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The European Commission’s proposal this week to the European Union (EU) regarding the restoration of GSP (General System of Preference) Plus to Sri Lanka’s export market did not carry with it, any element of particular surprise. This was a step long predicted.

Checking displays of untoward jubilation
And as a rider, it must be said that the deprivation of the trade benefit to the country under the Rajapaksa Presidency was not due to an overriding zeal on the part of the EU to ensure good governance at the time. It was simply because the Rajapaksas flouted every convention, every rule and every practice in existence relating to the Rule of Law, to trespass beyond all propriety in regard to illegal acts.

In other words, even if the EU had strained at every sinew to justify continuation of the trade benefit under that Presidency, it could not have been successful as the range of violations was just too great. So the GSP Plus was cancelled (then) as unsurprisingly as the EC proposal before the EU (now) is to restore it.

That said, the untoward jubilation of Government ministers in cheering the EC’s announcement needs to be abruptly checked in its tracks. To be quite clear, the proposal does not indicate an off-the-charts endorsement of the Unity Government’s progress in ensuring good governance. This is underscored by the EC’s own caution that ‘removal of customs duties would be accompanied by rigorous monitoring and would be conditional on continued commitment to sustainable development, human rights and good governance.’

Treating governance failures flippantly
Easier said than done, a critic would remark. And that acerbic comment would most probably be true. Underlying the comforting rhetoric, there is a simple truth at play. If the Government does not offend the proprieties too much, then one may assume that no terribly unpleasant consequences will ensue where the trade benefit is concerned.

However, that does not really offer much reassurance to the people of Sri Lanka. And it is telling that even though the inclusion of labour rights into the monitoring process is welcome, the EC’s assessment report this week treats highly problematic performance failures with a flippancy that is regrettable. For example, the EC’s conclusions in regard to Sri Lanka’s compliance to the Convention against Torture or CAT (as a key international treaty which the country must commit to implement before qualifying for GSP Plus) are remarkably disingenuous to say the least.

After a lackadaisical reproduction of some paragraphs of the Committee against Torture’s Concluding Observations issued last year following consideration of Sri Lanka’s Periodic Report to the Committee, the EC notes that ‘salient shortcomings have been identified in a relatively low number of areas’ while there have been ‘significant elements of progress.’ It concludes thereafter that ‘there is no serious failure to effectively implement the Convention.’

Patterns of systemic failures
Yet this airy conclusion stands in direct contradiction to the CAT Committee’s own findings which identified serious systemic failures and breakdowns in implementing the Convention against Torture CAT. The Committee expressed disquiet in regard to the total inability of State representatives to answer questions of actual performance in regard to prosecuting and sentencing public officials for crimes of torture. This was in the context of official statistics on reported cases differing ‘very significantly’ with the data of other organizations including the main oversight body, the Human Rights Commission.

Indeed, the CAT Committee found systemic failures to uphold the Rule of Law at all stages of the legal process, from investigative to the judicial, asserting in fact that judges who fail in their judicial duties in this regard should be held accountable. Sri Lanka’s Supreme Court had oft made that same observation when hearing fundamental rights applications alleging torture. Other systemic problems abounded from the patterns of false arrests to failure to bring detained persons promptly brought before a judge and in any event, not exceeding 48 hours and complete failure to ensure that arresting officers must register the exact date, time, ground for the detention and place of arrest of detainees.

And while Tamil detainees were at far greater risk of torture given the ethnic dimension in these cases, Sinhala and Muslim victims were also vulnerable. Lest it be forgotten, these systemic failures of due process amounted to a fundamental disregard of the Rule of Law which the CAT Committee quite rightly stressed. It went so far as calling for an independent authority to investigate and prosecute torture cases. That level of concern which emanates from the Committee’s findings is certainly not adequately reflected in the EC’s assessment report examined here.

Gingerly handling of the proposed counter terror law
Dissecting each and every similar discrepancy belongs elsewhere than in the limited spaces of a newspaper column. But it must be said that the EC’s cursory treatment of the proposed Counter-Terror law, which is far worse than any national security legislation proposed by any Government since independence, is equally disappointing.

It was cautioned earlier in these column spaces that GSP Plus restoration should only be after full and firm knowledge (as opposed to vague assurances) that the proposed draft law has been amended to be in conformity with the Rule of Law. However, the EC’s gingerly handling of the issue invites considerable derision.

Thus we are told that the Government has ‘committed’ to replace the Prevention against Terrorism (PTA) with a new Bill on counter-terrorism, to be presented to the Parliament in January 2017 which ‘is to be compatible with international human rights conventions and counter-terrorism standards.’ No further concerns are articulated, not even the need to ensure that the revision of the draft law needs to be placed before the public for transparent scrutiny.

Taking bitter realities into account
It is hoped that the review of the EC’s report by the European Parliament and the Council during the coming months will evidence a somewhat more rigorous assessment than what is reflected in this report. Given what has transpired during the past two years, the people of Sri Lanka cannot (with good reason) afford to be as sanguine as the EC in its sunny reliance on the Unity Government’s ‘commitment’ in regard to adherence to the Rule of Law.

That singularly bitter reality needs to be properly taken into account if these assessment exercises are not to degenerate into mere farce.