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United Nations Special Rapporteur Ben Emmerson QC’s warning to the Sri Lankan Government following last week’s mission visit to the country was certainly the most irascible that we have seen from a UN mandate holder in a while. After more than two years of the United Nations’ uncritically accepting sunshiny rhetoric from an administration that excelled in the art, aided and abetted by Colombo’s enthusiastic cheerleaders, this was a dash of icy cold reality.

Acknowledging faults at all levels
Unfortunately however, it has all the elements of bad parenting. A cossetted and pampered child used to getting its own way does not take kindly to an undiluted dose of sternness, which also has a tad unpleasant touch of hectoring to it. Instead of a measured and carefully nuanced engagement with this Government from the start, we have over-indulgence giving way to unexpected austerity. Certainly these are extremes that are not productive.

The Special Rapporteur’s preliminary media release on his visit has been greeted with glad cries by the Rajapaksa base and its fifth column supporters in the Government to support their argument that the country will not be ‘lectured to’ by outsiders. Quite apart from this, the dynamic that is created is also unfortunate. Sri Lanka’s laws, their enactment and implementation should be a matter primarily discussed and resolved domestically as part of the electoral contract that citizens entered into with this Government in 2015.

Instead of this, what we have is a sorry state of affairs where laws are drafted in secret and citizens are not taken into the process. We lurch from one crisis to another sheathed in a Colombo bubble in which the United Nations and the European Union (EU) is regarded with more gravitas than the citizens.

An electoral change is inevitable barring a miracle
So let us be quite clear. At the root of this sorry saga is an admixture of an appalling lack of sincerity both on the part of the Government and the United Nations in regard to core components of their mandated tasks. On the part of the Government, it is to ensure that enacted laws are properly implemented so as to safeguard citizens from abuse. An equally important factor of its electoral compact with the people is to make sure that draft laws conform to minimum legal criteria so as not to allow them to be misused.

On the part of the United Nations, it is to chart if member states are conforming to international standards. Where the draft Counter-Terror law is concerned, both have failed miserably. And civil society which should have stringently monitored and critiqued the Government has also been equally responsible. In retrospect and as repeatedly warned in these column spaces, the early abandonment of a critical role coupled with a co-opted silence in the face of the ‘yahapalanaya’ collation going off the tracks of its loudly trumpeted commitment to democratic norms has had disastrous impact. This should be minutely dissected at a later point of time when the consequences of this failure become even more starkly evident in electoral terms, which is inevitable unless a proverbial miracle occurs.

Indeed, the reasoning from the start appeared to be that the end justifies the means. So a Chief Justice who should have been dealt with through constitutional means is packed off though pure executive fiat, loudly cheered on if not initiated by the Bar Association and sundry other lawyers groups who appear to operate on a selective and partisan basis.

Equally a Counter-Terror draft law to replace the Prevention of Terrorism Act (PTA), which should have been robustly and publicly discussed, is shrouded in mystery and drafted in secret.

Questions directed at the Special Rapporteur’s Office
As the less charitable may suggest, the Special Rapporteur’s waspish response was propelled in large part by Justice Minister Wijayadasa Rajapaksa’s reported outburst at the meeting that he had with the Special Rapporteur. This is a ministerial potentate who ill serves his portfolio at several levels, not the least of which is his anxious desire to ‘save’ the Rajapaksas from prison as he has not been shy to admit publicly.

But as the Special Rapporteur ‘dresses down’ the Government, pertinent questions need to be directed at its own Office and at the United Nations itself. What pray is the exact role that was played by them in this highly problematic drafting saga of the proposed Counter-Terror law? Put in pure and simple terms, were these agencies consulted or not during the process?

Were they consulted in whole, in part or not at all? If they were consulted, in whatsphere of the imagination did the horrendously overbroad reach of these proposed counter-terror offences escape their attention at the outset? If the Office of the Special Rapporteur was not consulted, should not insistence on consultation at the inception been a fundamental condition by the local UN office in Sri Lanka?

For Sri Lankans living under bad anti-terror laws for decades, this draft poses new horrors. This should have been the primary focus on the part of the Special Rapporteur. Over-broad offences, confessions to police officers as evidence and intrusive interferences into normal civil protections without judicial warrant which the media release notes, constitute just the tip of the iceberg. The Counter-Terror draft merits meticulous scrutiny by his Office.

Unhelpful dynamic for agents of change
Taken as a whole, it is important to note the link between routine torture and PTA torture. Torture in Sri Lanka is not limited to terror detainees. As shown in well documented studies, this is an interrogation method which is part of the overall law enforcement machinery.

In sum, the United Nations cannot shrug its shoulders when asked as to its role in the drafting saga of this obnoxious Counter-Terror document and point to the confidentiality of the matters. If it hectors the Government on these issues, then it must own up to the precise role that it played in bringing the debate to this highly counter-productive and combustive stage at which we find ourselves.

None of this is going to be particularly helpful for agents of change within the country.