Thursday, March 21, 2019

UN's Bachelet Briefs On Sri Lanka

20 March 2019

UN High Commissioner for Human Rights Michelle Bachelet on Wednesday presented reports on the situation in nine countries, as mandated by the UN Human Rights Council. Brief summaries follow, with links to the full statements and reports on which they are based.

On Sri Lanka: Despite progress on some issues, “there has been minimal progress on accountability” including on setting up a special judicial mechanism to deal with the worst crimes committed during the 2009 conflict, Bachelet said, noting that continuing impunity risks fuelling communal or interethnic violence, and instability. She called for establishment of an independent Truth and Reconciliation Commission and a vetting process to remove officers with questionable human rights records, and noted slow progress in replacing the problematic Prevention of Terrorism Act. She highlighted “continuing allegations of torture and other human rights violations by security forces, including sexual violence,” and called for an end to surveillance and reprisals targeting human rights defenders, and victims. She encouraged the Government to implement a detailed and comprehensive plan for the transitional process with a fixed timeline.

Presentation of the High Commissioner's report on Promoting reconciliation, accountability and human rights in Sri Lanka

I welcome this opportunity to discuss the human rights situation in Sri Lanka, and to present my report pursuant to Human Rights Council resolutions 30/1 and 34/1. The Office has sent an advanced version of the report to the Government of Sri Lanka and has given due consideration to the comments received, further to our routine procedures.

My report acknowledges the Government’s open dialogue and sustained cooperation with my Office. Working closely with the UN Resident Coordinator and her Senior Human Rights Advisor, we have continued to provide technical support, including through the UN Peacebuilding Fund, for Sri Lanka to implement this Council's resolutions 30/1 and 34/1.

I welcome the operationalization of the Office of Missing Persons (OMP), following initial delays. The OMP plans to undertake the complex task of tracing the whereabouts of victims in a sensitive, thorough and objective manner, addressing the difficult situation of the victims’ families. I commend the establishment of the Office for Reparations, and look forward to the swift appointment of its Commissioners. My Office encourages the Government to enable these two institutions to function effectively and independently, and to link them to a broader approach aimed at justice, real accountability and truth-seeking.

Regarding the land occupied by the military in the Northern and Eastern Provinces, some progress has been noted, and further steps should be taken to complete this crucial process.

The steps I have just indicated are elements of Sri Lanka's commitment to broad institutional and reform measures made four years ago, in the context of implementing Human Rights Council resolution 30/1.

However, implementation of resolution 30/1 needs to be more consistent, comprehensive and accelerated. A contributing factor to delays appears to be a lack of common vision among the country’s highest leadership. Deadlock on these important issues is an additional – and avoidable – problem, with damaging impact currently on victims from all ethnic and religious groups and on society as a whole.

I appreciate the complexity of transitional processes. The events leading to the declaration of a state of emergency in March last year, and the constitutional crisis in October, created a political environment not conducive to the implementation of reform measures.

Today, my Office encourages the Government to implement a detailed and comprehensive strategy for the transitional process with a fixed timeline. Legislation on the establishment of an independent Truth and Reconciliation Commission could be an important next step.

As a former Minister of Defence who has worked in the context of a transition, I can highlight the importance of security sector reform as part of a transitional justice process. These reforms should include a vetting process to remove officers with questionable human rights records. The recent appointment to a senior position in the Sri Lankan Army of Major General Shavendra Silva, implicated in alleged serious violations of international humanitarian and human rights law, is a worrying development.

There has been minimal progress on accountability. My report details the steps taken over a lengthy period to address several emblematic cases, and the lack of progress in setting up a special judicial mechanism to deal with the worst crimes committed during the 2009 conflict. Continuing impunity risks fuelling communal or inter-ethnic violence, and instability. Resolving these cases, and bringing the perpetrators of past crimes to justice, is necessary to restore the confidence of victims from all communities.

Replacement of the Prevention of Terrorism Act, has been on the Government’s agenda for four years. I encourage the completion of this process, with measures to strengthen the draft law’s safeguards and oversight elements, and to tighten the definition of terrorist acts, which is currently too broad. I note with concern that individuals continue to be held under the PTA.

I am also troubled about continuing allegations of torture and other human rights violations by security forces, including sexual violence. Effective, transparent and independent investigations by the Government, as well as measures to prevent and end such practices, including through full implementation of the 2016 recommendations of the Committee Against Torture, would be positive.

Another step in the right direction would be an end to the surveillance of human rights defenders, reprisals against them, as well as against victims.

I am deeply concerned about the calls to reinstate the application of the death penalty after more than forty years of moratorium.

My Office highlights the critical role of Sri Lanka’s independent commissions, particularly the National Human Rights Commission. Respect for their independence and implementation of the Commissions’ recommendations are needed to entrench the rule of law in Sri Lanka. Appropriate cooperation with the Human Rights Commission is also essential for the participation of Sri Lankan personnel in United Nations peacekeeping operations.

This Council continues to have an essential role in accompanying the Government and people of Sri Lanka in their journey towards realizing the dignity, and rights of all members of society, irrespective of their sex, ethnic origin or belief.

In closing, I emphasise that in co-sponsoring resolutions 30/1 and 34/1, the Government recognized the need to address the past in order to build a future securely grounded in accountability, respect for human rights and the rule of law. For victims and for society, this need continues. There is an opportunity, now, to leave behind a past of violence and human rights violations, through bold determination and leadership at all levels of Government.

Click here to read the report by the United Nations on Sri Lanka

Sri Lanka rejects hybrid court at UN Human Rights Council

20 March 2019

Lanka’s foreign minister spoke out against a hybrid accountability mechanism at the United Nations earlier today, in a statement that also lashed out at the UN human rights chief’s report on the island.

