Courtesy The Island

March 25, 2017, 8:02 pm

The UNHRC resolution which was co-sponsored by Sri Lanka and passed without a vote last Thursday has given the government two years to deliver on the commitments made in UNHRC Resolution No: 30/1 of October 2015. Unlike in previous years, this year’s UNHRC resolution did not generate much heat in Sri Lanka because the expectation was that the government would be given a further period of time. However, this extention of time to deliver may be more to the detriment of the government than if the things had come to a head right now.  A two year postponement means that this matter will come up for discussion at the March 2019 Sessions of the UNHRC. However, 2019 will be election year for this government.

The Island carried a front page news item recently by our colleague Shamindra Ferdinando pointing out that even though Minister Faizer Mustapha had put forward an argument to the effect that President Maithripala Sirisena had been elected for a six year term and therefore, the next Presidential election will be held only in 2020, legal experts like Manohara de Silva, Jayampathy Wickremeratne and Krishmal Warnasuriya had pointed out that the term of the President was shortened to five years by the 19th Amendment and according to the transitional provision in Article  49(1)(b) of the Nineteenth Amendment, the persons holding office as the President and Prime Minister at the time the 19 A is passed will thereafter continue to hold such office subject to the provisions of the Constitution as amended by the 19A. What this means is that Maithripala Sirisena’s term as President comes to and end in five years and a presidential election will have to be called in the last quarter of 2019.

It would be very disadvantageous for the government to be grappling with the local fallout of implementing the UNHRC resolution or the international fallout from not implementing it after the first quarter of 2019. In fact by 2019, it’s best that this UNHRC resolution 30/1 be taken off the radar altogether. If the government implements even a part of the contents of Resolution 30/1 which they so ill-advisedly co-sponsored in October 2015, that will provide grist for the opposition mill at the presidential election campaign at the end of 2019. The Resolution that was passed last Thursday once again with the co-sponsorship of Sri Lanka, ‘took note with appreciation’ the comprehensive report presented by the UN High Commissioner on Human Rights to this session of the UNHRC as requested by the UNHRC in Resolution 30/1 of October 2015 and requests the Government of Sri Lanka to fully implement the measures in resolution 30/1 that are outstanding.

What exactly did the UN Human Rights Commissioner say in his report on Sri Lanka to the 34th Session of the UNHRC last Wednesday which was ‘taken note of with appreciation’ by the Sri Lankan government in co-sponsoring the subsequent resolution which could place them at a serious disadvantage if smelly stuff hits the fan in the run up to an election? Firstly, The UN Human Rights Commissioner’s report to the UNHRC begins by saying that his present report to the UNHRC should be read in conjunction with (among others) the detailed findings of the OHCHR investigation which was presented to the UNHRC in September 2015.

In that report, the OHCHR had accused the Sri Lankan government of every conceivable war crime including unlawful killings, torture, rape, illegal incarceration, enforced disappearances, abduction, deprivation of humanitarian assistance etc. This investigation against Sri Lanka was set up outside the established procedure of the UNHRC yet by co-sponsoring two UNHRC resolutions in October 2015 and now again in March 2017, which took note of this OHCHR report with appreciation, the Sri Lankan government has accepted and legitimized a biased and tainted report against Sri Lanka.

Call for universal jurisdiction to be invoked

Secondly, the UN Human Rights Commissioner has stated that the report of the Consultative Task Force on Reconciliation Mechanisms appointed by the Prime Minister be implemented and this too has now been taken note of ‘with appreciation’ by the government. (Implementing this Task Force report would have even worse implications than implementing Resolution 30/1, as we shall see below.) Thirdly, the UN Human Rights Commissioner has stated that the lack of progress into certain cases such as the killing of Lasantha Wickrematunga and the acquittal by a ‘Sinhalese jury’ of the suspects in the Kiliveddy incident where 23 Tamil civilians are said to have been killed strengthens the case for the establishment of a specialized court which should include international judges, defence lawyers, prosecutors and investigators, to investigate allegations of war crimes.

In his report presented to the UNHRC on 22 March and taken note of with appreciation by the Sri Lankan government in the co-sponsored resolution on 23 March, the UN Human Rights Commissioner has once again called on the international community investigate and prosecute those allegedly responsible for war crimes under universal jurisdiction. In this context, the Australian high Commission may have done Chagi Gallage a favour by denying him a visa to Australia. Last Thursday’s UNHRC resolution was essentially to reaffirm the UNHRC resolution 30/1 of 1 October 2015 on promoting reconciliation, accountability and human rights in Sri Lanka. What exactly were the commitments made by the government in UNHRC Resolution 30/1? Of particular concern in that resolution, were operative paragraphs 1, 4, 6, 8, 12 and 16.

