Columns

• Lanka suffers worst-ever defeat at UNHRC sessions, traditional friends, including Muslim countries, withhold support on Covid cremation issue
• More funds sought from UN for collection of alleged war crimes evidence; Investigators to visit Sri Lanka and several countries
• 22nd Amendment debate delayed; Wimal alleges Mola Hathano manipulating members on dual citizenship issue
• AG says two-thirds majority required; bill unlikely to be passed

By Our Political Editor

Amidst this, what has remained forgotten is a probe on how the mishandling occurred and who else was responsible. The new government has ignored this aspect altogether, with perhaps those within, manipulated from behind the scenes by a de facto leader, operating behind the scenes. Last Thursday, however, the international community that has seen the misery caused to people stressed the need for such a probe and to deal with those responsible.

This is easily a significant highlight of a resolution on “promoting reconciliation, accountability and human rights in Sri Lanka.” Twenty-one countries voted in favour and twenty abstained. Voting against the resolution or in support of Sri Lanka were seven countries, the lowest so far. Those who supported the resolution were: Argentina, Armenia, the Czech Republic, Finland, France, Germany, Honduras, Lithuania, Luxembourg, Malawi, the Marshal Islands, Mexico, Montenegro, the Netherlands, Paraguay, Poland, the Republic of Korea, Ukraine, the United Kingdom, and the United States.

The countries that abstained are Benin, Brazil, Cameroon, Cote d Ivoire, Gabon, Gambia, India, Indonesia, Japan, Kazakhstan, Libya, Malaysia, Mauritania, Namibia, Nepal, Qatar, Senegal, Somalia, Sudan and th eUnited Arab Emirates. The countries that voted against the resolution and thus for Sri Lanka are Bolivia, China, Cuba, Eritrea, Pakistan, Uzbekistan, and Venezuela.

Other than the references to the worst economic crisis, another new area where the resolution has focused considerable attention is the crisis of corruption. Far from being political, these are factors that have affected every Sri Lankan. It has also focused for the first time on the recent public protests to oust President Gotabaya Rajapaksa and matters arising from it. Most of the other provisions in the resolution, however, have found reference in previous resolutions, too, and could be argued as perhqps political in nature. Yet, the movers have ceded a basis for such a move and declared they have collected substantial evidence.  Considerable attention has been focused on them, but the new elements clearly override the past issues. Therefore, it raises an inevitable question — what has been the government’s strategy to counter them? Were there any?  After all, economic mishandling and mounting corruption are burning issues over which the blame cannot be placed on the Tamil diaspora, a foreign country or the opposition.

The final score card 2022: How the UNHRC member-states voted on the latest Sri Lanka Resolution

Thus, the latest resolution is the toughest against Sri Lanka and could have far-reaching consequences. Though not necessarily in that order, here are the references to the current economic crisis, corruption, and the recent protests. They are all new:

• Preambular paragraphs: 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 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,
• Emphasising that peaceful protests can make a positive contribution to the development, strengthening and effectiveness of democratic systems, and to democratic processes, including elections and referendum, as well as to the rule of law, and stressing the importance of full respect for the freedom to seek, receive and impart information, including the fundamental importance of access to information, and for democratic participation, transparency, and accountability and of combatting corruption.
• Reaffirming its unequivocal condemnation of all acts, methods and practices of terrorism, including those committed in Sri Lanka in April 2019 that led to a large number of injuries and deaths, and reaffirming also that all measures taken to combat terrorism must comply fully with State’ obligations under international law, in particular international human rights law, and, as applicable, international refugee law and international humanitarian law.
• Expresses concerns at other human rights impact of the economic crisis, including as a result of increased food insecurity, severe shortages in fuel, shortages in essential medicines and reductions in household incomes, while stressing the need to promote and protect the right of the most marginalized and disadvantaged individuals, including daily wage earners, women, children, older persons and persons with disabilities.
• Also expresses concern at other human rights developments since April 2022 , including violence against the arrests of peaceful protestors, as well as violence against 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.
• Recognising the importance of preserving and analysing evidence relating to violations, 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 and 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.
• 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.

The IMF Managing Director Kristalina Georgieva has publicly declared that mismanagement was the main cause for the unprecedented collapse of the Sri Lanka’s economy. An IMF delegation that worked on an Extended Fund Facility (EFF) for Sri Lanka has acknowledged there was corruption and called for deterrent measures. A few western governments, therefore, have chosen to aid Sri Lanka through agencies of the United Nations to avoid funds ending up in the pockets of politicians. Therefore, a complete rethink of the outcome of the 51st sessions of the UN Human Rights Council is a must for the political leadership to discern what was wrong than to scream hoarse that Sri Lanka is a victim of a political campaign. If indeed there were such cases, an effective foreign service could have dealt with the issue in Geneva. Alas, diplomatic postings today are for the political favourites and not for the capable. Even Foreign Minister Ali Sabry’s Media Division in Colombo has been selective in distributing material related to the UNHRC. Sections of the media were deprived of his statements. This is despite Minister Sabry conducting zoom news conferences from Geneva for the Colombo media. Why blame other countries for not doing their job?

