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This is when the United Kingdom with the core group Canada, Germany, Malawi, North Macedonia and Montenegro handed in the final resolution to the UNHRC Secretariat. It will now come up for vote on March 22 or the next day. This came after two further rounds of informal consultations last Monday (March  and Wednesday (March 10). This has seen a further strengthening of provisions in the final text which is not in Sri Lanka’s favour.

The resolution, as is now well known, is based on the Report of the UN Human Rights High Commissioner Michele Batchelet. It is titled “Promotion, reconciliation, accountability and human rights.” The resolution not only carries the same title but is also extensively based on this Report.

The Government policy on these two documents — the Report and the Resolution — was publicly spelt out by Foreign Minister Dinesh Gunawardena. He told the Human Rights Council and during public discourses that the Government rejected both these documents. He called for the “closure” of the Resolution and related discussions at the Council. It is obvious that this is not to be, as the final operative para sets out, the trajectory is for the pursuance of this issue in future sessions of the Council, unless of course the Government delivers on the dictates of the Resolution.

Traditionally, in any part of the world, it is the Foreign Minister who ensures that the foreign policy of a government is implemented. Hence, one would have expected Sri Lanka to have made a statement to the Council citing reasons for the rejection which was done and withdrawn from the deliberations and negotiations thereafter on the text of the Resolution, and recourse to having its position reflected in order to negate misplaced provisions. That would have been the logical course of action, as the world would then have known Sri Lanka’s correct stance. Further, by Sri Lanka seeking to be directly associated with the negotiations of the draft text, it could demonstrate the acceptance of references with negative connotation to the country, considering that it is already replete with such. It would be more than optimistic to be successful in having them deleted, as demonstrated by the negotiations on the content that took place.

However, it was not the Foreign Minister’s albeit the government’s officially stated policy that was at play in Geneva. Instead, Sri Lanka’s Permanent Representative to the UN in Geneva, C.A. Chandraprema, broke protocol and participated in the online rounds of informal consultations. Such consultations were not meant for Permanent Representatives based in Geneva but for those of a rank below. In these columns last week, the contributions made by him at the beginning of the consultations were reported. There is more now.

Pointing out this aspect is to illustrate how disjointed and contradictory the conduct of foreign policy initiatives in Geneva has been. If indeed the Government wished to place Sri Lanka’s position vis-à-vis every provision in the resolution before the Council, it should have gone ahead and done so. There is nothing wrong. However, in such a situation, the question of a total rejection does not arise. This clearly reflects a wide chasm between Foreign Minister Gunawardena and his own Ministry. So much so, this has led to many countries not acknowledging the position that Sri Lanka has rejected the Human Rights High Commissioner’s Report or the Resolution.

Take for example, the United States which is still playing a key role. Its Ambassador to Sri Lanka, Allaina B. Teplitz, was asked about this issue during a Q & A with the Sunday Times (Political Commentary) on February 21. Her reply: “The Government of Sri Lanka offered a detailed response to the Report that was shared with diplomatic missions. The response offered context that will undoubtedly inform discussions among UNHRC member states as a resolution is considered.”

In fact, the Government responded with a 30-page document titled “Observations of the Government of Sri Lanka on the Report of the OHCHR on Sri Lanka (A/HRC/46/20). That was a virtual point by point answer to the issues raised by Human Rights High Commissioner Batchelet. Highlights of this response were published exclusively in the Sunday Times (Political Commentary) of February 14. This was rightly to demonstrate Sri Lanka’s bona fide approach to its position of engaging with the OHCHR. However, Sri Lanka’s formally communicated position on the said Report did not find its way initially to formal circulation of the Human Rights Council by the OHCHR. This was deplorable. This situation was rectified after Minister Gunawardena pointed it out at the session designated to discuss High Commissioner Bachelet’s Report on Sri Lanka.

