Features
UNHRC Resolution 40/1 and International Law
By Neville Ladduwahetty
During the recent committee state debates in Parliament on the financial vote of the Ministry of Foreign Relations, exception was taken by MP M. A. Sumanthiran for the decision the by the government to withdraw from co-sponsorship of Resolution 30/1 via 40/1, and went on to warn the government of inevitable consequences for withdrawing from international commitments.
Certainly, there are consequences if a sovereign State withdraws from international commitments on some whimsical pretext. In order to prevent such outcomes, the international community has developed international laws to discourage States from acting irresponsibly. If such restrictions do not exist, any accredited Officer of a State could jeopardize the interests of his State by undertaking commitments without following or even in contravention of internally formulated procedures of the State concerned. Under such circumstances, the international law provides for sovereign States to withdraw from commitments made by irresponsible members of such a State under provisions of Article 46 of the 1969 Vienna Convention on the Law of Treaties.
VIOLATION of DUE PROCESS
During the course of his address to the Human Rights Council on February 26, 2020, Sri Lanka’s Minister of Foreign Relations Dinesh Gunawardena stated: “Procedurally, in co-sponsoring Resolution 30/1, the previous government violated all democratic principles of governance – it declared support for the resolution even before the draft text was presented – it sought no Cabinet approval to bind the country to deliver on the dictates of an international body – there was no reference to Parliament on the process, undertakings and repercussions of such co-sponsorship – more importantly the Resolution itself included provisions which are undeliverable due to its inherent illegality, being in violation of the constitution, the supreme law of the country”.
The draft text referred to above is reported to have been prepared in the USA. As for the final text, former Minister Mangala Samaraweera is reported to have admitted that “the final text of the resolution was largely negotiated over the telephone with the President … the Prime Minister … and the Ambassador of the US and the High Commissioner of the UK.” (The Island, February 29, 2020). One cannot expect the latter two participants involved in the “negotiations” finalizing the draft to be aware of the impact of their deliberations on Sri Lanka’s Constitution, or whether any of its provisions were “deliverable”. On the other hand, the others who participated in finalizing the draft had done so regardless of its impact on the Constitution, without any heed to the oath they had taken to “uphold and defend the Constitution”. What fate awaits them for their treachery only time will tell” (The Island, “Fundamental Rights, Human Rights and other rights”, March 4, 2020).
If international law did not protect sovereign States from commitments made by treacherous and unscrupulous individuals the entire international order would be in chaos. It is to prevent such disaster that the international community incorporated Article 46 in the text of the Vienna Convention on the Law of Treaties 1969. Despite this provision, for some to keep repeating that international commitments should be upheld no matter the circumstances under which the commitment was made, calls into question the scruples of the individuals concerned.
Article 46 states: “A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”. Thus, since a Constitution is the most basic of a State’s “internal law of fundamental importance”, a State has the grounds to invalidate its commitments whether to the UNHRC or any other. Although this depends on whether a Resolution of the UN Human Rights Council reaches the status of a Treaty or not, no sovereign State should be expected to fulfill any commitment undertaken in violation of its Constitution since it forms the law of “fundamental importance” of its Peoples.
The fact that the infamous resolution that was co-sponsored by Sri Lanka violated Sri Lanka’s Constitution was conveyed in unambiguous terms to the Human Rights Council in March 2019 by the then Foreign Minister Tilak Marapana.
In the course of his statement he stated: “In referring to para 68 (C) of the OHCHR Report (A/HRC/40/23), which pertains to the Recommendations to GOSL, ‘to adopt legislation establishing a hybrid court to investigate allegation of violating and abuses of international law and violations of international humanitarian law’, I wish to make it clear that our position on this matter is as follows’:
“The Government of Sri Lanka at the highest political levels, has both publicly and in discussions with the present and former High Commissioner for Human Rights and other interlocutors, explained the constitutional and legal challenges that preclude it from including non-citizens in its judicial processes. It has been explained that if non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favour and also the approval of the people at a referendum”.
Having co-sponsored the UNHRC Resolution in 2015, the Consultation Task Force on Reconciliation Mechanisms appointed in January 2016 by the then Prime Minister also recommended a hybrid Court as stated in paragraph 24 cited below.
“The CTF recommends a hybrid Court with a majority of national judges as well as a sufficient number of international judges. This will ensure at least one international judge per bench and pre-empt delays due to the absence of one or more judges. It also recommends international participation in the Office of the Special Counsel of prosecutors and investigators, in addition to the provision of technical assistance. There should be clear guidelines and criteria spelt out and made public in respect of all aspects of international participation. International participation should be phased out once trust and confidence in domestic mechanisms are established and when the required expertise and capacity has been built up, nationally.”
