By Ranjit Abeywardena

There is an easy solution to make the Sri Lankan Airlines viable again! The government needs to be thinking seriously about making it a charter service to ferry American and British politicians, government and military officials between Colombo, London and Washington. Judging by the current volume of traffic, the Colombo-London-Washington route is likely to provide a life-saving bonanza for any struggling airline; All they have to do is to get the British Commonwealth and foreign offices, and the travel department of the US state department to subscribe, and the struggling Sri Lankan will fly again!

The president, just back from David Cameron’s coalition of the committed” summit against-corruption must be still glowing in the aftermath of a glove-less handshake in London; Chandrika Kumaratunga has been seen pressing flesh with Samantha Power in New York, curiously representing Sri Lanka at a UN talkfest on Peace and Security. There must be an ‘army’ of US Army, Navy and Air force generals restructuring our military from the US embassy eavesdropping post directly opposite Temple trees. This never-ending procession of British and American officials visiting Colombo is supplemented with ‘invitations’ to self-serving gatherings such as the recent anti-corruption” summit – the non-event of the century.

To focus for a moment on the almost comical anti-corruption summit of David Cameron, his call at the opening for the British Crown dependencies to move to publish full lists of beneficial ownership of offshore companies” was rebuffed by The British Virgin Islands even before the morning coffee break at the summit. Panama did not participate at all. In the meantime, Sri Lanka, moved by domestic political considerations no doubt, enthusiastically subscribed to The Global Forum for Asset Recovery that will meet in the US next year to discuss returning assets, supported by the UN and the World Bank. Good luck on that!

Cameron’s corruption award however, should go to US Secretary of State John Kerry who claimed of ‘shock’ at the extent of corruption in the world. His claim raises questions about his age because he would not have found anything so shocking if he was alive during the 2008 Global Financial Crisis precipitated by his Wall Street friends Goldman Sachs, Lehman Brothers and Merrill Lynch! Proving that he feigned shock, Kerry refused to sign up to the pledge of the summit participants to share registers of beneficial ownership; Kerry will continue to provide the US state of Delaware as a safe haven for anyone with a spare billion or two that needs a comfortable resting place.

It is of great concern that the Sri Lankan government has not paused to ask themselves the question as to what justifies such intense British and American interest on ‘our’ little island, 8700 and 15,000 km away from London and Washington respectively. Sri Lanka appears to keep falling for such blatantly dishonest tricks of the Yankees and the British unlike many other developing countries; this is the reason why they keep coming for us!

After showering us with countless ‘goodwill’ visits, they also drag our government leaders and officials in to the neocolonial net being woven by the UN and its busybody human rights protection mafia. This is the context to the recent visits by the so-called UN Special Rapporteurs” – on the independence of judges and lawyers, and on torture and other cruel, inhuman or degrading treatment or punishment – to Sri Lanka. The fact that the Rapporteurs were ‘invited’ by the government shows an unbelievable level of gullibility.

The Special Rapporteur conspiracy

The network of Special Rapporteurs (a French word meaning ‘reporter’) is part of the international system the Americans created at the UN in the last three decades or so, as a means of hauling the nations resisting their designs over the coal under bogus charges of human rights violations; The rapporteurs – collectively referred to in UN language as mandate-holders” – and the western Government funded NGOs operating in developing countries are the foot soldiers of an elaborate UN infrastructure they created under various guises.

The mandate holder network comes within the scope of procedures – 1235” and 1503” – that form the Special Procedures” mechanisms of the UN, established by the western governments at the Human Rights Council (HRC), the predecessor of the United Nations High Commissioner for Human Rights (OHCHR). From its dubious, western-sponsored beginnings the special procedures mechanisms have evolved in to a monstrous tool used to take developing country governments to task over flimsy charges of ‘human rights violations’. Currently, there are 41 thematic and 14 country specific mandates. Not surprisingly, the list of countries with mandate holders appointed to conduct inquisitions against them is the same as those resisting Western dictates:

The special rapporteurs are not duly appointed UN employees. They serve in their personal capacities, and do not represent their countries of citizenship. They do not receive financial compensation from the UN, but receive secretarial support and an air ticket from the OHCHR to a designated location, often paid for by multi-national corporations and shady groups like George Soros’ Open Society Foundation, seeking political clout to push their nefarious agendas.

