This chart shows why you shouldn’t trust Malaysian universities’ rankings too much

Rankings are not the sole determinant of a university's quality of education. Source: 

Shutterstock

By Lee Lian Kong | 13th September 2017

Last week, Times Higher Education released its World University Rankings for 2018. Malaysian universities didn’t fare too well there.

The best performance came from University of Malaya (UM), and that was at the 351-400th spot. The other top 4 research universities in the country: National University of Science, Malaysia (USM), National University of Malaysia (UKM), University Putra Malaysia (UPM) and University of Technology, Malaysia (UTM) only managed to make it to the 601-800th spots.

It’s in stark contrast to the 2018 QS World University Rankings where these universities were all in the top 300 – UM even rose to 114th place, a few hundred places off where it placed in THE 2018.

Add in the US News and World Report’s Best Global University Rankings and the Shanghai Jiao Tong Academic Ranking of World Universities (ARWU) and we start to see even more variety between the rankings, as shown in the chart below:

University	QS 2018	THE 2018	US News 2017	Shanghai ARWU
Universiti Malaya	114	351-400	356	401-500
Universiti Sains Malaysia	264	601-800	576	401-500
Universiti Kebangsaan Malaysia	230	601-800	783	–
Universiti Putra Malaysia	229	601-800	670	–
Universiti Teknologi Malaysia	253	601-800	639

Source: Penang Institute

It’s a crowded and confusing landscape. As outlets outdo their competition by producing more rankings (and spin-offs from these), students are left to decipher even more lists of rankings on top of the four mentioned above without knowing what those numbers really represent.

Yet, they still rely on rankings. In the 2017 International Student Survey (ISS), education consultant Hobsons found that a considerable portion of prospective international students say rankings is the most important factor when choosing a country or university to study in.

In a ranking of rankings, Hobsons even found QS to be the most popular, followed by THE, ARWU and US News.

SEE ALSO: Malaysia: Rights groups upset after university nixes LGBT student march

But Dr Ong Kian Ming, head of Penang Institute in Kuala Lumpur cautions students against using any single ranking as the sole determinant when choosing a university.

Methodologies of these rankings matter, and each has their own sets of strengths and flaws, as detailed in the Penang Institute’s report titled “An unhealthy obsession with Global University Rankings?”

For example, Malaysia’s strong showing in QS 2018 is due to how much weight QS placed on research and citation based measures. Or rather, the lack of.

“The QS ranking only allocates 20 percent of its overall score to research and citation measures. In comparison 60% of the THE, 70 percent of the Shanghai AWRU and 75 percent of the US News rankings are allocated to research and citation measures,” Dr Ong wrote in a statement.

On the other hand, QS awards half of its overall score on academic reputation and employer reputation, which are both based on subjective measures that can be manipulated by universities.

Look closer into how Shanghai ARWU calculates its rankings, and you will far too much weight is placed on science subjects and to universities with previous winners of Nobel prizes and Field medals – hardly the best way to measure a university’s research output.

Local media touted UM’s highest ever position in the QS rankings ever since its first-ever edition. Source: Shutterstock

Ranking systems can be hijacked too. Elizabeth Perry, a professor at Harvard and expert on China, said the Chinese are actively “gaming” the system as seen by the country’s strong showing in this year’s THE rankings.

“They are hiring an army of postdocs whose responsibility is to produce articles,” Perry told the Wall Street Journal. “They are changing the nature of a university from an educational institution to basically a factory that is producing what these rankings reward.”

SEE ALSO: Australia: Chinese students want university to recognise Taiwan, Hong Kong as theirs

Still, these shortcomings have neither stopped universities from advertising their ranks as proof of quality nor the Malaysian government from claiming credit when it has yet to be proven is due.

Higher Education Minister Idris Jusoh said of QS: “Since the establishment of research university 10 years ago, the quality of the universities have improved and show potential to rival other top universities in the world.”

The minister also used the listing of Malaysian universities in THE as proof that local universities are “soaring upward” and expects to see the country making it into the Top 20 by 2050.

Dr Ong calls this an obsession with rankings and argues that the Malaysian Ministry of Higher Education should not fool itself into thinking that these rankings represent a sign of improvement by local universities when there are indicators showing otherwise.

And neither should we.

As North Korea girds for latest sanctions, economy already feels the squeeze

FILE PHOTO: A car drives past residential buildings in Pyongyang April 11, 2012. REUTERS/Bobby Yip/File Photo

Sue-Lin Wong-SEPTEMBER 13, 2017 

DANDONG, China (Reuters) - The United Nations may have failed to slow North Korea’s weapons programs, but the country’s economy is already showing signs it is feeling the squeeze from the ongoing clampdown on trade, including a curb on fuel sales by China.

The latest sanctions agreed on Monday by the UN Security Council ban the export of textiles from North Korea, one of its few substantial foreign currency earners. They also capped imports of oil and refined products, without imposing the full ban the United States had sought.