It is clear from the voting pattern that only one country from Africa (Eritrea) voted in favour of Sri Lanka. In what seemed an interesting development, Muslim lobby groups in Geneva were campaigning jointly with Tamil diaspora groups. Their thrust, particularly to the West Asian countries, was the hardships caused to Muslims by the cremation of their Covid dead bodies. Even when the practice was rectified, burial was only allowed in one cemetery. This led to a situation where only Pakistan voted against the resolution and all others abstained. Countries like the UAE and Qatar which have traditionally supported Sri Lanka and voted against previous resolutions, this time abstained. Indonesia, Libya, Malaysia, Somalia, Sudan along with Qatar and the UAE abstained due to this single point lobbying.

The lack of strategy or a plausible narrative made it that Sri Lanka only achieved seven votes in support. This was a historic low. In 2009, Sri Lanka moved a counter resolution and obtained the support of 29 of the 47 countries. Since then, in 2012 when the US brought the first resolution, Sri Lanka managed to get 15 countries voting against that resolution. In 2013 it was 13 and in 2014 it came down to 12. Resolutions between 2015 and 2019, the three resolutions 30/1, 34/1 and 40/1, were all co-sponsored by Sri Lanka.  In 2021, resolution 46/1, Sri Lanka managed 11 votes in support. This year that has come down to only seven in support of Sri Lanka.

The Core Group of countries again was not all that pleased as it only managed 20 yes votes in support compared to the 22 last year. Considering that they were expecting at least 22 this year as well even with the current composition, their failure to muster more than 20 was also seen as a setback. The fact that they managed to get all but one Muslim country to abstain and all but one African country to vote in favour or abstain can also be seen as a success preventing many more no votes, rejecting the resolution.

Leading up to the vote on Thursday Johannes Huisman, Director at the Office of Programme Planning and Budget Division of the UN, wrote to the Human Rights Council Secretary Hui Lu explaining the budget implications arising from draft resolution A/HRC/51/L.1/Rev.1 of the Human Rights Council.

Huisman explained, primarily, to implement the mandate of the two key Operative Paragraphs, (OP8 and OP19), OHCHR will need 16 staff members and their related expenses, which will cost USD 6.092m over the next 24 months to September 2024.

1. Under the terms of operative paragraphs 8 and 19 of draft resolution A/HRC/51/L.1/Rev.1, the Human Rights Council would:

(a) Recognise 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 decide 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 (OP. 8);

(b) Request 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 (OP. 19).

Interestingly, Huisman wrote in relation to the then resolution 46/1 that the OHCHR will need only 12 staff for the next 18 months and their related expenses was to cost USD 2.856m. The 5th Committee at the UN General Assembly cut that budget by some 0.75m requested for that implementation. This cut was to be applied to the 9 months of 2022 budget allocation. However, in this new budget request for this 51/L1/Rev1, a further USD 0.567m has been allocated for the remaining 3 months of 2022. This will wipe out the suggested cut that was made against the budget for 46/1.

This new budget request allocation is as follows: 2022 (next 3 months) USD 0.567m, 2023 (12 months) USD 3.398m and 2024 (9 months) USD 2.127m, totalling a staggering USD 6.092m.

Travel cost included in this budget request is as follows:

2022

One trip of 5 working days within Europe by two staff for information collection

2023

One trip of 5 working days within Europe by two staff for information collection

One trip of 5 working days to Colombo, Sri Lanka by three staff for awareness raising and information collection.

One trip of 7 working days plus weekend to a regional location to be defined by two staff to organise and participate in consultations with victims and information collection.

Two trips of 5 working days to Sri Lanka by one staff to hold consultations in preparation for the oral updates, written update to the HRC.

2024

One trip of 5 working days to a regional location to be defined by two staff for information collection.

One trip of 5 working days to North America by two staff for information collection.

One trip of 7 working days plus weekend to a regional location to be defined by two staff to organise and participate in consultations with victims.

One trip of 5 working days to Sri Lanka by two staff to hold consultations in preparation for comprehensive report to the HRC.

This lists travel to Sri Lanka by various staff at various points in the next 24 months and some of these are to collect information. It is not clear whether this include evidence gathering.

