Connect with us

Features

UNHRC’s repeated resolutions without resolution

Published

on

by Neville Ladduwahetty

September is the month when the UN Human Rights Council presents its latest Resolution on Sri Lanka. It is reported that the latest version has graduated from violations of human rights and international humanitarian law to include violations of “economic crimes”. Whatever the scope of the Resolution, the dogged fact remains that every sovereign country is compelled to function within the provisions of its own Constitution, because it is the fundamental law as recognized by the Vienna Convention; a fact unequivocally stated by the President and Foreign Minister of this Government, and repeated earlier by previous governments. This fundamental fact was the rationale for rejecting the former co-sponsored Resolution UNHRC 30/1. Therefore, if the UNHRC is serious about its Resolutions, it has to start with Sri Lanka’s Constitution. Incorporating provisions in Resolutions beyond the provisions of the Constitution become a meaningless and distracting exercise for all concerned, without Resolution.

Chapter III of the Constitution of Sri Lanka is titled “Fundamental Rights”. Under Fundamental Rights, there are NO provisions that address “violations of human rights and violations of international humanitarian law”, nor is there any provision for “economic crimes”. The only provision that is of relevance is under Article 13, and in particular 13 (6) on Fundamental Rights.

This Article 13 (1) states: “No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed”.

If a person is “guilty of an offence”, the punishment for such an offence should be as contained in Sri Lanka’s Penal Code.

THE PENAL CODE

CHAPTER I

Paragraph 2 (1) of the Penal Code states: “Every person shall be liable to punishment under this Code, and not otherwise, for every act or omission contrary to the provisions thereof, of which he shall be guilty within Sri Lanka.

CHAPTER II

GENERAL EXPLANATIONS

Paragraph 5 states: “Throughout this Code every definition of an offence, every penal provision, and every illustration of every such definition or penal provision shall be understood subject to the exceptions contained in Chapter IV, “General Exceptions”, though these exceptions are not repeated in such definition, penal provision, or illustration”.

ESTABLISHING GUILT

Therefore, any person “guilty of an offence” should conform to the definition stated in the Penal Code of Sri Lanka. However, the Constitution under the second paragraph of Article 13 (6) states: “Nothing in this article shall prejudice the trial and punishment of any person for an acct or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations”.

This means that even if a person is NOT guilty of an offence under the Penal Code, he/she could be guilty of a criminal act under provisions “of law recognized by the community of nations”. The issue then resolves itself into identifying the relevant instruments that contain the “general principles of law” to establish guilt for acts that are recognized by the community of nations.

Therefore, under provisions of the Constitution a person could be found guilty of an offence either under provisions of the Penal Code or under provisions contained in instruments of law recognized by the community of nations.

INSTRUMENTS REGOGNIZED by the COMMUNITY of NATIONS

The context for determining whether an offence was committed or not should be based on the acknowledged fact that conflict was an Armed Conflict and therefore the applicable law is International Humanitarian Law; a fact acknowledged by the representatives of the LTTE to the European Court. Furthermore, since the conflict was a Non-International Armed Conflict the applicable legal framework is the Additional Protocol II of 1977. This Protocol is an extension of Common Article 3 of the Geneva Conventions. Although Sri Lanka has not formally ratified Protocol II, it is today accepted as an instrument of international customary law accepted by the community of nations.

Therefore, any questions of guilt for offences committed during the Armed Conflict should either be based on provisions of the Penal Code or procedures laid out in Article 6. “Penal prosecution” of Additional Protocol II. Part II of the Additional Protocol Paragraphs 2 (a) to (h) and 3 (a) to (c) specify what constitutes violations that ‘shall remain prohibited at any time and in any place whatsoever”.

NATIONAL LAWS COMPLEMENTTARY to INTERNATIONAL LAWS

Domestic Laws should take primacy over provisions of international law as recognized by the Rome Statute in its Preamble that states: “Emphasizing that the International Criminal Court established under the Statute shall be complementary to national criminal jurisprudence”. Endorsing the principle of complementarity, Justice A.R.B. Amerasinghe states: “The ultimate goal of international norm-setting is their full and effective implementation through domestic procedures without the need for recourse to international mechanisms. In fact, access to international mechanisms is usually limited and may be resorted to only if domestic mechanisms are not available or inadequate…. The effective protection of human rights depends in the first instance upon national courts, legislatures, and public officers, and only in the last resort upon the international machinery and fora” (Amerasinghe, “Our Fundamental Rights of Personal Security and Physical Liberty” p. 2)

Therefore, it is only in instances where acts committed that cannot be categorized as violations under the Penal Code, that provisions contained in Additional Protocol II under Article 6: “Penal prosecution” should be followed.

Article 6: Penal prosecutions

1. “This Article applies to the prosecution and punishment of criminal offences related to the armed conflict”.

2. “No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality”. In particular:

(a) “The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence”;

(b) “No one shall be convicted of an offence except on the basis of individual penal responsibility”;

(c) “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under the law, at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby”;

(d) “Anyone charged with an offence is presumed innocent until proved guilty according to law”;

(e) Anyone charged with an offence shall have the right to be tried in his presence”;

(f) “No one shall be compelled to testify against himself or to confess guilt”.

3. “A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised”.

4. “The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children”.

5. “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained”.

Article 25 (2) of the Rome Statute states: “A person who commits within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with the Statute”

The material presented relating to Penal prosecutions contained in the Additional Protocol II and the Rome Statue clearly establish that the procedures that should be followed to establish guilt SHOULD be based on “individual penal responsibility”.

Furthermore, since guilt is based on “individual penal responsibility” Command Responsibility is not recognized either by Protocol II or the Rome Statute.

Under the circumstances blacklisting entire fighting divisions reflects ignorance of International Humanitarian Law applicable to Non-International Armed Conflict.

