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Beyond constitutional politics and polemics

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Secretary of State Mike Pompeo and US Ambassador to India Kenneth Juster greet one another upon Pompeo’s arrival at the airport in New Delhi on Monday. PTI

by Austin Fernando

All quandaries on constitutional amendments are now over with an impressive victory for President Gotabaya Rajapaksa, and the country looks forward to the implementation of the 20th Amendment (20A), to serve the people more efficiently, effectively, and economically.

Although Minister of Justice Ali Sabry declared that all 20A provisions had been in the JR Jayewardene Constitution previously, there were a few differences. Considering the volume of amendments, this stance is passable, though not exact. My observation is that Presidents Jayewardene, Ranasinghe Premadasa and Mahinda Rajapaksa performed effectively in comparison to attain their development objectives through the 1978 Constitution.

Governmental performance

Economic performance is an essential ingredient in political performance and management. It is because the economics of development under all regimes has been an evaluation yardstick and also publicly questioned.

Performance by Presidents, Prime Ministers and governments are not guided and determined only by Constitutions. If Constitutions could facilitate smooth performance, why didn’t it happen during tenures of all Presidents exercising power according to the 1978 Constitution? Until 2009, they had failed to defeat terrorism. Corruption increased. The economic morass continued.

The development of a country hinges on the quality of political and business leadership, national security/stability, research/ technological /educational standards, labour legislations, foreign direct investments, foreign assistance/aid, environmental soundness, diplomacy, international political behavior, and positive responses. The Constitution could boost development, but it alone is not sufficient.

Successes do not preclude criticisms that were aplenty against the aforesaid three Presidents. Some criticisms were even acceptable as regards the moral decadence due to the open economy, proliferation of dangerous drugs, or the construction of an unoptimizable port, airport and other such infrastructural projects and debt traps.

 

Human rights

One criterion for foreign assistance is a country’s respect for human rights. I may quote Rights watchdog Meenakshi Ganguly, of Human Rights Watch- South Asia, to prove this point. After the election of President Gotabaya Rajapaksa, she said: “The Sri Lankan government needs to hear that other countries are watching and will respond to renewed abuses.” This threat has not gone away.

Such issues will be taken up when the UNHRC meets in early 2021. Britain has already decided to withdraw the LTTE ban. Additionally, anti-China attitudes could lead to the harassment of Sri Lanka even indirectly. Contrarily, the Chinese have given assurances of bailing us out.

Even after the passage of 20A, President Gotabaya Rajapaksa cannot expect to be exempted from such attitudes, rules, and standards. I will highlight some immediate reactions experienced with selected internationals. The way foreign powers have responded to the incumbents after the presidential and parliamentary elections will be a guide to observe the trends.

 

India

Immediately after the presidential election, India showed up in Colombo. President Gotabaya Rajapaksa also positively responded and the traditional first destination visit was to Delhi. Former President Maithripala Sirisena also did so, followed by another for the second inauguration of PM Modi.

Such visits provide opportunities to evaluate silently how foreign powers respond. I had the privilege of participating in all three visits by Presidents Sirisena and Rajapaksa. President Sirisena’s first visit was considered by Indians as a grand opportunity for novel openings and approaches, having experienced a deterioration of diplomatic relations under President Mahinda Rajapaksa’s tenure.

However, the agreement signed by Ministers Malik Samarawickrama and Sushma Swaraj in 2017, concerning several large-scale projects, apparently to spite Chinese political/economic interference in Sri Lanka, did not reach fruition. Indians did not forgive the Sirisena-Wickremesinghe government although formal relations were maintained respectfully.

The difference in diplomatic relations is reflected in many ways. This was seen from how PM Modi responded when President Gotabaya Rajapaksa visited India in November 2019. Their one-on-one meeting lasted 55 minutes, and India offered US dollar 450 million to Sri Lanka in assistance. Perhaps, body chemistry of the two leaders clicked. PM Mahinda Rajapaksa once criticised Indians for having contributed to his defeat in 2015. India has proved that there are no permanent friends or permanent enemies in foreign relations, and it is only the mutual interests that matter.

Indians expected the fast-tracking of projects related to the Eastern Container Terminal (ECT), the Mattala Airport, and Trinco Petroleum Tanks. But there has been no positive follow-up even eleven months after President Gotabaya Rajapaksa’s discussions with PM Modi. The COVID-19 pandemic could be one reason for this delay. But a fresh dialogue is necessary if India is to be kept in the development loops.

