The Draft Resolution: Can the UN help with Systemic Corruption & Economic Crimes?

By Sanja de Silva Jayatilleka

At the informal consultations held on September 16, it is reported that the government had objected strongly to the Resolution now being drafted on Sri Lanka in Geneva, while however, proposing amendments to dilute it. This latter move indicates that its reading of the balance of support at the Council is that the resolution could be adopted at a vote, despite GoSL’s rigorous objections. The draft resolution now in the public domain includes many references to Sri Lanka’s “on-going economic crisis” and proposes ways to prevent its repetition.

In an Operative Paragraph (paragraphs that calls for some action), it “Calls upon the Government of Sri Lanka to address the ongoing economic crisis and help ensure it does not happen again, including by investigating and, where warranted, prosecuting corruption, including by public and former public officials, and stands ready to assist and support independent, impartial, and transparent efforts in this regard”.

The phrase “Calls upon” is the strongest language that can be used in the operative paras, which differentiates it from other language such as “urges”, “encourages” or “expresses concern”.

Noteworthy is the offer of the Office of the High Commissioner which “stands ready” to support a properly constituted investigation on corruption. With the resources at its disposal, including the Special Rapporteurs and other expert mechanisms, it is an offer that such an investigative body should avail itself of. Regardless of Sri Lanka’s response to the offer, the Resolution itself will give the Office of the High Commissioner the authority to gather evidence of such violations as part of its Sri Lanka Accountability Project:

“Requests the Office of the High Commissioner to enhance its monitoring and reporting on the situation of human rights in Sri Lanka, including …on the human rights impact of the economic crisis and corruption, and to present oral updates to the Human Rights Council…”

This gathering of evidence on Sri Lanka, which has been ongoing for several months, including the already completed uploading of the various existing databases of human rights violations to a single location at the OHCHR, will include data on corruption and other violations of economic rights including corruption. The draft Resolution bases its recommendations on its observation of the deteriorating economic situation in Sri Lanka which it describes in one of its paragraphs:

“Expresses concern at the human rights impacts of the economic crisis, including as 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 rights of the most marginalized and disadvantaged individuals, including daily wage earners, children, older persons, and persons with disabilities.”

This is pretty comprehensive and accounts for the major violations of the implicit social contract between the citizens and the government. It is beyond question that “food insecurity” was not due to a dearth of dollars. Anyone with a TV saw how many farmers cursed the government on the evening news well ahead of the actual event, very clearly articulating that the country will be short of food following the new fertilizer policy, and the false promises of a magical organic variety, not to mention cash compensation for any shortfall. Their warnings and their curses were more explicit than any resolution could be, but were ignored.

“Severe shortages of fuel” had severe consequences, including several deaths while hapless citizens stood in queues, some including fishermen and farmers, three wheel-wheel drivers et al, unable to practice their livelihoods, leading to “reductions in household incomes” or eliminating the opportunity for any income at all in some cases. As the parliamentary COPE committee found out, the reason for the shortages had more than one reason, uncovering corruption of major proportions over many years. That the prorogation of Parliament made the COPE reports not actionable cannot make the citizens not see the proceedings and its revelations.

More pitifully, “shortages of essential medicines” has its own very unsavory story attached. A private TV station reported this week those responsible for the procurement of essential medicines were clearly unaware of the medicines that were in short supply at the various hospitals nor able to provide them on time. It was reported that an elaborate IT system for efficient procurement was in the making for five years at great cost and yet was incomplete at the end of that period and therefore, a new system was now in the process of being constructed.

This is hardly a surprise when the public was treated to the spectacle only a few months ago of an entire database of approvals for procurement of medicines, especially created according to government specifications mysteriously got wiped out completely, with no back up of that information! That this was in the aftermath of public concern over corruption during imports of Covid related medical supplies, didn’t do anything to reassure the long-suffering public that corruption which seemed to have permeated the entire system had any chance of being arrested. Instead, arrests are on-going of those who dare to protests against these practices which brought the country to bankruptcy adding to the already miserable lives of the people.