However, since the Protocol II does not specify what the punishment should be for the offences committed, punishment for such should be guided by provisions in Sri Lanka’s Penal Code. This is in keeping with the recognized principle of complementarity that recognizes the primacy of national laws that complement international laws.

DOMESTIC MECHANISM

During the course of the Foreign Minister Ali Sabry’s address, at the 51st Secession of the UN Human Rights Council, he stated: “We endeavor to establish a credible truth-seeking mechanism within the framework of the Constitution. The contours of a model that would suit the particular conditions of Sri Lanka are under discussion”. When the Minister of Justice, Prison Affairs and Constitutional Reforms, Dr. Wijeyedasa Rajapakse, was asked by the Sunday Observer “about the possibility of the international mechanism coming with hybrid Courts to address war crimes in Sri Lanka, he is reported to have stated: “It is likely. That is why we are going to propose the setting up of a domestic truth-seeking mechanism with special courts that can respond to rights violation cases involving the LTTE and the military. We are currently discussing the situation with countries such as the US, China, UK, and the European Union to promote the domestic mechanism.” (Sunday Observer, September 18, 2022).

Establishing the “Truth” by means of a truth-seeking domestic mechanism depends on the degree of certainty of evidence presented. Such degrees of certainty are needed whether “truth” is established by existing provisions or by fresh domestic mechanisms. However, the intention to set up “special courts” that could respond to violations by the LTTE or the military would then have to function alongside existing High Courts that are in place under the 13th Amendment to the Constitution that are mandated to address violations specified in the Penal Code. Whether such an arrangement is constitutionally acceptable or not is a matter that needs to be explored.

It is apparent from these comments that the reason to endeavor the setting up a “domestic truth-seeking mechanism with special courts” is to satisfy US, China, UK and the European Union with whom Sri Lanka is having discussions, that Sri Lanka is serious about addressing possible human rights law and humanitarian law violations that could have occurred during the Armed Conflict. During these discussions it would make a significant difference to these discussions if Sri Lanka makes them aware of the outstanding determinations made by the Supreme Court of Sri Lanka relating to Human Rights violations.

The fact that the UNHRC and the Core Group backed by local entities seem to be ignorant of such determinations by the Supreme Court of Sri Lanka, and the fact that the scope of national laws complemented by international laws do already exist and have the capacity to address alleged violations, is because Sri Lanka has made no attempt to present them. This may also be the possible reason for demanding hybrid courts to address violations, if any, that may have occurred during the armed conflict.

EXISTING DOMESTIC MECHANISMS to ADDRESS VIOLATIONS

Article 154P (1) of the 13th Amendment to the Constitution states: “There shall be a High Court for each Province …Each such High Court shall be designated as the High Court of the relevant Province”.

Article 154P (6) of the 13th Amendment states: “Subject to the provisions of the Constitution and any law, any person aggrieved by a final order, judgment or sentence of any such Court in the exercise of its jurisdiction under paragraph (3) (b) or (3) (c) or (4) may appeal therefrom to the Court of Appeal in accordance with Article 138”.

In addition to such avenues to pursue the interests of aggrieved parties relating to investigations such persons could lodge a complaint with Sri Lanka’s Human Rights Council under provisions of Part II “POWERS OF INVESTIGATION” of the Human Rights Commission of Sri Lanka Act, No. 21 of 1996, PART II POWERS OF INVESTIGATION OF THE COMMISSION.

Paragraph 14 of the above Act states: “The Commission may, on its own motion or on a complaint made to it by an aggrieved person or group of persons or a person acting on behalf of an aggrieved person or a group of persons, investigate an allegation at the infringement or imminent infringement of a fundamental right of such person or group of persons caused”.

It is therefore crystal clear that provisions currently exist between provisions in the 13th Amendment to the Constitution and the remit of the Sri Lanka’s Human Rights Commission for an aggrieved party to seek redress in relation to serious violations. One such landmark judgment given by the Court of Appeal relating to Disappearances is given below, in order to demonstrate that the existing jurisprudence is sufficient to address issues relating to serious violations.

DISAPPEARANCES

K. LEEDA VIOLET AND OTHERS V T.P. VIDANAPATHIRANA AND OTHERS H.C.A.164/89, H.C.A.171/89 AND H.C.A.166/89 DECIDED ON 2 DECEMBER 1994.

S.N.SILVA.J. PRESIDENT OF THE COURT OF APPEAL

“In HCA 164/89 the Petitioner Leeda Violet, being the mother of the corpus, Y. Wimalpala, father of the corpus and T. Lilinona gave in support of the petition. According to their evidence the corpus, being the eldest son of the Petitioner and her husband Wimalpala, was 26 years of age at the time of his arrest…. At about 4.30 p.m. a party of police officers came in several vehicles. Thereafter he (the officer in-charge) arrested the persons who were near the shop selling fishing gear. Some persons who were on the beach were also arrested… Those arrested were asked to kneel on the road. Thereafter the 1st Respondent asked those persons to get into the vehicles and took them to the Dikwella Police Station. It is stated that about 30 persons were arrested. The Petitioners in HCA 164/89 and HCA 171/89 followed the police vehicles and went up to the Police Station”.