Thilak Marapana said “at the highest political levels” the Sri Lankan government has reiterated there were “constitutional and legal challenges that preclude it from including non-citizens in its judicial processes”.

The inclusion of foreign judges in a criminal justice process for violations committed at the height of the armed conflict is a key operating paragraph of a UN resolution that Sri Lanka co-sponsored in 2015. However, several senior Sri Lankan leaders have repeatedly spoken out against such a process, with Sri Lanka’s president vowing that members of the armed forces will not be taken before a war crimes tribunal.

Marapana said he wished to “make it clear” and that Sri Lanka’s position had been expressed “both publicly and in discussions with the present and former High Commissioner for Human Rights and other interlocutors”.

“It has been explained that if non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favour and also the approval of the people at a referendum,” he added.

“Our own path to reconciliation will be primarily driven by the domestic context, in which we function.”

In his statement to the UN Human Rights Council, Marapana went on to criticise several aspects of the UN High Commissioner for Human Rights’ report on Sri Lanka, which raised concerns over the on-going reports of abduction, torture and sexual violence, institutional failures within the criminal justice system, ongoing harassment of human rights defenders since 2015 and the military’s continued occupation of civilian land.

Read more: 'Virtually no progress' in Sri Lanka on war crimes investigations says UN human rights chief's office

In a seeming rebuke to the High Commissioner Michelle Bachelet, who had earlier called the appointment to a senior position in the Sri Lankan Army of Major General Shavendra Silva “a worrying development”, Marapana stated, “it must be asserted that there are no proven allegations against individuals on war crimes or crimes against humanity in the OISL report of 2015 or in any subsequent official document”.

“It is an injustice to deprive any serving or retired officer of the Sri Lankan security forces or the police their due rights,” he added.

Read more: Shavendra Silva - ‘the most wanted man in Sri Lanka’

Marapana went on to defend the Sri Lankan military, stating that “the action by the Sri Lankan security forces during the conflict was against a group designated as a terrorist organisation by many countries, and not against any community”. “All communities in Sri Lanka were united against terrorism, and now that terrorism has been defeated, all communities are working in unison towards reconciliation and economic progress,” he added.

He also rejected reports of state-sponsored colonisation of the North-East, claiming that Colombo does not follow such a policy. Though the minister said “clearly and categorically” that land was not being grabbed under the guise of forestry or archaeological projects, his statement immediately adds, “however, it must be born in mind that the protection of forest land and archaeological projects is an obligation cast on any State”.

Read more: PEARL launches Sinhalization of the North-East info series

The minister also rejected the High Commissioner’s call for the establishment of an OHCHR office on the island, stating that “Sri Lanka does not believe there is justification” for such a presence.

“As a sovereign state, Sri Lanka must set its priorities in addressing the well-being and sustainable peace for her people, as a sovereign state,” the statement concludes.

See the full text of the statement here.

INVESTIGATE & PROSECUTE THOSE ACCUSED OF WAR CRIMES, CIVIL SOCIETY CALLS ON IC AT HRC 40

Image: Sri Lanka Attorney at Law Ameer Faaiz ( on right) made the intervention behalf of IMADR and FI.

20/03/2019

Thank you, Mr. President.

I was here, with you, a year ago, sharing my dismay at the terrible events that were taking place in Sri Lanka, my country, in March 2018.

You will recall, violent mobs led by extremist Buddhist monks attacked Mosques, homes and businesses of the Muslim community in Digana town and surrounding areas in the Central Province.

Two people lost their lives, one man burnt to death inside his own home. Several persons injured,
around 450 shops and houses were destroyed, together with 24 places of worship, many burnt to the ground. All this happened while the police stood by and watched, and our national political leaders failed to respond immediately to put an end to this violence.

This body expressed its serious concern at events, which has been reiterated in the High Commissioner’s report to this session.

A year on, no one has been held to account for this violence, even though perpetrators have been identified and evidence available. Leaders of an extreme Sinhala-Buddhist violent group were arrested but later released on bail and many have returned to the places where the violence occurred.

The apparent lack of political will to promote reconciliation is manifested by non- adherence to even the “easy to-do” list, including the full release of privately-owned lands and townships that were owned by both Tamils and Muslims and non-prosecution of perpetrators of violence. The mix messaging by political leaders continue to threaten civil society initiatives for peace and reconciliation including any confidence building measure.

There is still widespread fear and anger in the North and East. There is still culture of impunity often justified and backed by some political leaders. Minority communities fear that violence can re-occur any time if it becomes politically useful again.

What I recalled is just one recent incident. Another anniversary, another death, which highlights the simple reality that failure to establish accountability for institutionalised and politically motivated violence against Sri Lanka’s minorities allows it to take place, again and again.

This year a decade has been passed since the end of the war which was marked by the most brutal violence imaginable. Allegations of grave crimes including war crimes and crimes against humanity have not yet been investigated into. There is much to be done as stated in the High Commissioners report.

Sri Lanka’s history over the past fifty years has seen repeated cycles of state violence, political insurrection and militant uprising, all marked by human rights violations, assassinations, torture, enforced disappearance and the killing of so many innocent people.

In 2015, we had hoped that with your support, we might begin to find a way to change, to heal, to reconcile, to bring the violence to an end and to address its terrible legacy through the measures and commitments made here, in HRC Resolution 30/1.

Four years on and still, as noted in successive reports by the High Commissioner, progress by our Government towards the implementation of the transitional justice mechanisms agreed in that resolution has been lamentably slow. Good faith and hope in the country have turned to disappointment and frustration. And human rights violations continue to take place, including torture and sexual and gender-based violence.

