The UN Resolution with a ‘bite’

• Citizens call the government’s bluff on the vote’s explanation • Supreme Court denies Ranjan Ramanayake an appeal • Island wide protests against ecocide

By LANKTHILAKA

The UN Human Rights Council adopted Resolution A/HRC/46/L.1/Rev.1 on promoting reconciliation, accountability and human rights in Sri Lanka. Twenty- two countries voted for the Resolution, 11 countries voted against it and 14 countries abstained from voting. Despite speculation during the weeks in the run up to the vote that it would be a hotly contested one, in the end it turned out to be a cakewalk for the global North which voted en bloc for the adoption of the Resolution together with some Latin American and African states.

The vote is seen as a boost for justice and accountability for alleged violations of international humanitarian law and human rights during the conflict.  But it also raises the red flag of a future trajectory. ‘The Rajapaksa administration has quickly reversed human rights gains of the previous government, making minorities more insecure, victims of past abuses fearful, and critics wary of speaking out,” said Meenakshi Ganguly, South Asia director at Human Rights Watch.

Paragraph seven of the Resolution describes these concerns in detail. The UNHRC ‘expresses serious concern at the trends emerging over the past year, which represent a clear early warning sign of a deteriorating situation of human rights in Sri Lanka, including the accelerating militarization of civilian government functions; the erosion of the independence of the judiciary and key institutions responsible for the promotion and protection of human rights; ongoing impunity and political obstruction of accountability for crimes and human rights violations in “emblematic cases”; policies that adversely affect the right to freedom of religion or belief; increased marginalization of persons belonging to Tamil and Muslim communities surveillance and intimidation of civil society, restrictions on media freedom, and shrinking democratic space; restrictions on public memorialization of victims of war including the destruction of a memorial; arbitrary detentions; alleged torture and other cruel, inhuman degrading treatment or punishment, and sexual and gender-based violence; and that these trends threaten to reverse the limited but important gains made in recent years, and risk the recurrence of policies and practices that gave rise to the grave violations of the past’.

From the time the Report of the Human Rights High Commissioner Michelle Bachelet was released earlier in the year, the Sri Lankan government has been objecting to the inclusion of what it calls ‘events of last year’ because it sees it as an infringement of the domestic and internal matters of a sovereign state. The Resolution takes its cue from the Report.

The success of the Resolution will depend on the extent of government cooperation to meet obligations under it.  So far the government of Gotabaya Rajapaksehas not shown any propensity towards this, having opted out of the co -sponsorship of the previous Resolution last year and refusing to be a party to a consensual resolution for which the core group on Sri Lanka was trying to get the buy- in of the government.  

Following the adoption of the Resolution, the government informed Parliament that it is ‘illegal’ and ‘unwarranted’ but that the country will continue to engage with the UN and that accountability will be addressed through a domestic mechanism. At the end of the day, a Resolution which will not be implemented will be as good as a dead letter.  As a first hurdle the drafters of the Resolution, spearheaded by Sri Lanka’s core group comprising the UK, Canada, Germany, Northern Macedonia and Malawi, would have had to ensure that it appealed to the UNHRC’s member states in order to get it passed by them and ensure it remains on the table.  There were nearly 40 countries which co -sponsored the Resolution including the US, currently Sri Lanka’s largest trade partner, back in the driving seat and re engaging with the UNHRC after Joe Biden took over the White House

The lack of serious political will by successive Sri Lankan governments to implement Resolutions was one of the reasons which prompted Tamil political parties to push for a harsher Resolution with a referral to the International Criminal Court and the UN Security Council and a Syrian style inquiry mechanism.

Tamil legislators say this is the strongest Resolution yet that has come from the UNHRC.  ‘It has bite’, said one legislator, referring to the evidence gathering and preservation mechanism which member states have mandated the Council with and also the encouragement to countries to impose targeted sanctions.  

Paragraph seven of the Resolution makes provision for a process to collect, consolidate, analyse and preserve information and evidence for future accountability processes and allocates a sum of more than US $ 2. 8 million to strengthen the capacity of the Office of the High Commissioner of Human Rights for this.  The budget breakdown lists 13 staff members including senior and other legal officers, human rights/investigation officers, an information/evidence officer, a victim support officer, juris linguists, analysts and a program assistant.  Among other expenses that have been accounted for are travel for awareness raising sessions in South Asia and for meetings with witnesses and operating costs.

Before and after the vote, several delegations including Sri Lanka’s permanent representative to the UN in Geneva C. A Chandraprema and the Pakistan delegation questioned the prudence of the UN having to set aside these monies. On the other hand, the allocation of this sum of money at a time the UN like other organisations is having to tighten their financial belts is an indication of the serious level this matter has now gone to.  

Human Rights Watch which called the Resolution ‘a victory for victims of abuse to obtain information, accountability and justice’ asked member states to ‘ensure that the UN Human Rights High Commissioner’s recommendations, including targeted sanctions are imposed on those allegedly responsiblefor grave violations and to pursue justice for international crimes in national courts under the principle of universal jurisdiction’.  Although Sri Lanka will not be censured at the level of the UN Security Council, sanctions which could be imposed by individual countries such as trade and travel sanctions, could hurt.