The final paragraph of the judgment states: “The Petitioners filed these applications in April 1989. There were initial hearings before this Court and protracted inquiries before the Magistrate Court. Thereafter the cases were adjourned for further hearing before this Court. It is obvious that the Petitioners have incurred heavy expenditure in these proceedings. They have boldly pursued these applications, which is commendable conduct considering that the 1st Respondent continues to hold office…. Several applications with regard to other disappearances reported from the same place have been dismissed for non-prosecution. In these circumstances as a measure of exemplary costs, I direct that the Respondent to pay each petitioner in the above application a sum of Rs. 100,000/= as exemplary costs…. Also direct the Registrar of this Court to forward copies of the proceedings recorded in the Magistrate’s Court to the Inspector General of Police who is hereby directed to consider the evidence recorded as information of the commission of cognizable offences. He will take necessary steps to conduct proper investigations and to take steps according to the law…” (A.R.B Amerasinghe, Ibid p. 336-340)

TORTURE

On the topic of Torture, Cruel, Inhuman, Degrading Treatment or Punishment, Justice Amerasinghe in the book cited above states: “The Supreme Court of Sri Lanka has over and over again emphasized that even persons whose records are not particularly meritorious should enjoy the Constitutional Guarantee of personal liberty and security and that even ‘notorious’ or hard core criminals should not be subject to torture, inhuman or degrading treatment or punishment” (Ibid, p. 29).

THE QUESTION of PROOF

“In Malinda Channa Pieris and others v A.G. and others, it was pointed out that, having regard to the gravity of the matter in issue, a high degree of certainty is required before the balance of probability might be said to tilt in favoure of a petitioner endeavouring to discharge his burden of proving that he was subjected to torture or to cruel, inhuman or degrading treatment or punishment; and unless has adduced sufficient evidence to satisfy the Court…” (Ibid, p.43).

Internationally too, the allegation must be proved before the relevant Article is held to have been violated. Thus for instance in Fillastre v Bolivia, the UN Committee on Human Rights held that there was no violation of Article 10 of the ICCPR because the allegations that the conditions of detention were inhuman and degrading had not been substantiated or corroborated” (Ibid, p. 44).

MEANING of ARREST

Article 13 (1) of the Constitution states: “No person shall be arrested except according to procedures established by law. Any person arrested shall be informed of the reason for his arrest”.

Article 13 (2) states: “Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedures established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedures established by law”.

“So long as the grounds for arrest are made known, the Constitutional requirement that reason for arrest should be given will be satisfied. The police do not have to quote chapter and verse from statutes and legal literature to justify the arrest. There is no obligation on the police to quote the law applicable”, said Samarakoon C.J. “On the other hand… He must be given the grounds – the material facts and particulars – for his arrest, for it is then that the man will have information that will enable him to take meaningful steps towards regaining his liberty” (Ibid, p. 115).

CONCLUSION

The Foreign Minister Ali Sabry during the course of his address, at the 51st Secession of the UN Human Rights Council, stated: “We endeavor to establish a credible truth-seeking mechanism within the framework of the Constitution. The contours of a model that would suit the particular conditions of Sri Lanka are under discussion”. Whether the intended mechanism is compatible with existing systems under the 13th Amendment is an issue that needs resolution.

Establishing the “truth”, whatever the mechanism, depends on the evidence presented because only evidence that has a “high degree of credibility” is what is accepted as evidence both nationally and internationally. For instance, in Fillastre v Bolivia, the UN Committee on Human Rights held that there was no violation of Article 10 of the ICCPR because the allegations that the conditions of detention were inhuman and degrading had not been substantiated or corroborated” (A.R. B. Amerasinghe, “Our Fundamental Rights of Personal Security and Physical Liberty” p. 44).

Such evidence could be presented to any of the High Courts established under the 13th Amendment or the new Domestic Mechanism contemplated. For instance, the landmark judgment presented above, with the decision by the then President of the Court of Appeal, S.N. Silva J. reflects the scope of existing national mechanisms to address serious violations, regardless of whether or not they come within the rubric of human rights or humanitarian law. Furthermore, an aggrieved party who is not satisfied with the diligence of the investigations could appeal to Sri Lanka’s Human Rights Commission to undertake under provisions of Part II “POWERS OF INVESTIGATION” of the Human Rights Commission of Sri Lanka Act, No. 21 of 1996, PART II POWERS OF INVESTIGATION OF THE COMMISSION Therefore, aggrieved parties should be encouraged and urged to exploit the full potential of existing domestic mechanisms to redress their grievances.

If the evidence reaches the standard of “high degree of credibility”, the next step is for Domestic mechanisms provided in the Constitution to apply, and the procedures for prosecution and punishment in keeping with provisions of Sri Lanka’s Penal Code, to proceed. However, if the evidence relates to violations outside its scope, they could still apply to acts that are “recognized by the community of nations” as per the second paragraph of Article 13 (6) of the Constitution. The evidence, however must relate to “individual penal responsibility”, as called for by the Additional Protocol II applicable to the

Non-International Armed Conflict and by the Rome Statute. Therefore, the call to blacklist entire fighting divisions reflects a total ignorance of such internationally recognized provisions. Furthermore, Additional Protocol Ii does not recognize Command Responsibility.

As for the punishment, what is provided nationally is Sri Lanka’s Penal Code. Therefore, even if an individual is guilty for a violation and is recognized as such by the community of nations, the punishment has to be in keeping with provisions in Sri Lanka’s Penal Code.

Presented above are topics such as DISAPPEARANCES, TORTURE, THE QUESTION of PROOF and MEANING of ARREST contained in Justice A.R.B. Amarasinghe’s book titled “Our Fundamental Rights of Personal Security and Physical Liberty” (1995) and how they were addressed under provisions of existing Domestic Mechanisms in Sri Lanka.

The case presented under DISAPPEARANCES was first filed in April 1989 and the decision was made in December 1994; a matter of 5 years and 8 months. It is most likely that the evidence gathered by the Office of the UNHRC is several decades old. How such evidence would stand the test of “high degree of credibility”, before an incident could be categorized as a violation is a factor that could be challenged.