Operative paragraph 1, took note with appreciation of the report of the Office of the High Commissioner on promoting reconciliation and accountability in Sri Lanka and its investigation on Sri Lanka and encouraged the Government of Sri Lanka to implement the recommendations contained therein. Operative paragraph 4 welcomed the commitment of the Government to establish a commission for truth, justice, reconciliation and non-recurrence, an office of missing persons and an office for reparations; and to give each mechanism the freedom to obtain financial, material and technical assistance from international partners. Operative paragraph 6, noted with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel to investigate allegations of war crimes and affirmed the importance of participation in such a judicial mechanism of Commonwealth and other foreign judges, defence lawyers, prosecutors and investigators;

Operative paragraph 8 encouraged the Government to remove through an administrative process members of the security and intelligence units suspected of carrying out war crimes even if there wasn’t enough evidence to take them before the judicial mechanism that was to be established. Operative paragraph 12 welcomed the commitment to review and repeal the Prevention of Terrorism Act, and to replace it with new anti-terrorism legislation acceptable to the OHCHR and the ‘international community’. Operative paragraph 16 encouraged the Government’s efforts to fulfill its commitments on the devolution of political authority, ‘which is integral to reconciliation’ and also encouraged the Government to ensure that all Provincial Councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka – thus bringing the structure of the Sri Lankan state itself under the scrutiny of the OHCHR.

NGO activists in their element

This was not all, speaker after speaker among the originators and the sponsors of the latest resolution against Sri Lanka – the UN Human Rights Commissioner Zeid Al Hussein, the EU representative and the representative of Britain were all harping on the need to implement the recommendations of the Consultative Task Force on Reconciliation Mechanisms. The recommendations of this task force which functioned under the Prime Minister’s Office are, if anything, worse than the above mentioned operative paragraphs of UNHRC Resolution 30/1. The UN Human Rights Commissioner’s update on Sri Lanka presented to the UNHRC on March 22 was effusive in its praise for the report of the Consultative Task force on Reconcilaition Mechanisms and has requested the government to implement its recommendations. Among the recommendations made in this task force report are the following:

=   Apologies should be tendered by the Sri Lankan State to the victims of the armed conflicts that took place in this country. However there is no requirement that terrorist organizations or political groupings that backed the terrorists have to do the same.

= LTTE cemeteries should be restored, the observance of ‘Maaveerar Dinam’ allowed to continue and the families of deceased LTTE cadres permitted to display a photograph of the deceased terrorist in LTTE uniform, in their homes.

= As a means of promoting reconciliation, all LTTE detainees who have not been charged under the PTA or other laws are to be released forthwith. However, members of the armed forces suspected of committing crimes have to be arrested.

= Following the lead of UNHRC Resolution 30/1, the Consultative Task force on Reconciliation Mechanisms has also recommended that a war crimes tribunal with foreign participation be set up. But going beyond anything that Resolution 30/1 recommended, they have also suggested that no LTTE members be prosecuted by this body if they have been through rehabilitation or have been prosecuted under the existing judicial system. They have suggested instead that leaders of the LTTE who left the terrorist organization and allied themselves with the government of Sri Lanka should be tried for war crimes!

=  No amnesties should be granted to members of the armed forces suspected of war crimes.

=  A phased demobilization of security forces personnel with an attractive early retirement package including pensions, admissions to good schools for their children, alternative civilian employment etc. has also been recommended.

= Despite repeated assurances given by both the President and Prime Minister to the public that the special place accorded to Buddhism would be preserved, the Consultative Task force on Reconciliation Mechanisms which published their report after those assurances were given, has requested the government to ‘seriously consider’ the establishment of a secular state.

The above are only a sample of what this task force report contains. The proposals made by the Consultative Task Force on Reconciliation Mechanisms are so over the top that if an ordinary parliamentarian in the government reads it, he may end up thinking that it has been written by Joint Opposition agents who had infiltrated the PM’s office with a view to bringing the government into disrepute among the public! So UNHRC Resolution 30/1 and the report of the Consultative Task force on Reconcilaition Mechanisms are cans of worms that will remain closed till the end of the first quarter of 2019 and opened just when a decisive Presidential election is months away from being declared in the fourth quarter of that year. This is why the two year extension of time will not be an advantage to the government but rather a ticking political time bomb set to explode causing the maximum damage.

What did Gen. Fonseka command?

General Sarath Fonseka made waves again last week with the CID informing the Mt Lavinia Magistrate that he has given a statement implicating former Defence Secretary Gotabhaya Rajapaksa and former Chief of National Intelligence Kapila Hendavitarana in the attacks on journalists including the killing of Lasantha Wickrematunga and the assault on Keith Noyhr. According to the B Report No: B92/09 filed before the Mt Lavinia Magistrate, Gardihewa Sarath Chandralal Fonseka has given the CID a statement to the effect that at the time Lasantha Wickrematunga was murdered, he had not overseen security matters in the Colombo area and that this was handled by former Defence Secretary Gotabhaya Rajapaksa with Maj Gen Kapila Hendevitarana and that he had received information that the assault on journalists were carried out by a certain group that functioned under Chief of National Intelligence Hendevitarana. Fonseka had also said that when he was Army Commander, he was unaware that there was an Army intelligence detachment functioning from the Tripoli market premises in Maradana.

