Kelum Bandara Courtesy The Daily Mirror

Former External Affairs Minister Prof. G.L. Peiris, in an interview with the Daily Mirror, says the government’s cosponsoring of the UNHRC resolution spells real danger for the country. He said though the government speaks with different voices, it would find it difficult to renege from its own commitments given internationally.

Q  How do you view the implementation of the UNHRC resolution on Sri Lanka? 

The danger in which the country stands today is not fully appreciated by the people. The degree of this danger is clearly indicated by the oral update on Sri Lanka presented on June 28, UN High Commissioner of Human Rights ZeidRa’ad Al Hussein said. There are 38 paragraphs in it. The strongest emphasis is on what the High Commissioner characterizes as ‘Security Sector Reforms’. Exactly how intrusive this is, is clearly indicated in paragraph nine of the report which refers explicitly to ‘Defence Policy, Discipline, Promotion, budgeting and procurement. The greatest pressure is brought to bear on the government of Sri Lanka to undertake sweeping reforms. The importance of this for a UN system is also indicated in paragraph 34 which refers to UN peace keeping missions. The report refers to arrangements which are underway for a peacekeeping mission in Male, Africa, but the report says that Sri Lanka’s armed forces and police will be given the opportunity of participating in this mission only if the changes they want to make are in fact carried out.
There is also to be found with the report a very strong emphasis on constitutional reforms. One of the most striking characteristics of the report is the extent to which the UN feels at liberty to interfere in the internal affairs of Sri Lanka. In fact, ZeidRa’ad Al Hussein, in an interview given in Geneva, conceded that his office had never adopted an approach so inclusive in respect of any other country. That the UN resolution passed on Sri Lanka on October 1, 2015 is quite unique in that respect. The important characteristic of the latest report released is quite explicit. Paragraph nine urges the ‘involvement of international judicial personnel’. It is now being suggested by some sections of the government that it would be in adequate compliance with the UN resolution to have foreign observers or foreign technical personnel. Yet, this is flatly contradicted by the High Commissioner’s latest report insisting on judges. Paragraph 13 of the report refers to the release of lands in the North and makes the complaint about alleged non-cooperation of the Sri Lankan military. Paragraph 16 holds the government of Sri Lanka, for making 25 arrests under the PTA during the period between March and April, 2016 after the discovery of caches of arms, suicide kits, LPGs and other weapons. Paragraph 16 urges the removal of the military from the North.

Paragraph 18 calls for emblematic prosecution of members of the armed forces. Paragraph 19 pinpoints 39 sexual cases involving the military, and recommends swift action against them. Paragraph 32 makes a strong call for foreign judges to be involved in the judicial mechanism to try war crimes allegedly committed by Sri Lankan military personnel. The same paragraph passes strictures on the local judiciary and states that there has been an erosion of confidence in the Sri Lankan judiciary.
Paragraph 33 is particularly dangerous. It states that recent evidence has been found with regard to the use of cluster munitions during the closing stage of the war. This places the Sri Lanka Air Force in particular in great jeopardy. With regard to the constitutional reforms, the UN report specifically states that they hope there will not be trade wars. It is carefully credible that this degree of intervention on the constitution making process of Sri Lanka would be tolerated by any other country. It is now time to step back and make a realistic assessment of the real jeopardy into which the Sri Lankan armed forces and the military have fallen. The UN is clamouring that they should be brought swiftly to trial. That the Sri Lankan government should ‘achieve successful prosecution’ and ‘prosecute emblematic cases’. Nobody is above the law.That certainly includes the military. What are objectionable are certain features of the course of action strongly proposed for Sri Lanka. Let’s take it step by step. In the first place, Prosecutions are to be expedited and carried through to conclusion. This is not under the normal laws of Sri Lanka applicable to all citizens. Special laws are to be brought in. New offences are to be created. Acts which attracted no form of criminal liability at the time they were committed are now to be characterized as criminal offences. These laws are now to be brought with retrospective operation. This is against the norms embedded in civilized legal systems. So, the armed forces are to be tried under special laws. Secondly, they are to be tried by special courts. This is profoundly unsatisfactory.