Few are aware of these facts, and least of all the UNHRC. Instead of pleading our case in Geneva, this body of evidence should be brought to the attention of the UNHRC, Diplomatic Representatives in Sri Lanka and to those who are committed to Human Rights issues. In addition, the Government should document regularly the current status of every complaint filed with the High Courts or any of the Superior Courts relating to human rights and humanitarian law violations to demonstrate the manner in which the domestic system is working. The fact that achievements gained through Domestic Mechanisms have not received the publicity it deserves has resulted in acquiring the image that impunity reigns in Sri Lanka.



Continue Reading
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Features

‘Reflections on the Continuing Crises of Post-War Sri Lanka’

Published

on

The Institute of International Studies(IIS) recently published a volume, ‘Reflections on The Continuing Crises of Post-War Sr Lanka’ edited by Professors Amal Jayawardena and Gamini Keerwella. Delivering the keynote address, at its launch on 24 April, at the BMICH, former Foreign Secretary, H. M. G. S. Palihakkara reflected on the context and substance of the publication with particular reference to the challenge before the NPP government to convert the voter support it received into a public policy consensus essential to addressing multiple issues of statecraft at hand.

 Excerpts:

We are at a juncture of profound change happening nationally as well as internationally – changes that seem to engender a mixed bag of imponderables and great worry, even danger. While many contend that these changes upend globalised advancement, portend uncertainty and unpredictability, some good is seen by others in that certain disruptions could lead to pathways for course corrections. While this obviously divisive and controversial discourse goes on, what is clear and present is that it’s a world where affairs within and between states are in flux. Some of our neighbourhood commentators put it as a ‘world adrift’ or a world ‘getting unhinged’. The description of this volatility and prescriptions for handling the vortex of churning issues may defy objective analysis but the stark reality is that it represents an unprecedented and defining challenge to the post World War international system or the so-called ‘rules -based order’.

Head winds and tail winds of this flux have begun to manifest with different intensity in different countries constraining their space and capacity to grow sustainably and live securely. For some, the situation may morph into existential issues. Sri Lanka’s case lies somewhere in between it looks, but there is no denying that all will be profoundly affected-especially so for countries like us that are struggling to transit from crisis-recovery stability to a sustainable growth scenario. They are obliged to do this while juggling as prudently as possible, attendant geopolitical conundrums thrown up by the competing interests of power players, leading to difficult and often futile attempt to balance the unbalanceable!

At the national level, a new government of former ‘armed struggle fame’ has assumed office promising constructive change, clean and accountable governance based on the idea of reconciliation and equal citizenship for all. This was a hitherto unseen national common ground crafted by the voters(north-south-east-west) – voters fatigued with corrupt stereo-types. They did so, asking the new government to deliver on this attractive and perhaps the most inclusive post conflict mandate yet.

But the government seems to remain somewhat overwhelmed with this exciting but daunting agenda of public policy making and governance. Challenges include dovetailing the currently apparent economic stability into a growth conducive one; preventing a double jeopardy of economic crisis pain morphing into reform pain; doing all that without falling prey to grinding strategic matrixes of our ‘geopolitical friends’; dealing with some of our closest friends who come bearing gifts like distress money and un-solicited power play advice; how to negotiate with them without simply signing onto their wish lists that seek to requisition our sovereign assets thus leaving little or no room to negotiate even as unequals, let alone as sovereign equals!

To add to these woes of the new government, the incumbency factor seems to be setting in as evidenced by some ham-handed handling of delicate issues both domestic and international.

In this fraught setting, the government has boldly, and one must say correctly, decided to go for local polls. This is obviously not a regime change election but it certainly is a regime test one. The losers at the last elections both big and small, seem to have found common cause in firing the first salvos of the government ‘toppling game’ even as they know very well there is no constitutional way to do regime change for the next five years. The Government, on its part has not done itself any favours by scoring rather heavy in clumsiness index. Waffling continues uncomfortably on several fronts critical to public policy issues of national and international significance.

So this is a daunting inventory of domestic things to do in an international system that has turned volatile- a system in which an oxymoronic situation had long persisted because the alleged ‘ rules-based order‘ continued to be confronted by the reality of power-based practice. As we all know, when in contention, power usually trumps the rules. It happens so often it has become quite a ‘convenient truth’! The crudest and what could even be the most dangerous form of this contradiction is peaking now thanks to the phenomenon known as the Trump Two.

The book ‘Reflections on the Continuing Crises of Post-War Sri Lanka.’, helps us introspect in a context where the country is striving -in fact struggling- to recover from multiple self-made crises and become a self-caring nation under a new but un-tested Government-obviously, a timely thing to do.

Well researched and well sourced work in this volume explore an array of considerations both in empirical and conceptual terms as to how and why , after ending the armed conflict, conflicts by other means have continued spawning multiple crises- occurring in almost regular succession-and in diverse domains e.g. governance, socio-economic, ethnic and religious harmony, political, security, foreign policy and so on.

The purpose here is a comment in the form of my take on what this volume presents to the policy community-both political and bureaucratic:

First, it gives out a yet another alarming read-out of the cost of successive leadership failures in this country- failure to ensure constitutional governance, sustainable and equitable economic growth, reconciliation, accountability, the rule of law and so on. It reminds me of a meeting thirteen years ago, which I had the honour to chair in this very Hall at the BCIS, remembering the late legal legend, HL de Silva.

There my observation was that:

” The diminishing respect for the rule of law diminishes us all. Such erosion will allow impunity to raise its ugly head. Usually, impunity signals the onset of decay. It impairs civilised life and democracy. And it undermines the investment climate. Conversely, the upholding of the rule of law manifestly strengthens sovereignty, pre-empts external calls for intrusive accountability, deters threats to territorial integrity of the nation and facilitates the enjoyment of fruits of citizenship and democracy by all’. http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=52289)

It is ironic but highly appropriate that the authors felt compelled to flag these same ‘reflections’ more than a decade later signifying the extent of the ‘unfinished business’ before us.