Recently, PM Modi offered a $15-million grant for the promotion of Buddhist cultural exchanges, but his officers are slow in finalizing requests for a debt moratorium and an additional $1.1-billion assistance discussed during the visits of Rajapaksa brothers in November 2019 and February 2020. Positively, the Reserve Bank of India signed a swap of $400 million. If such needs are not met, the vacuum will be filled by another.

For comparison, Indian External Affairs Minister committed a 100-million-dollar grant and a project loan of 400 million dollars to the Maldives in mid-August this year, showing assistance did not depend on demography, revenue generation, or socio-economy, but on other priorities. The swift assistance to the Maldives and the delay in responding to our request may be conveying a message that should be heard and understood by Sri Lanka.

I quote another Indian investment in Bangladesh for comparison. The Bangladesh Economic Zones Authority was ready (mid-2020) to start site development for an Indian Special Economic Zone, where billions of dollars in investment were expected from India. Sri Lanka was not so fortunate even though such potential was in the 2017 agreement. The government must learn from Bangladesh experience.

China

Quite the opposite response was shown by the Chinese who have already handed over 500 million dollars (March 2020). When the Chinese Minister Wang Yi met Foreign Minister Dinesh Gunawardena, the latter thanked China for its consistent contribution to Sri Lanka’s development process as well as their support at numerous regional and international fora, like the UNHRC. China and Russia have been helpful throughout.

Chinese involvement in infrastructure development has drawn severe criticism. This is something common throughout the world as regards the Chinese investment through the Belt and Road Initiative (BRI).

Another Chinese intervention took place recently when Senior Chinese diplomat Yang Jiechi met President Gotabaya Rajapaksa, who reportedly said: “Sri Lanka will firmly commit itself to deepening friendship with China, and is willing to make every effort to press forward the key BRI cooperation projects such as the Colombo Port City and the comprehensive development of the Hambantota Harbour.” This would not have pleased the Indians and Americans, and even the Japanese, who recently lost a light rail investment project here.

When Yang met PM Mahinda Rajapaksa, just after the latter’s discussion with PM Modi, the PM thanked China’s support for combating COVID-19, adding that China’s strong support in various fields had helped Sri Lanka strengthen its capacity to resume work and production amid the pandemic.

Finally, it was revealed that China would also help mitigate the financial crisis faced by Sri Lanka.

The Framework of the Strategic Cooperative Partnership between China and Sri Lanka embarked on, in 2013, gave hope of advantages through development but achievements have been slow in coming. The recent high-level Chinese visit here points to a desire to accelerate it. It must be noted that such interventions with other countries (e. g. India) were slow. The delay between bureaucratic decision-making and politicized decision-making could be the reason.

 

USA, Quad, and influences

 

The incredibly positive relations build-up by Yang Jiechi is followed by US Secretary of State Mike Pompeo’s visit to Colombo. While arrangements were being made for Pompeo’s visit, the US announced that it would urge Sri Lanka “to make ‘difficult but necessary choices’ on its economic relations”. The reference to difficult economic relations invariably meant the partnering with China. The MCC is another project the US is interested in.

The US spokesperson made it abundantly clear, saying “We encourage Sri Lanka to review the options we offer for transparent and sustainable economic development in contrast to discriminatory and opaque practices.” Media reports show that this message was partially conveyed to several Ministers by the American Ambassador Toeplitz when she met them.

The Chinese Foreign Ministry dismissed the comments as a manifestation of the “Cold War mentality.” Its spokesman Zhao Lijian responded, “Attempts to use coercion to obstruct normal cooperation between countries will not succeed.”

Concurrently, Mike Pompeo has recently suggested (after the Tokyo Quad meeting) that the Quad should be institutionalized: “We [Quad members] can begin to build out a true security framework” for the Indo-Pacific. He also described the Quad as the “fabric” that could “counter the challenge that the Chinese Communist Party (CCP) presents to all of us.” It is clear Pompeo is gathering support against China.

In this context, meeting Pompeo after Yang Jiechi will be an embarrassment for Rajapaksas. In fact, a few months ago CCP was considered as a guide for their political party. Yet, the US will see whether Sri Lanka is prepared to counter the CCP challenges and to what extent. This is not surprising especially after India agreeing to sign a military agreement with the USfor sharing of sensitive satellite data and conducting a dialogue to counter China’s growing power in the region. It may be appropriate for Sri Lanka to remain cautious.

As commentators say, Chinese behaviour and attempts to re-order the region have caused concern among the Quad members. They believe that Quad may have to discuss a rule-based big picture of the Indo-Pacific Region, especially how to reshape China’s behaviour, and under what conditions they would reassess China as a responsible stakeholder. Pompeo is here after the Quad Foreign Ministers Meeting in Tokyo. Given this situation, how Sri Lanka should deal with him is a challenge.