Considering the legal and academic background of the persons who were involved in the Task Force it is a matter of deep concern that they too recommended mechanisms, either unaware or despite being aware, that the mechanisms involve serious constitutional and legal challenges. The image projected internationally by such irresponsibility reflects poorly on the country.
Under the circumstances, the only option open to any responsible government is to withdraw from undertakings that had been made by irresponsible persons who unwittingly or knowingly committed the country to fulfilling obligations that violate the country’s internal laws of fundamental importance.
CONCLUSION
The material presented above is not a lesson on international law. It is a lesson nevertheless that responsible persons should be aware of whether in Parliament or outside. The lesson is that although sovereign States are obligated to meet international commitments made on behalf of the State, international law also provides for States to withdraw from such obligations whenever commitments made by irresponsible persons impact on the “internal law of fundamental importance”. Such relief is provided in the Vienna Convention on the Law of Treaties 1969. If such provisions do not exist in international law, unscrupulous persons would be able to commit sovereign States to undertakings that would work against the interests of the State concerned.
However, a new lesson was introduced by Mr. Sumanthiran during the committee stage debates in Parliament. His lesson in history was that there were three kingdoms in the island and each of them fell at different times to the Western powers. If the reason for bring up such an issue was with the expectation that the national question should be based on historical underpinnings, claimants of other kingdoms would insist on going back to long periods of history when the island was a single kingdom for millennia. The lesson to be learnt is that such claims defy pragmatic realism. Therefore, the hope for all concerned is to improve on the institutions and practices, and continue with the political and administrative arrangements for a single sovereign State that were introduced by the West. To hope for anything more would only end up in mourning our dead.
Features
Sri Lanka’s new govt.: Early promise, growing concerns
President Anura Kumara Dissanayake’s demeanour, body language, and speaking style appear to have changed noticeably in recent weeks, a visible sign of embarrassment. The most likely reason is a stark contradiction between what he once publicly criticised and analysed so forcefully, and what his government is actually doing today. His own recent speeches seem to reflect that contradiction, sometimes coming across as confused and inconsistent. This is becoming widely known, not just through social media, YouTube, and television discussions, but also through speeches on the floor of Parliament itself.
Doing exactly what the previous government did
What is now becoming clear is that instead of doing things the way the President promised, his government is simply carrying on with what the previous administration, particularly Ranil Wickremesinghe’s government, was already doing. Critically, some of the most senior positions in the state, positions that demand the most experienced and capable officers, are being filled by people who are loyal to the JVP/NPP party but lack the relevant qualifications and track record.
Such politically motivated appointments have already taken place across various government ministries, some state corporations, the Central Bank, the Treasury, and at multiple levels of the public service. There have also been forced resignations, bans on resignations, and transfers of officials.
What makes this particularly serious is that President Dissanayake has had to come to Parliament repeatedly to defend and “clean up” the reputations of officials he himself appointed. This looks, at times, like a painful and almost theatrical exercise.
The coal procurement scandal, and a laughable inquiry
The controversy around the country’s coal power supply has now clearly exposed a massive disaster: shady tenders, damage to the Norochcholai power plant, rising electricity bills due to increased diesel use to compensate, a shortage of diesel, higher diesel prices, and serious environmental damage. This is a wide and well-documented catastrophe.
Yet, when a commission was appointed to investigate, the government announced it would look into events going back to 2009, which many have called an absurd joke, clearly designed to deflect blame rather than find answers.
The Treasury scandal, 10 suspicious transactions
At the Treasury, what was initially presented as a single transaction, is alleged to involve 10 transactions, and it is plainly a case of fraud. A genuine mistake might happen once or twice. As one commentator said sarcastically, “If a mistake can happen 10 times, it must be a very talented hand.” These explanations are being treated as pure comedy.
Attempts to justify all of this have sometimes turned threatening. A speech made on May 1st by Tilvin Silva is a case in point, crude and menacing in tone.
Is the government losing its grip?
Former Minister Patali Champika has said the government is now suffering from a phobia of loss of power, meaning it is struggling to govern effectively. Other commentators have noted that the NPP/JVP may have taken on a burden too heavy to carry. Political cartoons have depicted the NPP’s crown loaded with coal, financial irregularities, and political appointments, bending under the weight.
The problem with appointing loyalists over qualified professionals
Appointing own supporters to senior positions is not itself unusual in politics. But it becomes a betrayal of public trust when those appointed lack the basic qualifications or relevant experience for the roles they are given.
