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• Public Security Minister Alles and Defence Secretary Gunaratne prepared the document without consulting the Attorney General
• UNHRC finalising strongest-ever resolution against Sri Lanka; focus on links between corruption, economic crisis and human rights; final vote on Thursday

By Our Political Editor

A day before he emplaned to London to attend the funeral of Queen Elizabeth II, President Ranil Wickremesinghe received a hand-delivered package at his temporary Colombo residence.

It turned out to be a file jointly prepared by the Ministry of Defence and the Ministry of Public Security. Included was a draft Order for his signature for publication in the Government Gazette. Two prime movers, Public Security Minister Tiran Alles and Defence Secretary Kamal Gunaratne had spent considerable time putting together the order with outside legal help. It sought to declare eight different locations in the City of Colombo as High-Security zones (HSZ). That was their answer to possible attacks or incidents in these locations and not tighter security precautions.

It is not customary for a President, who, as Minister in charge of the subject of Defence, to check on the veracity of such Orders. Nor is he expected to check on the exact legal provisions under which the Order is being made. So, President Wickremesinghe placed his signature without any hesitation. The file was returned so it may be sent to the government printer. After all, one of those making the recommendation, Minister Alles, is a member of his Cabinet and was responsible for the Police. The other, retired Major General Kamal Gunaratne is Secretary to his own Ministry of Defence and oversaw the armed forces. It was assumed, as is the case often, that they had exercised the correct judgement and adhered strictly to legal requirements.

In terms of the Gazette notification published on September 16, the High-Security Zones (HSZ) are: (1) the Parliament complex, (2) Supreme Court Complex, High Court Complex, Colombo, Magistrate’s Court Complex, Colombo, and the Attorney General’s Department. (3) Presidential Secretariat, President’s House, Sri Lanka Navy Headquarters and Police Headquarters. (4) Ministry of Defence and Sri Lanka Army Headquarters, Akuregoda (5) Sri Lanka Air Force Headquarters, Slave Island (6) Prime Minister’s Office (Flower Road), (7) Temple Trees, Kollupitiya and (8) official residencies of the Secretary to the Ministry of Defence and the Commanders of the Tri Forces.

The gazette notification defines the boundaries for each of these locations. The Defence Secretary, listed as Competent Authority, has been given wide-ranging powers for the implementation of the Orders. At these locations, public gatherings are banned if no prior permission is obtained. The chief occupants living in buildings within the HSZ are required to provide to the Police a list of persons who are permanent or temporary residents. Parking of vehicles will require permission of the Competent Authority.  Lighting of crackers in the HSZ is prohibited. Construction of buildings or repairing them without permission is prohibited.  Police officers have been empowered to visit premises for inspection.

Foreign Minister Ali Sabry addressing the UNHRC sessions in Geneva, outlining measures Sri Lanka has taken to address human rights concerns

That the setting up of these HSZs has its origins in the protests that had been held since March to oust former President Gotabaya Rajapaksa from office is all too well known. On the one hand, the fact that they were established is proof that the security establishment fears a similar recurrence. Whether this is based on hard intelligence, or the usual assumptions is not clear. On the other, it comes as a indictment on those spearheading both the security forces and the Police. It is the same entities that 16 years ago militarily defeated the Liberation Tigers of Tamil Eelam (LTTE). This was possible due to increased recruitment, specialised training, and the induction of modern equipment. Those strengths remain and are growing. Therefore, why is it that those responsible for the defence and security establishment are unable to allow the country’s law and order to prevail in eight locations, should there be any unexpected security breaches? Surely, they have all the wherewithal to deal with them? After all, the Tiger guerrillas defeated an enemy that held territory in the North and dominated vast areas in the east.  It is relevant to note that a highly controversial top police officer, aspiring for a high position, canvassed strongly for the tough new measures. He is known to be having the ear of some political leaders involved in this exercise.

At the time of signing, President Wickremesinghe was unaware that the Attorney General’s Department had not been consulted on any matters related to the order. It is the Department’s main responsibility to provide expert legal services and advice to the Sri Lanka government institutions, corporations, and statutory Boards and to play a pivotal role in the delivery of the Governments’ broader objectives. This was confirmed, by highly placed government sources who revealed that when Presidential Secretary Saman Ekanayake inquired from Attorney General Sanjay Rajaratnam. He made it clear that neither he nor his department was consulted. When Ekanayake had asked whether he could defend any action on the gazetted Order in courts, Attorney General Rajaratnam had said he could not do so and advised that it be repealed. Also admitting to Presidential Secretary Ekanayake, that the AG was not consulted, the same sources said, was the Legal Officer of Police Headquarters, DIG Asanka Karavita. In the backdrop of these developments, a move by the Ministry of Public Security to issue a public statement was dropped. According to a source at the Ministry, a draft had in fact been sought from the Police Chief, Chandana Wickremeratne.