The purported charter of the mandate holders is to address either ‘specific country situations’ or ‘thematic issues’ relating to human rights globally. The methods they adopt include ‘discussions and confidential proceedings’ on alleged human rights violations. In essence, the mechanisms” provide a formal avenue for individuals (paid agents) and western-funded NGOs in developing countries to clandestinely lodge complaints of ‘human rights abuses’ against national governments.

Consistent with the overall objectives of the scam, the rapporteur’s job is an ‘internship’ opportunity for those with an NGO track record and right UN contacts to build a lucrative future career as ‘human rights professionals’. The appointment procedure of rapporteurs is scandalous: NGOs and other human rights bodies, and powerful individuals can ‘nominate’ candidates to be mandate holders. Resolution 16/21 of the OHCHR adds national human rights institutions that comply with the Paris Principles to the list of entities able to nominate candidates. A Consultative Group then proposes a list of candidates – taking into account the views of stakeholders”, including the outgoing mandate holder – to the Human Rights Commissioner. Vacancies are filled subject to the mere formality of approval by the Member States.

A brief look at the bio data of the two rapporteurs who just visited Sri Lanka – Juan E. Méndez and Mónica Pinto – is the best means of demonstrating the in-bred nature of the entire special procedures mechanism: Mendez has been The UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment since 2010. An Argentinian national, he works as a Professor of Human Rights Law at the American University – Washington, with previous associations with the neocon foreign policy meccas, the Georgetown Law School and the John Hopkins School of Advanced International Studies. He was Special Advisor to the disgraced Prosecutor of the now-defunct International Criminal Court, and to Kofi Annan. Crucially, he was a Scholar-in-Residence at the Ford Foundation in New York, a name board with an extremely dubious agenda and funding history. Prior to that, he worked with George Soros’ Human Rights Watch for 15 years; UN could have sent the other George Soros operative Alan Keenan of the International Crisis Group to save trouble!

Mónica Pinto, also an Argentinian national, was appointed Special Rapporteur on the independence of judges and lawyers in August 2015. She has been a veteran mandate holder and ‘independent expert’ on the situation of human rights in a number of Latin American countries, and – like Mendez – has been on the Advisory Committee on Nominations for the now-defunct International Criminal Court. She also sits at the administrative tribunals of the World Bank and the Inter-American Development Bank! These two Argentinians are continuing the role previously played by the mandate holder Gabriela Knaul who would have ‘nominated’ them.

Due to developing country protests over the methods used by special rapporteurs, especially their alliances with anti-government elements in the countries they focus on, the HRC in 1997 adopted a Code of Conduct for special procedures mandate holders, and disallowed them to address the media. Article 3 (f) of the Code orders that mandate holders, Neither seek nor accept instructions from any Government, individual, governmental or non-governmental organisation or pressure group whatsoever.” But the practice is continued by the rapporteurs, with impunity as Mendez and Pinto did on 11 May in Colombo.

The UN Special Rapporteurs’ sing for their supper

The preliminary observations and recommendations of the two special Rapporteurs Mónica Pinto and Juan E. Méndez are the most revealing of the ugly face of the traps being launched by the neocolonial forces hiding behind the benign-faced UN: their sharp criticism of alleged operational inadequacies of the judicial and other systems of Sri Lanka – disguised as preliminary observations – ignores the operation of a robust legal and judicial system in the country under trying conditions; Worse still, their harsh criticism of issues such as staffing shortages within the judicial system and inadequate inmate space in the jails shows a stupid and callous disregard for the dire economic situation the country is facing. Their recommendations are patronising in the extreme.

The extensive nature of the two rapporteurs’ scandalous observations shows that they have landed in Colombo with pre-framed reports; They simply could not have been able to visit all the locations they did, interview people, analyse and write a report encompassing all aspects of the justice system (including access to justice, diversity, independence, transparency, accountability, delays, education and training, Transitional justice, the roles of the Attorney-General and the Police) after just a week in Colombo, travelling most of the time. It is no secret that they have their own, largely INGO and UN sources for obtaining such information primarily adverse to the target government. Their observations lack credibility.