With such politicisation stacked up against Sri Lanka, and Minister Gunawardena articulating the government’s position, Sri Lankans have been told that the Government has rejected the Human Rights High Commissioner’s Report and the resultant resolution. However, in Geneva, the Government’s delegates are in fact deliberating on the provisions of the resolution and making a case for changes. This by itself shows the inherent contradictions in the Government’s position whilst others of possible mala fide content remain. Some of the less important points have been heeded. Never has such a two-pronged contradiction arisen any time before. Who is responsible for this?

The 1,730-word final resolution in four pages  (with only one change) has been knocked into shape with the full participation of Sri Lanka. There, of course, is a difference though it does not in any way relate to a rejection. That is the fact that none of the changes offered by Sri Lanka has been accepted during the informal consultations. Most regrettably, the wording has been tightened to reflect more adversely. In some clauses, only a word or two have been changed or deleted from the draft that appeared in these columns last week. An example — the words “passage and operationalisation” (of the 20th Amendment) has been changed to “enactment.” Here are the highlights: (the new additions from the previous draft are given in italics).

=   Preambular Paragraph 7 (PP7) – Calling upon the Government of Sri Lanka to fulfil its commitment on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population and encouraging the Government to respect local governance, including through the holding of elections for provincial councils, and to ensure that all provincial councils, including the Northern Provincial Council are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka

Note: This provision has been strengthened to a great extent from the text of the earlier draft. There is a clear singling out of the Northern Provincial Council. This should come as a strong message to the government. India has taken up this position. Even the US delegation’s comments resonated the same view. The only addition made on Friday to the final draft was the inclusion of conducting elections to the Eastern Provincial Council.

• PP 10 – Reaffirming the unequivocal condemnation of all acts, methods and practices of terrorism including those committed in Sri Lanka in April 2019 that led in a large number of injuries and deaths, and reaffirms also that all measures taken to combat terrorism must fully Comply with State’s obligations under international law, in particular human rights law, and as applicable international refugee law and international humanitarian law;
• PP 14 – Recalling the responsibility of States to comply with their relevant obligations under human rights law and prosecute those responsible for gross violations of human rights law or serious violations of international humanitarian law;
• Operative Paragraph 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 in this regard 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;

Note: It would be pertinent to question as to what is meant by “other” proceedings that have now been included over and above the relevant judicial procedures.

• Operative Paragraph 7 – Express 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; surveillance and intimidation of civil society, restriction on media freedom, and shrinking democratic space; restrictions on public memorialisation of victims of war including the destruction of memorials; arbitrary detention; alleged torture and other cruel, inhuman, degrading treatment or punishment, and sexual and gender based violence; and that the trend threatened 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 violation of the past;
• Operative Para 8 – Express further concern that the response to the coronavirus disease (COVID-19) pandemic has had an impact on freedom of religion or belief and exacerbated the prevailed marginalisation and discrimination against the Muslim community, and that cremations for those diseased from Covid-19 have prevented Muslims and members of other religions from practising their own burial religious rites, and has disproportionately affected religious minorities and exacerbated distress and concerns;
• Operative Para 9 – Calls upon the Government of Sri Lanka to ensure the prompt, thorough and impartial investigation and, if warranted prosecution of all alleged crimes relating to human rights violations and serious violations of international humanitarian law, including for long-standing emblematic cases;
• Operative Para 12 – Requests the Government of Sri Lanka to review the Prevention of Terrorism Act and to ensure that any legislation on conducting terrorism complies fully with the State’s international human rights and humanitarian law obligations;

Note: This provision seeks to ensure full compliance of legislation on the conduct of terrorism with international human rights and humanitarian law obligations. Thus any changes to the PTA would be dictated by this aspect.

