17-page document critical over the PTA Calls upon the Attorney General to be independent Alleges deaths in custody and extrajudicial killings Wants action over 2019 Easter Sunday massacres The Office of the High Commissioner for Human Rights (OHCHR) in Geneva last Monday forwarded to the Ministry of Foreign Affairs through UN channels a 17-page draft [...]


Latest UNHRC report makes further indictments on Lanka


  •  17-page document critical over the PTA
  • Calls upon the Attorney General to be independent
  • Alleges deaths in custody and extrajudicial killings
  • Wants action over 2019 Easter Sunday massacres
The Office of the High Commissioner for Human Rights (OHCHR) in Geneva last Monday forwarded to the Ministry of Foreign Affairs through UN channels a 17-page draft report on Sri Lanka for perusal and comments.

Officials there have been busy this week studying the provisions and formulating Sri Lanka’s response. It was sent to Geneva before the deadline set for yesterday. After examination and inclusion of what the UNHRC deems appropriate, this report will be presented by Human Rights High Commissioner Michele Bachelet at the 49th UNHRC sessions in Geneva. The sessions begin on February 28, but the report is to go before the Council for debate on March 3. Both Foreign Minister G.L. Peiris and Justice Minister Ali Sabry are due to take part in the Geneva event. Minister Peiris is to make a statement during the high-level segment.  Ahead of the Geneva visit, he is also expected to visit some European capitals.

At a Jaffna bus terminal, TNA stalwarts are seen collecting signatures for their campaign to repeal of the Prevention of Terrorism Act

The OHCHR Report is adding to the Government’s woes and comes amidst a worsening economic and financial crisis. “The Ceylon Petroleum Corporation is seeking fuel price increases by fifty rupees,” Energy Minister Udaya Gammanpila confirmed yesterday. He said the problem was not availability but the urgent need for foreign exchange. “We have had 18-hour long meetings to examine how to obtain dollars,” he said. A further fuel price hike will only have a snowballing effect with the cost-of-living skyrocketing further.

The Human Rights High Commissioner’s Report will form the basis for the ‘interactive dialogue’ in the Human Rights Council, as provided for in the Resolution on Sri Lanka adopted in February, last year.  Titled “Promoting reconciliation, accountability, and human rights in Sri Lanka,” this resolution was adopted on March 23 last year. Twenty-two countries voted in favour whilst eleven opposed it. Abstaining were 14 countries.

The Government is keen to ensure it has the supportive statements from as many HRC member countries as possible. This exercise is a prelude to further action-oriented strategy on Sri Lanka in September, this year. Perhaps it was with this in mind that Foreign Minister G.L. Peiris attended a luncheon hosted last week by German Ambassador Holger Seubert with his other western colleagues. If this is a sign of desperation on the part of the minister, would not it have been more appropriate if he hosted them to lunch at his ministry?

The 17-page report has devoted considerable space to the need for urgent reforms to be enacted to the PTA. There were increased deaths in custody and extrajudicial killings, the report has noted. Those references meant that the Temporary Provisions to amend the PTA formulated by Foreign Minister Peiris have not convinced the OHCHR as they are considered inadequate, a position echoed by EU countries and even the Sri Lankan opposition political parties among others.

This turns the focus to the February 8 meeting of the EU-Sri Lanka Joint Commission in Brussels. The joint EU-Sri Lanka media statement noted that “the EU welcomed the submission by the Government of Sri Lanka of amendments to the Prevention of Terrorism Act. However, the EU noted that important elements had not been included in the Amendment Bill gazetted.” This, as reported earlier, is in the backdrop of the European Parliament calling for the temporary suspension of the GSP Plus preferential tariffs.

The GSP Plus preferences for Sri Lanka were withdrawn in 2010 due to what the EU said were shortcomings in the implementation of three UN human rights conventions. Sri Lanka was re-admitted to the GSP Plus regime on May 19, 2017, during the previous yahapalana (good governance) government. The EU after concluding its monitoring mission on October 21 last year said in a statement that the visiting officials discussed the Prevention of Terrorism Act, “recalling that the amendment of the PTA was a key commitment in re-admitting Sri Lanka to the GSP Plus scheme in 2017.”

Any move to suspend the preferential tariffs could hit Sri Lanka’s booming textile industry hard. In 2020, the country earned US$ 3.9 billion from exports of clothing mainly to EU markets, apparel being the largest source of its foreign currency earnings. The EU is the second largest export destination for Sri Lankan products, and the GSP Plus facility has helped the country’s exporters.

Foreign Secretary Jayanath Colombage has publicly observed that the sessions on Sri Lanka in Geneva would not be that harsh since the country has taken concrete steps to improve the human rights situation. One wonders whether this is a tenable position particularly in the wake of bitter criticism on the use of the Prevention of Terrorism Act (PTA). This has turned out to be one of the key issues.