The position that India would take during the vote was a matter of conjecture up until the time of voting. A week before the vote, President Rajapakse personally telephoned Prime Minister Modi and asked for India’s support at the vote.  The months preceding the sessions have been fraught with the Eastern Container Terminal debacle and India reminding Sri Lanka about honouring the power devolution process including holding provincial council elections. Back home in Tamil Nadu where there is solidarity for the Sri Lankan Tamil cause the BJP is trying to get a foothold after the April 6 elections in the southern state’s assembly which is home to an estimated 78. 8 million people. Factoring in all this, the odds were that India would either vote for the Resolution or abstain from voting.  India’s abstention is seen as a tactical one which may however not be appreciated by the GoSL. India has left the door open to negotiations with the GoSL on a multitude of matters such as the container terminals and the provincial councils which the Tamil community here will be happy about, without risking being sidelined on a say in her geopolitical interests. Unlike India, whose loyalties at UNHRC sessions have been wavering, China’s support has been consistent and this Resolution could tilt the balance more in favour of China. In Tamil Nadu where there is unhappiness about India not voting for the Resolution, Tamil political leaders are being asked by partners of political alliances that have been formed to contest the assembly elections to clarify why Prime Minister Modi led India to abstain from the vote. Ahead of the vote, which took place one day later than planned, the AIADMK, DMK and other political leaders urged the government of India to vote in favourof the Resolution which they see as a step towards inquiring into alleged acts of human rights violations against Tamils. ‘It is India’s moral duty to establish peace’ said the AIADMK which is fighting the election with the BJP. The Hindu newspaper in an editorial on the 25th of March soon after the crucial UNHRC vote said, by abstaining from the vote on Sri Lanka, India signalled its reluctance to upset the neighbour. It further said when pragmatism and principle needed in equal measure the, Centre seems to have chosen abstention as an easy way out.

The voting at the UNHRC also threw up a few surprises like the Ukraines support for it despite the lengths which Sri Lanka’s former ambassador to that country, Udayanga Weeratunge, went to lay on the red carpet treatment for tourists from that country.

If any country that abstained had any sympathy for Sri Lanka they might as well have voted along with the country without much dilly-dallying. The reason for abstention is best known to them. But notable among the 14 abstentions were Japan, the other party whom Sri Lanka snubbed during negotiations on the ECT’s development and at least six Islamic states on whom the Covid 19 burials issue is likely to have prevaileddespite the government’s decision to allow burials.  Although it was believed that the reference to Covid 19 burials will be taken off the draft resolution following this decision, it was not. Nevertheless both Pakistan and Bangladesh, whom Prime Minister Mahinda Rajapakse lobbied at the last minute with a hasty visit to that country days before the vote, kept their promises of support.    

Sri Lankan politicians under any given situation are often repugnant and averse towards ground reality and last week following the UNHRC vote, Sri Lankan politicians of so-called high calibre made a mockery of themselves while attempting to justify the vote as something that was in favour of Sri Lanka.

Foreign Minister Dinesh Gunewardene, who saved himself from political bankruptcy by hitching his wagon to the SLPP, has become the butt end of jokes and memes after he came up with his own mathematical formulae to make the tenuous claim that the ‘new Resolution did not have majority support’ in the 47 member Council. Gunewardene attributes his deduction to the cumulative total of votes which are against the Resolution and the number of abstentionswhich are more than the votes in support of the Resolution. Responding to questions on the matter which were raised in Parliament by the Opposition, he ended up talking gibberish as he tried to get out of a tight corner. Instead of answering the question he went round and round to circumvent it and asked the Opposition leader whether he was against Sri Lanka. This clumsy behaviour on the part of the Minister reduced the proceedings of the august legislature to a comedy. This episode shows that the Minister nor any member is prepared to face the reality and take remedial measures. We may not face the implications of the UNHRC resolution immediately but certainly, it may come if Sri Lanka as a democracy would resort to acting repulsively.

The Minister’s prescription on the outcome of the UNHRC vote was a cause for anxiety among the educated class to assess or gauge his ability as a responsible Minister representing the country. People wondered whether it was cognitive bias or mild cognitive impairment. Many pointed out that any grade five student would have realized in no time what it was.

Take for instance a letter written to him by Professor A.N. I Ekanayake, a colleague in his alma mater Royal College who punned on the school’s motto, asked him to Disce aut or Discede. The letter, uproarious if not for the very serious subject matter it was addressing, compared the political integrity of the foreign minister’s older brother Indika Gunewardene to the position the foreign minister has put himself in by aligning himself with disreputable politicians in a cruel and unjust government.