Chinese traders along the border with North Korea and some regular visitors to the isolated country said scarcer and costlier fuel, as well as earlier UN sanctions banning the export of commodities such as seafood and coal, are now taking a toll.

“Our factory in North Korea is about to go bankrupt,” said an ethnically-Korean Chinese businessman in Dandong who sells cars refurbished at a factory in North Korea. He declined to be identified due to the sensitivity of the situation.

“If they can’t pay us, we’re not going to give them goods for free,” he said, referring to his North Korean customers.

A trader at another auto-related businesses in Dandong said cross-border trade had been hurt over the past few years, which he attributed to sanctions and less access to petrol. Several Chinese traders told Reuters the sanctions had stymied North Korean businesses’ ability to raise hard currency to trade.

“Last month sales were really bad, I only sold a couple of vehicles,” said the Chinese trader who sells new trucks, vans and minibuses to North Korea. “In August last year, I sold tens of vehicles and I thought that was bad.”

On top of the sanctions, some traders said Chinese officials have stepped up efforts to curb smuggling across the border, a key source of fuel in the northern parts of North Korea.

And Chinese bank branches in the northeast have curtailed doing business with North Koreans, according to branch staff.

FUEL PRICES SURGE

Still, North Korea has made strides in increasing its economic independence and not all traders or observers agreed the international pressure was having a major economic impact.

Many residents, long accustomed to restrictions and shortages, were most concerned about the risk of already tight fuel supplies being cut further, said Kang Mi-jin, a North Korean defector in Seoul who reports for the Daily NK website.

“If the U.S. were to say they plan to bomb Pyongyang, North Koreans wouldn’t care less. But if China says they are considering slashing oil exports to North Korea because of missile or nuclear tests, North Koreans would absolutely freak out,” she said.

FILE PHOTO: Military trucks carry soldiers through central Pyongyang, North Korea April 13, 2017. REUTERS/Damir Sagolj/File Photo

Reuters reported in late June that state-run China National Petroleum Corp (CNPC) had suspended sales of gasoline and fuel to North Korea over concerns it would not get paid, and Chinese customs data showed that gasoline exports to the North had dropped 97 percent from a year earlier.

Petrol and diesel prices in North Korea surged after the cut and have almost doubled since late last year. In early September, petrol cost an average of $1.73/kg, compared with 97 cents last December, according to data from the defector-run Daily NK.

“The cost of living has gone up, the price of petrol has risen and there are fewer cars on the streets,” a foreign resident of the North Korean capital told Reuters. The only thing that had become cheaper was coal, he said, after China banned North Korean coal imports earlier this year.

Some of the scarcity of oil products and higher prices may have been caused by hoarding in anticipation of a clampdown on supply.

North Korea canceled an air show scheduled for this month in the coastal city of Wonsan, citing “current geopolitical circumstances”. Several Chinese traders said they believed it was because the military is saving aviation fuel.

The new UN resolution imposes a ban on condensates and natural gas liquids, a cap of 2 million barrels a year on refined petroleum products, and a cap on crude oil exports to North Korea at current levels.

OIL NOT BOMBS

North Korea uses far less crude than during its industrial heyday in the 1970s and 1980s, according to the U.S. Energy Information Administration. After cut-price supplies from China and the Soviet Union ended following the Cold War, consumption dropped from 76,000 barrels per day in 1991 to an estimated 15,000 last year, according to the EIA.

The use of small-scale solar has become widespread in the North, with many apartment balconies dotted with panels providing power for cooking and lighting.

China has not disclosed crude exports to North Korea for several years but industry sources say it supplies about 520,000 tonnes of crude a year to North Korea through an aging pipeline.

The pipeline already operates at the minimum level for which the waxy crude from China’s Daqing oil fields can flow without clogging, according to a senior oil industry source. 

Chun Yung-woo, a former South Korean envoy on the North Korean nuclear issue, said the North could endure for a year or two without oil imports.

“North Koreans are so used to living in harsh economic conditions that they would just get by for at least one year even if the oil ban is adopted, rationing the existing stockpile among top elites at a minimum level and replacing cars, tractors, equipment with cow wagons, human labor etc,” he said.

“They would also manage to produce oil from whatever resources are available, whether it be coal, trees or plants.”

Myanmar’s Marawi Or Kashmir? Ominous Signs

By Ameer Ali –SEPTEMBER 13, 2017

Dr. Ameer Ali

The Rohingya Muslim issue in Myanmar has been brewing for some time, at least since the 1990s when a Buddhist monk and a functionary in the Ministry of Religious Affairs, Kyaw Lwin, laid the ideological groundwork for the birth of the 969 Buddhist sectarian nationalist movement. There are ominous signs that a second Marawi may open up in Myanmar which may even turn into another Kashmir if Bangladesh gets actively involved in training Rohingya fighters.