 

Diplomatic conflicts and us

Countries like Sri Lanka sometimes become playing fields for powerful countries. US Ambassador Alaina Teplitz recently said that the US goal “in responding to this request (MCC) is to alleviate poverty and to boost inclusive economic growth” and identifying Sri Lanka as “a sovereign leader in maritime security”, which are indisputably favourable recognition of Sri Lanka.

But her statement “Sri Lanka should engage with China in ways that protect its sovereignty” angered China, which responded directly. The Chinese Embassy in Colombo stated that “with great shock and strong discontent, the embassy learned about the US Ambassador’s interview with a local newspaper, in which a foreign envoy from a third country openly played off China-Sri Lanka relations and severely violated the diplomatic protocol.” The Chinese are extraordinarily concerned with the US violating Sri Lanka’s diplomatic protocols. Having been a High Commissioner myself, I await such bold statements from our Ambassadors in the US or China, even violating diplomatic protocols, when a situation arises with these two governments! Am I waiting for Godot!

Further, the Chinese statement said: “Both China and Sri Lanka as independent countries have full right to develop relations with foreign countries according to our own need and will.” This reminds me of a past Chinese intervention in Bhutan. It is an example where the Chinese while seeking to mend relations with Bhutan, to make India lose ground, dropped Chinese tourist arrivals after the Doklam standoff, because Bhutan did not stand with China. It was a warning to Bhutan about the country’s vulnerability. At that point, the “full right to develop relations” with India was tabooed by China for Bhutan!

Bhutan’s obligations to act according to the Treaty of Friendship between India and Bhutan (8-8-1949) calling for peace between them and non-interference in each other’s internal affairs and the additional agreement by Bhutan to let India “guide” its foreign policy and consultative action on foreign and defense affairs were not considered by the Chinese, as the legal “need and will” of Bhutan.

Similarly, India’s wrath was unleashed (2012) when the then Bhutanese PM Jigme Thinley met the Chinese PM, Wen Jiabao, on the sidelines of the Rio+20 Summit. India retaliated by withdrawing fuel subsidies to Bhutan. New Delhi’s heavy-handed response was deeply resented by Bhutan.

We complain of powerful countries using the proverbial stick, but these examples show that anyone could be the perpetrator to satisfy his needs. Let us be realistic without resorting to rhetoric, which emanate from boisterous politicians mostly- even ministers.

The Chinese strongly suggested “the US quit the addiction of preaching others and applying double standards” and named four areas of misdeeds, i. e. slandering, pretending as the guardian of free trade while violating the WTO rulings, holding high the banner of transparency, and smearing others’ normal cooperation against sovereignty, while militarily misbehaving and imposing unilateral sanctions. Brunei, Vietnam, Malaysia, Philippines or Taiwanese in China Sea or Indians in Ladakh may blame the Chinese for not adhering to some of these principled behaviours and preaching to the US. Can Sri Lanka challenge President Xi on the same lines?

 

Conclusion

I quoted the aforesaid references to point out the difficulties faced by Sri Lanka in the big diplomatic picture. They are thrust on us. Sri Lanka must take informed positions due to practicalities.

With the Indians, the proximity, centuries old relationships, strategic location in the Indian Ocean region, which became a focused area due to Indo-Pacific Regional bias, India and Japan, etc., must be valued. The busines alliances between India and Japan on ECT and Liquified Natural Gas projects send another message. The potential/ possible Indian influence on other countries, some parliamentarians, demographic and political groups must be considered for internal political stability purposes.

The Chinese factor must be considered in the light of past transactions and potential investments that could be received faster than from borrowing agencies or formal lenders. Sri Lanka’s economic problems need immediate solutions. How far could the government wait for external interventions satisfying all criteria?

The above quoted financial requirements and responses received from India may help understand the reality of financing, for which China responds faster than any other country. Any political intervention should address this problem and adapt to systemic assistance. Of course, the disadvantages of Chinese interventions, even highlighted by the World Bank study, about procurement procedures could push countries like Sri Lanka into difficulties. What alternatives could evolve is an issue.

Immediate response to the statement by Dean Thompson was experienced with Sri Lanka’s government bonds falling heavily last week. This is the danger that could be created by big brothers. The African proverb, ‘When elephants fight, it is the grass that suffers’, is always valid.

It is time for those who yelled last week that restrictions on stability/development could be remedied by constitutional amendments to keep quiet because it is not the absolute truth. The 20A had other objectives as is obvious. They should look afresh realistically and consider whether ignoring the international developments is possible. Let saner counsel prevail.

