Columns

• Ambassador Chandraprema involved in procedural errors; thrice overruled by core-group envoys
• New Delhi contests Lanka’s explanation on West Container Terminal deal; Foreign Secretary Colombage conducting foreign policy with India through the media
• President and Election Commission officials hold talks on PC polls in June after legislation is passed
• Fresh issues over burial; site moved from Iranaitivu to Ottamavadi after protests

Some of the developments, both in Geneva and in Colombo, have raised eyebrows. The strategies are not only contradictory but also raise issues over whether they are in keeping with the policy decisions made by the Government. Or are different sections moving in different directions in the absence of a centralised initiative? That appears to have become all too common these days causing confusion and sometimes chaos.

In a statement to the Interactive Dialogue on UN Human Rights High Commissioner Michele Bachelet’s Report on Sri Lanka, Foreign Minister Dinesh Gunawardena declared on February 24 that “Sri Lanka rejects” her report.  He said it had “unjustifiably broadened its scope and mandate further, incorporating many issues of governance and matters that are essentially domestic for any self-respecting, sovereign country.” He called on the UN Human Rights Council to reject the new “resolution which is based on this Report,” and the issue “be brought to a close.”

Foreign Minister Gunawardena told the Sunday Times, “Voting on the Sri Lanka resolution will take place on March 22. However, in Geneva, diplomatic sources did not rule out the likelihood of it being extended to March 23, the last day of the sessions, due to the heavy agenda of the Council. But, there have been no moves by any party to advance the voting date and that is not possible,” he said.

Both last Monday and Tuesday, there were informal discussions (ID 17256) by Council members on the draft resolution on Sri Lanka contained in document A/HRC/46/L 1 dated February 24, 2020 now listed on the council’s official website.  The full text of the zero draft of the resolution was published in these columns last week but it had been changed when submitting it as a formal document of the Council. Monday’s meeting was from noon to 1.30 p.m.  (Geneva time) and subsequently the next day . On Tuesday, the meeting (ID 17264) was from 9.30 a.m. till 11 a.m. (Geneva time). They were conducted through Cisco Webex, (a free video conferencing and online meetings facility with high-definition video and online sharing). There will be another informal online discussion tomorrow from 9 a.m. (Geneva) time.

Covid vaccination in progress. Pic by Indika Handuwala

The draft resolution has already gone through some changes in wordings. The previous preambular paragraph (PP) 2 referred to past council resolutions on promoting reconciliation, accountability, and human rights in Sri Lanka. This para has now been expanded to read: “Recalling also that in Council resolution S11/1 the Council welcomed the resolve of Sri Lanka to begin a broader dialogue with all parties in order to seek a political settlement and to bring about lasting peace and development in Sri Lanka based on consensus among and respect for the rights of those from all ethnic and religious groups, and endorsed the joint communique of 26 May 2009 between the President of Sri Lanka and the United Nations Secretary-General, which  inter alia, underlined the importance of an accountability process for addressing violations of international humanitarian law and human rights law:”

It was that joint communique that forms the genesis of the issues now before the UN Human Rights Council. It came after the visit to Sri Lanka of the then UN Secretary General Ban Ki-moon and the then Government led by President Mahinda Rajapaksa made a commitment to address accountability issues, human rights violations, and violations of humanitarian laws.

In another change, which seemed to back counter-terrorism efforts, a new preambular paragraph has been added. It said, “Reaffirming its unequivocal condemnation of all acts, methods and practices of terrorism and violent extremism conducive to terrorism in all their forms and manifestations, wherever and by whomsoever committed, regardless of their motivation, and of the financial, material or political support of terrorism, as unjustifiable in accordance with applicable international law…” 

There were more than 24 other changes in the new Resolution now titled 050321 Sri Lanka HRC rev 1. Most of them were additions to paragraphs or sentences that have tightened the provisions making them stronger.