We in civil society recognise that there has been some positive progress. The total number of violations has decreased. The establishment of the Office on Missing Persons (OMP) is to be commended. But the climate of fear and impunity continue – and until the OMP is able to deliver concrete results for family members searching for their lost ones it will be unable to gain the trust of victims and those working to support them. The OMP commissioners are working hard to deliver on their mandate, including bringing out an interim report within 6 months with recommendations that covered broadly provision of social relief, legal reforms, non-recurrence and memorialisation. The sudden political crisis brought about by the President of 51 days impacted on the implementation. We appreciate the interim relief of Rs. 6,000.00 per family in which persons are missing, proposed to be paid in the budget.

The OMP remains the only transitional justice mechanism that is up and running. It is important that other mechanisms be established immediately to holistically address the challenges related to reconciliation, truth seeking and non-recurrence. We are still waiting for the operationalisation of the Office of Reparations. The proposed truth and reconciliation commission Bill has not yet been presented to Parliament. We also wish to commend the role played by the Constitutional Council striving to assist in the much-required state reform process.

Of most concern, our national political leaders pander to populist politics, repeatedly denying the need for accountability for war crimes and rejecting the establishment of a special court with international judges despite making that commitment back in 2015.

While we wait in vain for a special court, the existing criminal justice system has demonstrated little willingness to address emblematic cases of past human rights violations. Apparent political interference in investigative processes has undermined the delivery of justice in many of these cases and highlights the challenge to achieving accountability through exclusively domestic mechanisms.

Last year’s attempted constitutional coup has shown us all just how fragile our democratic structures are. The coup presented serious challenges to the protection and promotion of human rights. We saw clearly that the institutions of state that have enabled mass levels of human rights violations over many years have not yet been dismantled and may easily be activated again if there are changes in the political context.

Many of the individuals accused of the most grievous violations, including crimes against humanity, continue to hold positions of power and authority or have recently been promoted to those positions. Civil society sees this as yet another example of the lack of real commitment of our Government to transitional justice and a snub to the HRC and to all the Member States gathered here.

In this profoundly challenging context, we call upon this Council to:

• Renew the mandate of Office of the High Commissioner for Human Rights (OHCHR) to monitor and support the implementation of the commitments made by the Government of Sri Lanka in Resolution 30/1 – and to provide a progress report to the Human Rights Council every six months;

• Request the Government of Sri Lanka to prepare and present a comprehensive action-plan with clear time-lines for the implementation of the commitments made in Resolution 30/1 and the recommendations in the report of the Consultation Task Force on Reconciliation Mechanisms (CTF). The plan will provide linkages between the mechanisms to be established and the provision of justice and accountability;

• Urge the Government of Sri Lanka to invite the OHCHR to establish a country office to monitor human rights, to support the implementation of Resolution 30/1, CTF recommendations and those made by the High Commissioner, the Human Rights Council and its Special Procedures and other human rights mechanisms. The OHCHR office will provide technical assistance, including for the gathering and protection of evidence;

• Call upon all Member States to provide full cooperation and assistance to Sri Lankan civil society in support of our efforts to ensure the protection of human rights and the promotion of transitional justice in our own country. And to engage responsibly with the Sri Lankan state through an appropriate range of diplomatic measures in the case of continued slow delivery of its commitments in Resolution 30/1;

• Call upon Member States to investigate and prosecute those accused of war crimes and other international crimes, as recommended by the High Commissioner.

Thank you.

Sathyodaya for salvation

‘Sathyodaya’ published by the Walpola Rahula Institute

Friday, 22 March 2019

Professor Ven. Walpola Rahula (1907-1997), a Buddhist rationalist and free-thinker of international repute, was a unique intellectual, teacher and writer who never minced his words when speaking truth to power, a rare quality fast disappearing in a world of comprador intellectualism. “It would be a crucial weakness,” he avers, “if you do not express your honest and forthright views fearing public opposition. Persons seeking personal gain, glory, praise, and power are reluctant to go against public sentiment by expressing their honest opinions.” These words of his must be engraved in gold on the doors of every educational institution in the country.

Ven. Rahula’s Sathyodaya, translated into English as Truth Awakening, was published by one who is arguably Walpola’s replica in thought and compassion – Ven. Galkande Dhammananda. He is the Chairman of Walpola Rahula Institute, a much-needed and timely contribution to the national salvation of Sri Lanka. Ven. Dhammananda captures this when he says in the introduction: “Sri Lanka appears to have developed a psyche that continually seeks an “external foe” or “enemy” to lock horns with. There is a lack of will for inward appraisal of short-comings in society that can lead to positive internal reform.”

This need for self-introspection is conspicuously absent in all three communities, which are ready to blame the other for their own short-comings. Rev. Walpola Rahula’s address to the Buddhists is applicable to other communities as well. At a time when Buddhism and other religions of the country have become so politicised and used instrumentally to achieve power, prestige and opulence, the noble teachings of the masters are lost in the wilderness and ignored by both preachers and practitioners. It is in such gloomy environment that Sathyodaya radiates its light to drive away the spiritual and moral darkness that is fast besetting the nation.

Ven. Walpola Rahula (1907-1997), author of ‘Sathyodaya’

Ven. Rahula’s singularly forceful and impeccably erudite critique of the ruling Buddhist orthodoxy and its ritual-centric misrepresentation of the Buddha’s teachings has relevance even to non-Buddhists. When he says that, “After the founder of a spiritual teaching passes away, the priests associated with the teaching frequently alter the religion into a livelihood,” he captures the mind of millions of young men and women who are fast losing faith in any religion. The gatekeepers of these faiths deliberately keep the masses ignorant of the true message of the masters and make a living out of that ignorance. Through a language not understood by the vast majority of followers, and through a priestly class distinctly separated from the masses by way of attire, appearance and artificial veneration, religion has become a source of livelihood, control and even oppression.