Simply stated, it is time to ditch camouflaged rhetoric heard in the House last week and look incisively, realistically, logically, and face the international challenges caused by the financial crisis, COVID 19, political conflicts, etc. Being a small nation, we need everyone’s support.



Features

Deteriorating rural economy, and food security

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Photo credit: Nefelibata travels

By Dr. C. S. Weeraratna
csweera@sltnet.lk

Sri Lanka is a land of villages. There are around 14,000 of them. According to the Dept. of Census and Statistics, around 80% of the Sri Lankan population live in villages and estates. Most of them are farmers who are supposed to be suitable to be kings if the mud on their bodies are washed out. According to recent estimates, about 30 percent of the total households, in therural districts of Sri Lanka, live below the poverty line. A socio-economic survey, conducted in the recent past, indicates that although the rural sector has the ability to engage in productive activities, there are many constraints.

Wild elephants:

Wild elephants roaming in some of the dry zone villages,causing death to many and destroying property, aggravate the socio-economic hardships the rural sector has to face, affecting their health, education and many other aspects of the lives.

Chronic Kidney Disease:

Around 70,000 people of the country are affected by a chronic kidney disease (CKDu) . They are mostly in the rural areas of the country and are affected socially and economically. The patients in the final stages of CKDu have to go for dialysis which again affects the economy of rural people . In some families both parents have died and their children are helpless.

Water shortage:

In spite of the country receiving around 100 billion cubic meters of water, annually, there are frequent water shortages, mostly in the rural areas where there are around 12,000 tanks. Most of them are silted, reducing the water holding capacity of these tanks, causing rural communities to face shortage of water which seriously affects crop production and various domestic activities.

Transport:

Lack of reasonable transport facilities, in the rural areas, is one of the main setback to Sri Lanka’s overall prosperity. People living in some rural areas have to cross rivers, using inflated rubber tubes, as there are no bridges. A large number of rural roads remain in a dilapidated condition but, the authorities were more interested in constructing highways.

Inputs:

Fertilisers are a major input in crop production. During the last two cropping seasons, inorganic fertilisers, and pesticides, were not available due to the utterly foolish decision of the former government. Currently, fertilisers are available but they were not available at correct times.

Farmers are forced to obtain seeds at a high cost. For example, a kg of chilli seeds is around Rs. 170,000 and a kg of cabbage seed is sold at Rs 400,000 in the market.

Pest attacks cause considerable problems to farmers. Last year there was the sena caterpillar called “Fall Armyworm” (Spodopteria Frugipedera) which destroyed large extents of cultivated crops. According to press reports, the same pest destroyed thousands of hectares of maize in Ampara causing severe difficulties to the farmers. Brown Plant Hopper tends to destroy paddy.

Marketing:

Those farmers who manage to harvest the crop of rice/vegetables are unable to sell it for a reasonable price. Currently, paddy farmers are unable to sell their Yala paddy crop to cover the costs. Often vegetable farmers are forced to destroy their produce due to inability to market their produce at reasonable prices. Marketing of agricultural products, at a profit to the farmer, is an issue which the authorities need to take cognizance of.

Unemployment:

Unemployment is rampant in the country. As a result of government-imposed restrictions on imports, commercial activities of thousands of companies are slowing down, seriously affecting the private sector in the aftermath of the COVID-19 pandemic. Most of those companies have been compelled to reduce employment, non-renewal of employment contracts, and halting new recruitments, resulting in an increase in unemployment. Thousands of workers, in the construction sector, have already lost their jobs. These business enterprises are currently facing liquidity issues due to a loss of revenue and difficulties in the importation of raw material. Thousands of SMEs have closed down mainly due to lack of inputs, resulting in an increase in unemployment.

As a result of these limiting factors, rural economy is deteriorating. For the success of any development programme to improve the rural economy, it is essential to address the problems of the rural communities. However, the previous governments did not give priority to these critical issues, faced by farmers, who continue to live in abject poverty as a result. Most of them have to pawn their jewellery, or resort to some other ways ,to obtain finances to obtain agricultural inputs, such as seeds, fertilisers, pesticides and labour. Some of them have become prey to micro-credit companies.

All these issues cause untold hardships to thousands of farmers and have a negative impact on the rural economy. No effective actions appear to have been taken, by the relevant authorities, to implement appropriate solutions to these problems, except appointing committees. Those representing the farming community, in the Parliament, appear to be not concerned about the plight of our farming population who have voted them to power.