After President Wickremesinghe, who was by then in London, learnt from Secretary Ekanayake that the Attorney General’s recommendation to repeal the Gazette containing the Order, evidently deemed not legal, the Sunday Times learnt that he telephoned Minister Alles. During the ensuing conversation, the Public Security Minister appealed to President Wickremesinghe to let things remain saying that the issue would cool down as days go by. However, President Wickremesinghe had been emphatic that the correct legal process should be followed. He was not in favour of continuing with the measures.

President Wickremesinghe had wanted to ensure that the gazette notification should be annulled immediately. This is how most media outlets reported that the gazette Order would be annulled. However, it has been brought to the President’s attention that such a course of action should be initiated by the signatory himself and not any other. This was in keeping with a ruling given by former Chief Justice Sarath N. Silva, whilst delivering judgment in a previous case.  One of the first tasks for the President, who returned from Japan and the Philippines on Friday, would be to sign an order cancelling the HSZ declaration published in the September 16 gazette notification. That no doubt will come as a warning to those who have already brought considerable disrepute to the government and the country and the outside world. There were accusations in Sri Lanka and abroad that the country was on the road to a dictatorship.

It is not clear whether the Attorney General was bypassed for fear that he would have shot down the Order. This is reportedly on the grounds that the Order published in the gazette has been promulgated under the Official Secrets Act (Section 2 of the Act, No: 32 of 1955). A broader legal consensus is the fact that the Act in question has no provision for the setting up of HSZs.

This position has been well articulated in a petition to the Supreme Court by two Samagi Jana Balavegaya (SJB) parliamentarians, Harshana Rajakaruna and Mujibur Rahman. The petition said that “we……categorically state that the Act does not mention the phrase “high-security zone” or any such related terminology within its legal provisions. The purpose of this law is to regulate access to official secrets and secret documents maintained in areas classified as “prohibited places” vis-à-vis establishments, organisations or institutions intended to be or capable of being used for the purpose of defence. In this context, the petitioners state that Section 2 of the said Act does not grant a carte blanche unchecked power to the Minister of Defence to declare any area as a “prohibited place,” and order under Section 2 may be declared…..” The petitioners from the main opposition have said, “the purported Order in its entirety is grossly erroneous, unjustifiable, ultra vires, irrational, illegal, arbitrary, bad in law and contrary to the provisions of the Official Secrets Act. The petitioners state that the said purported Order is grossly inconsistent with the provisions of the Official Secrets Act.

Tough new UNHRC resolution

The government is fortunate that time factors prevented this issue from becoming a subject before the ongoing 51st sessions of the UN Human Rights Council in Geneva (UNHRC). After a last informal session on Thursday (September 22), the Council has agreed on a draft resolution on “promoting reconciliation, accountability and human rights in Sri Lanka.”

It has been sponsored by 26 countries. Ten of whom are Council members. These countries are Albania, Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Iceland, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, the Marshall Islands, the Netherlands, New Zealand, Norway, Slovakia, Sweden, Turkey, the United Kingdom, and the United States.

The member countries are Czechia (former Czech Republic), Finland, France, Germany, Lithuania, Luxembourg, the Marshall Islands, the Netherlands, the United Kingdom and the United States.

The submission of the final draft resolution by the core group came a week ahead of the deadline of Wednesday, September 28, at 1 p.m. (Geneva time). It is listed as A/HRC/51/L.1. This submission on September 21 came despite the core group having organised the third informal meeting to review the second draft of the resolution for Thursday, September 22. Except for NGO speakers from Sri Lanka who were physically present in Geneva, no other NGO received an opportunity during the initial two informal sessions that were held on Friday September 16. The idea of the third informal session was to give the rest of the main NGOs like the Human Rights Watch, Amnesty International, and Asia Forum an opportunity. Most including some from Sri Lanka spoke via remote access and made various observations and comments. None of these comments have found a place in the submitted draft. It is conceivable that the core group is counting the votes and making sure that it has sufficient support for the resolution as it is before making any further amendments.