“Paragraph 18 calls for emblematic prosecution of  members of the armed forces. Paragraph 19 pinpoints 39 sexual cases involving the military, and recommends swift action against them. Paragraph 32 makes a strong call for foreign judges to be involved in the judicial mechanism to try war crimes allegedly committed by Sri Lankan military personnel”

Q  What is your view on the judicial mechanism proposed in it?

The legal system of Sri Lanka provides for a procedure to be followed. We have a judicial hierarchy starting from magistrates’ courts to high courts – to the Court of Appeal and the Supreme Court. But, special courts are to be set up to try alleged war crimes. These special courts are to include foreign judges. Operating paragraph 6 of the resolution on Sri Lanka specifically refers’ to commonwealth and other foreign judges, investigators and prosecutors’. Sri Lankan experience with special courts has singularly been unfortunate.
The clearest example is the criminal justice system that recommended that former Prime Minister Sirimavo Bandaranaike be deprived of civic rights. Ad hoc courts and tribunals have also always served political purposes. If there is evidence against armed forces, this evidence has to be presented to the established courts of the country. There is no justification for special courts created to try armed forces. The UN does not stop at this. The idea is to spread it as wide as possible.
Even these measures do no succeed in catching up on all the persons who are being targeted, there are the recommendations that what are considered to be undesirable elements of the armed forces should be weeded out through administrative measures.
This means they will not be charged in court at all, but simply deprived of employment through sheer prejudice and caprice.

Q  How do you see the content of the Office of Missing Persons Bill in Parliament? 

The public are also not aware of the great danger inherent in the draft legislation to be presented to Parliament shortly for the purpose of establishing the Office of Missing Persons (OMP). This legislation contains totally unacceptable features. Section 27 declares its provisions are applicable only to the Northern and Eastern Provinces. What is the justification for this differentiation? Why should the North and the East be differentiated from the rest of the country? Human lives are of equal value throughout the country. Section 21 gives the seven persons appointed by the Constitutional Council the right to raise funds from governments and persons outside the country. Section 11 gives the right to enter into agreements with foreign organisations including the NGOs on forensic or other matters. This provision will then enable the OMP to enter into agreements on any subject whatsoever.
Section 12 can be used to allow foreign organisations that contract with the OMP and fund it to have access to military camps and other sensitive military installations. It says that the police and officers of the OMP will be empowered to search premises. Foreign organisations that fund the OMP and enter into agreements with them will be able to send their personnel to secure access to camps and other military installations. Although section 13 says that no civil and criminal liability arises from findings, the danger remains that evidence gathered by the OMP can be used to the detriment of the armed forces even in prosecution outside the country. The present government, by cosponsoring the resolution, has accepted the concept of ‘universal jurisdiction’. The evidence gathered by the OMP can come from anonymous sources. The Evidence Ordinance has no application. Nor will the provisions of the Right to Information Bill apply. All of this creates substantial jeopardy for the armed forces. The resulting position is the total confusion and uncertainty. All of this emanates from the basic fact that Sri Lanka cosponsored the resolution.

” The government is giving international commitments. It is imposing taxes without any thought. There is no reflection on consequences”

