Features
A Policy Science Analysis
President’s Gama Samaga Pilisandarak
By Dr D. Chandraratna
Trying to place President’s Gama Samaga Pilisandarak (PGSP) in a scientific perspective of public policy making is timely. One of the stated objectives of the Presidents election manifesto, ‘Vistas of Prosperity’ is to create a village-centered development of our predominantly agriculture-based rural economy. The President has pledged to achieve a four-fold objective: a productive citizen, a happy family, a virtuous, disciplined and just society and ultimately a prosperous country. A laudable project worthy of comment and analysis.
President Rajapaksa believes that to achieve this broad objective, he must clearly identify the problems faced by the rural population, which constitutes about 70% of the population in Sri Lanka. It is well known that people in rural areas have suffered for far too long as national development goals are stymied. Given the fact Sri Lanka has an executive presidential system of government it must be understood that decisions that the executive President makes supersede all other decision centres. It is no secret however, that political decisions are tied up with ideology, party politics, group interests, vote banks and the survival of regimes. But in this paper we will leave the ideology and rhetoric aside and examine only the facts, evidence, ends and means only.
Ideal methods of policy making; the end points of a continuum
At the outset it is necessary to contextualise the exercise within the science of policy making in public affairs. Policies are a web of executive decisions made to overcome problems that people in society face in their day-to-day lives. These can be arranged on a continuum from the complex to the simple. At the complex end lies the oldest model, based on the theory of decisions expounded by the management guru Herbert Simon; it is called the Root Method or Comprehensive Rational model, where policy decisions are made after a laborious weighing of all alternative courses in terms of optimum results, costs, and many other value positions. Obviously, this is absolutely necessary in national issues and problems which consume a vast amount of national resources and are costly in nature. Infrastructure projects such as transport systems, communication systems, river and waterways, energy supplies etc., fit in with the comprehensive method of policy making. Governments issue white papers and appoint commissions, task forces and professional consultant bodies before such are undertaken because of the vastness in costs and liabilities. The most important fact is that the country as a whole must realise the value and necessity of such vital state projects. In Sri Lanka, it is a matter of regret that some costly projects such as the Mattala airport and the Hambantota Port have come under criticism because the national implications have not been professionally argued. The author is of the view that both were valuable projects in their own right and if only the relevant Ministry at the time had followed though the correct professional procedure in public policy-making, the projects may have had a different outcome.
In other countries, projects of that magnitude go though extensive weighing of alternatives, open professional debates and university research centres arguing about costs, benefits and opportunity costs of the nation’s limited resources. Science has to be put before ideology because haphazard interventions in national policy or grids or systems can be deleterious.
The opposite method at the other end is called incremental policy making, for as the name suggests it is limited in scope and applicable to small time projects with little or limited national implications. These appear solutions to residual ills, minor dysfunctions of national policies, which need remedial outcomes. Hence, such measures are called disjointed, piecemeal and also having incremental outcomes, benefitting a few at the margins. The fact that they are disjointed invites numerous criticisms. But their positives will be explored first.
This is the method of policy making that the President has taken up as a speedy solution to the numerous problems faced by the rural peasantry in Sri Lanka and his entourage has selected the most backward of villages as the points to touch on.
In fairness to the President, it must be stated at the outset that we do not consider this as a ploy on the part of the President to escape the political overload that he has inherited from years gone past. Ever since the gradual dissipation of efforts by governments since Independence, to kick-start the village economy as the mainstay of the national development strategy, the dividends have been sub-optimal. The colonisation schemes, village expansion schemes, financial assistance to tenants were only partially successful. We do remember the 10-year plans, five-year plans, Operations rooms, Planning Ministries but the results have been poor. The President will succeed to the extent that his advisors keep him informed of the successes, and especially failures of the efforts in the past. The President’s officials must not be a bunch of ‘yes men’ leading the President up the garden path.
Transparency in respect of both means and ends is the path to success. People are not unaware of the fact that politicians are in the habit of recommending such incremental stop-gap policies as a way out to avoid political embarrassment, hoping for a temporary respite. Bottom-up policy making has its positives but its limits and usefulness must be properly grasped.