The deadline for further written revisions is open until Monday, October 3, at 1 p.m. (Geneva time) and any written amendment by 3 p.m. (Geneva time). The vote on the resolution is due to be held at the UNHRC’s main chambers on Thursday, October 6 in the afternoon. A core group source says they believe they will secure at least 22 out of the 47 votes.  Last year it was 22 in favour and 11 against with 14 countries remaining neutral by abstaining. This is when the then Foreign Minister Dinesh Gunawardene infamously counted the abstentions too as rejection and claimed victory by adding the real rejections plus the abstentions to make 25 vs the 22 countries which supported the resolution. The precedent was set earlier by former Foreign Minister, G. L. Peiris, who too added the abstentions and votes against to claim a ‘total victory.’

This time the absence of a cohesive strategy before the UNHRC is causing greater difficulty. Sri Lanka’s Permanent Representative to the UN in Geneva, C.A. Chandraprema, is struggling to reach double figures and more. The composition of the 47 voting countries has changed since March 2021 and the US is now back as part of the core group and its lobbying efforts do make a difference. Resolution 46/1 in March 2021 was co-sponsored by some 40 countries.

Tamil National Alliance parliamentarian Abraham Sumanthiran addressed the Council on behalf of Pasumai Thayagam, an NGO-based in Chennai. He made an intervention at the first informal session calling on the core group to include the importance of political solutions through devolving political authority within the operative paragraphs as well as the preamble paragraphs, where it was stated in the original draft and in all previous resolutions.

This request was considered by the core group and the second draft which was reviewed at the third informal session had already included a new operative paragraph 9 which states: “Notes the initial outreach of the Government of Sri Lanka to overseas persons of Sri Lankan origin encompassing all communities and generations, and encourages the Government to engage further in a broad-based consultative process with stakeholders from all affected communities and to provide remedies to achieve meaningful reconciliation, devolution of political authority, an improved situation of human rights, and lasting peace.”

Interestingly, however, at the third informal session the Core Group’s chair, the UK’s Bob Last, refers to this paragraph as wording and a request received from the Japanese representative.

The other QUAD partner Australia too made supportive interventions at the informal session and is now part of the co-sponsor of this new resolution. India and Japan although being vocal at these sessions, will abstain, and Australia and the US have already co-sponsored the resolution.

The Sunday Times learns that Ambassador Chandraperuma will return to Colombo after the conclusion of the UNHRC’s 51st session.  Himalee Arunatillake, currently Ambassador to Nepal, is to replace him. Earlier, a Foreign Ministry official was earmarked for the post. In his speech, Foreign Minister Ali Sabry told the UNHRC that Sri Lanka did not want to take a confrontational path, but instead sought cooperation and collaboration. Chandraprema walked out of the third informal session after making an abrupt intervention saying that Sri Lanka was profoundly disappointed that none of the amendments recommended by the country had been included in the second draft of the resolution under consideration. The Ambassador was later seen at the Serpentine Bar at the UNHRC lobbying for support from the Nigerian Delegation. It later transpired that the two ladies with whom he was engaging were delegates from the Election Commission of Nigeria. They had visited Geneva from Lagos. Also, it so happens that Nigeria is not a voting member of the Council this year.

It is by far one of the strongest resolutions in terms of the wide variety of issues raised and the implications to Sri Lanka. This draft resolution refers to the economic crisis at least in five different places and corruption being mentioned in seven different places.

In the draft resolution Operative Paragraph 13 refers to “Also calls upon the Government of Sri Lanka to address the ongoing economic crisis, including by investigating and, where warranted, prosecuting corruption, including where committed by public and former public officials, and stands ready to assist and support independent, impartial and transparent efforts in this regard;”

Recent actions against protestors and consequences are encapsulated within Operative Paragraph 4 and Operative Paragraph 16.

Operative Paragraph 4 says: “Also expresses concern at other human rights developments since April 2022, including violence against and the arrests of peaceful protestors, as well as against government supporters, resulting in deaths, injuries, destruction and damage to the houses of members of Parliament, and stresses the importance of independent investigations into all attacks and that those found responsible be held to account.”