This is Sri Lanka’s own resolution. The text of it is unbelievable. The operating paragraph one of the resolution ‘notes with appreciation ‘the report submitted on Sri Lanka by the Office of the High Commissioner for Human Rights and calls for the implementation of that report. This report says that there are reasonable grounds for believing that SL armed forces were responsible for the large-scale massacre of civilians, disappearances of large numbers of persons, rape and sexual offences and deliberate starvation of the people. Incredibly, this is the report which the government of Sri Lanka notes with appreciation and requires to be implemented. Whatever be said now by the government, paragraph 6 of the resolution commits the government of Sri Lanka to a judicial mechanism which includes foreign judges.
Some days ago, in a debate on Sri Lanka in the British Parliament, Hugo Swire, the Deputy Foreign Minister of the UK, specifically calls for the government of Sri Lanka to implement its own promises. Twelve other countries did the same. Twenty-four congressmen of the United States wrote to the State Secretary urging that Sri Lanka should not be allowed to resign from its own promises. The question, then is why the commitments were undertaken so irresponsibly.
Minister of Justice Wijeyadasa Rajapakshe recently said that the Constitution does not provide for the appointment of foreign judges. That is correct. In that case, how did the government of Sri Lanka make a commitment contrary to the Constitution? Was this done without any forethought or reflection?
In the United States, Tamil National Alliance (TNA) MP M.A. Sumanthiran, with Sri Lankan Ambassador Prasad Kariyawasam sitting by his side, has said that the text of the resolution is a result of a tripartite agreement – the government of Sri Lanka, the United Nations Human Rights Council and the government of the United States. The public have a right to know who represented Sri Lanka and gave this commitment, and whether he or she has any authority to do so. This is the total mess of the government’s own making. The government is trying to disown its own committeemen. It speaks with different voices.

Q  In your view as the former External Affairs Minister, how possible is it for the government to deviate from its commitments to the UNHRC? 

They are bound by the undertakings given internationally. How can you locally renege on your own promises? Nobody forced Sri Lanka to give these undertakings. These are matters committed by Sri Lanka itself.

Q  What will be the repercussions in case the government deviates?

If we deviate, we will be in breach of our own resolution. Then, look at the statements by all the countries in the European Union. The only country that shows flexibility is Australia. Everybody took a very clear stand that Sri Lanka has given these promises, and it has to deliver on these promises.

“The public are also not aware of the great danger inherent in the draft legislation to be presented to Parliament shortly for the purpose of establishing the Office of Missing Persons (OMP)”

Q  But, there is perception in the country in some quarters that these sections of the international community will go slow on Sri Lanka given their relationship with the present government. How do you respond? 

There are different forces at work. Take the statement by the Global Tamil Forum and by the TNA itself. Isn’t it strange for the TNA to give a press conference at the gate of the American ambassador’s residence? The TNA‘s spokesman called for the implementation of the resolution there. Isn’t that extraordinary? Look at what other members of the TNA, Diaspora and the western countries say!
What they say is logical. If Sri Lanka is committed, then it must deliver.

Q  In your opinion, how can Sri Lanka get out of this mess?

We cannot get out of it. The government is giving international commitments. It is imposing taxes without any thought. There is no reflection of consequences. Now the government leaders say no foreign judges will be appointed. Then, how did they commit to appoint foreign judges? Having given that promise internationally, how can you renege on it now?

Q  There were resolutions against Sri Lanka year after year during the previous rule. What do you suggest to sort out the matter once and for all? 

During our time, we never agreed to these sorts of things. We stood for the indent and interests of the country, its armed forces. Don’t forget the fact that all Asian countries, three-fourths if the African countries, the Arab world, Russia, China and all supported us. Even Japan, India and Australia were against foreign judges. But, all those countries were silenced by the fact that Sri Lanka cosponsored the resolution. All this happened by irresponsible, cavalier commitment without considering whether these are constitutionally possible or implementable.

Q Yet, there is the allegation that Sri Lanka remained isolated from the international community. In fact, critics say Sri Lanka even faced possible sanctions. How do you respond?

There was never a question of sanctions. Take for example the apparel sector. Some of the largest companies in the United States were sourcing products from Sri Lanka. American and British companies were accustomed to dealing with Sri Lankan companies which have fulfilled the highest standards in terms of quality, timely delivery, research for the future. Those companies are not going to detach and go elsewhere. It is not a question of philanthropy or morality. It is also self interests. These are long-standing relations. In our time, no word was spoken about sanctions. That is a bogey created by some people for their own ends.
I strongly disagree with the argument that the new government has won over the world. That is not the case. If you make yourself a doormat and invite everybody to walk over you, then obviously, there will be no disillusionment or tension. We never regarded that as a correct approach to foreign policy. We need to assert our own identity. If you line up as a junior member of a powerful bloc, in our view, it is not the way to make friends.