President’s Gama Samaga Pilisandarak –– the context
Before we evaluate what the President has so far addressed, we must note the following facts about our broad policy field. Sri Lanka has nine provinces, 25 districts, 318 divisions and 14,022 Grama Niladari areas or villages. The country, consisting of 14,022 villages, is demarcated into 196 electorates. For 196 electorates there are 225 Members of Parliament to advance the welfare of all 14022 villages. Given the electoral system these members of Parliament represent not electorates, but districts. They are elected on the proportional representation system of voting. Hence no one at the Centre is responsible, theoretically at least, for any of the problems in any particular village.
Having identified that the PGSP is located at the incremental end of public policymaking we need to put it in an analytical perspective.
It is fair to surmise thus far the President has in his encounters identified and sometimes attended to some of the following major issues identified by the President inter alia: shortage of lands and water for agriculture and houses, unavailability of deeds for lands, inadequate health and transportation facilities, shortages affecting school and other educational issues, inaccessibility to drinking water, elephant-human conflicts and difficulties in marketing.
We are also aware that around 30 precent of the total households in rural societies in Sri Lanka live below the poverty line. Moreover, nutrition surveys conducted in the recent reveal a high prevalence of malnutrition among those in rural areas, which may have been caused by chronic poverty.
There are particular issues in some villages, which we will leave out in this paper.
The Analysis: Plusses and Minuses
I will use a famous textbook in policy making by Hogg and Gunn (1984) to follow through with the Presidential initiative. Let us start with the positives of the PGSP.
This move in the President’s opinion is for the top policy maker to ascertain the real situation in the village, which any text will title as an issue search. The pertinent question to ask is why these concerns do not come up on any agenda paper. Basically, it may be that those affected have no voice because organised interest groups with power and influence drive the issues that get priority. In a poor country, this should come as no surprise. The electronic media of late have had a number of programmes as an agenda-setting exercise with limited success but their main objective was to embarrass the local politicians and bureaucrats. The president also has an interest in attending to their immediate concerns before they could intensify in the future creating more headaches for him. Seeing the problem first hand gives the first policy maker in the country a view of the issue plus the complexities and need for ameliorative action.
The other positive from the perspective of the villager is the immediacy of solution, as resources can be mustered straight away by the President, which otherwise takes long years noting the plethora of departments and other bodies that are involved.
Sri Lanka is one of the highly bureaucratised countries with a public service ‘surplus to requirements’ and running the gauntlet is beyond the capacity of villagers. For example, to regularise a land permit, I was told by a one-time Land Commissioner, one has to have approvals from 23 odd government and semi government organisations. Things are unbelievably complicated by the number of authorising bodies. It took me 12 years after occupation to obtain the deed to my apartment from a government department in Colombo, and that too after two costly court cases. Bureaucratic corruption and inefficiency! Let us not talk about it. No wonder that the people awaiting the arrival of the President were sadly disappointed last week by the cancellation of his visit at the last minute.
In this bottom-up policy initiative there are many pitfalls that we can list straightaway. The President can visit only a few villages and those that are neglected can be politically ‘not with him’. Secondly, the problems are the same in most villages and it will be pointless wasting the time of the President because he will reach the saturation point very soon. He will realise that there are better and efficient mechanisms, given the resources, which can attend to these problems. What the information tells the President is that the issues, being common to many of the fourteen thousand villages are crying out for a national plan of action. Hence we wonder whether it is it the enormity of the issues that strained the limits of those who had power before, causing this neglect? Was it lack of insight, proper understanding, ministerial inexperience or the fear of realising the complexity of the interrelationships between issues or sheer lack of resources that caused this oversight?
The President cannot visit all villages and the solutions he instantaneously gives can be counterproductive. The furore over the environment and forests is a classic case where the Presidents instant solutions have become the weapon in the hands of an environmentally conscious middle class youth on whose bandwagon the opponents of the government are taking a joy ride.
The President will face similar catch-22 situations, which adversely affect his popularity. Incremental policies at the margins by themselves do not achieve much.
Conclusion
Sri Lanka failed in the bottom-up policy development due to many reasons and I can only highlight briefly a few for lack of space. The inefficient and lethargic conduct of the public institutions, the way our peoples representatives are elected without responsibility for particular localities, over 8000 politicians, the haphazard manner in which ministries are created for politicians (Foreign Affairs coupled with Lotteries!), the total lack of coordination between departments, the corruption of public officials, the inability of law to punish those who flout the law, the misuse of power and influence, the non-use or decay of coordination mechanisms such as Divisional, District and Provincial coordinating committees, and the lack of nexus between Provincial Councils and local authorities and many more. The political solution proposed by way of Provincial Councils has become a dead weight. Generally, we are an over governed society and as such the use of modern scientific management for policy implementation is non-existent.
