Columns

• UNF Govt. sections fully support ACSA and SOFA, but who is taking the responsibility?
• If ACSA was “harmless,” why the secrecy?

On October 26 last year, President Maithripala Sirisena removed Prime Minister Ranil Wickremesinghe and replaced him with his predecessor and political arch rival, Mahinda Rajapaksa. The move was coupled together with another — the dissolution of Parliament to facilitate a general election — an exercise which the Supreme Court ruled was unconstitutional. Amidst public vow after vow that he would not restore the Premiership to Wickremesinghe, not even if 225 members in Parliament wanted it, President Sirisena did just that. It ended a dark chapter in Sri Lanka’s democratic history though memories of his blunders remain and are still being talked about in Sri Lanka and the world outside.

Unbeknownst to most Sri Lankans, there was another darker chapter that was in the making during that period. The United States Embassy in Colombo sent to the then Foreign Secretary, Prasad Kariyawasam a five-page document. Dated August 28, 2018, it was a draft Status of Forces Agreement (SOFA) which Washington was keen to sign with Sri Lanka. The SOFA is also being described in flowery language as the Visiting Forces Agreement (VFA).  Together with the support of Minister Mangala Samaraweera, Kariyawasam, initiated discussions. The United States, with the help of the duo, was in such a hurry, they did not want to even sign an agreement. The draft said the acceptance of their draft “shall constitute an agreement between the two Governments, which shall enter into force on the date of Ministry’s reply.” That was even without the Ministry of Defence, responsible for the country’s national security, not playing any role. It was kept out. President Sirisena had, however, asked Secretary Kariyawasam to quit. He relinquished office on October 31, 2018. That put the SOFA project on temporary hold.

Samaraweera’s explanation

On Thursday, at a news conference at the Finance Ministry, the straight talking Samaraweera defended the SOFA and the Acquisition and Cross Servicing Agreement (ACSA), which is already signed. He complained that the opposition was campaigning against these “military to military” agreements and declared there was “no danger to the country.” In a move to justify the two deals which he backed, he said, Sri Lanka’s dependence on “exports to the United States” is a major reason besides the employment opportunities that would be lost if we do not accede.

If one were to agree with Minister Samaraweera that he is saying the whole truth and nothing but the truth, why then was the ACSA, already signed on August 4 2017, not tabled in Parliament. Why fear? Why the total secrecy in making it public? His claim that the ACSA is “harmless” and was no different to ones signed earlier is hollow and is not true. It is completely different as explained in these columns many a time. It would not be wrong to say he knows it though he has to now defend his questionable actions.

His penchant now for the military is all the more intriguing. Was it not the same Samaraweera, as Sri Lanka’s Minister of Foreign Affairs, who co-sponsored with the United States a resolution at the UN Human Rights Council (UNHRC)? Was it not to punish the Sri Lankan military personnel and Police for alleged violation of human rights, international human laws and even for alleged war crimes? His own President, Maithripala Sirisena has publicly declared that he was not consulted. Now, it is the same Minister Samaraweera who wants to get the US troops to teach their Sri Lankan counterparts human rights among other matters. That he was heavily pro-American is no secret and this was why President Sirisena urged the shift of his portfolio from Foreign Affairs to Finance.

He is even fortunate to have an American Center in his home ground in Matara. His ministerial colleagues’ envy this. Seated next to him at the news conference was Maheshini Colonne, the Director for West and UN at the Foreign Ministry. She handled the agreements in the Foreign Ministry. She now has a new position – Director General of International Relations at the Finance Ministry. Her former boss, then Foreign Secretary Prasad Kariyawasam, who rushed through the ACSA also a holds a similar position – Advisor on International Affairs to the Speaker of Parliament, Karu Jayasuriya.  He is, however, paid by a contractor on behalf of the US Agency for International Development (USAID). On Thursday, Minister Samaraweera claimed even the SOFA was “harmless.” However, not many in the Government share his views.

