reconciliation, peace and non-recurrence,” they continued. “The wounds of the past need to be properly treated and healed in order to write a new peaceful page in Sri Lankan history.”

The Special Advisers called for the establishment of accountability and reconciliation mechanisms that would meet international human rights law standards.

“This is a process that will be painful and difficult, but indispensable for long-lasting peace and stability in the country,” they added.

Ms. Welsh stressed that the Sri Lankan Government has the primary responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. “This responsibility entails bringing to account those responsible for crimes committed but also taking concrete steps to prevent their recurrence.”

For his part, Mr. Dieng cautioned that outstanding grievances among Sinhalese and Tamil communities could pave the way to further violence.

The Special Advisers highlighted that respect for diversity and intercultural dialogue and non-discrimination must be incorporated into national level policies. They also recommended that the Government ensure greater representation of all ethnic and religious communities.

“The voices of the minorities need to be heard because they too are Sri Lankan,” they stressed.

Probe on state funds for Rajapaksa guild

Sunday, September 20, 2015

Officials from 29 state institutions are to be questioned by the Financial Crimes Investigation Division (FCID) on how state funds amounting to Rs. 80 million were transferred to an organisation known as the ‘Mahinda Chinthana Sahurdha Sansadaya’ (Mahinda Chinthana Fraternity Guild).

The FCID has obtained an order from the Maligakanda magistrate’s court to record statements from official of state banks, the State Timber Corporation, the Sri Lanka Ports Authority, the Foreign Employment Bureau, the Development Lotteries Board, the National Water Supply and Drainage Board and the Geological Survey and Mines Bureau, among others.

A senior FCID officer said investigations had revealed that funds were given for the welfare of the members of the guild and for get-togethers held every two months to implement the Mahinda Chinthanaya manifesto.The initial investigations into the misappropriation of funds had begun after the FCID found that Rs. 6 million had been transferred from the Ports Authority to the ‘Pushpa Rajapaksa’ foundation from which the money had been redirected to the fund of the guild.

The guild had been operated by two government officials and the chairman of a state body. The guild also had received funds from private organisations.

The Report on Sri Lanka: Horrific vs Ethnic 

Facts and External vs Internal Hybridity

by Rajan Philips-September 19, 2015

Two h-adjectives have come into circulation after the release of the UNHRC Report on Sri Lanka, last Wednesday, in Geneva: horrific and hybrid. There is nothing new in the facts stipulated as horrific in Geneva, but stipulating them as horrific does not bridge the ethnic gap in the agreement about those facts. What is new is the recommendation to establish a hybrid court having international jurists collaborating with their local counterparts. But can international hybridity overcome Lanka’s nationally divisive ethnicity? Would it make more sense to promote internal hybridity while privileging external hybridity? Internal hybridity must involve Sinhalese, Tamil and Muslim judges and lawyers and other officials professionally working together rather than politically fighting one another. Just as important, transitional justice must involve a more inclusive and reflective process instead of the usual adversarial court room drama. Hybrid or otherwise, an adversarial court process will invariably degenerate into a pettifogging theatre generating mutual recriminations rather than facilitating inter-ethnic reconciliation. In Sri Lanka’s litigious culture there are quite a few legal luminaries itching to argue the case for patriotism with or without a political brief.

Sri Lanka is a "Hybrid Island" as Neluka Silva entitled a 2002 symposium celebrating the island’s historical and cultural hybridity and debunking myths of ethnic purity. Ironically, Dr. Silva’s book, "The Hybrid Island" was published during the peace process launched by Ranil Wickremesinghe during his first stint as ‘elected’ Prime Minister. Before long the optimism of hybridity and of peace was overwhelmed by conflicting ethnic assertions. More than a decade later, and six years after the end of the war, Ranil Wickremesinghe is Prime Minister again but in a wholly different, and hybrid, political context. He is now the partner in a hybrid, or tandem, Executive arrangement with the country’s elected President, Maithripala Sirisena. Together, they preside over a hybrid (UNP-SLFP) national government and a hybrid (with TNA opposition) parliament. In a happy, or unhappy, depending on the eye of the beholder, h-adjectival coincidence, the UNHRC is now recommending a hybrid court to adjudicate on the horrific crimes of the twin agencies, the Rajapaksa government and the LTTE, that rejected peace and hybridity and fought a war for ethnic purity.