Secondly, it brings into sharp relief, the absence in this country of a culture of consensus or common ground in the business of public policy making. This contrast has remained conspicuous because the conscientious voters of this land have repeatedly braved political violence, insurgent violence and terrorist violence to grant that mandate to the elected government to do consensual work towards preventing crises and deterring conflict.

That did not happen of course. The consensual culture wished for by the voters died of political asphyxiation. This was due to the kind of parochialism our rulers have been obsessed with. There was decay in multiple fields – the economy, accountability, rule of law, national security, human security, foreign policy and so on. What is more, the contrary took root and polarisation rolled on fuelled both by those elected to power as well as by those thrown out of power. The former did so to remain in power and the latter to topple and recapture. The economy suffered. Investors ran away. The voters found they have nowhere to run.

This continues to date, even after the voters have once again shown that consensus is possible in this country. There was a country-wide consensual momentum to vote into power the current govt. who promised change to bring about accountability, the rule of law, transparent and corruption free governance and equal citizenship for all plus economic reforms. Rejecting the most, if not all corrupt stereo types and ignoring the usual ethnic and religious divides, voters rallied round a high octane call for that change. But the Govt. seems to be going about exploiting that momentum, if they are going about it at all, in the clumsiest way possible thus losing traction in turning that voter’s consensus into a public policy consensus. And not to be out-done, the losers- big and small- have got back on the usual track to begin the govt toppling game. So, the fact that the responsibility of building common ground lies not only with the government but also with the Opposition has become an inconvenient truth.

A ray of hope emerged when there was an all-party initiative to handle the unfolding ‘Tariff war’. But it looked more like a proforma reaction to a tariff drama by a bull-dozing President of a misfiring superpower, than a genuine domestic compulsion to initiate a consensual process enabling us to negotiate with our foreign interlocutors from a position of policy cohesion and bargaining strength.

This is in contrast to other countries including in South Asia that had the vision and wisdom to go consensual on critical national issues while not ruling out the option of politicians to go parochial on non-critical issues so that they can still mis-lead voters to win elections!

Faced with a looming economic crisis, the Congress – BJP agreement on economic reforms in India under PM Manmohan Singh’s watch in the 1990s paved the way for the robust growth of the Indian economic and geopolitical power today; In Bangladesh, an unprecedented bipartisan understanding on energy esp. its policy on exploiting newly discovered LNG deposits as well as a degree of self-rule to their hill tribe rebels and agreement in Nepal on mainstreaming their rebels are such contrasting examples of public policy consensus in our own sub-region.

They understood that weaponizing national issues for electoral gain can gravely undermine the welfare of the succeeding generation.

So besides these contrasting and rewarding examples and experiences in our own sub region, what is so magical about common ground and why do we have to do it?

We need a consensual economic reform programme that cannot and should not be weaponised for the purpose of regime change undermining stability and predictability , even going beyond the important gauntlet of 2028, when Sri Lanka has to resume the enormous burden of debt repayment,

Going by the Govt’s track record so far, the opposition can count on the Govt. to provide enough vulnerabilities on the non-critical list to exploit and attempt regime change! So it is irrational and irresponsible for the opposition to use imaginary or real faults so early in the game to upend the hard earned macro-economic and social stability as we prepare for the 2028 threshold.

On the geopolitical , foreign relations and governance front, one can do without the disruptive, destabilising and even dangerous contentions like the on-going one advocating that Sri Lanka should formally ‘align and economically integrate’ with its giant neighbour. That country is clearly a party to the principal geo-strategic rivalry in the Indo Pacific that is growing in complexity and intensity. Such a huge change of course for Sri Lanka could invite dangerous target practice by other power players. It would also be naïve to believe that the only way forward for Sri Lanka is a piggy back with India for a ride to economic prosperity on a trickle down basis..

It is a cogent point that it could amount to a ‘strategic capture in connectivity clothing’; that no such template has worked elsewhere in the world and Sri Lanka could thus become a non-self-governing territory where our sovereign assets may be parcelled out to strategic players jostling for power.

Both sides of this contention have overlooked the middle path imperative available for Sri Lanka. That is assiduously working to allay ill-founded or well-founded Indian security fears in a verifiable way using many bilateral tools available including the so called ‘national technical means’ while pressing ahead with equal vigour to deepen and widen ‘negotiated’ economic cooperation in identified areas – not structural integration- with our friendly neighbour. This is the way for Sri Lanka to exploit the competitive and comparative advantage it has with a robustly growing India that can benefit both countries. This is the must do thing. Any asymmetry dictated aligning or integration by momentum or wish list signing without negotiating is ‘the must avoid thing. There are many reasons for this avoidance but the latest and the most explosive one comes from Bangladesh. As a blow back to an asymmetry driven integration and autocratisation of the Hasina regime, Indo-Bangla relations exploded while Bangladesh itself imploded.

There are varying degrees of indo centric trouble in all South Asian countries except may be in Bhutan so much so that some Indian analysts themselves have characterised India’s ‘neighbourhood first policy’ as a ‘neighbourhood lost policy’.

We of course cannot afford such polemical luxury but we do need a domestic consensus to do two things:

‘Assure India about their security fears through bilateral technical means and ‘negotiate’ with India on deep-going economic cooperation. This middle path imperative backed by a bipartisan or consensual common ground will demonstrate our policy consistency and predictability towards India while providing benefits achieved by negotiated mutuality – not solely dictated by asymmetry. To be successful, this needs a domestic consensus here- across the isles of quarrelling members of the legislature- the kind of common ground the late Minister Kadirgamar strenuously worked for- the kind of acts of contrition and consensus that LLRC proposed some decades ago in order to advance post-conflict peace building.

Whether this already is a foregone conclusion or still an open question available to negotiate will become clearer when two crops of indo Lanka MOUs concluded by the former Government as well as the present one, cease to be unseen documents.