The 969 movement with its three digits representing respectively the nine special attributes of Lord Buddha, six special attributes of his Dhamma and nine special attributes of Buddhist Sangha is an aggressively chauvinistic religious cult that is determined to cleanse Myanmar of all its so called ‘aliens’. The Rohingya community of nearly one million souls whose contested ancestry in Myanmar goes back to at least the 18th century if not earlier, and are living mostly in the Arakan province, has become, after the 1982 Citizenship Law, one of those ‘aliens’ and of ‘impure bloods’ as reiterated by the country’s former head of state Senior General Than Shwe. 

It was the 969 movement in 2012 under the leadership of another monk Ashin Wirathu, who the Time magazine described as “the face of Buddhist terror”, that was responsible for instigating its followers to set upon the Rohingya Muslims and forced 140,000 of them into squalid refugee camps. There was absolutely no reaction from world leaders at that time.

Now at last, in the wake of a series of recent horrible massacres, arson attacks, rape and forced evacuation unleashed on the Rohingyas the world media is focusing its lens on this persecuted minority and the UN as usual is sitting down just to condemn the violence and calling for restraint from the regime. The UN has lately described the violence as a textbook example of ethnic cleansing. Yet, it is too little and may even be too late.

What is new about this issue now is the active entry of Bangladesh into the foray, not in support of the Rohingyas but to prevent the refugees crossing its narrow 64 km border with Myanmar. Once again the television is full of pictures showing the agony of hundreds of thousands of poor, thirsty and starving men, women and children sheltering under trees and begging for drinking water and food. Now they are cramping under tents. Human rights activists and NGOs can play their part in satisfying at least some of the immediate needs of the refugees, but a long term solution to the problem has to come from the governments of Myanmar and Bangladesh. What are the prospects?     

Myanmar under the present military backed regime has no sympathy for the Rohingyas. The have been disenfranchised once and for all and been declared as immigrants and illegal occupants. Even Aung San Suu Kyi the so called Nobel Laureate has so continued to dodge answering directly all questions put to her by journalists and others about her sympathies or otherwise towards the Rohingya minority. By blaming the violence on terrorists, the usual answer from a politician who does not want to face facts on the ground, she has proved that she is trying to safeguard her own future from the wrath of the military. While she remains gutless the regime will stigmatise, harass, isolate, weaken and eventually annihilate this minority to complete a program of genocide in stages unless some third force like the UN intervenes quickly to stop it.

Bangladesh is already erecting military observation posts along the border to prevent refuges crossing into its territory. According to Bangladesh government sources there are already 400,000 Myanmar nationals causing “massive social, economic and environmental problems”. At the same time the Myanmar regime is also land mining the border ostensibly to prevent the refugees from entering Bangladesh. There may be another more genuine reason for this as I show below.

The danger is that Bangladesh is also the home for hundreds of thousands jihadists and radical Islamists who will consider it their religious duty to defend the interests of fellow Muslims in Myanmar. Since some sections of the Rohingya community are already arming themselves to defend against Buddhist violence the jihadists would be willing to join them in a holy war. Lately al-Qaida also has declared its intentions to enter the arena. Also, with the collapse of ISIS in Syria those fighters will look for other battle grounds to carry on with their jiihad. Myanmar in mining the border areas is taking precaution to stop the flow of jihadists. 

It is also possible that the opposition parties in Bangladesh would pressure the government to lend support to the Rohingya fighters at least by training them militarily and equipping them with up-to-date weapons. This will be a replica of Marawi, the current zone of jihad in the Philippines. The worst scenario is for Bangladesh to annex the province of Arakan, which tantamount to an open declaration of war with Myanmar and a recreation of another Kahmir. Only timely action by world leaders can stop these outcomes becoming reality even by default.

Read More

Plight of Rohingya Muslims

Tuesday, 12 September 2017 

According to the Assembly of Rohingya in Bangladesh, over 6,500 people have been killed, 8,400 injured, and 23,000 houses were burned down. The government which is responsible to protect its own citizens is doing nothing in Myanmar

 Historical overview

Plight of Rohingya Muslims.docx by Thavam Ratna on Scribd

Sanders introduces universal health care, backed by 15 Democrats

With support growing for universal health coverage, just what does "single-payer" mean? Here's a deep-dive into what a single-payer health-care system would look like, and the arguments for and against it. (Jenny Starrs, Danielle Kunitz/The Washington Post)

By David Weigel September 13 at 3:45 PM

Sen. Bernie Sanders (I-Vt.) introduced legislation Wednesday that would expand Medicare into a universal health insurance program with the backing of at least 15 Democratic senators — a record level of support for an idea that had been relegated to the fringes during the last Democratic presidency.

“This is where the country has got to go,” Sanders said in an interview at his Senate office. “Right now, if we want to move away from a dysfunctional, wasteful, bureaucratic system into a rational health-care system that guarantees coverage to everyone in a cost-effective way, the only way to do it is Medicare for All.”

