Commissioner warns: Fundamental changes vital to meet challenges
When Foreign Minister Ali Sabry strode on Monday morn into Geneva’s UNHRC headquarters at the Palais Wilson to give formal reply to the perennial charges levelled against Lanka, it was blatantly clear that the alpine air would turn frostier toward his Government, even before he ended his uncompromising speech.
Throwing away the olive branch the Yahapalana Government had offered in 2015 to consider its willingness to accept a hybrid tribunal of independent foreign and local judges to inquire into alleged war crimes and other human rights violations, Ali Sabry remained stuck in the same old groove as the previous Rajapaksa Foreign Ministers had been, playing the same scratched record of intransigence at the behest of their master’s voice.
But that had been before the bubble burst.
During the years 2011 to 2014, Lanka was an upward mobile nation, on a spending spree with Chinese finances that freely flowed to wreak the ‘miracle of Asia’ mirage and build the grandiose dreams of its war crowned President Mahinda Rajapaksa who had received a fresh mandate from his adoring people in 2010 and a two-thirds majority in Parliament. China had been the banker to the nation and money was no object. Lanka was on a high and suffered no blushes in showing off her prized baubles of unearned wealth.
So confident did Mahinda Rajapaksa appear to be that the miracle bubble would not burst that he even told the European Union where to get off the bus when it warned him that Lanka risked losing the GSP on its EU exports if it continued to ignore its international human rights obligations.
Rajapaksa responded by stating that the shield of sovereignty — the amulet that protected governments from international censure even if they did their worst to its own citizens — was worth far more than the millions of foreign exchange that would flow from its EU exports to the nation’s coffers.
The Lankan people, draped in the patriotic Lion flag, stood in unison to give a euphoric roar of approval for the President’s brave stance to take on the might of the western world and protect the nation’s sovereignty. Stout hearts that did not wince when it was pimped to China or India in return for dollar loans, now brimmed with pride when it was hailed as inviolate lair.
The bubble would burst and the crash would come ten years later; and leave the same Lankan people beggared beyond belief. China would no longer be the sole bankroller and lender of the last resort but chief debt collector, refusing to accept a yuan less in settlement but determined to recover to the last yuan.
Furthermore, on the political front, the mood in the country has changed dramatically. Human rights and the dignity of citizens have taken deep root in the fertile Lankan soil. The popularity the Rajapaksas and their party, the SLPP, enjoyed barely three years ago has now turned to hate and disgust, the mandate granted now gone with the wind.
Amidst all this, the economic bankruptcy of the nation has driven the present government to seek the succour of the west-dominated IMF for a bailout.
But undaunted by these considerations, Lanka remained defiant in the face of her accusers, led by Britain, in Geneva. The new Foreign Minister Sabry toed the same old Rajapaksa line, against the line his present President Ranil Wickremesinghe had taken as Prime Minister in 2015, when his Government co-sponsored Resolution 30/1 with the US, agreeing to a joint investigation of alleged abuses with participation by Commonwealth and other foreign judges, defence lawyers, authorised prosecutors and investigators.
In 2015, the then Yahapalana Prime Minister Ranil Wickremesinghe had seen no constitutional bar to Resolution 30/1. As reported in the Sunday Times of 27 September that year, he had opined that any perceived barrier could be overcome through reference to Article 13(6) which holds: ‘Nothing in this article should prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations’.
This article remains intact even after the 20th Amendment. In May 2019, the Government had also co-sponsored a new resolution with Britain, which called for its commitment to implement Resolution 30/1 in its entirety. This was adopted by the session as Resolution 40/1.
When Gotabaya Rajapaksa came into power in November 2019, his Government had formally withdrawn from both resolutions at the very next UNHRC session in March 2020. Announcing that his government was withdrawing from it, then Prime Minister Mahinda Rajapaksa jubilantly declared on February 19, 2022:
“It is because of the historic betrayal committed by the Yahapalana government formed by the UNP, TNA and JVP in co-sponsoring UNHRC Resolution 30/1 in 2015.” Since then Lanka had been on the same Rajapaksa track, followed faithfully this year too.
In her latest report issued last week, the outgoing UN High Commissioner for Human Rights Michelle Bachelet highlighted that Sri Lanka has “consistently failed to pursue an effective transitional justice process to hold perpetrators of gross human rights violations and abuses accountable.”
She also added for good measure that “impunity remains a central obstacle to the rule of law’ and warned: ‘Fundamental changes will be required to address the current challenges’.