Pressure from the opposition and other quarters for a repeal of the PTA has, no doubt, raised the Government’s concerns. They are of the view that the amendments are an exercise to placate the international community than a task taking into consideration the ground realities. It is interesting to note a flurry of activity in the context of the PTA, during the run-up to the Geneva sessions. Whether there would be a constructive outcome of the Government’s rhetoric on this subject is important, as the work on the amendment has continued over a protracted time. Already Foreign Minister Peiris has thrown up the excuse that drafting new laws when amending the PTA will take time, signalling a continued delay. Is all this rhetoric and supposed action simply to tide over the upcoming UNHRC session? If so, it is regrettable.

This week has seen the launch of a petition by parliamentarian Abraham Sumanthiran of the Tamil National Alliance (TNA), and Mano Ganesan, leader of the Democratic People’s Front urging the Government to repeal the PTA. The Human Rights Commission, which is a state body, has also made a similar call.

Days earlier, Hejaz Omar Hizbullah and Saleem Khan Mohamed Shakeel, who were taken into custody under the PTA were ordered to be released by Court of Appeal Justice Menaka Wijesundera. In her judgement, the learned judge noted “… four decades have passed, and the PTA has strayed far away from its historical context. The PTA, if in its application and implementation, creates a vicious cycle of abuse, the very purpose of the statute will be defeated. The Preamble of the Act refers to the affirmation that “……. men and institutions remain free only when freedom is founded upon respect for the Rule of Law and that grievances should be redressed by constitutional methods…….” (Emphasis added).

“However, it is alleged that the PTA has been utilised at times to the detriment of personal liberty by its draconian implementation. In such a context, even the Executive branch of the Government is considering the amendment of the PTA (The Gazette of the Democratic Socialist of Sri Lanka Part II of January 21, 2022; Issued on 27.01.2022 and published by the Minister of Foreign Affairs), expressing a willingness to balance the need to eradicate terrorism against personal liberty as enshrined in the Fundamental Rights Chapter of the Constitution.

“Ultimately, it is up to the Legislature to ensure that the draconian elements of the law combating terrorism are dispensed with per modern day contexts. Until such time, it is the judiciary’s duty to employ existing legal provisions and constitutional powers to interpret the same elements in the interests of justice.

“His Lordship Justice Sripavan (as he was then) in Thilanga Sumathipala V AG (Supra) held that “where the statute fails to provide a solution or offers a solution that is inconsistent with the basis of natural justice provisions of the Constitution the court is forced to frame a new precedent that will not exhibit these defects.”

“As such, Section 15(2) of the PTA which provides that “upon the indictment being received in the High Court against any person in respect of any offence under this Act or any offence to which the provisions of section 23 shall apply, the court shall, in every case, order the remand of such person until the conclusion of the trial” should be construed in a manner that the powers vested with the Court of Appeal is not abrogated. This is in line with the sovereignty of people as enshrined in Article 4 of the Constitution which provides that the judicial power of the people is exercised vis-à-vis the Court. Any attempt to abrogate the powers delineated by the Constitution itself would be tantamount to an interference with the sovereignty of the people.”

As reported in these columns, Cardinal Malcolm Ranjith’s international lobbying on the 2019 Easter Sunday massacre has also been included in the OHCHR Report. It calls upon the Government to publish the findings in the final report. Note: It is not clear what this reference relates to. The Commission of Inquiry Report on the findings was tabled in Parliament but at least one remains unpublicised. There has also been a new development. A Criminal Investigation Department (CID) team has recorded statements from the wife of Zahran Hashim, who was a key player. Fathima Haathiya has reportedly made new revelations where fresh evidence has surfaced according to CID sources. That is to show that the incidents could have been averted if former top officials in the CID took immediate action.

The UN High Commissioner’s report has also strongly criticised the Attorney General and recommended that the office should be independent. The report refers to evidence collection by the new Secretariat established last year. It says that the Office of the Human Rights High Commissioner has developed an information and evidence repository using e-discovery software. It reports that many individual information items already held by the UN have been identified. They are expected to be analysed from a criminal justice perspective with a view to identifying gaps and priorities for further information collection.

This demonstrates that action is afoot within the UN framework to push Sri Lanka down the abyss of war crimes and Transitional Justice. Reporting in this manner will be justification of the budget already procured for the new Secretariat in the Human Rights High Commissioner’s Office and moves to attract further funding required. One can only hope that the Foreign Ministry has a well-planned strategy to quell this action. It would need to move away from empty rhetoric to constructive action together with concerned initiatives to thwart further funding.

The Report notes that for the past two years the government has not formulated a formal, credible new road map for transitional justice and accountability.