An article appeared in your paper the other day by our colleague Ranjith Soysa from Australia about the successes of China in eradicating poverty in a matter of decades by comprehensive social policy planning which Sri Lanka can learn from. A white paper on poverty alleviation, which outlines the success of policies implemented, the methods employed and her desire to share the unique social experiment with other developing countries was mentioned therein. ‘Sri Lanka should make use of this opportunity to study the programme and follow its guidelines if a national comprehensive policy is to be implemented.
China achieved the largest scale battle against extreme poverty, as 98.99 million people had been lifted out of absolute poverty––a miracle in human history. But China achieves success because it is a planned centrally and the ideology is driven with strict, rigidly enforced rules, but whether we, being overly democratic, can enforce such discipline in a country noted for a poor work ethic is any one’s guess.
References
Hogwood,B.W & L.A.Gunn (1984) Policy Analysis for the Real World, Oxford, Oxford University Press.
D.Chandraratna, Making Social Policy in Modern Sri Lanka (2003), Vijitha Yapa, Colombo.
Last summer, a woman was arrested at Gatwick Airport after she arrived from Nigeria with a very young baby girl.
The woman had been living in West Yorkshire with her husband and children, and before leaving the UK for Africa had told her GP she was pregnant. That was not true.
When the woman returned about a month later with the baby, she was arrested on suspicion of trafficking.
The case, the second the BBC has followed through the Family Court in recent months, reveals what experts say is a worrying trend of babies possibly being brought to the UK unlawfully – some from so-called “baby factories” in Nigeria.
The woman, who we are calling Susan, is Nigerian, but had been living in England since June 2023, with her husband and children.
A careworker with leave to remain in Britain, Susan claimed she was pregnant. But scans and blood tests showed that wasn’t true. Instead, they revealed Susan had a tumour, which doctors feared could be cancerous. But she refused treatment.
Susan insisted her previous pregnancies had been invisible on scans, telling her employer, “my babies are always hidden”. She also claimed she’d been pregnant for up to 30 months with her other children.
Susan had travelled to Nigeria in early June 2024, saying she wanted to have her baby there, and then contacted her local hospital in Britain, to say she had given birth. Doctors were concerned and contacted children’s services.
Arriving back in the UK with the baby girl – who we’re calling Eleanor – Susan was stopped and arrested by Sussex Police.
She was bailed and the lead police force on this confirmed there is no active investigation at the moment. After her arrest, Susan, her husband, and Eleanor were given DNA tests. Eleanor was taken to foster carers. “When the results show that I am Eleanor’s mother, I want her to be returned immediately,” Susan said.
But the tests showed the baby had no genetic link with Susan or her husband. Susan demanded a second test – which gave the same result, and then she changed her story.
She’d had IVF treatment before moving to Britain in 2023 with a donor egg and sperm, she said, and that’s why the DNA tests were negative.
Susan provided a letter from a Nigerian hospital, signed by the medical director, saying she’d given birth there, as well as a document from another clinic about the IVF treatment to back up her claims.
She also provided photos and videos which she said showed her in the Nigerian hospital’s labour suite. No face is visible in the images and one showed a naked woman with a placenta between her legs, with an umbilical cord still attached to it.
The Family Court in Leeds sent Henrietta Coker to investigate.
Ms Coker, who provides expert reports to family courts in cases like this, has nearly 30 years experience as a social worker. She trained in Britain, and worked in front-line child protection in London, before moving to Africa. Ms Coker visited the medical centre where Susan claimed she’d had IVF. There was no record of Susan having had treatment there – staff told her the letter was forged.
She then visited the place Susan said she’d given birth. It was a shabby, three bedroom flat, with “stained” walls and “dirty” carpets.
There Ms Coker was met by “three young teenage girls sitting in the reception room with nurses’ uniforms on”. She asked to speak to the matron and was “ushered into the kitchen where a teenage girl was eating rice”.
Ms Coker then tracked down the doctor who’d written a letter saying Susan had given birth there. He said, “Yes, someone had given birth”.
Ms Coker showed him a photograph of Susan, but it wasn’t her, the doctor said. “Impersonating people is common in this part of the world,” he told Ms Coker, suggesting that Susan might have “bought the baby”.
The practice of “baby farming” is well known in West Africa, Ms Coker later told the court. At least 200 illegal “baby factories” have been shut down by the Nigerian authorities in the last five years, she said.