Dogma vs. the spiritual
With reference to Buddhism, Ven. Rahula is particularly harsh on the community of Bhikkhus. He points out that, “People have moved away from the right teaching due to mistaken notions such as ‘the Bhikkhus are the Sangha’, ‘the legacy of the Buddha cannot be maintained without the Bhikkhus’ and ‘the legacy of the Buddha will end when there are no robe-wearers’” He questions the audacity of the Bhikkhus in claiming that, “We are the Sangha. Without us how could the legacy of the Buddha survive?” In his elaboration of the ‘Disciple Sangha’ (Sravaka Sangha) and ‘Eight noble persons Sangha’ (Ashta Ariya Pudgala Sangha) he defines a community that may even include the laity. This and his attack on caste-ridden monasteries will shatter the monopoly that orthodoxy has historically bestowed upon the Bhikkhu community.

On rituals and material offerings to the Buddha in the name of worship, Professor Rahula’s ideas are exceptionally rational, if not revolutionary. He knew that he was stepping into a very sensitive territory of Buddhist practices. Before he spells out his views on this matter, he warns the reader, “not to be upset or angry. When an unfamiliar opinion is being expressed on an issue, please listen with patience and compassion”, a quality many of us lack. We always shoot the messenger before reading the message. His explanation is typical of his intellectual maturity and compassionate outlook. “The Buddha, who was the epitome of ethical conduct (Seela), mental discipline (Samadhi), and wisdom (Pragna), departed over two thousand five hundred years ago. If we think that we can venerate him now by offering food items, it reflects our low moral maturity. We cannot pay our respects to him by offering material objects for consumption. The Buddha has stressed that he should be honoured through practice-based offerings (Prathipaththi Puja) rather than through flowers, food, money and other material things.” This reminds me of a Sri Lankan Hindu scholar and savant Swami Vipulanandhar (1892-1947), who like Ven. Rahula, was also critical of ritualistic Hinduism and material offerings by its worshippers.

Prof. Rahula’s thoughts on Buddha Sasana deserves serious attention today by those who claim to protect it with political power. The Sasana, according to Sathyodaya, “signifies performing wholesome actions and refraining from unwholesome deeds”, he says. It is about cleansing the mind. It is represented by ethical conduct …mental discipline… and wisdom… Virtuous practice is ‘Buddha Sasana’.” If this is what Sasana means, do we really need a minister and ministry to protect it?

A message relevant across communities
The esteemed professor’s broad survey of the status of Buddhist community in the land of Dharmadeepa is true of all other communities. “Every week there are thousands of sermons delivered and numerous ‘meritorious activities’ organised across the country. Almost every village has a temple. There are over thirty thousand ordained monks to provide counsel. Yet, there appears to be very little advancement in moral conduct. Have you wondered why?” What he asked of Buddhists should equally be asked of other communities also.

Throughout Sathyodaya, its author relentlessly battles the mis-teaching and malpractices of Buddhist orthodoxy. The rigidity of religious orthodoxy with its arrogated power to impose sanctions upon dissenters or heretics has been the cause of many an unrest and rebellion in the history of all faiths. Ven. Rahula claims with justification that “Buddhists may be regarded as the foremost among free-thinkers in this world” and that, “the Buddha was the first to emphasise the value of ‘free thinking’. His teaching was a bold and forthright act of assertion that underlined the capacity to realise the truth.”

Buddhism’s impact on Islamic free-thinking
From a historical perspective, the Buddhist concept of free-thinking was an important factor in the rise of a rationalist movement in Islam headed by a group of philosophers called Mu’tazilites in the Abbasid Caliphate (750-1258). Thanks to Sathyodaya, let me illuminate this forgotten chapter of Buddhist-Islamic relations to help ease the prevailing disquiet between Buddhist and Islamic orthodoxies in Sri Lanka.

Not many Buddhists and Muslims of this country would be aware of an ancient but famous Buddhist family called Barmakids from Balkh in today’s Afghanistan. The members of this family were the custodians of the Nava Vihara (Nawbahar) monastery. Sometime during the Umayyad invasion of Afghanistan in the 7th century, its members converted to Islam. During the legendary rule of Harun al-Rashid, the Barmakids rose to great power and influence in the caliph’s court before they fell out of his favour and were killed.

What is important for the present purpose is that it was the intellectual influence of this Buddhist family, who were patrons of literature, philosophy and science and tolerant towards other religions, that fed the philosophical and intellectual appetite of free-thinking Mu’tazilites, who revolted against the prevailing orthodoxy and searched for the ultimate truth outside the scriptures. Although the orthodoxy returned with a vengeance after the 12th century and lately has embraced the ultra-conservative, exclusionist and literalist Wahhabi-Salafist ideology, early Buddhist influence on Muslim philosophers’ free-thinking must be acknowledged. Sathyodaya’s condemnation of blind faith in rituals and traditions is equally applicable to Muslim orthodoxy’s taqlid or blind imitation.

Paths of truth and righteousness
Another novelty in Sathyodaya is the author’s interpretation of the concept of Nirvana in Buddhism. “Nirvana is the final-state for all beings”, he says, “not only for Buddhists. If a person follows the teaching without desiring Nirvana but with intention of doing good to the world, he will reach Nirvana at the end of his journey.” Consider this with verse 62 in chapter 2 in the Holy Quran, “Any who believe in Allah and the Last Day and work righteousness shall have their reward.” Doing good is righteousness and it is open to anyone whether one is Buddhist, Muslim, Hindu or Christian. The reward for righteousness is Nirvana or paradise. This is the essence of Sathyodaya. In Rahula’s view therefore, Nirvana unites humanity.

Buddhism and Islam are not religions in the Western sense. Buddhism is dhamma, the path of truth and righteousness, and Islam is din, the righteous way of life. In their obligatory prayers Muslims ask Allah at least seventeen times a day to “show them the straight path”. To Buddhists, “dhamman saranan gachchami” is to surrender to the righteous path, which is the “straight path” the Muslims ask for. What a congruence? Why should Islam be in conflict and why should Buddhists quarrel with Muslims in Sri Lanka? Ignorance is the reason and Sathyodaya is their salvation.