Addressing his news conference cum breakfast with the media on Wednesday, President Maithripala Sirisena declared, “I am against the proposed SOFA.  I have mentioned this in the Cabinet as well.” On Friday, Mahinda Ameraweera, General Secretary of the UPFA, which Sirisena leads, told a news conference, “The (UNF) Government is ready to commit a great betrayal of the country. The ACSA agreement has been signed. It is now preparing to sign SOFA.” According to sources close to the Presidency, those remarks came at the behest of President Sirisena.

Exclusively revealed today in The Sunday Times (Political Commentary) in a box story is the full text of the five-page draft of the Status of Forces Agreement (SOFA). The public can now decide whether the SOFA is “harmless” as Minister Samaraweera proclaims or inimical to the national interests of Sri Lanka. Here are some of the significant highlights:

• United States personnel (troops, contractors etc) be accorded the privileges, exemptions and immunities equivalent to those accorded to the administrative and technical staff of the US Embassy. They may enter and leave Sri Lanka with US identification individually or collectively. (Note: This means they could enter Sri Lanka without Passports or Visas)
• Sri Lanka shall accept, without a driving test or fee, driving licences or permits issued by the appropriate US authorities to US personnel. US personnel be authorised to wear uniforms whilst performing official duties and carry arms while on duty.
• Disciplinary control by US Armed Forces authorities over US personnel and, therefore, the Government of the United States to exercise criminal jurisdiction over US personnel whilst in Sri Lanka. (Note: This clearly means Sri Lankan laws do not apply to them.)
• US personnel not be liable to pay tax or similar charge assessed within Sri Lanka. The Government of the United States of America and Sri Lanka shall co-operate to take measures to protect US personnel property, equipment, records, and official information in Sri Lanka. (Note: They want the Government to protect their assets free of charge)
• Vessels and vehicles operated by or, at the time, exclusively for the US Department of Defence may either, exit and move freely within the territory of Sri Lanka. Such vehicles shall be exempt from payment of overland transit tolls. Vessels and aircraft owned or operated by or, at the time, exclusively for the US Department of Defence shall not be subject to payment of navigation, overflight, terminal or similar charges when in the territory of Sri Lanka. The US shall pay reasonable rates for services requested and received at no less favourable than those paid by the Armed Forces of Sri Lanka. Aircraft and vessels of the US Government shall be free from boarding and inspection. (Note: This is a blatant infringement of the sovereign right of a nation)
• The US Department of Defence may contract for any material, supplies, equipment and services (including construction) to be furnished or undertaken and shall not be subject to any local taxes. (Note: Makes clear that construction work would be required in Sri Lanka. What do they propose to construct?)
• US contractors will not be liable to pay any tax or similar charges. Property, equipment, supplies, material, technology training, or services in the fulfilment of contracts with the Department of Defence and use shall be exempt from any licence, or other restrictions, customs duties, taxes or any other charges assessed within Sri Lanka. (Note: This again is a blatant infringement of the sovereign right of a nation to impose taxes and ensure their rules are followed)
• The Government of Sri Lanka recognises that it may be necessary for the US Armed Forces to use the radio spectrum. The Department of Defence shall be allowed to operate its own telecommunication systems. This shall include the right to utilise such means and services as required to ensure full ability to operate telecommunication systems. Use of the radio spectrum shall be free of cost to the US Government. (Note: This simply means they will have their own radio communications network parallel to those used by the Army, Navy, Police and the Coast Guard)
• Waive any claims (other than contractual claims) against each other – and  damage or loss shall be resolved by the US Government in accordance with US laws and regulations. (Note: This is also an infringement of Sri Lanka’s sovereignty. Sri Lanka’s laws will not apply to US troops and those associated with them. For the troops and others, it would be just as good as moving around in any part of the United States)

ACSA on a platter

Discussions on SOFA were in limbo for many weeks with Prasad Kariyawasam relinquishing office. However, having bagged the ACSA on a platter, pressure from the US Embassy to have SOFA accepted, continued. That led to the matter being listed for discussion at the third Sri Lanka-United States Partnership Dialogue in Washington DC from May 15 to 17 this year. Foreign Minister Tilak Marapana, who led the Sri Lanka delegation, discussed the draft SOFA.