A Government rejection of the resolution notwithstanding, the OHCHR Report on Sri Lanka, is very much the source document. A rather strange participant at the informal dialogue on Monday over its contents was C.A. Chandraprema, Sri Lanka’s Permanent Representative at the United Nations in Geneva. Not quite well versed in the intricacies of diplomatic conduct, including in seeking the negotiations of the current text, he did cause some procedural errors which later resonated in the Foreign Ministry in Colombo. A very high-ranking source said, “We are well aware of the events. Sorry, I cannot say anything further.” That indeed was an admission that there was something wrong.

The usual procedure during informal consultations on resolutions before the Human Rights Council is for the chair to give a brief introduction. Thereafter, he or she calls for comments and observations from states and civil society representatives. They examine line by line, paragraph by paragraph of the resolution in question. During virtual meetings online, they raise their hand or message using the area provided for at the bottom of the Webex screen to draw the attention of the chair. As a matter of courtesy, speakers first thank the chair, make their comments, and conclude also with a thank you once more. Even countries hostile usually follow such procedures out of diplomatic courtesy.

Chandraprema began with strong accusations against the core group member countries for politicising “the potential human rights issues they claim.” He said they were treating the Colombo Government “unfairly, vindictively and being judgemental.” He was visibly angry and did not hide his feelings.

When general observations and comments ended, with remarks for and against Sri Lanka, the United Kingdom’s Deputy Permanent Representative to the UN in Geneva, Robert Last, declared that the session now reviews line by line the draft resolution. Envoy Chandraprema intervened and declared that the operative paragraphs (OP) 6 and 7 should be first taken up. Deputy Ambassador Last turned down the request pointing out that it is customary to review line by line in order of the paragraphs.

First to the two paragraphs in question referred to by PR Chandraprema. They have also undergone changes in the wording and they are:

OP 6: 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 strengthen 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, to advocate for victims and survivors, and to support relevant judicial proceedings in Member States with competent jurisdiction;

As pointed out last week, in real terms, if the Resolution is adopted, member countries would be able to compile evidence of future human rights violations so they may institute legal proceeding in their own countries where there is competent jurisdiction. Thereby legal action which should normally be dealt with domestically if the relevant issue arose within Sri Lanka, could now give way for a judicial redress process to be set in motion in a third country, could run counter to the commitment to the sovereignty of Sri Lanka.

OP 7:  Expresses serious concern at the trends emerging over the past year, which represent a clear early warning sign of a deteriorating situation of human rights in Sri Lanka, including the accelerating militarisation of civilian government functions; the erosion of the independence of the judiciary and key institutions responsible for the promotion and protection of human rights; ongoing impunity and political obstruction of accountability for crimes and human rights violations in “emblematic cases”; policies that adversely affect the right to freedom of religion or belief; increased marginalisation of Tamil and Muslim minorities, surveillance and intimidation of civil society, restrictions on media freedom, and shrinking democratic space; restrictions on public memorialisation of victims of war including the destruction of a memorial; arbitrary detentions; alleged torture and other cruel, inhuman degrading treatment or punishment, and sexual and gender-based violence; and that these trends threaten to reverse the limited but important gains made in recent years, and risk the recurrence of policies and practices that gave rise to the grave violations of the past;

This paragraph encapsulates most of the issues raised in Human Rights High Commissioner Bachelet’s 17-page Report, which boldly seeks to categorically predict the future referenced by clear early warning sign which is not in keeping with the objectivity on that high office. Such predictions form the crux of the provisions of the Resolution and have been rejected in toto by the Sri Lanka government. Further Operative Paragraph 1, welcomes this Report of the OHCHR and as per Operative Paragraph 2, calls upon Sri Lanka to implement its recommendations, a document which the Government has unambiguously refused to accept.

Hence, the important question that begs answer is why Ambassador Chandraprema had to participate, that too at such high level. The event was not for envoys but at a lower level. Was it a change of mind by the Government or did he believe his intervention would make a difference? If that be the case, why did the Government tell the Sri Lankan people that both the Report and the Resolution had been rejected? The usual diplomatic practice in the past has been for Sri Lanka to get a friendly country to raise issue on her behalf, in order to maintain the expressed opposition to the machinations of some council members, while seeking to have its own position reflected in the text to the extent possible. Does this mean that there is a different official position in Geneva and another in Sri Lanka?