Some contained young girls who’d been kidnapped, raped, and forced to give birth repeatedly. “Sometimes these girls are released,” Ms Coker said, “other times they die during childbirth, or are murdered and placed in the grounds of the organisation.”
It’s not clear where baby Eleanor might have come from – though the doctor told Ms Coker he believed she would have been given up voluntarily. Ms Coker was unable to establish who Eleanor’s real parents are.
She gave evidence to the Family Court in Leeds in March this year, along with Susan, her husband, her employer and a senior obstetrician.
At an earlier hearing the judge asked for Susan’s phone to be examined. Investigators found messages which Susan had sent to someone saved in her address book as “Mum oft [sic] Lagos Baby”.
About four weeks before the alleged date of birth Susan wrote a text message which read:
“Good afternoon ma, I have not seen the hospital items”
The same day, Mum Oft Lagos Baby responded:
“Delivery drug is 3.4 m
“Hospital bill 170k.”
Assuming those sums to be Nigerian Naira, they would be in the region of £1,700 and £85 respectively, the Family Court judge, Recorder William Tyler KC said.
The local authority pointed out the messages were set to “automatic self-destruct mode” – and said they represented evidence of a deal to purchase a baby.
Susan tried to explain the messages in court. The Recorder said her attempts were “difficult to follow and impossible to accept”.
Recorder Tyler, sitting as a Deputy Judge of the High Court, found Susan had “staged a scene” which she falsely claimed showed her giving birth to Eleanor in Nigeria.
He said Susan and her husband had put forward a “fundamental lie” to explain how Eleanor came to be in their care, and had tried to mislead authorities with false documents.
They’d both caused the little girl “significant emotional and psychological harm”, he said.
In early July, the BBC attended the final hearing in Eleanor’s case, held remotely.
In one little square of the Teams meeting we could see Susan and her husband, sitting upright, barely moving, focused closely on what the advocates said.
They wanted Eleanor returned to them. Their barristers said their own children were thriving – they wanted to offer her the same love and care.
Susan’s husband saw Eleanor as “a fundamental part of their family unit”.
Vikki Horspool, representing the child’s guardian, a social worker from the Independent Children and Family Child Advisory Service challenged that. She said that the couple “continued to be dishonest” about Eleanor’s real start in life and how she came to be in their care.
The judge ordered that baby Eleanor be placed for adoption, and also made a “declaration of non parentage”. He said he was aware of the “pain” this would cause Susan and her husband.
The barrister for the local authority told the court that the baby is “very settled” with her foster carer, taking part in activities in her community and getting medical treatment.
When Eleanor is adopted she will have a new identity and British nationality – but she may never know who her real parents are.
Eleanor’s story echoes the case of ‘Lucy’ – who was brought into Manchester Airport in 2023, by a man claiming to be her father.
Ms Coker believes it is likely that more children have been brought unlawfully to the UK from West Africa. She told the BBC she has worked on around a dozen similar cases since the pandemic. In her experience, baby trafficking is commonplace. “Money is getting exchanged for children on a large scale” she said – not just in Africa but “across the global south”.
Since 2021 the UK government has restricted adoptions from Nigeria, partly because of “evidence of organised child trafficking” within the country. British authorities have been aware of the problem for many years, and there have been several cases in the Family Courts over the last 20 years.
Two hearings in 2011 and 2012 involved Nigerian couples who had fertility treatment that led to a miracle baby. These “treatments” continue, as recently exposed by investigative journalists at BBC Africa Eye.
In 2013, the UK High Commission in Lagos required DNA tests in certain circumstances before newborn babies could be taken from Nigeria to Britain.
Among 12 couples investigated was a former Oxford academic, prosecuted for immigration offenses. However this process has been stopped. In 2018 officials were advised that such DNA testing was unlawful.
They were told they could not make people undergo DNA testing when they were asking for a visa or passport in support of an application relating to immigration status – and that had been the case since 2014.
Ms Coker said some clinics offer “packages” that include registering the baby’s birth. It will cost anywhere between £2,000 and £8,000, excluding any airfare, she said.
She thinks more people in Britain should be aware of this activity.
It is hard to tackle, she said – perhaps DNA testing of newborn babies and purported parents would help.
But she wasn’t sure the British government can do much to stop it, she said, “the issues start in countries where the children are born”.