Minister Marapana was still in Washington DC when President Sirisena returned to Colombo on May 19 after a visit to China where he had a meeting President Xi Jinping. He had also signed a defence pact there. The details of that agreement are not known even to his own cabinet. He telephoned Marapana and said he should not sign the SOFA agreement without any consultation since he was the Minister of Defence. This has stalled the move for the time being but pressure from the United States continues. Sirisena avoided pressure from US Secretary of State Mike Pompeo by planning to be away from Sri Lanka when he was to be here for three and half hours. He was to travel to Cambodia and Laos. This move coupled together with planned protests during his visit compelled the US Embassy to advise Pompeo it was not the best time. With Pompeo calling off his visit, so did President Sirisena.

Foreign Minister Marapana discussed the SOFA with US Secretary of State Mike Pompeo. He was to express Sri Lanka’s concern over some of the provisions. Later, speaking in Parliament, House Leader and Minister Lakshman Kiriella made a statement on May 23 during a debate on an adjournment motion by the Janatha Vimukthi Peramuna (JVP). Kiriella said there were 15 paragraphs in the SOFA. There were two clauses which Minister Marapana sought to change during talks in Washington DC — one was diplomatic immunity for US troops who would be present in Sri Lanka and the other subjecting all their actions to US laws. He said there would be no checking of US vessels, they would receive tax free concessions, they could travel in uniform with their identity cards and they can carry weapons and telecommunications equipment. In other words the UNF Government has agreed to them.

It is relevant to mention that the late Foreign Minister Lakshman Kadirgamar, on a vist to Washington DC, ensured that the subject of ACSA be not listed on the agenda for his talks with senior leaders and officials there. The Sri Lanka Ambassador to the US then was Devinda Subasinghe.

The ACSA also figured at the news conference cum breakfast President Sirisena chaired. He was asked, “You are the President of the SLFP, the UPFA as well as the Head of Government and Cabinet. You said you were against signing of agreement (ACSA) with the United States in 2017. In that case who takes the responsibility?”

Replied President Sirisena: “Regarding responsibility, it is the person who is responsible. There is no question about that. The question is in the new agreements. There are new clauses.”

This is just as good as saying whoever threw the stone is only a stone’s throw away. But who? The answer raises more questions: Is it the former Foreign Secretary Prasad Kariyawasam or former Defence Secretary Engineer Karunasena Hettiarachchi, or both? It has now come to light that the Sinhala version to the Cabinet, though it is the official language, did not contain translations of over fifty annexures that listed almost all the US military establishments. President Sirisena’s Cabinet memorandum dated June 30, 2017 had only a brief nine pages without the list. The English version, however, had 83 pages that included the annexures.

It is now clear that due to delay in translations, it has been sent to Cabinet without the annexures. In fact, as the political commentary of May 26 revealed, “Sometime in 2017, President Sirisena had summoned a meeting to ask why there was a delay in the signing of the ACSA. He (the President) was informed that the comments of heads of the armed forces were still being awaited. He asked that the blame for the delay not be put on the heads of the armed forces. Kariyawasam who was Sri Lanka’s Ambassador to the US walked to the meeting from an ante-room of the Presidential Secretariat. This makes clear President Sirisena was unaware of the contents of the annexures or the seriousness of the issue then. It has slipped through his hand but that does not absolve him of his responsibility.

The President was only told that the draft contained several annexures which were to be studied by commanders of the armed forces. President Sirisena exhorted “Ekeng mata vedak nehe. Vahaama assang karanna lesthi keranna” or I am not interested in all of that. Make arrangements immediately to sign it.” The person admonished was Sashikala Premawardena, now Sri Lanka High Commissioner in Singapore, as revealed in these columns. After this meeting, Kariyawasam ordered her transfer to the Foreign Ministry from the Defence Ministry where she was on secondment. She had delayed the ACSA from being sent to the Cabinet.

Billion dollar question

Or, is the person responsible, as President Sirisena says, Engineer Hettiaratchchi, who negotiated the agreement? He is not altogether devoid of any blame for he succumbed to pressures from Secretary Kariyawasam on a high priority national security issue. Why did he not inform President Sirisena? After the Sunday Times disclosure upon inquiry he told President Sirisena that pressure came from the then Foreign Minister Mangala Samaraweera and former Foreign Secretary Kariyawasam. Or is it later Defence Secretary, Kapila Waidyaratne, a former Additional Solicitor General who placed his signature for Sri Lanka on the ACSA?