When Professor Walpola Rahula critiqued Buddhist orthodoxy, his academic stature and intellectual depth was so unimpeachable no one dared to counter his arguments. His critique is highly relevant today, and unless Buddhists and others “cultivate pure and wholesome intentions for the deeds … (they) perform” and follow the true teachings of their masters, sages and scriptures, Sri Lanka’s pluralism will be thrown into jeopardy.

Finally, when reading the Truth Awakening one forgets that it is a translation and not the original. Niranjan Selvadurai deserves to be congratulated for a job well done.

(The writer is attached to the School of Business and Governance, Murdoch University, Western Australia.)

Royal Institute: Viyathmaga Kamal Gunaratne’s Child Abuse Saga Continues

MARCH 20, 2019

The National Police Commission confirmed in a letter dated 29th January 2019, that they had concluded the complaint made by a parent bearing entry number WCIB II 96/80 regarding the child abuse of students at Royal Institute by Retired Major General Kamal Gunaratne and that a B Report bearing number M/U B3219/18 has been filed with the Nugegoda Magistrates court pending advice from the Attorney General.

The National Police Commission in its letter also confirmed that they had warned the Officer in Charge of the Women and Children’s Unit of Mirihana Police for not conducting the investigation properly when it was initially filed by the 14 parents on the 10th of October 2018.

Despite no action being taken by the Mirihana police station then, one parent proceeded further taking his complaint to the National Police Commission. The parent filed his complaint with the National Police Commission on 19th of November 2018.

Colombo Telegraph can confirm that ASP Amith Gunaratne the brother of Retired Major General Kamal Gunaratne is attached to the Mirihana Police Station.

“This is a blatant abuse of power by both Gunaratne brothers,” one parent said when contacted by Colombo Telegraph.

Earlier 14 parents of those children who were both incarcerated for five hours on the 9th of October 2018 by the school authorities of Royal Institute, went on to file individual complaints at the Women’s / Children’s Unit of the Mirihana Police Station. The students were locked up in rooms where even the classroom fans were not switched on. Also a set of new security personnel were brought in by retired Major General Kamal Gunaratne that day and were stationed outside the classrooms instilling fear and intimidation in the students.

Meanwhile the Royal Institute which has six branches island wide drew severe flak and criticism for the manner in which students were being treated for the delay in parents paying their school fees. This is despite the school charging unreasonable interest rates as much as 15% in charges for the delay.

Further Royal Institute also acquired the services of Retired Major General Kamal Gunaratne as the School’s Group Administration Director, who used his guerrilla type warfare tactics to harass parents instead of completing the administrative duties that he was recruited to perform.

Retired Major General Kamal Gunaratne has on several occasions in the recent past expressed his empathy towards children when speaking on several public platforms.

However Gunaratne’s unlawful termination of a 12 year old Grade 7 student on the 26th of February 2019, saw the Royal Institute being hauled into the Children’s Court at Battaramulla yesterday.

Accountability: Addressing alleged human rights violations

By Neville Ladduwahetty-March 21, 2019, 9:12 pm

Despite the repeated and continuing references to war crimes and crimes against humanity alleged to have been committed during Sri Lanka’s armed conflict, the actual wording in Paragraph 6 of UNHRC Resolution 30/1 is as follows:" …a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law". Therefore, the first order of business for any judicial mechanism is to establish whether International Human Rights Law and/or International Humanitarian Law applies separately or concurrently, during an armed conflict.

Human rights violations occur during civil disturbances. However, it is only when such violations reach the threshold of an armed conflict that humanitarian violations occur. In the case of Sri Lanka, it is an accepted fact that the conflict reached such a threshold with the signing of the Peace Accord on February 22, 2002.

ESTABLISHING the CONTEXT for the JUDICIAL MECHANISM

The fact that the conflict in Sri Lanka was an armed conflict was acknowledged by the UN appointed Panel of Experts (PoE) and by the Office of the High Commissioner for Human Rights (OHCHR) in their respective reports.

The UN appointed Panel of Experts in their report stated: "There is no doubt that an internal armed conflict was being waged in Sri Lanka with the requisite intensity during the period that the Panel examined. As a result, international humanitarian law is the law against which to measure the conduct of both government and the LTTE".

Paragraph 182 of The OHCHR report states: "Article 3 common to the four Geneva Conventions relating to conflict not of an international character is applicable to the situation in Sri Lanka".

Paragraph 183 goes on to state: "In addition, the Government and armed groups that are parties to the conflict are bound alike by relevant rules of customary international law applicable to non-international armed conflict".

Therefore, it can be concluded without any doubt whatsoever, that the conflict in Sri Lanka was an "internal armed conflict" and the parties to the armed conflict "are bound alike by relevant rules of customary international law applicable to non-international armed conflict".

INTERNATIONAL LAWS in ARMED CONFLICT

The two undisputed authorities cited regarding what constitutes an Armed Conflict are: (1) The International Criminal Tribunal for former Yugoslavia (ICTY, 1995) appointed by the Security Council and (2) the ICRC, internationally acknowledged as the accredited agency for IHL – International Humanitarian Law.

1. During the Prosecutor v. Dusko Tadic trial the ICTY stated: "...we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between government authorities and organized groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and EXTENDS BEYOND (emphasis added) the cessation of hostilities until a general conclusion of peace is reached; or in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the WHOLE TERRITORY (emphasis added) of the warring State or, in the case of internal conflicts, the WHOLE TERRITORY (emphasis added) under the control of the party, whether or not actual combat takes place there".

2. ICRC Opinion:

Part 1, Article 1 (1) of the " Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 states:

"This Protocol, which develops shall apply to all conflicts…which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of the territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol".