A clear example is the appointment of the Treasury Secretary, someone who was visible at virtually every NPP election campaign event, but whose qualifications and exposure/experiences may not match the demands of such a critical position. Even if someone has a doctorate or professorship, the key question is whether those qualifications are relevant to the role, and whether that person has the experience/exposure to lead a team of seasoned professionals.
By contrast, even someone without formal academic credentials can succeed if they have the right skills and surround themselves with advisors with relevant exposure. The real failure is when loyalty to a political party overrides all other considerations, that is a fundamental betrayal of responsibility.
The problem is not unique to this government. In 2015, the appointment of Arjuna Mahendran as Central Bank Governor was a similar blunder. His tenure ended in scandal involving insider dealing and bond market manipulation. However, in that case, the funds involved were frozen and later confiscated by the following government, however legally questionable that process was.
The current Treasury losses, by contrast, may be unrecoverable. Critics say getting that money back would be next to impossible.
The broader damage: Demoralisation of capable officials
When loyalists are placed above competent career officials in key positions, it demoralises the best public servants. Some begin to comply in fear; others lose motivation entirely. The professional hierarchy breaks down. Junior officials start looking over their shoulders instead of doing their jobs. This collective dysfunction is ultimately what destroys governments.
Sri Lanka’s pattern: every government falls
This pattern is deeply familiar in Sri Lankan history. The SWRD Bandaranaike government, which swept to power in 1956 on a wave of popular support, had declined badly by 1959. The coalition government, which came to power reducing the opposition to eight seats, lost in 1977, and, in turn, the UNP, which came in on a landslide, in 1977, crushing the SLFP to just eight seats, suffered a similar fate by 1994.
Mahinda Rajapaksa came to power in 2005 by the narrowest of margins, in part because the LTTE manipulated the Northern vote against Ranil Wickremesinghe. But he was re-elected in 2010 on the strength of ending the war against the LTTE. Still, by 2015, he was voted out, because the benefits of winning the war were never truly delivered to ordinary people, and because large-scale corruption had taken root in the meantime. Gotabaya Rajapaksa didn’t even last long enough to see his term end.
Now, this government, too, is showing early signs of the same decline.
The ideological contradiction at the heart of the NPP
There is another challenge: though the JVP presents itself as a left-wing, Marxist-socialist party, many of those who joined the broader NPP coalition, businesspeople, academics, professionals, do not hold such ideological views. Balancing a left-leaning party with a centre-right coalition is extremely difficult. The inevitable tension between the two pulls the government in opposite directions.
The silver lining, however, is that this has produced a growing class of “floating voters”, people not permanently tied to any party, and that is actually healthy for democracy. It keeps governments accountable. Independent election commissions and civil society organisations have a major role to play in informing these voters objectively.
In more developed democracies, voters receive detailed candidate profiles and well-researched information alongside their ballot papers, including, for example, independent expert analyses of referendum questions like drug legalisation. Sri Lanka is still far from that standard. Here, many people vote the same way as their parents. In other countries, five family members might each vote differently without it being a scandal.
Three key ministries, under the President himself, all in trouble
President Dissanayake currently holds three of the most powerful portfolios himself: Defence, Digital Technology, and Finance. All three are now widely seen as performing poorly. Many commentators say the President has “failed” visibly in all three areas. The justifications offered for these failures have themselves become confused, contradictory, and, at times, just plain pitiable.
The overall picture is one of a government that looks helpless, reduced to making excuses and whining from the podium.
A cautious hope for recovery
There are still nearly three years left in this government’s term. There is time to course-correct, if they act quickly. We sincerely hope the government manages to shed this sense of helplessness and confusion, and finds a way to truly serve the country.
(The writer, a senior Chartered Accountant and professional banker, is Professor at SLIIT, Malabe. The views and opinions expressed in this article are personal.)
Features
Cricket and the National Interest
The appointment of former minister Eran Wickremaratne to chair the Sri Lanka Cricket Transformation Committee is significant for more than the future of cricket. It signals a possible shift in the culture of governance even as it offers Sri Lankan cricket a fighting possibility to get out of the doldrums of failure. There have been glorious patches for the national cricket team since the epochal 1996 World Cup triumph. But these patches of brightness have been few and far between and virtually non-existent over the past decade. At the centre of this disaster has been the failures of governance within Sri Lanka Cricket which are not unlike the larger failures of governance within the country itself. The appointment of a new reform oriented committee therefore carries significance beyond cricket. It reflects the wider challenge facing the country which is to restore trust in public institutions for better management.