What a difference can two elections and a new government make? The patriotic sky would have been brought down by now if the Rajapaksas were still in power. Wimal Weerawansa would have been the national megaphone creating political noise pollution. Now he can hardly hear his own voice in the wilderness. The new government has reportedly provided a "cordial response" to the Geneva Report, noting the report’s emphasis that it was a human-rights, and not a criminal, investigation. The President and the Prime Minister convened a press conference to affirm the government’s commitment to work with the UNHRC and international agencies. The President even went to the extent of claiming that if the Rajapaksas were in power, the tone and strictures of the Geneva report would have been ‘100 or even 1,000 times’ worse for Sri Lanka.

The Prime Minister irately scoffed at the suggestion in some quarters for parliament to pass an "Amnesty Legislation", which would logically imply presumption not of innocence but of guilt. The government has also indicated that it would create and use new judicatures to investigate not only human rights violations but also corruption during the prosecution of the war. General Sarath Fonseka is all for any inquiry, insisting that nothing untoward happened under his watch. The TNA gave a measured response, welcoming the recommendation for a hybrid court, calling upon the government to implement the recommendations of the report, and asking the Tamil people "to use this moment as a moment of introspection into our own community’s failures and create the right culture and atmosphere in which we can live with dignity and self-respect, as equal citizens of Sri Lanka."

Complacency and Complexities

To modify Mao’s famous dictum, complacency is the enemy of study, complacency is also the pitfall of political foolishness. Political opinion in Sri Lanka can change faster than a weather vane. President Sirisena and Prime Minister Wickremesinghe are certainly not unmindful of this danger and in their press conference they specifically appealed to the media to play a responsible role in the wake of the Geneva report rather than providing sensational outlets to chauvinistic machinations. Intentionally or otherwise, the hybrid national government, its cabinet obesity notwithstanding, would serve the smart political purpose of neutralizing the traditional partisan opposition to reconciliation initiatives. At the same time, the government should not underestimate the capacity of the UPFA-SLFP rump in parliament to create mischief outside the parliament. While the rump should never be denied its freedom to shout, the government must not hesitate to mobilize its forces to outshout them with a tit for every tat. One would hope that Mr. Sirisena and Mr. Wickremesinghe would have learnt from the mistake of their political inaction between January and July when the Bring-Back-Mahinda movement enjoyed a political free ride to grow from a Nugegoda rally into a national menace. The Colombian and non-Colombian dimension of their political partnership is without precedent in Sri Lanka and they need to use that for more positive purposes than handing out cabinet portfolios in large numbers.

The first general recommendation of the Geneva Report is to set up a High Level Executive Group (HLEG) for the purpose of overseeing the implementation of the recommendations of the new report and all earlier reports, internal and international, including the LLRC recommendations. In my view, the proposed HLEG should not be ignorant of political imperatives and should not be shy of its political obligations. Even if the HLEG were to be supposedly apolitical and professional, there should be a parallel high level political group to look after the political side of implementing the recommendations of various commissions. Such a group should actively involve the JVP, the JHU and the TNA along with the two major governing parties. What is not needed is the all-party charade that President Jayewardene and President Rajapaksa effectively used to justify inaction rather than develop road maps for action. What is needed is a high level political group of like minded people representing Sri Lanka’s ethno-political spectrum. Without specifically focused political hybridity at the highest level, judicial hybridity, internal or international, would be a non-starter.

The fundamental weakness of the Geneva Report, in my view, is its reluctance to openly recognize Sri Lanka’s ethnic fractures and fragmented positions in regard to both ‘facts’ and the methods of dealing with those facts. In a revealing statement, the Report welcomes the new government’s intentions and commitments but is cautious that they are not enough "to convince a very skeptical audience – Sri Lankan and International." There is no single audience in Sri Lanka, but multiple audiences – hearing, as well as speaking, in different voices, and raising and getting frustrated in, different expectations. Sri Lanka is a living case study of a more universal contradiction in the field of human rights, one that academics characterize as the widening gap "between the promises of the universal human rights regime and the political realities in national contexts." The gap in the case of Sri Lanka needs to be bridges not so much to prove an academic point or score an international forensic victory, as to bring immediate redress to the thousands of victims. Taking steps to repairing their lives should be the top priority. That would also be the first step in a long and arduous journey.