Other cost include, Satellite images/analysis and commissioning with UNITAR/UNOSAT (one in 2023 and one in 2024). This is clearly to collect, analyse and save evidence of satellite images obtained during the height of the war.

The allocation for funding for fresh investigations, particularly those relating to economic crimes and related matters, is a step forward by the Human Rights Council Secretariat. The findings of those investigations will throw more light to how the economic crisis evolved besides identifying instances of human rights violations.

When the resolutions were defeated earlier, at least two different foreign ministers found a way out by adding the votes in favour of Sri Lanka and the abstentions together and claiming victory. This time, however, Sri Lanka’s Ministry of Foreign Affairs categorically rejected resolution A/HRC/51/L.1 (Rev.1) titled “Promoting reconciliation, accountability and human rights in Sri Lanka” tabled by the United Kingdom, Canada, Germany, Malawi, Montenegro, North Macedonia, and the United States, which was adopted by a vote at the Human Rights Council (HRC) in Geneva on 06 October 2022. Foreign Affairs Minister Ali Sabry delivered the statement on behalf of Sri Lanka as the country concerned and called on the Members of the Council to reject the resolution by voting against it. In support of Sri Lanka’s position opposing the resolution, the delegation of Pakistan called for a vote. Over half of the members of the Council did not support the resolution with 07 countries (Bolivia, China, Cuba, Eritrea, Pakistan, Uzbekistan, and Venezuela) voting against the resolution and 20 countries abstaining on the vote. Twenty countries voted in favour of the resolution.

“Representatives of Pakistan, Brazil, China, Venezuela, Japan and Republic of Korea made statements in support of Sri Lanka prior to the vote….”

Quite clearly, it is immaterial whether Sri Lanka has rejected the resolution or not. That too after fielding delegations to travel to Geneva and spending considerable foreign exchange trying to argue Sri Lanka’s case. Most importantly, a clear strategy has been absent except for most speaking going from Colombo to deliver rhetoric and coming home to travel again. It will not stop the UNHRC’s new thrust that has got under way.

22nd Amendment

That is not the only issue of concern for the government. So is the 22nd Amendment to the Constitution. It was originally listed to be debated in Parliament this week. The debate on the 22nd Amendment was set to get off on Thursday morning with 14 hours set for the debate. At the height of the political crisis, it was President Ranil Wickremesinghe who assured that these amendments would be brought in to shed powers enjoyed by the executive President.

It became clear that Basil Rajapaksa, whom National Freedom Front (NFF) leader, Wimal Weerawansa described in Parliament as Mola hathano (a person with seven brains) was blocking the efforts. The first indications that the debate will not see the light of day came during a meeting of government parliamentarians. A section voiced opposition to the amendments in its existing format and wanted changes. They include the retention of a provision that allowed those holding dual citizenship to be presidential candidates. President Wickremesinghe had given Prime Minister Dinesh Gunawardena the task of lobbying groups in Parliament for their support. He spoke to them.

Hours before the debate was due to start Justice, Prison Affairs and Constitutional Reforms Minister Wijeyadasa Rajapaksha also had given approval for the 22nd Amendment. An official statement was issued by Parliament that the debate was on Thursday.

Prime Minister Gunawardena trying to explain reasons for the postponement of the debate said originally Chief Opposition Whip Lakshamna Kiriella had agreed to the 22A debate. That meeting was also attended by Sri Lanka Muslim Congress Leader Rauff Hakeem and Democratic People’s Front leader Mano Ganesan. However, later, Kiriella telephoned him and said they were not supporting the amendment.  He said that further discussions were held with members of the Utthara Sabahawa and there were positive responses.

Opposition Leader Sajith Premadasa said the government had failed to give positive responses to some of the issues raised and therefore it was difficult to support the amendment.

On Friday MP Wimal Weerawansa raised further questions on the decision to suddenly postpone the debate, claiming that certain government party members were being manipulated by a person in the US (by Mola Hathano) from outside  of parliament as the clause which bars dual citizenship holders being MPs has been included in the amendment.  He said at a meeting presided over by the Speaker it was decided to go ahead with the debate, but the government had taken a unanimous decision to postpone the debate.

The Speaker stepped in to explain that it was a collective decision supported by the main opposition as well. But Chief Opposition whip Kirella clarified to say that the officials present at the meeting had explained that a simple majority was sufficient to pass the amendment, but the Attorney General who arrived at the meeting had said that a two thirds majority was required. “That was the reason for the postponement,” he added divulging the reason for the postponement.

Other government sources said that even if the draft 22A is debated on October 22, it was highly unlikely that it would be passed by Parliament. This is particularly in the light of the requirement of two thirds vote. Thus, a pledge to clip the power of the executive presidency will not materialize.