Sanders’s bill, the Medicare for All Act of 2017, has no chance of passage in a Republican-run Congress. But after months of behind-the-scenes meetings and a public pressure campaign, the bill is already backed by most of the senators seen as likely 2020 Democratic candidates — if not by most senators facing tough reelection battles in 2018.

The bill would revolutionize America’s health-care system, replacing it with a public system that would be paid for by higher taxes. Everything from emergency surgery to prescription drugs, from mental health to eye care, would be covered, with no co-payments. Americans younger than 18 would immediately obtain “universal Medicare cards,” while Americans not currently eligible for Medicare would be phased into the program over four years. Employer-provided health care would be replaced, with the employers paying higher taxes but no longer on the hook for insurance.

Private insurers would remain, with fewer customers, to pay for elective treatments such as cosmetic surgery — a system similar to that in Australia, which President Trump has praised for having a “much better” insurance regimen than the United States.

But the market-based changes of the Affordable Care Act would be replaced as Medicare becomes the country’s universal insurer. Doctors would be reimbursed by the government; providers would sign a yearly participation agreement with Medicare to remain with the system.

“When you have co-payments — when you say that health care is not a right for everybody, whether you’re poor or whether you’re a billionaire — the evidence suggests that it becomes a disincentive for people to get the health care they need,” Sanders said. “Depending on the level of the co-payment, it may cost more to figure out how you collect it than to not have the co-payment at all.”

As he described his legislation, Sanders focused on its simplicity, suggesting that Americans would be happy to pay higher taxes if it meant the end of wrangling with health-care companies. The size of the tax increase, he said, would be determined in a separate bill.

“I think the American people are sick and tired of filling out forms,” Sanders said. “Your income went up — you can’t get this. Your income went down — you can’t get that. You’ve got to argue with insurance companies about what you thought you were getting. Doctors are spending an enormous amount of time arguing with insurers.”

Republicans, bruised and exhausted by a failed campaign to repeal the Affordable Care Act, were giddy about the chance to attack Democrats and Sanders. At Tuesday’s leadership news conference, Sen. John Barrasso (R-Wyo.), a medical doctor, crowed that Sanders’s bill had become “the litmus test for the liberal left” and that Americans would reject any costly plan for universal insurance coverage.

“Bernie Sanders’s home state had … a similar plan,” Barrasso said, referring to a failed 2014 campaign for universal health care in Vermont. “They realized they would have to double the taxes collected on the people of that state to pay for it because it was so financially expensive.”

Sanders acknowledged that the plan would be costly but pointed to the experience of other industrialized countries that provided universal coverage through higher taxes. The average American paid $11,365 per year in taxes; the average Canadian paid $14,693. But the average American paid twice as much for health care as the average Canadian.

“Rather than give a detailed proposal about how we’re going to raise $3 trillion a year, we’d rather give the American people options,” Sanders said. “The truth is, embarrassingly, that on this enormously important issue, there has not been the kind of research and study that we need. You’ve got think tanks, in many cases funded by the drug companies and the insurance companies, telling us how terribly expensive it’s going to be. We have economists looking at it who are coming up with different numbers. ”

In 2016, when Sanders challenged Hillary Clinton for the Democratic presidential nomination, high cost estimates and the idea of wiping out private insurers kept many Democrats from embracing universal health care. While support for Sanders’s proposal has risen from zero to 15, several Senate Democrats are proposing alternate plans for Medicare or Medicaid buy-ins, and Democratic leaders caution that their party will take no one-size-fits-all position.

“I don’t think it’s a litmus test,” said House Minority Leader Nancy Pelosi (D-Calif.) of Medicare for All. “I think to support the idea that it captures is that we want to have as many people as possible, everybody, covered, and I think that’s something that we all embrace.”

Many supporters of Sanders have contradicted Pelosi, portraying his plan as popular — 57 percent of Americans support Medicare for All, according to Kaiser Health News — and efficient. Our Revolution, founded by Sanders, has urged Democrats to sign on; Justice Democrats, created after the election to challenge Democrats in primaries if they bucked progressive values, has asked supporters to call their senators until they endorse the bill. And a web ad paid for by Sanders’s 2018 Senate campaign, asking readers to “co-sponsor” his bill, attracted more than half a million names.

As of Tuesday night, just one senator from a swing state had done so. Sen. Tammy Baldwin (D-Wis.), who as a member of the House had backed Rep. John Conyers Jr. (D-Mich.)’s Medicare for All bill, wrote a Tuesday op-ed for the Milwaukee Journal Sentinel to confirm that she was on board. The Republican Party of Wisconsin, which has struggled to find a first-tier challenger for Baldwin next year, was quick with a statement: “Senator Tammy Baldwin Embraces Radical $32 Trillion Health Care Takeover.”

The $32 trillion figure was based on the Urban Institute’s analysis of Sanders’s 2016 campaign plan. The new bill was different — and so was the confidence Democrats had as they embraced it.

“With this reform, we would simplify a complicated system for families and reduce administrative costs for businesses,” Baldwin wrote.