Such common understanding is needed not only to pilot our relations with our close and distant friends like India and China but also to deal with a host of other governance and foreign relations issues like accountability and reconciliation which remain externalised because the lack of a domestic understanding to deal with them has made them migrate abroad and morph into diplomatic issues entailing multiple challenges. Some past Govts unsuccessfully tried to address these challenges by actively encouraging international consensus on some of these. They did so, while being unable or unwilling to develop a national consensus on these sensitive matters despite the voters here providing robust mandates to do so. Without a national common ground, external prescriptions by themselves cannot deliver justice to victims. Every unpunished crime has an economic cost in both national and international terms. Most, if not all these failures are principally due to the paucity of a shared understanding here.

Consensus is not something you find in a cupboard! It has to be nurtured. Consensus happens not when you make everybody absolutely happy. It happens when you equitably distribute managed unhappiness among everybody. To some it is a fine art. To others it is a hard-nosed science. Perhaps it is a hybrid . Whatever it is, our voters have done it and found it. The NPP’s resounding election victory was the result. So the winner Government must mould that voters’ consensus into a public policy consensus. They can lose sometime but not too much time as windows may start closing. Policy makers – or ‘pain makers’ as some call them- must make haste slowly. If not, down the road, our succeeding generations may be compelled to launch another valuable book of reflections like this .

My friend Professor Jayadeva Uyangoda in his probing scrutiny about the causes and effects of our crises aptly refers to what he calls ‘a crucial political point’ about the “relationship between the state and society becoming violent and the capacity of the liberal parliamentary democracy to restore peace between the State and society becoming severely limited”. If our policy people don’t get the hybrid our voters have found, it is most likely that the next ‘reflection book’ might say ’peace restoration’ is still work in progress. Hopefully, it will not say restoration has regressed!

On that note of mild happiness, I would like to thank you for your patience.

Continue Reading

Features

Expensive to die; worship fervour eclipses piety

Published

on

Long queues near Dalada Maligawa during the recent relic exposition. (File Photo)

Death and dying were in the forefront this last week because of Pope Francis’ end to life. Even while dying he seemed to think of others and with compassion be considerate. He knew of the masses that would gather at St Peter’s Basilica in the Vatican City with concern for him. He was surely weak and ill but wanted to be wheel chaired to the balcony to be seen by those gathered below on East Sunday. He lived through the Easter days and then died on Monday, having left details of how his funeral should be conducted: simple to the utmost. The most obvious of austerity and elimination of ostentation was the coffin the Pope desired he be buried in – a simple stark rectangular wooden box. Usually a pope is buried with personal items and documents in a three nested coffin of cypress, lead and oak. Cypress symbolises humility; the middle coffin of lead preserves the body and secures documents; and elm or oak of the outermost coffin ensures durability and symbolises humility. Pope Francis wanted none of this.

Funeral; expenses locally

This stark simplicity and great wisdom of choice posed itself against how burials and cremations are conducted in this land of ours. They are often lavish displays, with food and drink flowing and people gathering as if it were a merry social gathering. Coffins are ornate and of course costly. They are satin lined and frilled, with tassels galore and shiny metal handles. People get into debt to make a show of a funeral. Mercifully, to stall such and also help in a need, village and town folk set up funeral committees. Annual contributions with membership, guarantees that the payee or his close relatives receive a decent funeral, the committee meeting expenses.

Cassandra has long wondered why trees have to be brought down and coffins made of its wood, polished to mirror appearance. Why not coffins of artificial wood, hardboard or even reinforced cardboard, more so for cremations. Long ago when at A F Raymond’s funeral parlour to pay in advance for Cass’ funeral, the desk person, answering her question, gave the excuse that people want to spend and insist on wood. Hence the huge cost of a funeral, even the cheapest running to a lakh and more.

Heard over BBC on Wednesday, April 30, that the UK might insist on payment of goods bought, in cash. This move for fear the country may go cashless, only plastic cards in use. Likewise, our government could decree that trees cannot be cut for making coffins. But first of all, of course, seeing that an alternative is freely available, tested and proved up to the job of holding a dead body for a couple of days

Worship fervour

The exposition of the Sacred Tooth Relic in the Dalada Maligawa, Kandy, is over. However, we do not know whether the consequences of the huge gathering of people in that already crowded and hemmed-in-by-mountains city are felt now. Maybe the authorities in Kandy did not expect such a pouring in of humanity to the Hill Capital. Maybe when President Dissanayaka voiced his opinion that an exposition would be good, he did not envisage such an influx of people to the city.

A friend said that the JVP Leader as Prez voiced his wish as a political gimmick. He said the JVP had hired buses and brought people to Kandy in droves, ignoring the fact it was bursting at the seams from day one onwards. Cass mentions these suppositions not believing them herself. But one fact emerged: an exposition of the Relic as was done recently cannot be repeated. Cass feels a solution would be to allocate days for the Provinces at the next exposition, province by province coming to Kandy, probably combining the Northern and Eastern. Provinces, where Buddhists are fewer in number.

Expositions at the Dalada Maligawa were much more frequent long ago, say up until the 1970s or so. Cass was born and bred in Kandy. Many were the expositions she recalls in the 1940s and 50s. Crowds were much less of course but the single queues that formed were perhaps the first she had seen. The Diyawadana Nilame then was always from a radala (aristocratic) family and was voted in by Kandyan Divisional Revenue Officers (DRO). Mother boasting two in the family got double passes to go straight into the inner chamber and watch the entire process of removal of jewellery and caskets until the final glass casket is revealed. I had to accompany her to the Maligawa but refused entrance to the inner sanctum. Much preferred by me was walking in a queue. Mother’s comment was that I lacked labeema. True!