The appointment of Eran Wickremaratne brings a professional administrator with a proven track record into the cricket arena. He has several strengths that many of his immediate predecessors lacked. Before the ascent of the present government leadership to positions of power, Eran Wickremaratne was among the handful of government ministers who did not have allegations of corruption attached to their names. His reputation for financial professionalism and integrity has remained intact over many years in public life. With him in the Cricket Transformation Committee are also respected former cricketers Kumar Sangakkara, Roshan Mahanama and Sidath Wettimuny together with professionals from legal and business backgrounds. They have been tasked with introducing structural reforms and improving transparency and accountability within cricket administration.
A second reason for this appointment to be significant is that this is possibly the first occasion on which the NPP government has reached out to someone associated with the opposition to obtain assistance in an area of national importance. The commitment to bipartisanship has been a constant demand from politically non-partisan civic groups and political analysts. They have voiced the opinion that the government needs to be more inclusive in its choice of appointments to decision making authorities. The NPP government’s practice so far has largely been to limit appointments to those within the ruling party or those considered loyalists even at the cost of proven expertise. The government’s decision in this case therefore marks a potentially important departure.
National Interest
There are areas of public life where national interest should transcend party divisions and cricket, beloved of the people, is one of them. Sri Lanka cannot afford to continue treating every institution as an arena for political competition when institutions themselves are in crisis and public confidence has become fragile. It is therefore unfortunate that when the government has moved positively in the direction of drawing on expertise from outside its own ranks there should be a negative response from sections of the opposition. This is indicative of the absence of a culture of bipartisanship even on issues that concern the national interest. The SJB, of which the newly appointed cricket committee chairman was a member objected on the grounds that politicians should not hold positions in sports administration and asked him to resign from the party. There is a need to recognise the distinction between partisan political control and the temporary use of experienced administrators to carry out reform and institutional restructuring. In other countries those in politics often join academia and civil society on a temporary basis and vice versa.
More disturbing has been the insidious campaign carried out against the new cricket committee and its chairman on the grounds of religious affiliation. This is an unacceptable denial of the reality that Sri Lanka is a plural, multi ethnic and multi religious society. The interim committee reflects this diversity to a reasonable extent. The country’s long history of ethnic conflict should have taught all political actors the dangers of mobilising communal prejudice for short term political gain. Sri Lanka paid a very heavy price for decades of mistrust and division. It would be tragic if even cricket administration became another arena for communal suspicion and hostility. The present government represents an important departure from the sectarian rhetoric that was employed by previous governments. They have repeatedly pledged to protect the equal rights of all citizens and not permit discrimination or extremism in any form.
The recent international peace march in Sri Lanka led by the Venerable Bhikkhu Thich Paññākāra from Vietnam with its message of loving kindness and mindfulness to all resonated strongly with the masses of people as seen by the crowds who thronged the roadsides to obtain blessings and show respect. This message stands in contrast to the sectarian resentment manifested by those who seek to use the cricket appointments as a weapon to attack the government at the present time. The challenges before the Sri Lanka Cricket Transformation Committee parallel the larger challenges before the government in developing the national economy and respecting ethnic and religious diversity. Plugging the leaks and restoring systems will take time and effort. It cannot be done overnight and it cannot succeed without public patience and support.
New Recognition
There is also a need for realism. The appointment of Eran Wickremaratne and the new committee does not guarantee success. Reforming deeply flawed institutions is always difficult. Besides, Sri Lanka is a small country with a relatively small population compared to many other cricket playing nations. It is also a country still recovering from the economic breakdown of 2022 which pushed the majority of people into hardship and severely weakened public institutions. The country continues to face unprecedented challenges including the damage caused by Cyclone Ditwah and the wider global economic uncertainties linked to conflict in the Middle East. Under these difficult circumstances Sri Lanka has fewer resources than many larger countries to devote to both cricket and economic development.
When resources are scarce they cannot be wasted through corruption or incompetence. Drawing upon the strengths of all those who are competent for the tasks at hand regardless of party affiliation or ethnic or religious identity is necessary if improvement is to come sooner rather than later. The burden of rebuilding the country cannot rest only on the government. The crisis facing the country is too deep for any single party or government to solve alone. National recovery requires capable individuals from across society and from different sectors such as business and civil society to work together in areas where the national interest transcends party politics. There is also a responsibility on opposition political parties to support initiatives that are politically neutral and genuinely in the national interest. Not every issue needs to become a partisan battle.