Kelsey Snell contributed to this report.

More pregnant women to get Group B Strep treatment

Rebecca with her daughter, Hannah, and baby Alistair, who was treated for Strep B

 13 September 2017

All pregnant women who go into labour too soon should be given antibiotics to protect their baby from a potentially deadly infection called Group B Strep (GBS), say new guidelines.

Hundreds of newborn babies a year in the UK catch it. With prompt treatment, most can make a full recovery.

Currently, two in every 20 infected babies develops a disability and one in every 20 dies.

The Royal College of Obstetricians and Gynaecologists wants to change this.

It says any woman who goes into labour before 37 weeks should be offered antibiotics as a precaution, even if her waters have not broken and the protective amniotic sac surrounding the baby in the womb is still intact.

Group B Strep bacteria can live harmlessly in the lower vaginal tract - about one in four women has it - and it can be passed on to the baby during delivery.

Most women will not realise they are a carrier.

The updated guidelines from the RCOG say pregnant women should be given information about the condition to raise awareness.

They also say women who have tested positive for GBS in a previous pregnancy can be tested at 35 to 37 weeks in subsequent pregnancies to see if they also need antibiotics in labour.

But they do not go as far as recommending routine screening of mothers-to-be.

The RCOG says there is no clear evidence that this would be beneficial, as previously stated by the government's National Screening Committee but campaigners disagree.

Group B Strep Support would like every pregnant woman to be offered the opportunity to be tested for the bacteria.

Chief executive Jane Plumb said: "The RCOG guideline is a significant improvement on previous editions, however, the UK National Screening Committee still recommends against offering GBS screening to all pregnant women, ignoring international evidence that shows such screening reduces GBS infection, disability and death in newborn babies."

Baby Alistair was unaffected by GBS after his mother was given antibiotics after her waters broke

Rebecca Gunn, 32 and from Wakefield, had GBS during her second pregnancy.

"I had gone in to hospital after experiencing some bleeding at 17 weeks, and that is when they picked up that I was a GBS carrier.

"The diagnosis came out of the blue. I was really surprised, as GBS hadn't even crossed my mind."

Rebecca went into labour at 38 weeks and was given intravenous antibiotics after her waters broke.

She gave birth to her son, Alistair, who was fortunately unaffected by GBS.

"I knew nothing about GBS. I'm not saying this to scare people, but it's important they are informed and aware of the risks," she said.

Group B Strep facts

• GBS is not a sexually transmitted disease. Treating a woman carrying GBS does not prevent these normal bacteria that many adults carry from returning
• A woman who has it will not usually have symptoms or side-effects
• Testing is the only way to know if you are carrying GBS
• If you are pregnant and found to have it, steps can be taken to reduce the risk of GBS to your baby

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TRANSITIONAL JUSTICE: WHAT IS IT & WHERE IS IT HEADING? – PABLO DE GREIFF

Image: Pablo de Greiff (UN photo).

12/09/2017

First, there are plenty of accomplishments to celebrate in the field of transitional justice, a term, which as on previous occasions, I will use to refer to the implementation of truth, justice, reparation and guarantees of non-recurrence after serious violations of human rights and gross violations of international humanitarian law.   The first thing to celebrate is that in a fairly short period of time, a normative framework has developed defining State obligations regarding the four pillars mentioned.  Transitional justice has become in a thirty year period, one of the policies that countries are expected to implement in the aftermath of violations.  This is in itself an accomplishment.

TRANSITIONAL JUSTICE WHAT IS IT & WHERE IS IT HEADING – PABLO DE GREIFF.docx by Thavam Ratna on Scribd

Chief Minister Wigneswaran’s visit to the Mahanayakas

Ahead of the curve

by Sanja De Silva Jayatilleka-September 12, 2017, 8:08 pm 

Chief Minister Wigneswaran’s breathtakingly bold move to visit the Mahanayakas in Kandy was an unexpected piece of footage on the evening’s news on all TV channels. He was brisk as he approached the Chief Prelates and confidently direct in his communication with them and the journalists afterwards.

What he said was very clear: he wanted Federalism for the North. He explained to the Prelates and the gathered Sangha that the Supreme Court had just given the decision that Federalism was not something that divided a country but brought it together; it was not separatism.  He was referring to the decision given by the SC on a petition that urged the courts to make illegal the ITAK as its demand for federalism was separatist. He also declared that with the 13th amendment they, the representatives of the Tamil people of the North, couldn’t do anything. He was clearly unwilling to negotiate on the basis of the 13th amendment and regarded it as a non-starter.

 At least from what the TV stations showed, the members of his audience seemed to be taken aback at this brashness. They certainly didn’t have the arguments to counter his claims except to reiterate that they will not endorse any process that would put the country in danger of division.