The crowds, the adoration, the surely felt feeling that more the suffering, the greater the merit earned – pina, goes to show that for very many zeal exceeds piety. Yes, it’s good to venerate the Tooth Relic but the Buddha never wanted any veneration of himself or his remains after his death. He was a human being but with superior wisdom. insight, intelligence. He never wanted the fact that he was a human being to be forgotten since his teaching was to follow the Path he showed to end all suffering of repeated births and deaths. Cass admits she giggled, yes wickedly derisive, when women said they would now surely attain Nibbana having worshipped the Sacred Tooth. Zealousness outpacing sincere devotion; diminishing true sila or piety.

Hundred days of Trump’s reign

One may even term these past three months ‘Trump’s tumultuous dictatorship’.

He did his slow-motion dance before a huge celebrating crowd to announce that never in the history of the US of America has there been such a successful presidency; that he, Donald Trump, has shown most pluses and successes in his first 100 days than any other president in American history. Cass just muttered ‘Tell that to the Chinaman’ with double innuendo now. She cannot fathom how conceited, egotistic and self- believing this man is. And he is not merely boasting; Cass is sure he believes he is the greatest, while in his first quarter he has plunged international trade to the dumps; made life worse for most Americans, and almost caused an American and world recession.

 

Continue Reading

Features

The truth will set us free – II

Published

on

US Vice President Vance and his family

Lesson 2: Renewal begins with children

Timothy Snyder (55) maintained interaction with his two children (ten-year-old son and the younger daughter) while he was in a Florida hospital at the beginning of 2020. No doubt, his wife Marci Shore (53), also teaching history at Yale University then, helped this loving interaction between the father and his children. The children told him about their school work and inquired about his progress towards recovery. Snyder remembers how he kept thinking about his children even in his sickest moments. and finds fault with America for falling short of the standards reached by countries like Austria in infant and child health.

Of course, in fairness to America today (2025), it must be said that children, parents, and their health and welfare, and the family institution are receiving the highest recognition in the country, irrespective of untenable extremes of neoliberalism ideologies like wokeism and related lgbtqa+ and transgender sex change surgery issues, etc., as evident at least in the American domestic political domain. Elon Musk (53), Senior Advisor to US President Donald Trump (78), is often seen with his youngest son having a piggyback ride on his busy father’s shoulders even on state occasions; President Trump sometimes proudly shows off his nineteen-year-old son Barron accompanying him on the stage, the fresh young man stealing the show at his old father’s expense, especially among young voters. The youngish US Vice President J.D. Vance (40) and Usha Vance (39), his wife of Indian origin, were on a four-day visit (beginning April 21) to resurgent India recently with their three little children who, innocently unaware of and unconcerned about what was going on around them, endeared Americans to Indians, thereby greatly enhancing the efficacy of their parents’ diplomatic endeavour to strengthen bilateral bonds and economic and security cooperation between the two powerful nations. Musk and Trump are businessmen turned politicians, while the Vances have been lawyers. But all four are normal parents. Cynics might cavil at such ‘childish displays’ as advertising gimmicks for promoting the pro binary sex ideology perspective, where children are insensitively exploited as mascots for their propaganda. But a more sober judgement would be to view such high-profile demonstrations as indicating an emergent trend in America towards a return to healthy normalcy in its sex culture where parents with their own children form close knit stable family units that coalesce into a vibrant society.

Snyder recounts how well he and his wife Marci were treated as first-time parents in a public hospital in Vienna in Austria, where their son was born in 2009. They had to pay hardly anything by way of hospital fees. The Snyders ‘experienced a sense of what good health care felt like from inside: intimate and inexpensive’. Marci was given a ‘mother-child passport’, which was recognised at health facilities throughout Austria. When she entered any hospital or doctor’s office, she was asked to show the ‘passport’. The doctor or the nurse didn’t look at a screen to identify the mother and her child.

In Austria, according to Snyder, pregnant mothers close to delivery time are asked to come to the maternity hospital at water breaking (i.e., when the amniotic sac covering the foetus breaks) or when contractions occur at 20-minute intervals. In America, they are asked to wait longer until the contractions are only three or four minutes apart. So, in America, deliveries sometimes happen in the back seat of a car, putting both the babies and the mothers in danger. In Austria, again, the mother and the baby have to stay in hospital for 96 hours (4 days) after delivery, allowing time for the baby to have a good start, and for the mother to learn to breastfeed. The difference between America and Austria in this respect, Snyder says, is one between a logic of profit and a logic of life.

Even the general public in Austria are helpful towards parents with children. The institutions that helped the Snyders (as first-time parents) ‘from the public hospital to the public kindergarten to the public transport were an infrastructure of solidarity that helped people together, making them feel that at the end of the day they were not alone’, whereas in America, ‘birth is where our story about freedom dies. We never talk about how bringing new life into the world makes heroic individualism impossible’. (That is, doing everything alone, with little outside help, preserving one’s autonomy, is not possible in the real world)

This applies to children in their formative years, as well. A piece of wisdom Snyder offers is that ‘to be free involves having a sense of one’s own interests and of what one needs to fulfill them. Thinking about the constraints of life under pressure requires an ability to experience, name and regulate emotions’. But this freedom cannot be gained without help. That is the paradox of freedom as Snyder calls it; no one is free without help

Snyder distils into his critique of the unsatisfactoriness of the American healthcare system an important insight in respect of early childhood care: it is that ‘how children are treated when they are very young profoundly affects how they will live the rest of their lives. That is perhaps the most important thing that scientists have to teach us about health and freedom today’. Speech, thought and will emerge as infants and toddlers interact with other people. ‘We learn as very small children, if we ever learn, to recover from disappointment and to delay pleasure. …what allows these capacities to develop are relationships, play and choices’.