Of course, China’s delegate to the UN in Geneva stood up for Ambassador Chandraprema. He said the operative paragraphs 6 and 7 be considered by the chair first. Also joining in was the Pakistani delegate, who suggested that they move to Operative Paragraphs 6 and 7. It was of no avail.

At this stage of the informal discussion, Deputy Ambassador Last gave the chair to Rita French, the Human Rights Counsellor of the UK Permanent Mission in Geneva. She resumed the line-by-line discussion when Ambassador Chandraprema insisted once more in first dealing with OP 6 and 7. She said they would discuss the two paragraphs when it came to that part of the resolution. The Sri Lankan envoy’s pleas were rejected, twice by the Deputy Ambassador and once by the Human Rights Counsellor for the UK mission. Does this not reflect badly on Sri Lanka, a country which in the past has not been short of diplomatic skills? If the intention was to pressure the Human Rights Council to back out from some provisions in the Resolution, why then should it have been rejected? It simply means there is no diplomatic direction with the Foreign Ministry in Colombo unable to ensure a cohesive strategy. No one seems to be able to assess the colossal damage that is being caused.

Tuesday’s meeting had to be extended by ten minutes. Ambassador Chandraprema, who took seven minutes, argued that the best practices of freedom of religion and customs associated with them are followed in Sri Lanka. He said it should be a model to the outside world.  He continued to explain that President Gotabaya Rajapaksa has set up a Commission of Inquiry headed by a Supreme Court judge to go into findings in past reports in respect of human rights issues during the era of separatist terrorism.  He complained that the move, just a month ago, has already been pre-judged. He also defended the Government’s move to hire retired military officers. In an obvious reference to the United States, he said in some countries when an administration changed, some 4,000 government positions change. In Sri Lanka, it was only a case of hundreds who change and retired military officers were only twenty or so.

The Indian question

It is not only the events during the informal dialogue in Geneva that should be cause for concern. There is also the question of India, over which politicians and officials have been doing their utmost to win over, especially following the rather ambiguous bottom line spelt out in that country’s statement in Geneva on the Sri Lanka issue, as reported last week in these columns.

Last Tuesday, Media Minister and the Cabinet’s C0-spokesperson Keheliya Rambukwella told the post-Cabinet news briefing that “A Build, Operate and Transfer (BOT) project on the West Container Terminal (WCT) was approved by a Cabinet Appointed Negotiation Committee (CANC) and has been forwarded to the Indian High Commission and the Japanese Embassy requesting them to nominate investors. The Indian Government has approved the proposal presented by the Adani Ports and Special Economic Zone Limited (APSEZ Consortium) while the Japanese Government was yet to name an investor.”

Accordingly, he said, “the Cabinet has approved a proposal made by the Minister of Ports and Shipping to develop the WCT for a period of 35 years as a public-private partnership APSEZ Consortium and its local representatives, John Keells Holdings PLC, and the Sri Lanka Ports Authority (SLPA).” He was asked questions.

Q: The ECT deal was scrapped based on opposition to foreign investment in the project. How does the Government hope to move forward with the foreign investment on the WCT?

A: “The Memorandum of Cooperation (MOC) on the ECT (East Container Terminal) was signed and agreed by the former Government and the Ministers, but we were able to engage in diplomatic discussions with the relevant countries and come to an agreement on the solutions to do away with the ECT and they agreed quite candidly, and we were able to settle that issue.

“The current Government’s policy statement clearly states that it will develop the WCT under a public-private partnership and that it is also open to getting foreign partners involved if it is required. We have made that offer based on the previous agreement to the Japanese and Indian Governments. There has been a response from the Indian Government suggesting a particular company while the Japanese Government is yet to suggest anyone.

“The objections from the port sector unions and sections of the clergy were to the ECT as it was a completed terminal ready for business while the WCT was a completely new thing which will require a comparatively huge investment. As such, there were no objections to the WCT.”

Q: Will India and Japan jointly hold an 85% stake on the WCT, along the same lines as the nearby Colombo International Container Terminal (CICT), in which China’s state-run China Merchants Port Holdings Company holds an 85% stake?