 Wigneswaran’s move was rendered all the more audacious when one considers that his travelling companion for this encounter was Northern Provincial Council Minister Ananthi Sasitharan who has openly supported the LTTE and has not distanced herself from the call for Tamil Eelam. One can’t but admire the self-assurance of Chief Minister Wigneswaran as immediately proceeded, just as briskly, to visit the former LTTE suspects held in prison in Kandy.

 The whole set of moves was made with supreme confidence, as the Chief Minister smilingly strode through the programme, never once losing his composure in what one might have thought was hostile territory.  This venturing into the national political space in an unusual move with document in hand praising Federalism which he handed over to the two epicenters of Sinhala Buddhist consciousness is truly creative political theatre, and it behoves us to analyze its motives if we are not to be taken by surprise by the next set of such moves.   

 Was this shrewd political manoeuvring or a bow in the direction of the current tradition of beating a path to Malwatte and Asgiriya for endorsement as a first step in any political process? Was there something significant in the timing of this visit?

 The proposals for a new constitution were being considered in Parliament for several months and the deadline for submission of proposals by the political parties had just closed. The public submission had closed much earlier. The document in Chief Minister Wigneswaran’s hands was not that of the TNA, his official party. It was prepared by a group of civil society activists. Had they handed over a copy to the Constitutional Assembly earlier? Why make the visits so publicly? What is the TNA’s stand on this visit? Mr. Sumanthiran had earlier declared that the TNA was did not insist on the removal of the term ‘Unitary’ as long as the content met the criteria of and thereby ensured Federalism. Wigneswaran however, vehemently declared that unvarnished Federalism was what he was after.

Why did he choose to visit the Mahanayakas first with his document? It was a very public affair. What are his options, consequent to this move? Is it the first of a series of steps that would show that all avenues to obtain a political solution within a united Sri Lanka acceptable to his constituency were pursued and exhausted?

 This appeal, going by all signs from other political parties and civil society groups representing the majority view, will inevitably fail. The abandonment of the unitary state in favour of Federalism is not on the agenda in Parliament— at least it is not, going by the proposals presented by all political parties.  In this context the move by the controversial Chief Minister of the Northern Province is interesting, to say the least.

 Chief Minister Wigneswaran sounded eminently reasonable in his argument that his appeal was not for separation and besides, it (federalism) was not illegal. What are the arguments that are currently presented against this position? None of the ones proffered by politicians sound adequate to counter his.  

 There doesn’t seem to be a sound legal argument against such a demand, only a geopolitical one. The geopolitical consideration is critically important to Sri Lanka. The location of this island is the determining factor. With Tamil Nadu just 18 miles from the North, with co-ethnics of 100 million around the world but 80 million of them just a boat ride away, Federalism is an existential threat to this island and is likely to lead to and result in separatism even though it is right to assert, as has the Supreme Court, that it is not separatist per se. On this island, it most certainly is a legitimate fear and a consideration the Sri Lanka people and parliament cannot discount.

 While the North represented by the Chief Minister pulls daringly in one direction, which to all appearances seems an unrealistic one at this time,  some in the South pull it in another which seems just as unrealistic  given the unraveling they demand of existing provisions in the Constitution which emerged from bilateral agreements with India.  

 Between these two positions lies what this parliament can achieve without going for a referendum. But if referendum is exactly what each side is looking for, then it is not difficult to guess at the next bold steps of Chief Minister Wigneswaran.

 One has only to remember the one member of the Darusman Panel whose expertise is in new borders, as in new borders of new states carved out of existing ones.  That would be Prof. Stephen Ratner, an international law expert, formerly of the US State Department. He argues that where a state (often motivated by majoritarian considerations) seeks to roll back existing levels of autonomy, then that province is likely to resort to separatism, and if so it qualifies for borders which are the formerly existing borders of the regions or provinces.

 Abolition of the 13th amendment could be construed as a reversal of existing levels of autonomy. The other route would be to deploy the results of a referendum as a mandate for that province to declare that it had won a plebiscite for federalism and self-determination.  

 All these are the possible routes, which neither Mr. Wigneswaran nor his fellow Minister Ananthi Sasitharan may be considering yet because all they want for Christmas is Federalism (at least this year). However, it would be foolish not to anticipate what could form the logical next steps if these efforts fail. Further moves could be triggered in an effort to prove the intransigence of the ‘Sinhala governments’, the Sinhalese politicians and the Sinhalese people since Independence, in view of the infamous genocide resolution of the Northern Provincial Council.

 This is especially relevant considering the UN High Commissioner for Human Rights, Zeid Al Hussein has just declared at the on-going September sessions of the Human Rights Council that "The absence of credible action in Sri Lanka to ensure accountability for alleged violations of international human rights law and international humanitarian law makes the exercise of universal jurisdiction even more necessary."  This call for the indictment of those alleged of war crimes in any court anywhere in the world, was in addition to his assertion that "In the North, protests by victims indicate their growing frustration over the slow pace of reforms. I encourage the Government to act on its commitment in Resolution 30/1 to establish transitional justice mechanisms and to establish a clear timeline and benchmarks for the implementation of these and other commitments."