Preventing Terrorism

The arrests of some protesters are made, with the full knowledge and concurrence of the President of the country, under the Prevention of Terrorism Act. The Resolution takes due note of this situation:

“Also expresses concern over other human rights developments since April 2022 including violence against and arrests of peaceful protestors…”

“Takes note of the introduction of amendments to the Prevention of Terrorism Act in March 2022, that detentions under this legislation continue to occur…”

There has been a massive public outcry against the recent arrests under the PTA of student activists who were prominent participants of the Aragalaya against the government. These arrests are seen by the public as being politically motivated and insidiously so, as the economic crisis deepens.

Surely, the government cannot think that it is part of their counter-terrorism strategy to arrest these protesters, where there have been no victims of terrorism. The usual excuse trotted out is the recent burning of the private residences of parliamentarians as the reason for the use of the PTA convinces no one, because these student activists were not by any stretch of the imagination implicated in those acts.

There is another zero draft, this time in the ‘thematic’ category, at the current session of the UN Human Rights Council on Terrorism and Human Rights. The draft includes the following:

“Notes with concern the measures that undermine human rights and the rule of law, such as the detention of persons suspected of acts of terrorism in the absence of legal basis for detention and due process guarantees, the use of torture, the unlawful deprivation of the right to life and other human rights and fundamental freedoms, and urges States to review the grounds of detention and to respect the rights to equality and non-discrimination in the administration of justice, and to a fair trial, as provided for by international law, including international human rights law, and, as applicable, international humanitarian law and international refugee law” and “Stresses the importance of ensuring access to justice and accountability, and calls upon States to ensure that any person who alleges that their human rights or fundamental freedoms have been violated by measures taken or means employed to counter terrorism or violent extremism conducive to terrorism has access to justice, due process and an effective remedy, and that victims of human rights violations and abuses receive adequate, effective and prompt remedy and reparations, which should include, as appropriate, restitution, compensation, rehabilitation and guarantees of non-repetition as a fundamental basis of any strategy to counter terrorism and violent extremism conducive to terrorism.”

Perhaps Sri Lanka’s Commission of Human Rights will take note.

IMF and Human Rights

The Resolution on Sri Lanka welcomes the staff level agreement between the IMF and the government. Yet in the Sri Lankan parliament, the government claims that there is no agreement yet, even though it may come as news to the IMF team which concluded their discussion in Colombo recently with a media briefing. Perhaps the Resolution ought to hold off on congratulating the government on that one since the government itself is claiming that they have failed to reach an agreement yet.

The Opposition has continued its calls for a transparent process in which parliament is given access to the contours of what was widely believed was a staff level agreement. The government is resisting those calls, with the Speaker claiming that the President is not in possession of any signed agreement which when finally presented to Cabinet, will be discussed in parliament. This is filibustering, clearly to postpone revealing more bad news to the people under severe economic strain. Why would the government care if not for electoral reasons?

This whole pile of economic garbage fell on the people due to government mismanagement, inefficiency and corruption. And yet, these people who couldn’t manage to steer the country safely through the recent storms are hoping to design a recovery package without any review by parliament, in time to prevent further exacerbation.

This administration has been referred to as the ‘40 thieves’ in the story of Ali Baba on more than one occasion on social media, to popular cheers, showing little confidence in their ability to implement any such plans, including privatization of state enterprises. They are sitting atop a massive public service for sure. Given the irregularities in the government financial statements discovered by its own Auditor General, I’d suggest that they move the vast majority into the Auditor General’s Office, empower him to prosecute the criminally corrupt, also using the Office of The High Commissioner for any resources and training, and more importantly, start proceedings to recover the stolen assets with the help that they have offered in the resolution. Sri Lankan people have every reason to critically support this draft resolution, for most of its content.