Patricia Durr, CEO of the anti-trafficking charity ECPAT said cases like this were particularly “heinous” because they denied a child right to their identity.
She said: “Every effort must be made to prevent these egregious crimes occurring.”
A government spokesperson said: “Falsely claiming to be the parent of a child to facilitate entry to the UK is illegal. Those found doing so will face the full force of the law.
“Border Force is committed to protecting individuals who cross the border and where concerns are raised, officers will take action to safeguard individuals who could be at risk.”
The BBC contacted the Nigerian High Commission for comment but they did not respond.
[BBC]
Part 1: Principles to be followed
(This is the first part of ‘The Dilemma of a Definition: Terrorism Without Terror?’, published in The Island on Friday (11). Due to a numbering error, the second part was published first. We regret the error, which is ours. Both articles are now available in the correct order in our Internet edition – Ed.)
Following its electoral promise to abolish the Prevention of Terrorism Act (PTA), the government has appointed a committee led by Rienzi Arsekularatne, Senior President’s Counsel, to draft a new law to replace it. Mr Arsekularatne has decades of experience in criminal justice, having worked as both a prosecutor and defence counsel. He represented many activists unfairly accused of crimes during the Aragalaya. As a legal advisor to the Catholic Church, he has a good understanding of the rights of victims and their families. He will thus be able to consider issues from the perspectives of the State, criminal justice, human rights, suspects, accused, activists, and victims.
The PTA does not create an offence of “terrorism”; instead, it provides for special provisions regarding offences, most of which are already covered by law. In 2018, the Yahapalanaya government proposed a Counter-Terrorism Act (CTA) that sought to define terrorism. Certain acts, not necessarily involving the use of violence, let alone terror, would amount to terrorism. When the Bill was taken up for discussion by the Sectoral Committee on Defence, the writer, then a Member of Parliament of the ruling coalition, argued that many acts committed during the famous Hartal of 1953 would have come within the proposed offence and that Opposition politicians such as S.W.R.D. Bandaranaike, N.M. Perera, Philip Gunawardena and Colvin R. De Silva would have gone to jail as “terrorists”. The Bill was withdrawn in the face of local as well as international concern.
One can say the same of acts committed during the Aragalaya on Galle Face. Even if some acts were not entirely peaceful, they were by no means acts of terrorism. Events involving violence in the aftermath of attacks on protesters, including the unfortunate killing of a Member of Parliament and the torching of houses of politicians, were dealt with under ordinary law, not under the PTA.
Protests and strikes are not tea parties. They may lead to tension and even violence. Strikes are intended to paralyse the institution or sector concerned so that a service cannot be provided. A strike in the health sector, causing a serious risk to the health and safety of the public, or a protest that may cause a serious risk to public safety, is not terrorism. Not every severe damage to a place of public use or governmental facility should be labelled terrorism. Such acts can be dealt with under the normal law.
The dangers of an overly broad definition go beyond conviction and increased punishment. Special laws on terrorism permit deviations from standard laws in areas such as preventive detention, arrest, administrative detention, restrictions on judicial decisions regarding bail, lengthy pre-trial detention, the use of confessions, superadded punishments such as confiscation of property and cancellation of professional licences, banning organisations, and restrictions on publications, among others. The misuse of such laws is not uncommon.
Drastic legislation, such as the PTA and emergency regulations, although intended to be used to curb intense violence and deal with emergencies, has been exploited to suppress political opposition. In the aftermath of the presidential election of 1982, several opposition politicians, prominent among them Vijaya Kumaratunga, were taken in for preventive detention under emergency regulations allegedly to prevent “a Naxalite-type coup”. They were released only after the completion of the notorious referendum, which extended the term of Parliament by six years.
None of them was charged in court. It is evident that they were detained not to prevent them from attempting to overthrow the government, but to prevent them from campaigning against it. Even the ICCPR Act has been misused. Our legal literature is replete with Supreme Court judgments and statements of the Human Rights Commission on the misuse of special legislation. The JVP, the main party of the government, has been at the receiving end of such misuse for decades.
The writer argues that, as a fundamental principle, for an act to come within the definition of terrorism, it must involve ‘terror’ or a ‘state of intense or overwhelming fear’ or be committed to achieve an objective of an individual or organisation that uses ‘terror’ or a ‘state of intense or overwhelming fear’ to realise its aims. This principle has been recognised internationally even subsequent to the 11 September 2001 (9/11) incidents.