 It is incumbent on our parliamentarians to give a sensible, rational and internationally convincing enough reply to the eminently reasonable sounding queries that Chief Minister Wigneswaran posed during his visit to Kandy, which has brought no response from them thus far. People of all political persuasions need to hear it.

ICC restricted from intervening in Sri Lanka

By KEERTHI
KUMBURUHENA
LL.B (Sri Lanka), LL.M (Aberdeen),
Attorney-at-Law-2017-09-12

The International Criminal Court (ICC) was founded to investigate crimes such as genocide, war crimes and crimes against humanity and aggression. It has been established through the Rome Statute, which entered into force on 1 July 2002. ICC ('the Court') could, issue a warrant of arrest for a person if it is satisfied that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court (Article 58(1)).

Sri Lanka is not a State Party to Rome Statute

It is a precondition to the exercise of jurisdiction of the ICC that a State becomes a Party to the Rome Statute (Art. 12 (1)). Only State Parties could refer their issues to the Court (Arts. 13 (a)& 14 (1)). In other words, the ICC has jurisdictions mainly over the State parties. Alternatively, it may exercise its jurisdiction if a non-State Party has accepted the jurisdiction of the Court by declaration, in respect of the crime in question (Art. 12 (3)).

Accordingly, a State which is not a Party to this Statute, may, by declaration, accept the exercise of jurisdiction by the Court in respect of the crime in question. Alternatively, even if a State is not a party to the Rome statute, the Court may exercise its jurisdiction if there is a situation where one or more of the crimes, which appear to have been committed, is referred to the Prosecutor by the UN Security Council (UNSC) acting under Chapter VII of the Charter of the United Nations (Art. 13 (b)).
For instance, the ICC intervened in the matter in Darfur, Sudan through a reference by the UNSC. On a rare occasion, the Court may exercise its jurisdiction if the Prosecutor of ICC has initiated an investigation, 'proprio motu' on the basis of information on crimes within the jurisdiction of the Court (Arts. 13 (c) & 15 (1). The Court may invite any State which is not a party to the Rome Statute to provide assistance under this Part on the basis of an 'ad hoc' arrangement or an agreement with such a State or any other appropriate basis. (Art.87 (5) (a)).

Sri Lanka is not a State party to the Rome Statute and we have never accepted the jurisdiction of ICC by way of any declaration as defined in Articles 12 (2) and (3). Thus, the ICC cannot at any time intervene in Sri Lanka under Article 13 (a) or (c). And, there has been no reference to the Prosecutor by the Security Council acting under the aforesaid Chapter VII. Moreover, we have not accepted any invitations of 'ad hoc' arrangements so far and therefore, ICC cannot intervene through Article 87 either.

Not only Sri Lanka. The ICC still has no jurisdiction over many States which are not State parties of the Rome Statute. Even the United States and India are not State parties to the ICC. Although the United States signed the convention, they have not ratified it. India has neither signed nor ratified. Another example is Syria, where the ICC does not have jurisdiction. ICC could exercise its jurisdiction if Syria was a State party to the Rome Statute or if it made a declaration accepting the ICC's jurisdiction under Article 12 (3). Syria is neither a State party nor has it made any declaration accepting the jurisdiction of the Court and there is no reference from UNSC.

Is ICC only complementary?

The jurisdiction of the ICC is based on the 'principle of complementarity'. The Preamble of the Court says 'the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions' (paragraph 10). Article 1 says 'ICC shall be complementary to national criminal jurisdiction'. This means the Court could intervene in a domestic matter only if the State parties had failed, were unable or reluctant to investigate it. Hence, even if Sri Lanka had signed the Rome Convention, the ICC could have never interfered in the National Court proceedings or investigations unless there had been a serious failure or neglect in the domestic proceedings.
The ICC does not replace the domestic criminal justice system, but acts as a complement to it. Thus, it could prosecute cases only in circumstances where State Courts are passive or found inadequate. The ICC should rely on the cooperation of the State to enforce warrants. The principle of 'complementarity' has gradually limited the ICC's freedom of prosecution and investigation in cases where the domestic Court proceedings are pending. In addition, the Court has no jurisdiction to hear a matter which has been already investigated at domestic level.

When State parties wish to cooperate with ICC, they shall not disregard the procedures laid down in national laws. In other words, domestic civil and criminal procedure laws should not be negated while complying with a request of the Court to assist investigations or prosecutions (Art. 93(1)).

Requests for assistance shall be executed in accordance with the relevant procedure under the law of Sri Lanka and, unless prohibited by such law, in the manner specified in the request, including procedure outlined in the Rome Statute or permitting persons specified in the request to be present at and assist in the execution process (Art. 99 (1)).