3. According to the UN appointed Panel of Experts the applicable law as a result of the armed conflict is: "international humanitarian law is the law against which to measure the conduct of both government and the LTTE".

Therefore, the undisputed conclusion should be that the conflict in Sri Lanka was an armed conflict, and that the applicable law is International Humanitarian Law.

However, there is a considerable body of opinion that claims that both Human Rights and Humanitarian Laws exist concurrently during an armed conflict. What they do not say is that human rights that exist during times of peace are seriously derogated during an armed conflict; a fact acknowledged by the International Court of Justice. Thus, what human rights remain are identified as the "hard core of human rights", listed in Article 4 of the International Covenant on Civil and Political Rights (ICCPR). instance, aAn official publication titled "INTERNATIONAL LEGAL PROTECTION OF HUMAN RIGHTS IN ARMED CONFLICT" by the United Nations Human Rights, Office of the High Commissioner, New York and Geneva, 2011 states that "the International Court of Justice has clearly stated that "the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency" (p. 55).

Article 4 of the Covenant referred to above states: "In a time of public emergency which threatens the life of a nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures derogating from their obligations…to the extent required by the exigencies of the situation…". Article 4 (2) states: "No derogation from articles 6,7,8 (paragraphs 1 and 2)11,15,16 and 18 may be made under this provision". Article 6 is "right to life; article 7 is torture or cruel, inhuman treatment; and article 8 is slavery. …".

The fact that Sri Lanka officially proclaimed that there was an emergency that threatened the life of the nation is acknowledged in the report by the Office of the High Commissioner for Human Rights (OISL). Paragraph 175 states: "OISL notes that Sri Lanka has submitted a Declaration of a State of emergency dated 30, may 2000 derogating from articles 9 (2), 9 (3), 12 (1), 12 (2), 14 (3), 17 (1), 19 (2), 21 and 22 of the ICCPR.

The derogation of IHRL during Sri Lanka’s Armed Conflict is justified because Sri Lanka’s Emergency Regulations were in operation during and after the conflict and furthermore, Article 15 (7) of the Constitution permits the restriction of several fundamental rights in the interest of national security. Even though the provisions of Article 4 of the Covenant are strictly not applicable to Sri Lanka since they have not been incorporated into domestic law, the fact that Additional Protocol II of 1977 incorporates the provisions in Article 4 of the Covenant that cannot be derogated, the applicability of IHL as provided in Additional Protocol II is justified since it is part of Customary Law. Thus, addressing accountability on the basis of Protocol II of 1977 provisions of IHL is clearly validated.

CONTEXT for JUDICIAL REVIEW

Based on the material presented above, the conclusions that justifiably could be reached are:

1. That the conflict in Sri Lanka was an armed conflict starting February 22, 2002.

2. Therefore, the applicable law is International Humanitarian Law, along with those provisions of International Human Rights law that are NOT derogated, such as those identified in Article 4 of the ICCPR Covenant.

3. Human Rights Laws applicable during an armed conflict are incorporated in Additional Protocol II of 1977.

4. Humanitarian Laws applicable during an armed conflict are also incorporated in Additional Protocol II of 1977.

Accountability:

5. Therefore, Additional Protocol II of 1977 should be the legal framework that should guide the evaluation of any violations during the armed conflict.

Since the ICRC as the internationally accredited authority has codified what constitutes violations of human rights and humanitarian law based on provisions of Additional Protocol II of 1977, there is absolutely no need for a judicial mechanism as is being called for in the UNHRC Resolution 30/1. Instead, what is needed is for any person with evidence of a nature that would stand up in the Courts to file charges AGAINST anyone guilty of having violated any provisions listed in the ICRC Document titled "Customary Law" Vol. 87, No. 857, March 2005.

CONCLUSION

The materials presented above are the International Laws and the associated hard facts connected with the armed conflict that occurred in Sri Lanka. It is evident from the foregoing that issues associated with the armed conflict are straight forward law and order issues, that are within the capabilities of Sri Lanka to handle. Instead of presenting facts such as those cited above for Sri Lanka to go to inordinate lengths of co-sponsoring resolutions in order to claim "ownership" of the reconciliation process is stupid because its effect is to undertake commitments that require constitutional and legislative changes that would even involve the consent of the People at a referendum.

The UNHRC Resolution 30/1 and all that goes with it are politically motivated moves to enable the International Community dominated by the West to keep Sri Lanka on a leash as long it serves their geopolitical interests under the cover of ‘reconciliation’. By co-sponsoring the resolution the government has become a willing party to this duplicity.

Judging from the skepticism with which the findings by an independent lab in the USA were received about the mass grave in Mannar, there is no doubt that whatever conclusions reached following a judicial inquiry, would depend on their political and strategic interests. If as reported in the British media, the reaction both locally and internationally would be unimaginable if after a judicial inquiry a Sri Lankan prosecutor found only one out of sixteen soldiers guilty of murder due to "insufficient evidence" after forty-seven (47) as it was in UK following an inquiry into the Bloody Sunday massacre in Northern Ireland. This massacre resulted in thirteen people being killed and fifteen others injured on 30 January 1972, when troops of the 1st Battalion of the Parachute Regiment fired on demonstrators during a civil rights march in Derry, Northern Ireland, despite a public inquiry in 2010 under Lord Saville having concluded that the killings had been "unjustified and unjustifiable". Accountability in such contexts and with such attitudes would not have any meaningful outcomes.

The fact that Sri Lanka has become a victim of international machinations is evident from the approach adopted by the current government. How Sri Lanka could get out of this trap would clearly depend on the professionalism with which issues relating to the armed conflict are handled by a future Sri Lankan Government. The question is whether Sri Lanka would ever have the good fortune to have a government that could meet such a challenge.