There is a great deal more to the Geneva Report than the two h-adjectives that I am polemically questioning. The overriding question arising from the Geneva Report is who will do what, when and how? There are no easy or short term answers to any one of this four-part question, and every answer will carry a different consequence for the ‘victims’.

UN Report’s Acceptance Of A Hybrid Tribunal Is Flawed: ICPPG

September 20, 2015

“The Sri Lankan Government’s proposal of a domestic tribunal or as an offer of compromise to the international community, a hybrid tribunal, will not secure the aims that the Human Rights Commissioner has stated. The Report’s acceptance of a hybrid tribunal having both domestic and external judges is flawed.” the Centre for the Prosecution and Prevention of Genocide said in a statement.

ICPPG Head Professor M Sornarajah

Welcoming the Report of the Office of the Human Rights Commissioner’s Investigation on Sri Lanka (OISL), the Centre for the Prosecution and Prevention of Genocide (CPPG) called for an international tribunal to investigate the allegations of war crimes during Sri Lanka’s civil war.

We publish below the statement in full;

The Centre for the Prosecution and Prevention of Genocide welcomes the Report of the Office of the Human Rights Commissioner’s Investigation on Sri Lanka (OISL). The Report contains serious allegations of a full range of heinous international crimes committed by the Sri Lankan armed forces. The OISL Report provides easy means of identification of the perpetrators of these crimes. On existing theories of international criminal law relating to command responsibility and joint criminal enterprise, there is little room for doubt that the commanders on the field as well as operational commanders have responsibility for these crimes. The President of Sri Lanka at that time, Mahinda Rajapaksa, being the supreme commander of the armed forces, bears direct command responsibility. The operational and field commanders are also easily identifiable. Many of them are named. Some names appear frequently in the Report. All of them have command responsibility and were possibly engaged in a joint criminal enterprise.

The thoroughness of the Report is admirable. There is need for the Report to be followed up by the institution of proper mechanisms ensuring accountability.

In anticipation of the release of the Report, the High Commissioner had already stated that the OISL’s “findings are of the most serious nature”. (Speech of High Commissioner at the Opening Session of the Human Rights Council on 14 September, 2015). He promised to make his recommendations after releasing the Report. In his speech he said: “..this Council owes it to Sri Lankans-and to its own credibility- to ensure an accountability process that produces results, decisively moves beyond the failures of the past, and brings the deep institutional changes needed to guarantee non-recurrence”. Equally importantly, the Centre believes that if there is no meaningful prosecution of the crimes, it would set-back to the international community as a whole. A link in the precedents that meaningful prosecutions will follow the violations of serious international crimes will be severed. An excellent Report, the first of its kind, stating with authority the whole episode in history in the context of international humanitarian law will go waste if meaningful follow-up action is not taken.

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On that ‘hybrid court’ and other misconceptions

Sunday, September 20, 2015

Even as Sri Lanka gradually recovers from the shock of Wednesday’s release of harsh (albeit fairly predictable) findings on ‘systemic’ war time atrocities by a United Nations mandated panel, soothing murmurs indulged in by this Government need to be taken with that proverbial pinch of salt.

The faults of the past
Indeed, some claims are more than a little ridiculous. President Maithripala Sirisena’s assertion that the report was not as bad as expected and that specific names of individuals were omitted because of the January 8th change of presidency unfortunately falls into that category.

In actual fact, these are carefully nuanced and extremely grave findings of a ‘human rights investigation’ conducted under the auspices of the Office of the High Commissioner for Human Rights (OHCHR) as its authors have properly emphasized. It is not of an international criminal law character in which individual responsibility would be apportioned by name after due process is followed.

In any event, international inquiries of this nature, once laboriously initiated, are seldom altered in substance due to domestic political convulsions, in as much as ‘the mills of God grind slowly but they grind exceedingly well.’ Then as now, the State of Sri Lanka is deemed responsible for the treatment of its civilians, irrespective of the domestic power structure in play. To believe otherwise is to misunderstand the nature of the international process in question.

Fundamental differences in understanding
Other misconceptions are evident at a fundamental level. One striking difference arises in respect of the core OHCHR recommendation that a special ‘hybrid’ court integrating international judges, prosecutors, lawyers and investigators should be established to look into war time abuses. There is no doubt that this recommendation envisages the international component as central to the mechanism.