Also included in the Human Rights High Commissioners report are references to what is called “lack of progress on a proper investigation” into the Easter Sunday incidents. According to a diplomatic source in Geneva, the personal intervention of Cardinal Malcolm Ranjith with the OHCHR, the wording has been strengthened. He is visiting the Vatican where he is to seek the approval of the Pope to call for an international investigation into the Easter Sunday massacre. A visit to the UNHRC in Geneva is also on his schedule.

Other highlights in the UN Human Rights High Commissioner’s report include:

  • Reliance on military personnel to run civil affairs. Last year’s resolution called for an end to military involvement in civilian activities. It noted that the past year has seen a deepening and accelerating militarisation of civilian government functions. Reference is to be made to this week’s attack on the residence of journalist Chamuditha Samarawickrema and the arrest of activist Shehan Malaka Gamage.
  • Further widening of space for civil society, including independent media.
  • Ethno religious tensions
  • The UNHRC has identified many individual information items already held by the UN. It would analyse giving a criminal justice perspective with a view to identifying groups and priorities for further information collection.
  • Reference on targeted sanctions against individuals with the instances of action by the US Department of State being mentioned. Further progress in this regard is expected to be reported in September this year; and co-operate with the OHCHR investigative mechanisms.

Besides the issues before the UNHRC, the Government also must start the process of reconciliation this year. A two-member Tamil National Alliance (TNA) delegation comprising Rajavarothayam Sampanthan, the leader and Abraham Sumanthiran had an hour-long meeting with Indian High Commissioner Gopal Baglay on Friday. Sampanthan is learnt to have referred to the need for the Government to go beyond the 13th Amendment to the Constitution. They also discussed investment opportunities and economic assistance to the North and the East. The TNA has tied itself together with the London-based Global Tamil Forum (GTF), an outfit that is proscribed in Sri Lanka, and has also garnered the backing of Tamil Nadu Chief Minister Muthuvel Karunanidhi Stalin.

A lengthy joint statement said, “With the theme of Tamil bind us together’, Chief Minister Stalin has taken many meaningful steps towards promoting the commonalities and cohesiveness of the global Tamil community, arguably more so than any other Tamil leader in recent history. Appointing a dedicated Minister, viz., Hon. K. S. Masthan, whose portfolio includes Welfare and Rehabilitation of Non-Resident Tamils; declaring January 12 as the World Tamil Diaspora Day with Chief Minister Stalin inaugurating the event; taking steps to institute Tamil studies in international universities, including through donations towards the establishment of Tamil Chairs at Harvard University and the University of Toronto – are just a few examples.

“The Tamil National Alliance (TNA), the predominant and authentic representatives of the North-East origin Tamil people in Sri Lanka, and the Global Tamil Forum (GTF), an organisation which strives for the interests of the Ilankai Thamizhar through its engagement initiatives in many countries, hold Chief Minister Stalin in high esteem for his inspiring leadership of the global Tamil community. From the perspective of Tamils from Sri Lanka including those living in Sri Lanka and in the Diaspora – the approach adopted by the present Tamil Nadu government is commendable. They are grateful for the invitations extended to the Member of Parliament from the TNA, M. A. Sumanthiran, and the President of the Canadian Tamil Congress (CTC), Sivan Ilangko for the inaugural World Tamil Diaspora Day event last month….”

India, as reported in these columns last week, is using its good offices for the resumption of the reconciliation process. Indian External Affairs Minister Subrahmanyam Jaishankar, who is due here next month (ahead of Premier Modi’s planned visit) is expected to further pursue the matter with the Government.

Assisting Sri Lanka in the current economic crisis is not the only factor that has strengthened India’s clout in Sri Lanka. The US Government’s Indo-Pacific Strategy which was released this month gives further impetus. It says: “We will continue to build a strategic partnership in which the United States and India work together and through regional groupings to promote stability in South Asia; collaborate in new domains, such as health, space, and cyber space; deepen our economic and technology cooperation; and contribute to a free and open Indo-Pacific. We recognize that India is a like-minded partner and leader in South Asia and the Indian Ocean, active in and connected to Southeast Asia, a driving force of the Quad and other regional fora, and an engine for regional growth and development.”

Reconciliation efforts apart, the Government’s highest priority at present is over how to raise foreign exchange to meet the urgent needs of the country. President Gotabaya Rajapaksa consulted some 500 professionals — members of corporations, Viyath Maga, lawyers and a host of others — at a dinner meeting at President’s House on February 11 (Friday). Several issues were discussed.

It was Central Bank Governor Ajith Nivard Cabraal, who seized the opportunity to exhort that Sri Lanka need not go to the International Monetary Fund (IMF) to resolve the ongoing economic crisis. Apart from other factors, he noted, that the IMF would release funds in tranches. “If we don’t fulfil the requirements they set out, they could withhold them,” he declared. Cabraal said that two factors would soon improve the country’s economy. One is tourism, and the other is foreign investment. He was confident that in the coming months the country’s financial situation would improve.