• Operative Para 13 – Urges the Government of Sri Lanka to foster freedom of religion or belief and pluralism by promoting the ability of all religious communities to manifest their religion and to contribute openly and on an equal footing to society;

The informal consultations last Monday and Wednesday took place with delegates from Switzerland, the Czech Republic, Denmark, China, the United States, France, Panama, Australia, Norway, Pakistan, Mexico, Russia, Austria, the Netherlands, Indonesia, Brazil, and the Philippines. Also taking part were representatives from Amnesty International, Human Rights Watch, Forum Asia, International Commission of Jurists and the International Movement Against All Forms of Discrimination.

Logged on to the Webex conference from the Sri Lanka side were the Permanent Representative to the UN in Geneva, Staff from the mission logged on as “Sri Lanka Mission”, Dilini Gunasekera, Assistant Director – UN & Human Rights Division, Ministry of Foreign Affairs from Colombo, Aruni Wijewardane – Additional Secretary (Multilateral Affairs) from Colombo and an unidentified person who went as only an ‘Observer’. Some speculated that it was Foreign Secretary Jayanath Colombage but this could not be confirmed. Also assisting the Sri Lankan side was Aswini Weeraratne, a practicing Queen’s Counsel from London. The Barrister’s services had been obtained notwithstanding the fact that the Government has rejected both the UNHRC Report and the Resolution. She was also online. Her website describes her as having an “extensive experience of investigatory procedures, in public inquiries, inquests, and as independent chair of inquiries, tribunals and professional regulatory bodies.”

Meeting Reference 17257 took place on Monday from 10 a.m. to 11.30 a.m. (Geneva time). Thereafter, Meeting Reference 17353 on Wednesday was from 10.30 a.m. till noon (Geneva time). Monday’s meeting overran by 15 minutes but Wednesday’s informal consultations ended 40 minutes early.

The UK representative, who welcomed the participants for the third informal meeting, gave an overview about the changes in the final revised text. Among other highlights in his rather hard-hitting speech were references to what he called the “forced cremations issue.” He said it “remains a live issue very much that the resolution should absolutely exert and while burials resumed last week, the decision to allocate burial sites in remote parts of the country remains deeply problematic and I am further concerned about the reports of a proposal before the Cabinet of Ministers to ban face veils, which would stigmatise marginalised Muslim women. On the question of allowing space for accountability processes at national level as an alternative to international efforts, we fully support the High Commissioner’s conclusions that this is just no longer a viable or responsible approach.”

The recently announced Commission of Inquiry, he said, “lacked both scope and credibility and is really important that the delegation understand that is not any kind of accountability mechanism. It nearly has the mandate to review the findings and the recommendations of past COIs, although it should largely be dismissed as lacking in credibility and failing to deliver justice including in the OHCHR Report. A parallel Presidential Commission of Inquiry was established last year to inquire and to obtain information in respect to alleged political victimisation and that Commission has intervened in several high profile cases and as a result of that commission beyond the documented allowing a high level of reference in a few cases on this progress was being made.”

Australia’s delegate said, “Thanks for taking on board Australia’s position. It is particularly important for the text to remain balanced. We can see that you have taken note of a wide range of views including from the country concerned and the current text remains a balanced one.”

China’s delegate declared that “we need some language in the preambular paragraph’s part to make it more balanced. At the end, it is important to keep the word ‘as applicable’ because otherwise if colleagues think we can easily change agreed language. It will be like opening a Pandora’s box.”

Pakistan’s delegate stated that: “Sri Lanka urged you to consider some suggestions (OP 6 and & 7). It would be better because at the end of the day they have to implement all the recommendations and suggestions made in the resolution. So, their co-operation and assistance could be of vital importance for all of us.”

During his speech at Monday’s informal consultations, Sri Lanka’s Permanent Representative to the UN in Geneva hit out at the OHCHR saying they are funded and manned by certain countries and hence not independent. He said that Operative Para 6 about the collection of evidence sets a dangerous precedent. Another provision (OP was redundant since there were no more mandatory cremations. He observed that members should have sat around a table. That would have given him the opportunity to demolish some arguments. He re-iterated his remarks at an earlier informal meeting that militarisation of the state sector was very minimal.