UN passes resolution on Sri Lanka, granting two year extension

21 March 2019

The United Nations Human Rights Council has adopted a new resolution on Sri Lanka, granting it a further two years to implement a previous resolution from 2015 that mandates a hybrid accountability mechanism.

Resolution L.1 was adopted at the council in Geneva earlier today without a vote, after Sri Lanka announced it would be co-sponsoring it.

The resolution “requests the Office of the High Commissioner to continue to assess progress on the implementation of its recommendations and other relevant processes related to reconciliation, accountability and human rights in Sri Lanka”, and deliver updates at UN Human Rights Council sessions in 2020 and 2021.

The United Kingdom, which was speaking on behalf of the core group comprising Canada, Germany, Montenegro and North Macedonia, said the resolution “seeks to continue the process which Sri Lanka began at the Human Rights Council in September 2015 when it worked in partnership to set out a range of measures that it would take to advance peace, justice and reconciliation”.

Speaking at the council earlier today Britain noted that “in a few months’ time it will be the tenth anniversary of the end of the protracted armed conflict in Sri Lanka, a conflict in which many thousands of people died”.

“This was a period in which serious human rights violations and abuses are reported to have been committed by both parties and in which people from all of Sri Lanka’s

communities had to endure terrible suffering,” added the UK. “For many of the victims, especially the families of the missing and the disappeared, their suffering continues to endure.”

It went on to note that “in the 5 years following the end of the armed conflict Sri Lanka chose not to take many measures that would have helped to advance reconciliation, accountability and human rights”.

The UK then praised the current government, stating that “it remains to Sri Lanka’s great credit that in 2015 it committed, in front of the international community, to take a set of steps towards these ends that are in its national interest and in the interest of every community in the country”.

“The resolution acknowledges some very real achievements against these commitments over the last two years. It also recognises that in a number of important areas, implementation remains work in progress. The resolution encourages Sri Lanka to accelerate its efforts to achieve full implementation of its 2015 undertakings and to set out a time-bound implementation plan to help it to make progress. It requests OHCHR to continue to strengthen its engagement with Sri Lanka and requests annual reporting by the Office of the High Commissioner for a further two years.”

Read the full text of the UK statement here.

Read the full text of the adopted resolution here.

Yesterday the UN High Commissioner for Human Rights presented her report on Sri Lanka to the council, and warned that continued impunity on the island could fuel further violence.

In response, the Sri Lankan foreign minister rejected much of her report and said his government would not allow a hybrid mechanism to take place, as mandated by previous resolutions.

In a shorter statement to the council today, Sri Lanka’s foreign minister Thilak Marapana reiterated his earlier comments, stating,

“As I put on record before this Council yesterday, we have to set our priorities right and we are committed to find innovative and pragmatic solutions to protect the country’s national interest and the well-being of all Sri Lankans alike, guided by the provisions of the supreme law of the land – The Constitution”.

“Sri Lanka’s co-sponsorship of this year’s Resolution assures to all concerned persons, the Sri Lankan society at large, and to all our interlocutors outside the country, that we will continue to move forward within these parameters, to ensure eventual closure,” he added.

See the full text of the Sri Lanka statement here.

Related Articles:

21 March 2019 : UN human rights chief warns impunity may fuel further violence in Sri Lanka

21 March 2019 : India urges Sri Lanka to fully implement 13A

20 March 2019 : UN member states call for justice in Sri Lanka through time-bound strategy

20 March 2019 : Lawyers’ Rights Watch Canada calls for universal jurisdiction on Sri Lanka

20 March 2019 : Sri Lanka rejects hybrid court at UN Human Rights Council

Stimulating the Sri Lankan economy, the need of the hour

Tuesday, 19 March 2019

The sluggish economic growth in the country needs to be stimulated through a clinical strategy before Sri Lanka once again falls behind her regional neighbours. The continuous decrease in GDP from 5% in 2014 to 3.1% in 2017 and a marginal increase to 3.5% in 2018 is a case in point. Government expenditure has increased while Government revenue too has increased, however the budget deficit has also increased.

The increase in expenditure is mainly due to uneconomical projects launched by Government that do not generate new income. An expansion in the budget deficit unfortunately requires financing through loans or other means that eventually cause tax or price increases during the year. The improvement in the unemployment rate is a good thing, but this still comprises a large portion of recruitment into government service. The job market has shrunk due to growth contraction, and new employment opportunities have not been generated in the private sector to a satisfactory level.

The growth contraction is mainly due to a decrease in private consumption and poor exports. The much expected employment opportunities from FDI and exports have not come in, due to falling FDI inflows and lack of economic diplomacy. With the surge in foreign interests in Africa, dubbed ‘the scramble’ and countries and companies rushing to strengthen diplomatic, commercial ties in the African continent, South Asia will be hard pressed to attract good FDIs.

Opportunities

The country needs to lower interest rates, for the following reasons. Inflation being low giving a significant real return of approx. 10%. Credit growth has fallen significantly to 15%, reducing demand pressure on the economy. Finance company deposit rates are at 15-16% which they lend at 20-25%, in a 3% GDP growth economy, this is not a good thing. Moreover, people tend to move money to the finance companies, if these companies lend irrationally and lose money, depositors will have to be bailed out again with CBSL intervention. The country overall has seen a 20% drop in disposable income. An effective deposit rate cap could be introduced and priority sectors identified to prevent wasteful and consumption related financing. This however must be monitored, if not the strategy will fail.

We need to ensure unwanted import demand is not created by managing the exchange rate and by increasing relevant import duties (not giving unnecessary vehicle permits – we have 3/4 times the number of vehicles this country needs. We must develop public transport as a matter of great urgency. Cutting unnecessary budgetary spending, if the budget deficit is large it will put pressure on the local markets preventing the effective reduction of rates. Unproductive SOEs, tamashas, must be avoided.