On the other hand, the Government’s spokesmen appear to concede the international element only as facilitatory or assisting the domestic mechanism. So for example, we see Minister Rajitha Senaratne’s statement that ‘even in President Mahinda Rajapaksa’s time, international experts had assisted local bodies.’ Therefore, as he said, the Government sees no barrier to similar such involvement this time around. That said, the example drawn of the international jurists who assisted the Udalagama Commission of Inquiry was lamentably ill conceived. This was the worst example that could have been cited. In that instance, reputed international legal experts left the process prematurely citing lack of confidence in the domestic inquiry and after an acerbic if not hostile exchange of words between themselves and the Department of the Attorney General.

But bringing in international judges to form part of a ‘hybrid court’ mechanism’ will certainly evoke the argument that this will amount to an untenable abdication of judicial power as specified by the Sri Lankan Constitution. In 2006, when former Chief Justice Sarath N. Silva declared in the Singarasa case that the Geneva based United Nations Human Rights Committee exercised judicial power within the country, this conclusion was legally erroneous as the recommendations of the Committee were merely recommendatory. At no point did members of this Committee exercise ‘judicial power’ within the territorial boundaries of the country.

However, this same logic will not apply to the involvement of international judges in a ‘hybrid court’ mechanism which will go beyond the sphere of the ‘recommendatory.’ The complex nature of the task that lies before us is therefore undeniable. It is wiser therefore not to minimize the challenges that lies before us through simplistic statements aimed at gaining political mileage.

Defying efforts to ‘ethnicise’ the justice question
Meanwhile, unfortunate attempts made by a segment of the Tamil political spectrum to ‘ethnicise’ the issue of justice do not help this process either. In recent weeks, the Northern Provincial Council’s issuance of a Resolution asking for an international tribunal to examine war time abuses has cited the Judicial Mind in Sri Lanka (2014, co-authored by this columnist with Jayantha de Almeida Guneratne and Gehan Gunetilleke) in support of its stand.

But the aim of this book and many other such efforts illustrating the troublesome collapse of our legal and judicial institutions was not to urge that the question of justice should only be confined to the minorities. An equally severe indictment has been made in meticulously documented form of the Sri Lankan judiciary in its response to the grievances of other minorities as well as the Sinhala majority, for example after the ‘enforced disappearances’ of the eighties.

For instance, extreme injustice has been perpetuated by the appellate courts in general in the statistically high dismissal of habeas corpus petitions filed by majority and minority petitioners alike. As of now, the habeas corpus remedy is rendered of no effect for persons who are ‘lifted,’ regardless of ethnicity, even though this constitutional provision remains in theory (see Theory and Practice of the Great Writ in Extraordinary Times, 2011).

Important not to minimize the task of reform
True enough, Wednesday’s report was a direct result of the monstrous flouting of the Rule of Law by the Rajapaksa Presidency. At that time, abusive government propagandists brought to Geneva at state expense hurled insults at anyone whom they wished. Sri Lankan lawyers daring to criticize the uncouth ousting of a Chief Justice during dialogue sessions of the United Nations were declared as ‘blacklisted’ by government representatives.

And for years, our calls to amend Sri Lanka’s Penal Code to criminalise enforced disappearances and enact the concept of command responsibility were in vain. Much the same had also been emphasized by enlightened appellate court judges. Now we see the inevitable result of this failure as the domestic criminal justice system is formally assessed to be incapable of dealing with ‘systemic crimes.’ This finding comprehensively dismisses a favourite state defence that, if at all, only ad hoc abuses were committed by a few rogue individuals. But efforts to correct the Sri Lankan justice system must not be blinkered by an ethnic lens which shuts out a majority of the populace rendering them sullen and disempowered and thus a malleable electorate for the Rajapaksas to subvert to their will once again.

This should be a pivotal concern for all of us.

The government's moves

Fragments.-Sunday, September 20, 2015

Processes are rarely perfect. They have their champions. They have their critics. Very rarely do mechanisms and structures created to address reconciliation achieve everything and anything they want to achieve. Those who commend one mechanism over another, then, are either myopic or silent to this truth. This is the case whatever the context and the aims of such structures are.

The Sri Lankan government had a mandate on reconciliation two years ago. The Lessons Learnt and Reconciliation Commission (LLRC), some of its critics pointed out, went beyond that mandate. Reconciliation was however not an end-all but a means to that end, and no amount of pilfering with it could hide one salient fact: that if we did not want outside agency to demand for accountability, we had to deliver and deliver fast. Didn’t happen.