The billion-dollar question in the issues concerning both ACSA and SOFA are very serious and impinges on Sri Lanka’s sovereignty and national security. What is less known is that the ACSA is different from one country to another. Take Sri Lanka’s case – almost all the US military establishments can have a footprint in Sri Lanka as and when they want. Though the agreement provides reciprocity, Sri Lanka’s Army, Navy, Air Force or Coast Guard simply have no resources to pay and use a military facility in the US. It is not required either. Sri Lanka has no global threats except its own internal security issues.

Why then was the arrangement allowed without any proper study by either senior military officials or the think tanks? The SOFA (or the Visiting Forces Agreement) on the other hand does not confer any reciprocal benefit to Sri Lanka. Strangely it was being negotiated only with the Foreign Ministry whilst the Ministry of Defence, which deals with national security, was kept out. Of course, herein lies the catch. If President Sirisena erred in choosing wrong persons to be Defence Secretaries or Foreign Secretaries (among other posts) who were responsible for the damage, there is more.

In the United National Front (UNF) government, there are strong sections who have not only backed the two initiatives (ACSA and SOFA) privately but spoken about the enormous financial benefits that would accrue to the country both directly and indirectly. This includes Minister Samraweera’s note of caution at the news conference that Sri Lanka may lose its trade with US. The campaigners for the US include those who complained after the presidential and parliamentary elections in 2015 that the West, particularly the US, had not helped them put the economy right. Does the answer remain in becoming a vassal state to the US after 71 years of independence? Sadly, there are those who want it that way. That is why the whole process lacks transparency and accountability.

In a note to the Government (a non-paper), a copy of which was seen by the Sunday Times, the US Embassy in Colombo has claimed the SOFA “in no way would permit the United States to base forces or equipment in Sri Lanka.” The draft SOFA does make provision for construction. What for? It makes the claim that “Sri Lanka would retain all sovereign rights to approve or deny entry or exit of US personnel, vessels and aircraft into Sri Lanka’s territory and territorial waters/airspace.”

That claim ensuring Sri Lanka’s sovereignty is indeed hilarious. It is not included in the draft SOFA as can be seen. Once the Sri Lanka Government agrees, it has to stick by it. Otherwise, could the US have not made requests as and when the requirement arises and obtained approval? It was just days earlier the Public Affairs Office (PAO) of the US Embassy, invited select local media to brief them on the US position that Sri Lanka should honour commitments made in agreements. The veiled warning made news. Top officials in this office, meant to communicate with Sri Lankans, use only junior level local staff to interact with the local media as well as others. The lordly Brahmins are not reachable and US diplomacy is now outsourced. One is not sure whether the Public Affairs Office or the Department of State in Washington DC has changed its policy.

The US Embassy note points out that the US and Sri Lanka “concluded an agreement by exchange of diplomatic notes in 1995 regarding the status of US military personnel and civilian employees of the Department of Defence (DoD) who may be present in Sri Lanka for exercises or official duties.” The note adds, “Importantly, the 1995 agreement provides the equivalent immunities and privileges given to administrative and technical staff under the Vienna Convention on Diplomatic Relations to US military personnel and DoD employees visiting Sri Lanka.” Why has a change become necessary? For whose benefit is it, for the US or Sri Lanka?

The fact that the talks on SOFA had gone on under secrecy, with little or no transparency, is one thing. Attempts to rush it through without proper, careful scrutiny are another. What is worse is when the public are grossly misled by pronouncements which glorify the two agreements on the grounds that Sri Lanka would otherwise lose trade and miss job opportunities. Is compromising on Sri Lanka’s sovereignty and territorial integrity the answer for it? These smokescreens do not help, not when future generations are being mortgaged under different pretexts.