Acts related to terrorism can occur without violence, such as when a member of an extremist organisation remotely sabotages an electronic, automated, or computerised system to achieve the organisation’s aim. However, if the same act is performed by, say, a whizz-kid without any connection to such an organisation, it would be illegal and should be punished, but not under a law on terrorism.
Principles to be followed: International standards
The international community’s inability to agree on a definition of ‘terrorism’ has been a significant reason for the absence of a single multi-lateral treaty on terrorism. Yet, several treaties address issues involving the use of terror. Among them are those dealing with violence at airports and on aircraft, maritime navigation, crimes against internationally protected persons, hostages, bombings, nuclear terrorism and financing of terrorism. Sri Lanka is party to more than a dozen such treaties and has enacted domestic legislation to give effect to most of them.
In its resolution 1566 of October 2004, the UN Security Council used a wider phrase “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organisation to do or to abstain from doing any act” but restricted it to “offences within the scope of and as defined in the international conventions and protocols relating to terrorism.” As mentioned above, most such treaties are already part of our domestic law.
The UN General Assembly, in its resolution adopted on 8 December 2005 on “Measures to eliminate international terrorism,” referred to “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them”.
The UN General Assembly reaffirmed this wording in January 2006 (Resolution 60/43), using the phrase “criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes.”
Thus, there is consensus within the United Nations, which has as its members developed countries, developing countries and least developed countries, that the threshold for a possible general offence of terrorism is the provocation of a state of terror.
The Parliamentary Assembly of the Council of Europe has defined an act of terrorism to be “any offence committed by individuals or groups resorting to violence or threatening to use violence against a country, its institutions, its population in general or specific individuals which, being motivated by separatist aspirations, extremist ideological conceptions, fanaticism or irrational and subjective factors, is intended to create a climate of terror among official authorities, certain individuals or groups in society, or the general public.” (Recommendation 1426 of 1999).
Terrorism without terror? Need to avoid over-broad definitions
Overbroad definitions of terrorism allow the State to harass individuals, especially critics of the government and civil society activists, and detain them for lengthy periods, thereby suppressing and discouraging criticism.
In his 2023 report on ‘Activities of the United Nations system in implementing the United Nations Global Counter-Terrorism Strategy, the Secretary-General warned against over-broad definitions: “Vague and overly broad definitions of terrorism and related offences in domestic legislation are a recurrent concern, further compounded by a frequent lack of appropriate safeguards to prevent their unlawful or arbitrary implementation in counter-terrorism. Such laws are not only contrary to the principle of legality under international human rights law, but they often result in heavy-handed implementation, leading to ineffective and counterproductive counter-terrorism responses. …
In some contexts, counter-terrorism laws and measures continue to be routinely misused to label civil society actors, including human rights defenders, as terrorists and to prosecute them for terrorism-related offences with a view to obstructing their work.”Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, stated in his report (A/62/263, paragraph 66): ” In the absence of a universally agreed definition of terrorist acts, some States have included in their national counter-terrorism legislation a broad range of acts which do not, in terms of severity, purpose or aim, reach the threshold of objectively being considered terrorist acts, or the threshold required for exclusion from refugee status. Such broad definitions have in many instances been used to suppress legitimate activities which fall within the ambit of the freedom of opinion, expression or association enshrined in the International Covenant on Civil and Political Rights.”
The UN Human Rights Committee (HRC), the treaty body of the International Covenant on Civil and Political Rights (ICCPR), commenting on the Spanish Penal Code stated: ‘The vaguely defined crime of collaboration [with terrorist organisations] runs the risk of being extended to include behaviour that does not relate to any kind of violent activity. If conduct is criminalised as support to terrorism, it must be clear which elements of such conduct make it a terrorist crime.’
On a Russian law on terrorism, the HRC stated: ‘[T]he State party should: (a) Adopt a narrower definition of crimes of terrorism limited to offences that can justifiably be equated with terrorism and its serious consequences, and ensure that the procedural guarantees established in the Covenant are fulfilled.’
Upon the HRC stating that the offence of ‘encouragement of terrorism’ has been defined in the original section 1 of the Terrorism Act 2006 of the United Kingdom in broad and vague terms, the Act was amended to conform to the HRC’s views.