A: The Cabinet Appointed Negotiating Committee will negotiate with the relevant parties on how the BOT (Build, Operate and Transfer) project will work and the details will be announced once the negotiations are complete.

Firstly, Minister Rambukwella’s remarks that “we were able to engage in diplomatic discussions with the relevant countries and come to an agreement to do away with the ECT,” is being strongly contested. The Sunday Times  has learnt both from the Indian High Commission and the Embassy of Japan in Colombo that there were no such discussions. The decision not to award them the ECT was made without their knowledge. Who believes such misleading statements? It only erodes further the Government’s credibility.

An Indian High Commission source, who spoke on grounds of anonymity, said, “We expressed surprise at the mention of the approval by the High Commission and pointed out that investment to Sri Lanka is approved by the government of Sri Lanka and not by the high commission.” Those remarks raise an interesting question. As is clear from the assertions on behalf of the Indian government, they are not a party to this deal. Which means there is no government-to-government deal between Sri Lanka and India over the West Terminal of the Colombo Port. That much is unequivocally clear. The fact — the Government of Sri Lanka is unilaterally offering it to two private companies, one in India and the other (yet to be decided) in Japan. It does reflect an admission of some guilt over the ECT deal.

In such a situation, how could the Government decide to give it to two different companies in India and Japan, without calling for tenders where companies from other countries too could compete? That is the standard procedure. This is a clear move to appease India with a peace offer. However, it does not seem to have worked. After all, the proposal not to give India and Japan the East Container Terminal (ECT) was done without any warning to them. More so after an understanding was reached between President Gotabaya Rajapaksa and Indian Premier Narendra Modi during Rajapaksa’s visit to New Delhi.

Early last, month, State Minister Nalaka Godahewa told The Print, an Indian website, “We were on the verge of a national crisis because trade unions were threatening a national strike, if the MoU for the ECT was not cancelled.

“We asked them (Adani Group and its local partner John Keells) for other options. They themselves asked us whether we could look at WTC, but, with the same equity ratio (85: 15) that was given to China to develop the Colombo International Container Terminal (CICT) of the port. Commercially it would be a better option, they said.”

On Thursday, India’s External Affairs Ministry spokesperson Anurag Srivastava, a Political Officer in the Indian High Commission in Colombo earlier, told a media briefing, “Our high commission in Colombo has already conveyed to the government of Sri Lanka that their media release in so far as the reference to the approval of the high commission was concerned, is factually incorrect. We understand that the government of Sri Lanka has engaged directly with investors on this project.’’

Quite clearly, like the snafu in the conduct of foreign relations, particularly with India, the Government’s strategy has been a colossal failure. Firstly, there has been no Sri Lankan High Commissioner in New Delhi for over 14 months now. It seems ironic that Foreign Secretary Jayanath Colombage is directing the conduct of Indo-Sri Lanka relations on his own. It has been through Indian journalists based in Colombo. This is by no means to cast any aspersions on their role. They are doing their job. A closer study reveals how the Foreign Secretary has been appealing through them to “Mother India” for help. In another interview, he declared “we know India will not let us down.”

Are these utterances to bring pressure upon the Indian leadership to support Sri Lanka in Geneva? Those concerned, if they are serious, should re-think that strategy. It would be prudent now for Sri Lanka to limit playing out Geneva strategy through a microphone with the media and seek support from Council members in the event of a vote. Such numbers should have been kept confidential to keep the proponents guessing. On one earlier occasion, a Sri Lanka envoy informally secured India’s support but the news soon made headlines. The Indian position changed immediately.

If it were not the job of the High Commissioner, the Government could have even considered a special envoy to visit New Delhi to make Sri Lanka’s case. However, it is the Government’s own blunders that have virtually closed the doors. It has succeeded in creating suspicions on its bona fides and given cause for concern over different alliances. Even in other important stations like Canberra (Australia), Ottawa (Canada) and Riyadh (Saudi Arabia) there are no Sri Lanka envoys for the past many months. Foreign Secretary Colombage was also joined by co-Cabinet spokesperson Minister Keheliya Rambukwella who declared that he hoped India would support Sri Lanka.