Mangala Samaraweera knows his words. He is not a yes-man as his predecessor was and for this reason he is capable to achieving what the LLRC could have achieved but didn’t. Read his speech at Geneva, for instance, and you will realise that for all his flowery commendation of the current government’s stance on inter-ethnic amity he subtly hints at what the previous administration used to rant and rave about: that domestic mechanisms to address grievances from a 30 year-old war cannot and will not survive with outside intrusion.

Words however are easy. Action is not. So when Prince Zeid Ra'ad Zeid Al-Hussein (who seems to have a gripe with Sri Lanka just as his predecessor Navinathan Pillay did) demands for a hybrid court, structured on the Nuremberg trials and hence focused on retributive justice, the reply from the government was less than satisfying. Gone was Samaraweera’s subtle chiding of international community; the letter was more concerned with commending the Prince’s remarks and reassuring him to “wait, wait, and wait for more.”

First of all, if the government wants to achieve reconciliation through a National Plan and mechanism, the Nuremberg trials (achieved through hybrid courts) is the last benchmark it must base itself on. Mahinda Rajapaksa made it eminently clear through his moves (particularly in bringing Cyril Ramaphosa here, though his critics unduly lambasted him for this) that he too was interested in a domestic mechanism based on a Truth and Reconciliation Commission (in South Africa), which would go beyond the rhetoric-frilled LLRC and yet stay away from “war crimes.”

Secondly, as pointed out earlier, these processes are not perfect. The rift between retributive and restorative justice, reflected in the gap between Nuremberg and South Africa, is not so great when factoring in what failed in both instances. Studies have ascertained that in South Africa’s case, a subtle attempt at achieving racial equality by bringing in all communities together echoed, inter alia, affirmative action. It did not stop at the traditionally vilified community, the Blacks, and for this reason it went on to achieve success.

That’s just one part of the story though. Among the TRC’s failures was its gross mishandling of outcome, that is the granting of amnesty to many key figures considered to have committed and sanctioned acts of hatred against the Black community. Steve Biko’s family went as far as to call it a “vehicle of political expedience”, which lends credence to the view that inasmuch as Commissions are good and needed, they cannot and will not establish reconciliation magically. Perhaps the misconception held by some of its champions that it was an end rather than a means contributed to its failures. We may never know.

The point is that we have been playing around with our version(s) of what TRCs should really represent. Let’s not forget, after all, that inasmuch as the likes of Navi Pillay and Darusman were genuflecting before pro-Eelam mythmakers (silently of course), the government of the day refused to listen to them and challenge their myths, thus leading to a no-win, Cold War-like situation where irrational nationalism rather than rational internationalism was privileged. Nationalism is fine, but without confronting issues that affect the country internationally it remains, as Samuel Johnson would have written, “the last refuge of the procrastinator.”

So what’s the road ahead? It is clear (starkly so) that no TRC is going to make everyone and anyone happy. Self-styled intellectuals who trash Sinhala Buddhism will have to be included in it as well, but don’t expect fairness to come from their side. As regrettable will be the tendency of anti-devolutionists and anti-13A howlers to inject rhetoric rather than reason to their submissions. Neither side gets off the hook here.

Now golden rules cannot be applied to suit every context. In the case of our to-be TRC, what needs to be pointed out is this. Firstly, getting rid of the “victor’s justice syndrome” which visits and revisits Commissions like this CANNOT duplicate privileging the “other side”. Equality has as much to do with affirmative action as the UNP’s brand of capitalism has with that of the Republican Party in the US. The one does not mean, or lead to, the other. This will not make some people, particularly those Buddha-bashing “moderates”, happy. Can’t help.

Secondly, the process should be open and transparent enough to convince people like Hussein to lower his demands. There was a time when he and his ilk wanted an international probe. If with US support (for us), he still wants a hybrid court, then achieving his targets with a domestic approach (that is, justice without amnesty, albeit this should NOT license the finding of “war crimes”), then (who knows?) he may lower his demands even more, crushing the fantasies of the pro-LTTE Diaspora and shutting them up for good.