The United Nations Office on Drugs and Crime (UNODC) is the custodian of United Nations standards and norms in crime prevention and criminal justice, with a mandate to assist Member States in reforming their criminal justice systems to ensure the practical application of these standards. The UNODC Handbook on Criminal Justice Responses to Terrorism is instructive. Regarding the definition of terrorist acts and terrorism-related crimes, the UNODC emphasises that the “criminalised conduct should be described in precise and unambiguous language that narrowly defines the punishable offence and distinguishes it from conduct that is either not punishable or is punishable by other penalties.” The handbook was prepared with the participation of experts from around the world, who worked for several months, and was finalised at a workshop in Vienna. The writer was privileged to be a member of the team.
The Council of the European Union Framework Decision on combating terrorism of 13 June 2002, after the 9/11 attacks, calls upon Member States to declare as terrorist offences intentional acts, ranging from attacks upon a person’s life which may cause death, releasing of dangerous substances, or causing fires, floods or explosions endangering human life which, given their nature or context, may seriously damage a country or an international organisation where committed with the aim of seriously intimidating a population, or unduly compelling a Government or international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.
Article 421-1 of the French Penal Code on terrorism lists offences that would constitute acts of terrorism “where they are committed intentionally in connection with an individual or collective undertaking, the purpose of which is seriously to disturb public order through intimidation or terror.”
by (Dr) Jayampathy Wickramaratne, President’s Counsel ✍️
After some wait Sri Lanka received Trump’s tariff letter – really the same ‘form letter’ sent to different countries, and not really received but posted at 3:55 am on Thursday July 10, or 6:25 pm on Wednesday in Washington. The first post got our president’s first name wrong – Aruna instead of Anura, and a second post followed to correct the typo. The world is getting used to superpower sloppiness in formal missives even as it got jolted to America’s aerial bombing reach over Iran. President Dissanayake is not the only one to be honoured with a Washington typo. The letter sent to Madam Željka Cvijanović, the Chairwoman of the Presidency of Bosnia and Herzegovina, referred to as “Her Excellency,” and also addressed her as “Dear Mr President.”
A more serious political and even legal howler is in the letter sent to Brazil, the same day as Sri Lanka, but a non-form letter sent specifically to Brazilian President Luiz Inacio Lula da Silva. The letter quite blatantly singles out Brazil for a punishing 50% tariff not for security or economic reasons that Trump usually uses to justify his tariffs, but because he is not happy with Brazil’s prosecution of its former president and Trump buddy Bolsonaro for trying to overturn his defeat in 2020 presidential election. Trump tried the same thing in the US and was indicted for but escaped trial thanks to the Supreme Court’s artful ruling on presidential immunity. Now Trump wants to help Bolsonaro in Brazil using his tariff powers in America.
Trump’s letter to Sri Lanka indicates that Sri Lanka will be charged “only 30% on any and all Sri Lankan products sent into the United States …”, while inviting Sri Lanka “to participate in the extraordinary Economy of the United States, the Number One Market in the World, by far.” This is seriously from the President of the United States of America, no less, and by far too. The new 30% tariff level is quite lower than the 44% that was earmarked for Sri Lanka in Trump’s Rose Garden rollout of global tariffs on April 9. Among comparator and competitor countries Sri Lanka has fared better than some and worse than others.
Vietnam has got a better deal at 20% in this week’s letter, from 46% in April. Philippines and Malaysia have got 20% and 25% tariffs now, but slightly higher than the 17% and 24% levels in April. Among other ASEAN countries, Indonesia and Thailand are at the same 32% and 36% as in April, while Cambodia’s tariff has been lowered from 49% in April to 36% now. It is true countries have been scrambling to get a lower tariff imposition from Trump.
Other than China and the European Union, as well as Canada and Mexico to a lesser extent, hardly any country has pushed back on Trump’s tariff floats or threatened him with counter tariffs. All the other countries have been jostling among them to get an audience in Washington and strike a favourable deal. Some have had success in lowering the April 9 tariffs, but no one is looking for a return to pre-April 9 normalcy. There would appear to be little method and more chaos in the way Trump is playing favourites among contending competitors. For instance, he has been selectively hard on America’s traditional allies while being open to making deals with others.
Trump’s distaste for Western Europe and Canada have been quite obvious. But he is also hard on countries like Japan and South Korea that have been faithful American allies for nearly 80 years after the end of the second World War. While Vietnam would seem to have obtained a relatively good deal from Trump, Japan and South Korea have not been able to get a timely audience at the White House or with US officials. Many of Trump’s moves with other countries are supposed to be indirect moves against China. Yet Trump has been indicating his willingness to reach a mutually beneficial deal with China.