In the letter the professor pleads with the foreign minister to desist from advertising the fact that he is an old Royalist’. He goes on to write that ‘as everyone knows the UNHRC Resolution which was adoptedreceived 22 votes for and 11 against with 14 abstentions. But your calculation that on the contrary this was a victory for the government implies that your understanding of the arithmetic is based on the following equation.’ The professor then goes on to demonstrate the math {(22-11) +14 abstained} behind the foreign minister’s thinking. He concludes by saying that ‘obviously such arithmetic is absurd and illogical if not hilarious by any mathematical standard. Consequently I fear that if your college affiliations were known people might conclude that standards of arithmetic in the old school were particularly low during our time. Consequently I expect old Royalists will at this time join me in hoping that you will kindly keep our college antecedents under wraps at least until the nationwide laughter has subsided and thismathematical howler is erased from public memory’. Questions are being posed in some quarters that it is only ethical that the minister should resign after his gaffe.

Minister Ajith Nivard Cabraal was another who put forward a new theory about how victory can be claimed from the jaws of defeat. Mr Cabraal’s theory was no less ingenious than that of the foreign minister. He came up with a population count of the countries that voted against Sri Lanka and asserted the theory that they are less than 18 per cent of the total population of all the member states representing the UNHRC and hence Sri Lanka has an edge above its opposition ranks as far as the international community is concerned since the county enjoys mass backing.

By engaging in this manner, these two ministers were showing callous disregard for the intelligence of the people and were obsessively involved in an exercise to mislead the masses to believe what they say is the absolute truth. The flood of social media posts about them is indicative of the extent to which people are miffed about the deception and shows they cannot bluff their way around any longer. This is nothing more than political buffoonery, one analyst said.

Meanwhile the main opposition SJB (Samagi Jana Balawegaya) took up the position that the government’s incoherent foreign policy had led to this situation. The opposition leader said that he regrets what had befallen the country and called for more pragmatic policies to deal with the international community. Their two- page statement of support for the Resolution also echoed sentiments in it. ‘The freedom of the people to speak freely is being thwarted and politicians, lawyers, media personnel and activists are being targeted and punished for their political activities and human rights work and that Sri Lanka will not be on the Council’s agenda if human rights are addressed’.  The statement aired palpable concerns about the country being primed towards a ‘one party state’.  Political watchers called it the most succinct statement issued to date by the party and hoped it would uphold its commitments in it. The Samagi Jana Balawegaya also pledged its commitment to a domestic mechanism which it said should take after the Lessons Learnt and Reconciliation Commission or the Paranagama Commission.

The Resolution requires that Sri Lanka reports back and to present an oral update to the Human Rights Council at its forty-eighth session, as well as a written update at its forty-ninth session, and a comprehensive report that includes further options for advancing accountability, at its fifty-first session.

The Supreme Court has denied passage for convicted parliamentarian Ranjan Ramanayake to appeal against the verdict where he was sentenced to four years of rigorous imprisonment by it  for contempt of court. Sri Lankan law prescribes the Supreme Court as the apex court which exercises the ultimate judicial power of the people. When the Supreme Court determines on a matter it becomes final and conclusive. But if the Supreme Court assumes original jurisdiction the accused invariably faces a daunting task because of the unavailability of a right to appeal. The appeal, if there is any should also go before the same Court which heard the case and it is only with the consent of the same Court that the accused-appellant can seek the assistance of a fuller bench. However, the ICCPR act prescribes that an accused in a criminal matter should at least have one appeal against conviction. Ranjan Ramanayke could not seize that opportunity since the Court felt that they had dealt adequately with the accused. It would have been quite commendable if the three-judge bench decided to stand a test of the veracity of their judgement before a five-judge bench of the Supreme Court or any other fuller bench appointed by the Chief Justice, which would have allowed the accused an opportunity to present his case.

In a week of protests, conservationists and political parties took to the streets last week to object at the ongoing deforestation of protected and other state forest areas and the impact it is having on wild animals, especially elephants.  They had watched helplessly for weeks, as pleas to stop the destruction had fallen on a government that was tone deaf. The move by the Presidential Secretariat to take down a mural depicting ecocide near the Viharamahadevi parkin the heart of Colombo went viral on social media.  The unsolicited publicity it got as a result of the government’s rash action was probably incomparable to what it may have received otherwise.  The mural was painted by the youth wing of the Wildlife and Nature Protection Society, which at 127 years is the oldest such society in Sri Lanka.  It is also the third oldest in the world after the Sierra Club in the US and the Bombay Natural History Society in India. The Society had got written approval from the Colombo Municipal Council to carry out the work on the mural.The incident followed on the heels of the case of Bhagya Abeyratne a 19- year old who spoke out about the harm to wildlife in the Sinharaja forest reserve,which is a UNESCO world heritage site, and who was allegedly intimidated by the authorities because of it. Both incidents evoked unprecedented public solidarity and calls for the country’s youth to be allowed their space to speak on environmental issues. Thousands of people came together under the JVPs banner for their march early in the week to protect the environment as well as for a requiem for Sinharaja and the environment which the National Green Initiative held mid -week.

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