The absence, or the lack of proper governance, particularly by President Sirisena, who is the Minister of Defence and Commander-in-Chief, has been the main cause for this situation. His selection of persons to top slots has proven a colossal damaging failure.  Even sections in the UNF government who oppose him, have assisted and encouraged the two agreements with vigour. For some, it is self before the country and for a few others it is country before self. On the other hand, Prime Minister Wickremesinghe has remained stoically silent.

Amid all this, President Sirisena, who is riding a roller-coaster of contradictions, is now thinking of a Provincial Council election first and the Presidential election to follow. Needless to say, this too could change. He is also seeking amendments to 19A to resurrect powers he lost and have an extended term as President. How he claimed credit for these constitutional amendments after visiting MPs homes and talking to them to vote for 19A is forgotten. He then praised himself for being the only President in the world to forego powers. A wag had a cartoon in a Facebook account with a newspaper headline about the President hanging drug convicts. There was a drawing of Sirisena with a quote – Who said I wanted to hang drug kingpins?

So, now in Sri Lanka, astrologers who are part of the country’s political culture may lose their vocation. It has been taken over by the politicians who are changing things by the day and advertising what they would do by the hour. In both instances, nothing happens. They continue with their rhetoric as the nation suffers over the confusion they cause.

Full text of the Status of Forces Agreement Here is the full text of the draft Status of Forces Agreement (SOFA) which the Government of Sri Lanka is negotiating with the United States. The last formal discussion on the matter took place in Washington D.C. when Foreign Minister Tilak Marapana went there for the annual bi-lateral dialogue in May, this year. Though the Ministry of Defence is fully vested with the all matters related to national security, discussions have been between the United States Embassy in Colombo and the Ministry of Foreign Affairs. US aircraft carrier: Vessels and vehicles operated by or, at the time, exclusively for the US Department of Defence may either, exit and move freely within the territory of Sri Lanka. 28TH August 2018 (1)   The Embassy of the United States of America presents its compliments to the Ministry of Foreign Affairs of the Democratic Socialist Republic of Sri Lanka and has the honour to refer to recent discussions between representatives of our two Governments regarding issues related to United States (U.S) military and civilian personnel identified as members of the U.S Department of Defence, respectively, hereafter referred to collectively as U.S. personnel) and U.S. contractors (defined as non-Sri Lankan companies and firms, and their employees who are not nationals of Sri Lanka, under contract to the U.S. Department of Defence who may be temporarily present in Sri Lanka in connection with ship visits, training, exercises, humanitarian activities, and other activities mutually agreed. Companies and firms, and their employees, not under contract with the U.S. Department of Defence shall not receive any privileges and exempt under this Agreement. (2)   As a result of these discussions, the Embassy proposes that U.S. personnel be accorded the privileges, exemptions, and immunities equivalent to those accorded to the administrative and technical staff of a diplomatic mission under the Vienna Convention on Diplomatic Relations of April 18, 1961, that U.S. personnel may enter and exit Sri Lanka with U.S. identification and with collective movement or individual travel orders; that Sri Lanka shall accept as valid all professional licenses issued by United States, its political subdivisions, or States thereof to U.S. Personnel for the provision of services to authorised personnel, and that Sri Lankan authorities shall accept as valid, without a driving test or fee, driving licences or permits issued by the appropriate U.S. authorities to U.S. Personnel for the operation of vehicles. The Embassy further proposes that the U.S. personnel be authorised to wear uniforms while performing official duties and to carry arms while on duty if authorised to do so by their orders. (3)   The Government of Sri Lanka recognizes the particular importance of disciplinary control by U.S. Armed Forces authorities over U.S. personnel and, therefore, authorizes the Government of the United States to exercise criminal jurisdiction over U.S. personnel while in Sri Lanka. (4)   The Embassy further proposes that the U.S. Department of Defence and U.S. personnel shall not be liable to pay any tax or similar charge assessed within Sri Lanka. The Government of the United States of America and Sri Lanka shall co-operate to take such measures as may be necessary to ensure the security and protection of U.S. personnel property, equipment, records, and official information in Sri Lanka. Such importation, exportation, and use shall be exempt from any inspection, license, other restrictions, customs duties, taxes or any other changes assessed within Sri