The letters to Japan and Korea keep their tariff levels at 25%, same as in April, but the two countries have been trying hard to lower the tariffs, given their volume of exports to the US. Then out of nowhere on Thursday night, Trump posted a letter for Canada threatening to impose a 35% tariff on Canadian exports to America by August 1st. This despite officials of the two countries at the highest level working for several months to strike a comprehensive tariff agreement by July 21st. And no world leader has taken a measured and conciliatory approach to Trump’s tariffs than Canadian Prime Minister Mark Carney. And he gets the same form-letter as others with a new 35% announcement without any clarity on the already imposed taxes on steel, aluminum, copper and auto sector.
Sri Lanka’s Options
In this whipsaw world Trump tariffs Sri Lanka managed to get is tariff lowered from 44% in April to 30% now. The NPP government is calling it one of the highest tariff reductions from April and an outcome of the government’s successful negotiations with the US. The Opposition, on the other hand, is calling it a failure and blaming it on the government’s incompetence. According to Sajith Premadasa, “The 30% US tariff on Sri Lankan exports is the price we pay for poor negotiation.” Harsha de Silva has been more conciliatory, welcoming the reduction from 44% to 30% while pointing out that 30% tariff is still too high to be competitive with other countries vying for the US market. He has also offered opposition support to get a better deal before the new Trump deadline now set for August 1.
The US is the single largest export market practically for every country. And for countries that depend on their exports more than others, losing a share of the US market would mean significant losses in their forex earnings. The US accounts for 27% ($3 billion) of Sri Lanka’s total manufactured exports of $12.8 billion. And the garment sector accounts for nearly two-thirds of all exports to the US. With 350,000 direct jobs and twice as many spinoff jobs a serious impact on the garment sector will be bad for the economy and the political fallouts would be even worse.
At the same time, there are opportunities that could be used to mitigate the potential impacts on exports to the US. Trade diversification is an option but when every country is trying to diversify it would be tough to find new buyers in the short term. Establishing a niche market in the US for Sri Lankan garments could be a faster option than diversifying. Perhaps the government should give support to industries to achieve market consolidation in the US.
A potential mitigating factor could be that the tariffs are applied to the free-on-board (FOB) price of a product and not directly added to the retail price. With niche products, sellers could find room for adjustments in the markup between the FOB and the retail price. Sri Lanka’s otherwise devalued rupee could also add to the competitiveness of its exports vis a vis countries with higher valued currencies.
Sri Lanka’s biggest competitors in the apparel sector are India, Bangladesh, Vietnam and Cambodia, and their respective tariff levels are 26%, 35%, 20%, and 36%. India and Pakistan have not received their letters, and no one knows whether India’s April level of 26% will go up or down with the letter. Recently, Pakistan has gotten closer to Washington with a very cordial White House lunch meeting between President Trump and Pakistan’s Army Chief, Field Marshal Asim Munir. Trump was quite impressed by the guest in uniform and the lunch was followed by another unscheduled hour of talks at the White House. There is talk that Trump, in his quest for the Nobel Peace Prize, may float tariffs as a bargaining inducement to force peace between India and Pakistan. Pakistan likely will play along while India may not take kindly to being treated at the same level as Pakistan. How all that will translate into Trump’s tariff letters to the two countries, even Trump wouldn’t know at this point.
With India, Pakistan and Bangladesh having their own internal problems and in-between complications, it would be futile to expect a collective SARC response to Trump’s tariffs to the South Asian region. Even bilateral understandings will not be easy. India will always be the lender of first resort to Sri Lank, but will not easily agree to anything that may impact its exports to America. But Sri Lanka, given the limited range of its exports, could try to achieve understanding in avoiding or minimizing duplication of products and competing for the same market segments in the US. That is something the NPP government may want to look into.
The trouble with Trump’s tariffs is that they are likely to stay even after Trump is gone as president in three and a half years. The task would be to keep lowering them but eliminating them will be a long shot. In a memorable turn of phrase several weeks ago, the Canadian Prime Minister, a Cantab PhD in Macroeconomics and Central Bank Governor in two G7 countries (Canada and England), described President Trump’s tariff scheme as ‘monetization of US hegemony.’ Objectively, Mr. Carney is right on the mark, no matter what Trump’s subjective compulsions are. The implications are unfolding and quite unpredictably as well.
by Rajan Philips ✍️
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