Refinancing the foreign loan repayments this year through new foreign borrowings is a must. We must work on improving the credit rating, which has cost the country billions. Any foreign inflows must be used to build reserves. There is considerable investment into apartments. The Government needs to help the industry, given the huge investment, and the increased employment in this sector. Infrastructure, SME, exports, tourism, foreign investment into health and education (universities) must be supported and not sabotaged. Development must gather momentum – the refinance programs for SME and micro finance for priority sectors, must be done effectively.

We need to bring in the mid-size tourism assets into the tax net. There is still a significant number of wealthy people not paying taxes. Incentives to pay tax, or an amnesty will help. There must be an effective monitoring mechanism to check fraud and corruption at tax/duty collection points, IRD, customs as pointed out by Business Leader Harry Jayawardene.

Markets

At least now we need to get the stock market going by getting the state institutions to play a meaningful role. EPF, ETF, NSB, BOC, PB, SLIC, NSB, etc. The CSE that used to provide livelihoods to over 600,000 retail investors is today a ghost town. The EPF and other state funds have not invested for three years to stabilise the market. The market is now on a free fall with foreign investors pulling out. Let us hope the Government shows that it has some confidence in the country stock market by investing in it to give a message to the world that the Sri Lankan stock market is a good place to invest. Given that the engagement with the outside world is positive, we need to move forward by getting the Government back to work.

(The writer is a thought leader.)

Samantha Power Visits Sri Lanka and Ignores History

Barack Obama's former UN ambassador is no longer the human-rights supporter that she claims to be.

by Taylor Dibbert-March 20, 2019

Samantha Power recently delivered a big speech in Sri Lanka. She was the keynote speaker at an event that celebrated Minister Mangala Samaraweera’s three decades in politics. Given Power’s track record, this is quite regrettable news.

During her time in government, a lot of her public remarks about Sri Lanka were wrong, misguided and insulting to reform-minded people in general and members of the Tamil community specifically. Many are sure to be disappointed with her most recent offering too. Power has gone out of her way to praise Samaraweera—the most prominent public advocate of a wide-ranging reform agenda that never really got going. After all, the coalition government performed terribly, didn’t take its own purported plan seriously and doesn’t even exist anymore. Power was involved with the Obama administration’s disastrous approachto Colombo—comprised of an unfortunate blend of carrots sans sticks, naivete and a total misreading of the realities on the ground.

The coalition government rightly perceived that, after alleged war criminal Mahinda Rajapaksa lost a presidential election in January 2015, “stability” was far more important (for international actors) than issues pertaining to rights, democratic governance or transitional justice. Indeed, the Obama administration’s excessively warm embrace of Colombo discouraged reform in the country.

Her keynote speech feels like 2015 and 2016 all over again. Power visited the island in November 2015. Some nice photos were taken, but U.S. policy didn’t change. In 2016, Power’s rhetoric went way too far. She even said that the country had “emerged as a global champion of human rights and democratic accountability.” Many other nations played along, of course. And since Donald Trump became president, America’s Sri Lanka policy hasn’t really changed. From a human rights and mass-atrocities perspective, there’s plenty to dislike about President Barack Obama’s time in office—including the conclusion of Sri Lanka’s civil war. And Power was there for virtually all of it.

Let’s talk optics and seating arrangements for the recent event. Power was seated on the same row as Samaraweera. To her right she had Prime Minister Ranil Wickremesinghe and then President Maithripala Sirisena. To Sirisena’s right sat Samaraweera. And to Samaraweera’s right sat none other than Rajapaksa—the man widely and credibly believed to have so much blood on his hands. It’s an image that truly captures the moment.

Her speech didn’t address the root causes of Sri Lanka’s ethnic conflict. It didn’t talk about the urgent need for wartime accountability. “My country and your country are facing turbulent times,” she said. There are reasons to be concerned about Trump’s presidency and the future trajectory of American politics. But Sri Lanka, widely cheered as the oldest democracy in Asia, recently experienced an attempted coup. Sirisena tried to install Rajapaksa as prime minister through illegal means.

Thankfully, the coup attempt failed, though Rajapaksa and his supporters could still do quite well in forthcoming elections.

Power finished her speech by noting that “[w]e all know the best is yet to come.” Those who have suffered the most because of the ethnic conflict—Tamil civilians—probably don’t find those words to be very encouraging.

The coalition government didn’t do much to reach out to Tamils. Pervasive and unnecessary militarization—the military is almost exclusively Sinhalese—is still a major problem in the Northern and Eastern Provinces; that carries a host of extremely negative quality-of-life implications. Sirisena and Wickremesinghe have shown little interest in dealing with Tamil grievances related to Tamil political prisoners and the disappeared, among other matters.

More broadly, Sri Lanka’s supposed transitional justice roadmap has left a lot to be desired. Even the little that has happened has been done in a rather opaque fashion. And Colombo has resisted vital international assistance that would help make the process more credible. With the fortieth session of the UN Human Rights Council currently underway in Geneva, many will be reminded of how much the Sirisena-Wickremesinghe administration had promised it would do and how little actually happened.

In 2015, Sri Lanka made a range of commitments pertaining to human rights and transitional justice at the UN Human Rights Council. Two years later, Colombo asked for more time to implement those commitments and another resolution was passed on Sri Lanka with the government’s support. It now looks like Sri Lanka will cosponsor yet another resolution. But the UN Human Rights Council process is mostly about appearances, not substance. The truth is that transitional justice, like the broader reform agenda, has been on the rocks for some time.

Power is no longer the human-rights supporter that she claims to be. During Obama’s tenure, she was part of the problem regarding U.S.-Sri Lanka policy. Unfortunately, even with her being out of government, she is still a problem.

Taylor Dibbert is a freelance writer and an adjunct fellow at Pacific Forum. The views expressed here are his own. Follow him on Twitter @taylordibbert.
Image: Reuters