Processes need miracles to be perfect. They don’t make everyone happy but then again they don’t have to. Perfection on this count will be judged on how far the local mechanism to handle reconciliation achieves its outcome(s). If this is what matters, then both local and foreign players may find that miracles are not long in coming. At all.

Between Reconciliation and Prosecution: Sri Lanka Deals With Its Past

September 20, 2015

The United Nations is expected to decide by the end of this month on the establishment of a special court to try those responsible for war crimes in Sri Lanka during that country’s 26-year civil war.
Such a court was recommended in a report published last week by the UN High Commissioner for Human Rights, which concluded that war crimes and crimes against humanity had been committed by both government forces and Tamil Tiger rebels.
The nature of the proposed hybrid court, with representatives of both Sri Lanka and the international community, gives expression to a years-long process: On one hand the demand of western countries for criminal and/or international investigation and, on the other, Sri Lanka’s interest in adopting the model of the South African Truth and Reconciliation Commission.
Over 100,000 civilians were killed during the almost three decades of war between the Sinhalese majority and the Tamil minority, represented by the Tamil Tigers militia. Hundreds of thousands were uprooted from their homes and many others were abducted, raped and tortured.
The conclusion of the war was particularly brutal. The UN found that 40,000 civilians, most of them Tamils, were killed in the last months alone.
Since 2009, when the war ended, the campaign has shuttled between the killing fields of Sri Lanka and Geneva, with the Tamil minority of the island and western countries demanding an international inquiry and the government insisting on an internal investigation based on the South African model, which does not provide for criminal prosecution.
Despite the serious violence of the war, which lasted from 1976 to 2009, the UN has adopted only three resolutions dealing with bringing those responsible to justice – a miniscule number, given the numbers of casualties in the war and in comparison to resolutions adopted against other countries.
The last resolution, adopted in March 2014, was the first to call for “a wide-ranging inquiry into human rights abuses and contraventions of international law, as well as apparent war crimes by the Sri Lankan government and the Tamil Tigers in the last phases of the war.”
A fourth resolution was due to be passed in March this year, but the surprising results of the presidential election in January changed the political map of the island dramatically. A decade of rule by President Mahinda Rajapaksa ended with the election of Maithripala Sirisena, who appointed the pro-Western  Ranil Wickremesinghe as prime minister.
Sirisena passed the 19th amendment to the constitution, which essentially reduces the power of the presidency. The Tamils received another gesture towards reconciliation in May, when the sixth anniversary of the defeat of the Tamil Tigers was marked as a memorial day, rather than as a day of victory.
Later, Sirisena called for the curb on loans from China and met with United States Secretary of State John Kerry. Unlike his predecessor, who was vehemently opposed to an international commission of inquiry with the participation of the UN and maintained that the call for such a commission infringed on Sri Lankan sovereignty, Sirisena indicated that the government would cooperate with the UN.
These moves precipitated a change of direction by the UNHCHR, which agreed to postpone publication of its report from March to September.
A U.S. UNHCHR representative said last week that the information in the report is likely to “give a more complete picture of the events of the past,” while the British representative said that his country had supported the postponement of the report’s publication “in the clear understanding that the issue of past crimes and the prosecution of those responsible would be deal with no later than September 2015.”
Tamil politicians utterly rejected the proposal that an internal inquiry be established. A parliamentarian from the opposition National Tamil Union said that “the foreign minister wants us to believe a government which he himself says has had limited success in investigating crimes.
The Tamils quoted the criticism voiced in 2014 by previous UNHCHR commissioner Navanethem Pillay, who said that the previous Sri Lankan government “failed to implement the recommendations” of a previous commission of inquiry established by the government itself.
“It won’t be possible to pay compensation and be done with it,” another Tamil politician said. “We need a real political solution.”
When the report was published this week, UNHCHR Commissioner Zeid Ra’ad al-Hussein said that it “uncovers the appalling level of human rights abuse that occurred in Sri Lanka, including indiscriminate shelling, extrajudicial killings, enforced disappearances, harrowing accounts of torture and sexual violence, recruitment of children and other grave crimes.”
Al-Hussein said that the judicial infrastructure of the island was not adequately equipped to deal with the violations and would need foreign judges and investigators.
“A purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fueled by decades of violations, malpractice and broken promises,” he said.
Al-Hussein recommended the creation of a hybrid special court that integrates judges, prosecutors, lawyers and investigators from around the world, with the participation of Sri Lankan representatives.

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