Lanka. The Governments of the United States of America and Sri Lanka shall co—operate to take such measures as may be necessary to ensure the security and protection of US personnel, property, equipment, records, and official information in Sri Lanka. (5)   The Embassy proposes that vessels and vehicles operated by or, at the time, exclusively for the US. Department of Defence may either, exit, and move freely within the territory of Sri Lanka, and that such vehicles (whether self-propelled or towed) shall be exempt from payment of overland transit tolls. Vessels and aircraft owned or operated by or, at the time, exclusively for the U.S. Department of Defence shall not be subject to the payment of landing fees, or port fees, pilotage charges, lighterage, and harbour dues at facilities owned and operated by the Government of Sri Lanka. Aircraft owned and operated by or, at the time, exclusively for the U.S. Department of Defence shall not be subject to the payment of navigation, overflight, terminal or similar charges when in the territory of Sri Lanka. The U.S. Department of Defence shall pay reasonable charges for services requested and received at rates no less favourable than those paid by the Armed Forces of Sri Lanka. Aircraft and vessels of the U.S. Government shall be free from boarding and inspection. (6)   The Embassy also proposes that the U.S. Department of Defence may contract for any material, supplies, equipment, and services (including construction) to be furnished or undertaken in Sri Lanka without restriction as to choose of contractor, supplier, or person who provides such material and supplies, equipment or services. Such contracts shall be solicited, awarded and administered in accordance with the laws and regulations of the Government of the United States of America. Acquisition of articles and services in Sri Lanka by or on behalf of the U.S. Department of Defence in connection with activities under this Agreement shall not be subject to any taxes or similar charges in Sri Lanka. (7)   The Embassy further proposes that U.S. contractors shall not be liable to pay any tax or similar charge assessed within Sri Lanka in connection with activities under this Agreement and that such contractors may import into, export out of, and use Sri Lanka any personal property, equipment, supplies, material, technology training, or services in the fulfilment of contracts with the U.S. Department of Defence in connection with activities under this Agreement. Such important, exportation, and use shall be exempt from any licence, or other restrictions, customs duties, taxes, or any other charges assessed within Sri Lanka. (8)   The Embassy proposes that U.S. contractors shall be granted the same treatment as U.S. personnel with respect to professional and driver’s licences. (9)   The Embassy proposes that U.S. personnel shall have freedom of movement and access to and use of mutually agreed transportation, storage, training, and other facilities required in connection with activities under this Agreement. (10) The Government of Sri Lanka recognizes that it may be necessary for the U.S. Armed Forces to use the radio spectrum. The US Department of Defence shall be allowed to operate its own telecommunication systems (as telecommunication is defined in the 1992 Constitution and Convention of the International Telecommunication Union). This shall include the right to utilize such means and services as required to ensure full ability to operate telecommunication systems. Use of the radio spectrum shall be free of cost to the U.S. Government. (11) The Embassy proposes that the parties waive any and all claims (other than contractual claims) against each other for damages to, loss of, or destruction of the other’s property or injury or death to personnel of either Party’s armed forces or their civilian personnel arising out of the performance of their official duties in connection with activities under this Agreement. Claims by third parties for damages or loss caused by U.S. personnel shall be resolved by the U.S. Government in accordance with U.S. laws and regulations. (12) Further, the Embassy proposes that this Agreement, upon its entry into force, shall supersede the Agreement regarding the status of U.S. military personnel and civilian employees of the Department of Defence who may be present in Sri Lanka for exercises or other official duties, effected by exchange of notes at Colombo, February 9 and May 16, 1995, which entered into force May 16, 1995. (13) Finally, the Embassy proposes further that our two governments, or their designated representatives, may enter into implementing arrangements to carry out the provisions of this Agreement. (14) If the foregoing is acceptable to the Government of the Democratic Socialist Republic of Sri Lanka, the Embassy proposes that this note, together with the Ministry’s reply to that effect, shall constitute an agreement between the two Governments, which shall enter into force on the date of the Ministry’s reply. (15)         The Embassy of the United States of America avails itself of this opportunity to renew to the Ministry of Foreign Affairs of the Democratic Socialist Republic of Sri Lanka the assurance of its highest consideration.