Operative Paragraph 16 says,”Notes the introduction in March 2022 of amendments to the Prevention of Terrorism Act, that detentions under that law continue, and the expressed intention of the Government of Sri Lanka in this regard to introduce new legislation on combatting terrorism, and encourages the Government to engage in consultation with civil society, the Office of the High Commissioner and relevant special procedure mandate holders in the preparation of new legislation, in order to ensure that any legislation on combatting terrorism complies fully with the State’s obligations arising from international human rights law and international humanitarian law.”

It is noteworthy to point out that the order in the gazette over the setting up of HSZ would have found a place if it had been declared earlier. It was fortunate that the country was saved considerable embarrassment by this ill studied move.

These become significant when considering the GSP plus Tariff concession that Sri Lanka enjoys from the European Union. This is now under review and a decision is due by the first quarter of next year. A delegation is due to visit Sri Lanka this month to assess the current situation about the conditions that a country must satisfy to enjoy this preferential arrangement. One of Sri Lanka’s largest trading partners is the European Union.

The most biting Operative Paragraph in the draft resolution is number 8. It says, “Recognises the importance of preserving and analysing evidence relating to violations and abuses of human rights and related crimes in Sri Lanka with a view to advancing accountability, and decides to extend and reinforce the capacity of the Office of the High Commissioner to collect, consolidate, analyse and preserve information and evidence and to develop possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka, to advocate for victims and survivors, and to support relevant judicial and other proceedings, including in Member States, with competent jurisdiction;”

By adding two extra words “extend and reinforce” to the wording used in 46/1 of March 2021, the Core Group has revitalised the demand for a larger budget allocation for this “Sri Lanka Accountability Project” (SLAP). The intention is to increase the capacity of the team, which is already working on this project of collecting, investigating, consolidating, analysing, and preserving evidence. It functions under a separate Secretariat under the Office of the High Commissioner for Human Rights.

Op19: “Requests the Office of the High Commissioner to enhance its monitoring and reporting on the situation of human rights in Sri Lanka, including on progress in reconciliation and accountability, and on the impact of the economic crisis and corruption, on human rights, and to present an oral update to the Human Rights Council at its fifty-third and fifty-fifth sessions, and a written update at its fifty-fourth session and a comprehensive report that includes further options for advancing accountability at its fifty-seventh session, both to be discussed in the context of an interactive dialogue.”

Preambular paragraphs in the resolution have referred to the ongoing economic crisis. They are:

“Recognising the severe economic crisis that has deteriorated in Sri Lanka since late 2021, exacerbated by the coronavirus disease (COVID-19) pandemic, and the profound impact that this has had on the people of Sri Lanka, including women-led households,

Underscoring the importance of addressing the underlying governance factors and root causes that have contributed to that crisis, including deepening militarization, lack of accountability in governance and impunity for serious human rights violations and abuses, which remains a central obstacle to the rule of law, reconciliation and sustainable peace and development in Sri Lanka,

Recognising the recent efforts of the Government of Sri Lanka to address the ongoing economic crisis, and welcoming the staff-level agreement reached between the Government and the International Monetary Fund,

Recognising also that the promotion and protection of human rights and the prevention of and fight against corruption are mutually reinforcing, that corruption can have a serious negative impact on the enjoyment of human rights, and that the poor and those in marginalised and vulnerable situations, including women and girls, are at particular risk of suffering from the adverse impact of corruption on the enjoyment of human rights,

Also, the Operative Paragraph (13), referred to earlier, has called upon the government to address the ongoing economic crisis. Most importantly, the UNHRC has said it stands ready to support an independent, impartial, and transparent investigation of corruption.  The provision above covers those responsible for pushing the country into the current economic crisis and suspected corrupt activity by them. These cover serving officials and former officials which include politicians who held positions. The inquiry mechanism under the OHCHR will not only investigate such activity but has also offered to assist the government if “independent, impartial and transparent” investigations are conducted by it. It is relevant to note that some leading countries have detailed information after inquiries conducted by their investigative agencies before they were called off due to non-cooperation from Colombo. An example is the Federal Bureau of Investigation (FBI) in the United States about the foreign assets of some politicians who wielded strong political clout. Non-co-operation by their local counterparts and pressure from politicians at that time stalled the probes.

Thus, unlike the past resolutions of the UNHRC, the one on which the council will vote on October 6 has greater significance. The matters that will surface from investigations will have an impact on those responsible for the economic crisis and corruption which has become endemic and cannot be swept under the carpet. For the next two years, the period for which the resolution is valid, is sure to haunt the political leadership responsible.