Sri Lanka’s 30-page response to the Human Rights Commissioner’s Report came up for discussion when the group tasked with responses to the UN Human Rights Commissioner’s Report met at the residence of Minister G.L. Peiris in Narahenpita this week. The team is headed by Foreign Minister Dinesh Gunawardena. The subject of discussion was why the UN Human Rights Council Secretariat had not posted on its website Sri Lanka’s response to Human Rights High Commissioner’s Report. It transpired that Ambassador Chandraprema had written a letter of protest. It has since been posted. Details of the response appeared in the Sunday Times (Political Commentary) of February 14.

COVID-19: Cremation and burial

There is also a change in the draft resolution about mandatory cremation of Covid-19 victims.  The word cremation has been dropped. The Resolution notes that the measures “had an impact on religion or belief and exacerbated the marginalisation of and discrimination of the Muslim community.” There was further embarrassment to the Government over the burial issue for Muslims who die of the deadly virus. If Pakistan Prime Minister, Imran Khan was responsible for reversing the Government’s mandatory cremation decision, it was Minister Douglas Devananda who ensured that burials take place in mainland Sri Lanka. Muslims were angered by the move to bury their dead in Iranaitivu and charged it was patently discriminatory. This was after protesting to President Gotabaya Rajapaksa over the burial in the island of Iranaitivu off the north west coast. On Thursday, President Rajapaksa ordered the Chief of Defence Staff and Army Commander, General Shavendra de Silva, to find an alternative location. “Give me 24 hours,” he had responded. It came amidst the ongoing vaccination campaign.

A four-acre site at Ottamavadi in the Batticaloa district was identified. Troops were sent to clear the area. The four-acre site had earlier been offered to the Government by the Ottamavadi Pradeshiya Sabha but was not taken. The first funerals took place there on Friday. That the Government would have averted embarrassment, loss of face and public displeasure by choosing Iranaitivu and later shifting to Ottamavadi needs little mention. It is another manifestation of how things are moving in different directions at different times raising serious issues over governance.

It is pertinent to note that mandatory cremations have been in force for nearly a year. During that period, Muslim leaders and groups made fervent appeals to the Government to allow burials but their request was not allowed. There was strong opposition. Though unexplainable, such opposition did not manifest when burials in Ottamavadi were allowed.

PC polls

The front-page report in the Sunday Times last week over the conduct of Provincial Council elections in June drew considerable attention and prompted Provincial Councils Minister Janaka Bandara Tennekoon to claim that there was no such move. The fact is that President Gotabaya Rajapaksa plans to conduct PC polls by June after legal formalities are cleared.

He discussed the subject with the Election Commission members last week. The idea is to explore prospects of holding polls in the third week of June, this year.

Election Commission Chairman, Namal G. Punchihewa told the Sunday Times, “We emphasised the need to conduct PC elections early. We pointed out that though the PC system is in operation, there were no public representatives.”

The polls chief said the President acknowledged the position. He said public representatives should be elected soon. “We have told him that once legal formalities are concluded, we could hold the elections within two and half months.” Government sources explained yesterday that the conduct of a June PC poll would still be conducive for a victory for them, and a delay would only diminish their chances incrementally. This is not only in respect of the country’s worsening economy and the ongoing Covid-19 pandemic but also in the light of other political developments. Another reason, these sources said, is the division within the opposition. As is now known, India has also insisted on the early conduct of the PC polls and the subject is listed as part of the Resolution on Sri Lanka at the Human Rights Council.

The recent weeks have shown that the conduct of the country’s diplomatic initiatives or foreign relations remains at a dismal level. When there is stocktaking after the Resolution is adopted by the UN Human Rights Council, it would become abundantly clear, if not already, that many a debacle has been caused by the blunders of a handful. That it would be a major contributory factor should open the eyes of those in control. It is the country and the people’s reputation that is at stake. Amateurism and returning political favours by placing the inefficient in top slots is not the answer. Will there be lessons learnt?