Jurisdiction of ICC limited

The jurisdiction of the Court is limited to the most serious crimes of concern to the international community. The Court has jurisdiction in accordance with the Rome Statute in respect of (a) genocide, (b) crimes against humanity, (c) war crimes and (d) the crime of aggression (Art. 5 (1)).
The Article 8 (1) says 'the Court shall have jurisdiction in respect of war crimes in particular when committed'. Crimes against humanity has been defined as '.... committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack' (Art. 7 (1)).
Furthermore, the ICC elaborates the legal principle of 'nullumcrimen sine lege', which means a person shall not be criminally responsible under the Rome Statute, unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court (Art. 22 (1))

Warrants summons & arrests beyond jurisdiction

Before the issue of a warrant of arrest or a summon to appear before the ICC, it has to be satisfied that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court and such an arrest is necessary to ensure the person's appearance at trial, to ensure that the person does not obstruct or endanger the investigation or the Court proceedings; or to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same (Art. 58 (1)).

Even if a person is arrested on a request of the ICC, such a person should be brought promptly before the competent judicial authority in the custodial State which would determine, in accordance with the law of that State (Art. 59 (2)).

ICC forfeits right to intervene if the case is being investigated in Sri Lanka

Certain cases are inadmissible in ICC investigations. First, if the case is being investigated or prosecuted by a State, over which it has jurisdiction, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution, it is inadmissible (Art. 17 (1) (a)). Secondly, if the case has been investigated by a State over which it has jurisdiction and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute, it is inadmissible (Art. 17 (1) (b)).

In order to determine the aforesaid 'unwillingness' of a State to prosecute a case, the Court shall consider, whether (a) the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court, (b) there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice, (c) the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice (Art. 17 (2) (a-c)).

In order to determine 'inability' of a State to prosecute a case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings (Art. 17 (3)). The ICC cannot even initiate an investigation if the information available to the prosecutor does not provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed or the case is or would be admissible under article 17 mentioned above (Art. 53 (1) (a-b)). In such a case, the Court should not issue warrant or summons (Art. 53 (2) (a)).

ICC's Jurisdiction challengeable

ICC shall satisfy itself that it has jurisdiction in any case brought before it (Art. 19 (1)). Its jurisdiction could be challenged in three ways. First, by an accused or a person for whom a warrant of arrest or a summons to appear has been issued. Secondly, by a State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted.

Thirdly, by a State from which acceptance of jurisdiction is required by declaration (Art.19 (2) (a-c)).

Where the person sought for surrender brings a challenge before a National Court on the basis of the principle of 'ne bis in idem' as provided in Article 20 of the Rome Statute, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility (Art.89 (2)).

No prosecution possible against State Immunity

The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law in respect of the State or diplomatic immunity of a person or property of a third State, unless the Court could first obtain the cooperation of that third State for the waiver of the immunity (Art.98 (1)).

In addition, the Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court could first obtain the cooperation of the sending State for the giving of consent for the surrender (Art.98 (2)).

ICC cannot be detrimental to National Security

A State could deny the disclosure of information to the ICC in any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests (Art. 72 (1)). If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to obtain resolution opposing it (Art. 72 (4)).

If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps would be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means (Art. 72 (5)).

If the originator of the information is a State Party, it shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Court, subject to the provisions of Article 72. If the originator is not a State Party and refuses consent to disclosure, the requested State shall inform the Court that it is unable to provide the document or information because of a pre-existing obligation of confidentiality to the originator (Art. 73).

A State Party may deny a request for assistance, on the whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security (Art. 93 (4)). Alternatively, the State party could provide the assistance subject to conditions or provide the assistance at a later date in an alternative manner. The ICC shall abide by them (Art. 93 (5)). If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the 'consent of that State' (Art. 93 (10) (b) (ii) (a)).
No prosecution for mistakes and shortcomings

A 'mistake of fact' or 'mistake of law' shall be a ground for excluding criminal responsibility if they negate the mental element required by the crime (Article 32 (1-2)). Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge (Art. 30 (1)).

The 'knowledge' means awareness that a circumstance exists or a consequence would occur in the ordinary course of events (Art. 30 (3)). In addition, Rome Statute intends to believe that children have no intention and knowledge in respect of any crime in question. Therefore, the ICC shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime (Art. 26).

ICC cannot interfere in the Independence of our Judiciary

The Rome Statute itself provides a very limited jurisdiction to the ICC by imposing many restrictions upon it. These restrictions have made it far more impossible for the ICC to intervene in issues in Sri Lanka, unless the State makes a declaration accepting its jurisdiction or enter into an 'ad hoc' arrangement or agreement.

Even if the UNSC referred Sri Lankan matters to the ICC, it could only act as a 'complementary' to our National Courts, Laws and Procedures. Eventually, our National Courts would never become secondary.


At a time when certain elements are looking up to the ICC to enter into the realm of our judiciary and make it impact upon our system, it is absolutely essential to comprehend that the ICC has to function under very strong restraints and cannot in anyway trespass into the independence of our judiciary on some pretext or other.