Sri Lanka cricket occupies a special place in the national consciousness. At its best it once united the country and gave Sri Lankans a sense of pride and international recognition. Restoring integrity and professionalism to cricket administration can therefore become part of the larger task of national renewal. The appointment of Eran Wickremaratne and the new committee, while it does not guarantee success, is a sign that the political leadership and people of the country may be beginning to mature in their approach to governance. In recognising the need for competence, integrity and bipartisan cooperation and extending it beyond cricket into other areas of national life, Sri Lanka may find the way towards more stable and successful governance..
by Jehan Perera
Features
From Dhaka to Sri Lanka, three wheels that drive our economies
Court vacation this year came with an unexpected lesson, not from a courtroom but from the streets of Dhaka — a city that moves, quite literally, on three wheels.
Above the traffic, a modern metro line glides past concrete pillars and crowded rooftops. It is efficient, clean and frequently cited as a symbol of progress in Bangladesh. For a visitor from Sri Lanka, it inevitably brings to mind our own abandoned light rail plans — a project debated, politicised and ultimately set aside.
But Dhaka’s real story is not in the air. It is on the ground.
Beneath the elevated tracks, the streets belong to three-wheelers. Known locally as CNGs, they cluster at junctions, line the edges of markets and pour into narrow roads that larger vehicles avoid. Even with a functioning rail system, these three-wheelers remain the city’s most dependable form of everyday transport.
Within hours of arriving, their importance becomes obvious. The train may take you across the city, but the journey does not end there. The last mile — often the most complicated part — belongs entirely to the three-wheeler. It is the vehicle that gets you home, to a meeting or simply through streets that no bus route properly serves.
There is a rhythm to using them. A destination is mentioned, a price is suggested and a brief negotiation follows. Then the ride begins, edging into traffic that feels permanently compressed. Drivers move with instinct, adjusting routes and squeezing through gaps with a confidence built over years.
It is not polished. But it works.
And that is where the comparison with Sri Lanka becomes less about what we lack and more about what we already have.
Back home, the three-wheeler has long been part of daily life — so familiar that it is often discussed only in terms of its problems. There are frequent complaints about fares, refusals or the absence of meters. More recently, the industry itself has become entangled in politics — from fuel subsidies to regulatory debates, from election-time promises to periodic crackdowns.
In that process, the conversation has shifted. The three-wheeler is often treated as a problem to be managed, rather than a service to be strengthened.
Yet, seen through the experience of Dhaka, Sri Lanka’s system begins to look far more settled — and, in many ways, ahead.
There is a growing structure in place. Meters, while not perfect, are widely recognised. Ride-hailing apps have added transparency and reduced uncertainty for passengers. There are clearer expectations on both sides — driver and commuter alike. Even small details, such as designated parking areas in parts of Colombo or the increasing standard of vehicles, point to an industry slowly moving towards professionalism.
Just as importantly, there is a human element that remains intact.
In Sri Lanka, a three-wheeler ride is rarely just a transaction. Drivers talk. They offer directions, comment on the day’s news, or share local knowledge. The ride becomes part of the social fabric, not just a means of getting from one point to another.
In Dhaka, the scale of the city leaves less room for that. The interaction is quicker, more direct, shaped by urgency. The service is essential, but it is under constant pressure.
What stands out, across both countries, is that the three-wheeler is not a temporary or outdated mode of transport. It is a necessity in dense, fast-growing Asian cities — one that fills gaps no rail or bus system can fully address.
Large infrastructure projects, like light rail, are important. They bring efficiency and long-term capacity. But they cannot replace the flexibility of a three-wheeler. They cannot reach into narrow streets, respond instantly to demand or provide that crucial last-mile connection.
That is why, even in a city that has invested heavily in modern rail, Dhaka still runs on three wheels.
For Sri Lanka, the lesson is not simply about what could have been built, but about what should be better managed and valued.
The three-wheeler industry does not need to be politicised at every turn. It needs steady regulation — clear fare systems, proper licensing, safety standards — alongside encouragement and recognition. It needs to be seen as part of the solution to urban transport, not as a side issue.
Because for thousands of drivers, it is a livelihood. And for millions of passengers, it is the most immediate and reliable form of mobility.
The tuk-tuk may not feature in grand policy speeches or infrastructure blueprints. It does not run on elevated tracks or attract international attention. But on the ground, where daily life unfolds, it continues to do what larger systems often struggle to do — show up, adapt and keep moving.
And after watching Dhaka’s streets — crowded, relentless, yet functioning — that small, three-wheeled vehicle feels less like something to argue over and more like something to get right.
(The writer is an Attorney-at-Law with over a decade of experience specialising in civil law, a former Board Member of the Office of Missing Persons and a former Legal Director of the Central Cultural Fund. He holds an LLM in International Business Law)
by Sampath Perera recently in Dhaka, Bangladesh
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