The level of intrusion by these two individuals in to matters strictly of Sri Lanka’s internal administration is unbearable: they start by pointing out that Sri Lanka is at a crucial moment in its history, and it is ‘critical and urgent’ to replace the legal framework with sound democratic institutions and legal standards – presumably ones modelled along their prescriptions; Patronisingly, they remind us of the constitutional commitment and international treaties we have ‘voluntarily ratified’; They ask us to forget the challenges of terrorism and organised crime and get cracking on a fundamental rights and civil liberties agenda of their preference. They don’t forget to get in to internal politics of the country either, as demonstrated by the overt reference to January and August 2015 elections that brought an opening in the democratic space”. They go on to prod with the reminder that more reforms are expected”, without specifying by whom”.

Preliminary observations and recommendations of Mendez are even more forceful: he commands that the Government should” repeal the current Prevention of Terrorism Act; He goes on to command that the Government must” ratify and implement the Optional Protocol to the Convention Against Torture (OPCAT) as a matter of national urgency. (In extreme arrogance, he has forgotten to check the meaning of the word ‘optional’ in the dictionary!) What is to be expected in their final report to the OHCHR due next year is not hard to guess.

The preliminary observations of the two mandate holders clearly amount to overtly seeking political intervention without specific references to any violations: they need to urgently revisit the OHCHR guidelines on admissibility of communications related to a violation of human rights including the requirements that they should not have manifestly political motivations and should contain factual description of the rights which are alleged to be violated.

In Sri Lanka, Constitution reigns supreme

Dwelling at length on the patronising waffle of these two individuals on the minutiae of Sri Lanka’s justice system and its operation is not worth the effort. It needs to be impressed upon the skulls of these busybodies that Sri Lanka has a functioning democracy based on a constitution, and has a clear legal view on its apposition with the so-called international law. They need to accept that in Sri Lanka, the country’s Constitution holds sway: the situation is not different to America where the Supremacy Clause of the US Constitution declares them to be supreme law of the land.

As recently as 2009, the US Supreme Court Justice Sonia Sotomayor explicitly stated during her Senate confirmation hearings that American law does not permit the use of foreign law or international law to interpret the Constitution and that there is no debate on that question.” Also, Florida House Representative Sandy Adams introduced a bill to forbid the US Supreme Court from ever citing or using any precedent from international law. During her tabling of the Bill, Ms Adams said, The Constitution laid the foundation for our nation’s judicial system, and allowing foreign law to supersede it in any capacity leads to its erosion. Not only is using international precedent a transparent disregard for the Constitution, but it could be used to advance a judge’s personal political agenda over the best interests of the nation.” Sri Lanka chooses to adopt the same stance.

Sri Lankans can well remember that several international enterprises sought to unduly intervene in the crucial domestic battle against terrorism, under the guise of protecting human rights that went against the definition of sovereignty and the basic principles of Article 2 of the UN Charter that emphasises the importance of respect for sovereignty and the principle of non-intervention.

As to the interface between domestic law and the ‘international law’ bugbear cited by Mendez and Pinto, the best evidence of the basic rule that treaties are not directly enforceable in domestic law come from the Australian jurisdiction:

Australia’s supreme legal institution, the Australian High Court established in (Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273) that a treaty which has not been incorporated into the country’s municipal law cannot operate as a direct source of individual rights and obligations under that law. The Teoh doctrine exempted the government decision-maker from conforming to the treaty obligations. There have been executive statements that negated all treaty-based expectations following this judgement.

In another case, (AMS v AIF (1999) 199 CLR 160) the Australian High Court ruled that the provisions of the Constitution are not to be construed as subject to an implication said to be derived from international law, and that If a statute is clearly in conflict with international law, then the statute prevails”. In (Dietrich v The Queen (1992) 177 CLR 292) the Court declined to change the common law to recognise a new right introduced through international human rights law.

Not surprisingly, Mendez also accused Australia of violating the rights of asylum seekers on multiple fronts under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concluding that the government fails to fully and expeditiously cooperate” with the Human Rights Council’s mandate. The report prompted the former Australian Prime Minister Tony Abbott’s retort that Australians are tired of being lectured to by the United Nations”.

It is unlikely that such protests would come from the current, boot licking Sri Lankan government.