At Wednesday’s informal consultations, Chandraprema declared, “I do hope some of the proposals that we make will be taken on board by the Core group. Now, what we suggested with regard to Operational Paragraphs 6 and 7 was that they were sort of not acceptable to the Sri Lankan government and these should be deleted. When it comes to OP 8 it is largely redundant. Because the issue referred to in it no longer exists. I should point out that this came about mainly due to the fact that in the beginning, nobody knew how the COVID-19 virus behaved. Now even the WHO recommended the use of facemask if you cannot maintain a distance only as late as April 2020. So, it took quite a while for people to understand the behaviour of this virus. Now when originally certain decisions were made with regard to the disposal of COVID-19 deceased persons, that was with a view to safeguarding public health and for no other purpose.

“Now those regulations that were originally issued were subsequently changed and now there can be either cremation or burial as the next of kin of the deceased’s wishes. Now I should make it a point to state that when it comes to the various communities living in Sri Lanka, each community is governed by their own personal laws…..”

In another instance, envoy Chandraprema said, “Just a clarification. I want to make with regard to OP 8. In our part of the world, the Supreme Courts are very independent and that matter is very well known to the outside world. From time to time, you do find issues on decisions made by the Supreme Court hitting the headlines. However, when it comes to rather obscure medical, scientific, and technical bodies, also we have independent institutions which make decisions. When they decide the political authorities or even the courts do not usually interfere in such decisions. Now the subject matter of OP 8 relates to such a decision made by an independent body. The same independent body later changed their decision based on various studies conducted, and the regulations have now been changed, and the policy has changed. Procedures have been laid out.”

It is noteworthy that many of the western countries underlined and acknowledged the importance of the country concerned being engaged in the negotiations of the text. Since the proponents of the Resolution have been unable to still forge a consensus text, Sri Lanka having withdrawn earlier co-sponsorship, seem to be plugging for the involvement of the country at this stage. Has not Sri Lanka ventured into a minefield by adopting a strategy of this nature?

The next phase for Sri Lanka, which has failed to stall or revise the provisions in the resolution, is to have a friendly country seek a vote on the resolution in order to create a diversion and then it comes up for action. Foreign Minister Dinesh Gunawardena declared last week that support of member countries is “turning in Sri Lanka’s favour.” Similar sentiments were also expressed by Foreign Secretary, retired Admiral Jayanath Colombage in a series of media interviews where he castigated western countries for moving against Sri Lanka. However, in Geneva diplomatic circles opine that a majority of the 47 member countries would vote for the resolution. They also said that a few, including India, are expected to abstain.

There was an inadvertent mix up of titles in these columns last week. Bob Last is Political/Human Rights Counsellor at the UK mission in Geneva. Rita French OBE is Deputy Permanent Representative. The error is regretted.

Prime Minister Mahinda Rajapaksa is flying out to Bangladesh on March 19 and will return to Colombo the next day, 20th.  The visit will coincide with the 50 years of Independence. The Muslim majority country is marking the event from March 17 to 26. Many global leaders have been invited. The invitation to Premier Rajapaksa was made in February last year. It had remained in limbo despite a string of reminders from Dhaka. Now, Colombo has expressed greater interest in the visit and an itinerary is being worked out. There have been some concerns in the past in Dhaka over Sri Lanka not stating its position over Rohingya refugees who had fled Myanmar due to complaints of ill treatment by that government. Rajapaksa is to seek Bangladesh’s vote for Sri Lanka at the UN Human Rights Council. The Sunday Times has learnt from diplomatic sources that Bangladesh will vote in favour of Sri Lanka, the outcome of backchannel diplomatic consultations ahead of Premier Rajapaksa’s visit.