One need hardly say that hoping for good times, which most in the Government are now resorting to, is of little help. There is a fuel shortage and power cuts have become the order of the day. Food prices are on the rise. Empty words and promises will not help.

Lanka-China ties affected over Central Expressway tender?Frictions are developing between Sri Lanka and China, the ruling coalition’s one-time close ally that has poured billions of dollars for infrastructure development in the country.

The immediate issue in focus is a complaint to President Gotabaya Rajapaksa by the MCC International Corporation Ltd. over a tender for the Central Expressway Project Stage 3 – Rambukkana to Galagedera – (12 + 890 to 32 + 450 kilometres).

The Chinese government-owned venture, which says it is one among the Fortune 500 companies, has alleged that it was the single foreign bidder whilst another bid had been submitted by a local consortium, LIDC. The Chinese company has charged that only the financial proposal of the local consortium has been opened and claimed there was an enormous cost difference.

Noting that “it is customary in a democratic procurement evaluation to either open both offers or reject the single offer as examination of just one offer does not facilitate price comparison,” the Chinese firm has said that the LIDC semi annuity payment is US$ 62.4 million whilst theirs is US$ 35 million. The total cost for the Government of Sri Lanka for 15 years (@ Rs 200 per US dollar) – LIDC US$ 374.4 billion whilst that of the MCC (with discount) is US$ 210 billion.

The MCC letter is accompanied by a set of documents including a Cabinet Memorandum submitted by Highways Minister Johnston Xavier Fernando. Among other matters, Minister Fernando has said that there are “fifteen contractors currently engaged in the construction of Section 2 and Section 3 of the CEP (central expressway project). All these contractors are registered in Construction Industry Development Authority (CIDA) in grades of CS2, CS1 and C1 in highways grade and have sufficient construction experience, financial capacity, and physical and human resources as per records of the RDA (Road Development Authority).”

“Here are highlights of the letter written by Zhang Xiaolei, Deputy Managing Director, Sri Lanka branch of MCC International Corporation:

“We have completed two iconic Projects ahead of schedule, the Colombo-Katunayake Expressway (CKE) & Outer Colombo Highway (OCH III) to the highest engineering standards and to the full satisfaction of the Employer, the Ministry of Highways/RDA and, currently, we are fully mobilized in Central Express Section 1 – Kadawatha to Mirigama earmarking for completion on schedule on Preferential Credit basis.

“We now write to inform Your Excellency that we participated in the submission of Request for Proposal for CEP (Central Expressway Project) Section 3 – Rambukkana to Galagedera 12+890 km to 32+450) on DBFOMT (Design, Build, Finance, Operate, Maintain and Transfer) basis. In this RFP (Request for Proposals), Metallurgical Corporation of China Ltd, International (MCCI) was the Single Foreign Bidder, while the other Bid was submitted by a Local Sri Lankan Consortium, LIDC.

“Thus, at the time of the Bid Opening on 08-10-2021 there were only Two (02) responsive Bidders, whose Bids were accepted. The CANC and the Project Committee, thereafter, examined the Technical Proposal and Legal Documentation.  We were questioned about whether the Bid Bond submitted through the Bank of China is ‘irrevocable and on demand’.

“The Bank of China submitted a letter reiterating and confirming the submitted Bid Bond is irrevocable and on demand. We were questioned about MCCI’s company details.  MCCI is a Company under MCC Group, and our Group enjoys the Rank of 92 in Fortune 500 Companies. MCC Group submitted a letter confirming that MCC Group is fully responsible for the Project and further mentioned the Agreement will be concluded through a Tripartite Agreement ensuring MCC Group is part and parcel of the undertaking.

“We MCCI have now reliably understood that when it came to the opening of the Financial Proposals, only the Financial Proposal of the Local Consortium, LIDC, was opened.

“Thus, we conclude the Financial Proposal of MCCI was not opened, even though:

a.       There were only 02 Bidders

b.      One was Foreign & the other was Local

c.       It is customary in a democratic procurement evaluation either open both offers or reject the single offer as examination of just one offer does not facilitate price comparison.  However, we respect the stand of the learned Committee.

“We were made aware and in view of various video clips and statements circulated on social media, the LIDC Semi Annuity Price is 62.4 million.

“Your Excellency has laid special emphasis for faster communications and access through Expressway and Highways in “Vistas for Splendour & Prosperity” for socio economic upliftment.

“But, if such Projects were to come at high and unrealistic costs, then, there is a likelihood for people to question the cost benefit of infrastructure development.  This should never happen.

“Your Excellency, as a Fortune 500 Company and with two decades of working experience in Sri Lanka, we do not wish to challenge Government decisions nor condemn nor dispute the rates of our respected Sri Lankan contractors to give the impression that we claim our rates are low and the Project should be awarded to us.”

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