Snyder points out that providing good healthcare facilities for children leads eventually to a lower crime rate, functional democracy, and efficiency in decision making. He feels that emotional regulation is overlooked in America. There is no sufficient focus on the relationship between parents and children. The regrettable lapses in American health care affects children more negatively than for adults. Parents need to relate to their children in ways that promote their optimal physical, mental and ethical development is part of a good healthcare system. Healthy interaction between parents and children is of vital importance for the education of children. Probably, the situation in Sri Lanka may not be better than in America in view of, among other things, the economic hardships that parents inevitably have to face.

Children and young adults, particularly in suburban and rural areas, are a threatened species. Apart from the economic difficulties that their parents experience, restricting their ability to meet the cost of augmenting the education that the state provides free of charge, non-urban Sri Lankan children often suffer due to a lack of basic infrastructure facilities like good transport, proper school buildings, modern libraries and adequately equipped labs, internet facilities and easy accessibility to local and foreign online sources of learning and research.

Lesson 3: The truth will set us free

After a procedure done on his liver in the emergency room of an American hospital on December 29, 2019, Timothy Snyder was admitted to a room, where he spent the last days of the year and the first days of the next ‘raging and contemplating’. He had to share that room with a Chinese man with a number of afflictions. The Chinese didn’t know any English. So, a lot of ‘personal and medical information was communicated loudly, slowly and repeatedly’. The Chinese was senior to Snyder by fourteen years; he was in withdrawal from nicotine smoking and alcohol drinking after five decades of daily consumption of the two intoxicants. The two became mutually accommodating friends.

But Snyder suffered a lung infection due to close contact with the Chinese, who had himself succumbed to illness caused by a parasite ingested while eating raw fish on a previous visit to China, but got well later. However, Snyder recovered and left the hospital, after exchanging farewell messages with the friendly Chinese, who had to stay on further in hospital.

The latter, Snyder says, is an example of two ways that medicine can get to the truth: thinking along with the patient, focusing on their story, and searching for information through tests. His conclusion is that in early 2020, the federal government failed Americans in both ways. There was no sensible discussion of the history of pandemics, and no procedure to test for the new coronavirus. The sections of the National Security Council and the Department of Homeland Security meant to deal with epidemics, as well as a special unit in the Agency for International Development meant to predict epidemics had been disbanded. American health experts had been called back from the rest of the world. The last officer of the Centers for Disease Control and Prevention assigned to China had been recalled to the US in July 2019, a few months before the epidemic broke out.

President Trump had overseen budget cuts for institutions looking after public health. The US surgeon general sang in a tweet on February 1, 2020: ‘Roses are red/Violets are blue/Risk is low for #coronavirus/But high for the flu’. Nero was fiddling while Rome was burning! As the year began, Americans were denied the basic knowledge necessary for making independent decisions of their own. President showed little anxiety about the steadily growing threat of the coronavirus. ‘It is going to disappear…like a miracle’. In effect they were creating a ‘news desert’. The media kept silent about the spreading pollution. Google and FB don’t carry news. They only raked in advertising revenues as usual.

But the disease was transmitted rapidly across the counties. The Covid death toll rose in leaps and bounds. ‘The seven American counties with the most Covid deaths would now rank among the top twenty countries. These are simple facts’. Snyder observes: ‘Since the truth sets you free, the people who oppress you resist the truth’. Historian Snyder refers to why British people have unkind memories of prime minister Neville Chamberlain because he tried to please the public in 1938 by falsely asserting that there was no need to go to war against Hitler. Winston Churchill earned their love and honour for having told them the unpleasant truth that they had to make war on the Nazi leader to stop him.

Snyder remembers reading (J.R.R. Tolkien’s) The Lord of the Rings to his son and daughter before he became ill. In that story Gandalf the wizard is a noble character with great power. He tells truths that people don’t want to hear. He is usually disliked as a bearer of bad news, and his advice is ignored. Although Gandalf is powerful, he cannot save the world by himself. He needs to build up a coalition by convincing others of the reality of a threat; but they won’t listen to him. Instead, out of ignorance, they look for an excuse for submission.That is human nature, but no way to be free. In frustration, Gandalf finally retorts that without knowledge, freedom has no chance.

Lesson 4: Doctors should be in charge

Snyder’s unexpected midnight admission to a hospital in Florida and two days stay there coincided with his mother’s birthday that year. So, he was unable to be with her on the occasion. The attention he got from the doctors was hurried and seemingly perfunctory, and it was hardly face-to-face. The longest time of fifteen minutes he saw a doctor was over Skype with a neurologist. Snyder thinks that the problem is not that doctors do not want to work with patients. They do work really hard, as people saw during the pandemic, risking their own health and even their lives in order to save others’ lives. The problem, according to Snyder, is that they have no say in what happens around them, but waste their time and energy pacifying greater powers. In America, doctors no longer have the authority that patients expect and need from them.

Readers, please remember that this was five years ago. The situation in America may have improved since, especially after the coronavirus pandemic took its toll and departed. The alleged mercenary bias of the American healthcare system largely caused by the profiteering Big Pharma, the insensitivity of the colluding political authorities, and the misinformation peddled by the media (particularly digital) that Snyder sharply criticizes in this book may have eased, too.

However, a little reflection will convince the intelligent readers that Timothy Snyder’s Four Lessons have great relevance to certain aspects of the deplorable situation in Sri Lanka today. This ad hoc review of mine of Snyder’s book, if read with a ‘comparative research’ oriented mind, will make the book look like a mirror held up to the prevailing reality there. (I have used a paperback edition of the book in my possession, issued by The Bodley Head, London, in 2020, in which year Snyder’s book containing his cogent case and powerful appeal for redress was first published.)

Concluded

by Rohana R. Wasala
(Continued from April 25, 2025)

Continue Reading

Trending