By the time Lasantha was murdered, Kapila Hendavitarana had retired from the army and was holding a civilian appointment in the Ministry of Defence. When Sarath Fonseka became Army Commander at the end of 2005, Hendavitarana was in the Sri Lankan Embassy Bankok as Minister Counselor. Even before he was posted to Bangkok by then President Chandrika Kumaratunga, he had ceased to be the Director Military Intelligence and was functioning as the Director General Military Intelligence which was a position not in the Army but in the Joint Operations Headquarters. The Director Military Intelligence is a Brigadier level appointment in the Army and Hendavitarana had to be shifted out in order to be promoted Major General.  After the Rajapaksa government came into power, Hendavitarana came back to Sri Lanka around February 2006 and he retired from the Army in 2006 October.

After coming back from Bangkok, Hendavitarana was appointed as an advisor on Military Intelligence to the Minister of Defence. After he retired from the Army in October 2006, a position was created for him as Chief of National Intelligence. His task was basically coordinating the work of the intelligence arms of the Army, Navy, Air Force and police intelligence units like the CID, TID, Special Branch etc. This was one of the major innovations introduced by Gotabhaya Rajapaksa – getting all the intelligence bodies of the armed forces and police to share information and work together to eliminate terrorism. However, neither Gotabhaya Rajapaksa nor Hendavitarana who were both retired from the Army could command troops or order troop movements. This had to be done by someone in uniform.

Every soldier works under a chain of command and no soldier can do anything unless told to do so by his immediate superior. That’s how the system works. Even though Sarath Fonseka now says that Gota met the intelligence chiefs separately and that he was against the service commanders even attending that weekly meeting, as the commander of the army, Fonseka always had the authority to summon the Director of Military Intelligence who was a Brigadier under him and ask him what was going on. Yet by saying that Gota had a separate operation going with the intelligence heads that he as Army commander was not privy to, Fonseka is implying that he dared not summon the Brigadier who was head of the DMI to ask him what was going on!

Furthermore, to tell the CID that he did not know that there was an Army intelligence detachment functioning in the Tripoli (market in Maradana) is to in effect say that he was not aware of what the army he was commanding was doing. This was not the first time that Fonseka had made statements of this nature. Even with regard to the famous white flag case, he had told Frederica Jansz that he had heard from certain journalists that Gota had ordered Shavendra Silva to kill any LTTE leaders trying to surrender and that LTTE front rankers B. Nadesan, S.Pulidevan and Ramesh were killed while they were trying to surrender. If Gota had indeed given such instructions to Shavendra Silva, Fonseka should not be hearing about it from journalists but from someone within the Army. When he made this statement, Fonseka was the common candidate contesting against Mahinda Rajapaksa at the 2010 Presidential elections. After Frederica wrote an article in the Sunday Leader titled “Gota ordered them to be shot – General Sarath Fonseka”, all hell broke lose with the UNP and JVP trying to force Fonseka to retract or disown the statement.

A mighty fiasco ensued with Fonseka repeating the same allegation he made to the Sunday Leader at a propaganda rally in Ratnapura which was caught on camera and broadcast over the TV channels but after the story appeared in the Sunday Leader, he held a press conference the next day trying to explain away what he had said. When the Rajapaksa government filed action in the High Courts against him over this statement, he tried to make out that he had never made any such statement to Frederica and that she does not have a recording to prove that he had said it and that she had not even taken down notes during the discussion and that what she was presenting to courts as her notes may have been written later.

Asked why he had not denied the story after it appeared in the Sunday Leader, he had said that Frederica had pleaded with him not to do so because she would be jailed. The High Court refused to accept that he would make such a sacrifice on behalf of a journalist whom he accused to lying. He was asked whether any incident where LTTE leaders trying to surrender with white flags were killed by the troops had actually taken place, to which he answered in the negative. However, video footage of the Ratnapura meeting proved that he had in fact said everything he is supposed to have told Frederica. Fonseka was sentenced to three years in jail under the emergency regulations for making false statements that could cause public disquiet!

General Fonseka has a history of putting his foot in his mouth – big time – and he has done it again with the statement about Gota and Hendavitarana operating a hit squad against journalists without his knowledge. One party that will be happy with this bit of news will be denizens of the UN Office of the High Commissioner on Human Rights which has been calling for the Sri Lankan military to be brought under civilian control. Going by the stories that Fonseka has been telling the press and the CID since he left the army in 2009, unbeknownst to all, the Sri Lanka Army appears to have always under civilian control with retired army officers in plain clothes commanding the troops both on the battlefields of the Vanni and the urban jungle in Colombo!