SLPP internal battles

Issues at the UNHRC in Geneva are not the only concern for the government where internecine rivalries are resurfacing again, A group of Sri Lanka Podujana Peramuna (SLPP) MPs, said to be around 40, have written to Prime Minister Mahinda Rajapaksa asking that Minister Wimal Weerawansa be removed from his portfolio. Why such a request has been made to the Prime Minister who has no constitutional authority to do so is unclear. In terms of the Constitution, it is the President who is empowered to do so. Those strongly associated with Minister Weerawansa claim he has the backing of a group of MPs and ministers of the ruling alliance.

The Sunday Times (Political Commentary) of February 28 reported the earlier controversy involving Minister Weerawansa. This is what the relevant part of the report said:

“……The issues related to the 2019 Easter Sunday incidents surfaced at a time when another political issue went on without the glare of media publicity. It was the aftermath of remarks made by Minister Wimal Weerawansa that President Gotabaya Rajapaksa should be made the leader of the SLPP. He was backed by his ministerial colleague Udaya Gammanpila. He made those remarks to our sister newspaper the Irida Lankadeepa.  Their strategy, a senior SLPP member who did not wish to be identified, said, was to isolate Basil Rajapaksa, the founder of the SLPP and widely regarded as the man behind the success of the party at both the presidential and parliamentary elections. Other key members charged that the strategy was “to split the Rajapaksa family members,” an allegation the duo denied. However, they have kept away from meetings summoned by Basil Rajapaksa in his capacity as the head of the Task Force on Economic Recovery.

“During a meeting with Weerawansa, President Rajapaksa had urged that he should attend meetings of the Task Force since they were involved with development activities of the government. That was his message to Minister Gammanpila too. The President said he had to contest the presidential election under a political party. That was why he became a candidate of the SLPP. That was the reason why the people voted for him with an overwhelming majority. He then re-iterated that the matter ended there, and he had no ambitions for other party positions. Therefore, he urged Minister Weerawansa not to proceed with his campaign to find positions for him.

“Later, both Weerawansa and Gammanpila together with another group wrote to President Rajapaksa on February 12, urging him to summon a meeting of partner leaders of the ruling alliance. They said that even Prime Minister Mahinda Rajapaksa should be invited. The reason was to discuss the current situation in the country. Among the signatories to the letter were Wimal Weerawansa, Udaya Gammanpila, Vasudeva Nanayakkara, Dayasiri Jayasekera, Weerakumara Dissanayake, Ven. Athureliya Rathana Thera, Gevindu Kumaratunga and Asanga Navaratne….”

Provincial Council elections

In another development, President Gotabaya Rajapaksa told former Provincial Councillors who are members of the ruling alliance on Wednesday that council elections would be held. The meeting originally scheduled to be held on March 3 was put off for March 10. He said the councils were now functioning without elected representatives. He revealed that he met members of the Election Commission to discuss the early conduct of the elections. Government sources said he was looking at the third week of June. The Election Commission has already begun preparations.

President Rajapaksa has told Minister Janaka Bandara Tennekoon, whose portfolio covers PCs, to take early steps to introduce legislation in Parliament to overcome the legal snags relating to the voting system for PC polls. He was also reminded of it when he attended Wednesday’s meeting.

In what seemed a significant development, President Rajapaksa also told the former PC members that contrary to claims by some sections, there were no differences of opinion between him and his two brothers – Prime Minister Mahinda Rajapaksa and Basil Rajapaksa, Chairman of the Presidential Task Force for Economic Development. He praised both and said they have made great contributions to the country.

Seven days from today, the UN Human Rights Council will take up for vote the Resolution on Sri Lanka. It is no secret that in Geneva a flawed strategy has damaged, in no small measure, the good image of Sri Lanka and dented the government’s credibility further in the eyes of the world. Saddled with internecine issues within the ruling alliance, where, so to say, tails are wagging the head, it is a challenging time for President Gotabaya Rajapaksa.