Ignoring this call to brush up its act, Lanka’s Foreign Minister Sabry on Monday told the UNHRC, in terse diplomatic jargon, that, “Notwithstanding the severe constraints and challenges, Sri Lanka remains firmly committed to pursuing tangible progress in the protection of human rights and reconciliation through independent domestic institutions.”
What he was saying was, in other words, no hybrid court comprising foreign and local judges, but one filled exclusively by Lankans.
When Government appointed commissions, whether manned by retired judges or public servants or Police DIGs, have lost all credibility, integrity and impartiality even in the Lankan people’s own eyes, it is hard to fathom how such discredited domestic ‘Lankans Only’ tribunals can pass muster in the international domain.
Successive governments have not only made bankrupt the economy through corruption but have also debased and corrupted the body politic by crude political interference that, to insist on ‘domestic mechanism’ will be scornfully held as another shabby attempt to pull the wool over international eyes. To loosely translate an old Sinhala proverb, it will be akin to ‘asking the thief’s mother to read her crystal ball and name who stole the goods’.
Especially in the light of the charge made against Lanka at the start of the session by UNHRC’s Acting High Commissioner when she declared: ‘Successive governments had created political obstacles to accountability, and actively promoted some officials credibly implicated in alleged war crimes, into the highest levels of government’. The fact that the man holding the brief for Lanka at the present session, Foreign Minister Ali Sabry, was the personal lawyer of the former Defence Secretary Gotabaya Rajapaksa, during whose tenure the human rights violations are alleged to have been committed, would not have been lost on the UNHRC Commissioner either.
On Wednesday, the Core Group, led by Britain, made public the draft resolution on Lanka which called for, among others, a new PTA drafted in accord with acceptable international norms and greater accountability. Lanka is on the thin edge of the wedge, having tested the world’s patience to the end of its long tether. Can we afford to let it snap when our economic recovery depends on the world’s goodwill and largess now more than at any time in the past?
Last month Lanka faced a gruelling ordeal to secure an IMF staff agreement. Though hailed as a great victory, it was merely the first in a series of bridges to cross before reaching the final decisive bridge of the IMF Board. But even to cross this initial bridge, there was a heavy toll to pay for its dismal economic record. The Lankan Government was forced to enforce severe economic reforms and warn, ‘many more are on the way’.
Though already flattened by the heavy burdens they bore, the people were summarily told to like it or lump it. The nation’s halcyon days of living it up on borrowed money were over. The day of reckoning had dawned. The hour had struck when the people had to face the stark economic truth.
This month Lanka was forced to run the human rights gauntlet at the UNHRC’s 51st session in Geneva, a bi-annual marathon event in which she had to run for over a decade. By the artful use of delaying tactics and vacillations, helped by three different postures following three changes of governments, Lanka has, so far, been able to successfully ward off the day of the world’s judgment but failed miserably to cleanse her blackened track record on human rights.
The past Rajapaksa regimes — the most to blame of all past governments — had unashamedly played the racial card to the gallery; and, holding it as their primary duty whatever the constitution otherwise decreed, given foremost place to the majority race and promoted and fostered it as the chosen seed in the land. Minority interests were ignored and trampled upon if it collided with the ‘inherent rights’ of the majority.
But it’s a luxury the chosen seed may not be able to enjoy for long. An extravagance, governments will be denied enjoying as an easy sure-fire vote-catcher to win elections and covet cheap glory. Even as it did with the IMF on the economic front, the world, through UNHRC, may impose severe political reforms which the Government will have to accept whether it likes it or lumps it.
Sovereignty is not the freedom of the wild ass. It is not a shield of protection that grants exemption from prosecution, a licence to act with impunity against universally accepted laws in the name of dubious patriotism. The thunder of universal justice transcends the din of national chauvinism.
If the beleaguered Lankan Government with its begging bowl at the IMF table, and heavily dependent on the world’s largess, does not kowtow with UNHRC demands for severe political reforms, then the day of reckoning will soon dawn and the hour will soon strike when it has to face the stark political truth on the value the world places on human rights.
Already the threat has been sounded. On Monday, UNHRC’s Acting High Commissioner, also called on States to pursue alternate strategies to compel Lanka to advance accountability at the international level, including prosecutions based on extraterritorial jurisdiction against leaders and imposing targeted sanctions.
Alas, the much-feared sanctions will not be necessary now. They have been made redundant with Lanka forced to endure self-imposed sanctions in the wake of her economic bankruptcy.
Nemesis always finds a way of visiting even if formally stopped at the gates. Unfortunately, divine retribution has fallen on the people who, having knowingly voted the unworthy to power, must pay for their leaders’ sins.