There is no centralized planning in farming in the country which, sometimes, leads farmers to cultivating the same crop/s, ultimately resulting in gluts. Previous governments attempted to solve this problem by implementing programmes, such as Api Wawamu-Rata Nagamu and Divineguma. But we continue to spend nearly Rs.300 billion, annually to import food. If the authorities are genuinely keen to improve the rural economy, they need to address these issues.

Food Security:

Food Security is closely related to rural economy. According to the United Nation’s Committee on World Food Security, food security is at maximum level when all people, at all times, have physical, social and economic access to sufficient, safe and nutritious food, to meet their dietary needs and food preferences for an active and healthy life. According to World Food Programme’ s latest food security assessment, about three in 10 households (6.26 million people) in Sri Lanka are food insecure. Cost of essential foods has increased during the last few months hindering the population’s ability to consume nutritious food in sufficient amounts. The food security situation is worst among people living in the estate sector.

Nutritious food to meet the dietary requirements of people need to contain mainly carbohydrates, proteins, vitamins and minerals. The local production of carbohydrates (mainly rice and sugar), and proteins (fish and milk) is inadequate to meet the demand. Hence, these food items are imported. During the last few years, we have spent nearly Rs. 300 billion, annually, on food imports, although it has decreased during the last few months, mainly due to restrictions on import of some food.

Availability of rice locally has decreased mainly because of inadequate availability of plant nutrients (nitrogen, phosphorus and potassium) through inorganic fertilisers. This has caused large amounts of rice to be imported. There appears to be no effective programmes to increase sugar production in the country. About two decades ago, in the1990s, sugarcane was cultivated in about 25, 000 hectares. At present, only about 12,000 ha are under sugarcane. The sugar factory, in Kantale, remains out of production, for nearly 15 years.

Availability of fish and milk has reduced due to a number of factors which the government appears to be not taking appropriate measures to increase the production of these items. According to press reports, the government is planning to import cattle from India and Pakistan to increase local milk production. It is foolish to import cattle to enhance milk production in the country without implementing an integrated programme to upgrade local cattle, making available cattle feed and improving veterinary practices in the country.

In Sri Lanka, during the last two decades, perhaps a few thousands of research studies, related to food security, involving billions of rupees worth of scarce resources, have been conducted. It is important that we utilize these research findings to find solutions to the pressing problems of the country. But there appears to be no effective system to make use of the research findings. Lack of an integrated plan is a factor responsible for the decline in food security. There has been rhetoric on rural economic development during the last few years. It is meaningful and effective actions that are necessary.

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A first indication of readiness to go on a new path

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By Jehan Perera

None too soon, President Ranil Wickremesinghe appears to be putting the brakes on the government’s policy of repression in dealing with public protests. His decision to initially sign the Gazette notification declaring key areas of Colombo to be High Security Zones was roundly criticised by human rights organisations including the Human Rights Commission of Sri Lanka. The business sector also complained that this decision which appears to have been made by the security establishment would be injurious to business. Revoking the High Security Zones made practical sense in view of the dubious legal basis of the declaration. The High Security Zones were to be set up under the Official Secrets Act which has hardly anything in common with the purpose of the new regulations.

The High Security Zone concept, which was practiced in the North and East of the country during the time of war, would have made it difficult for vehicles to even park on the roads without first obtaining special permission. There were also legal cases filed in the Supreme Court alleging violation of constitutional rights. The president would also have been aware of the resolution on Sri Lanka that is about to be presented for a vote at the UN Human Rights Council in Geneva. As many as 26 countries have agreed to co-sponsor the resolution, of which 10 are current members of the UNHRC. Sri Lanka is finding itself isolated in terms of human rights in the eyes of the international community which can have costly consequences in terms of reducing the international sympathy and support that the country needs at this time.

The president’s early resort to the security forces to clamp down on the protest movement came as a surprise as his prior track record would have suggested a more nuanced approach to dealing with public agitation. As a follow up to the revocation of the High Security Zones, the president needs to consider revamping government policy on addressing the protest movement. So far the government approach has focused on suppressing the protest movement, on the justification that it will destabilise the economy through strike actions and by chaos on the streets. However, in Sri Lanka’s democratic system a policy of repression is unlikely to be workable. A government that is reluctant to go to the polls must not use the security forces as its prop. The president’s withdrawal of the High Security Zones in Colombo may be understood as an acknowledgement of this reality.

DECLARE AMNESTY

There is general acknowledgement that the President is the most suitable for the task of negotiating with, and making the political case, for more international aid to come to Sri Lanka. During his recent visits to foreign countries he met with top world leaders and would have made his mark. However, it is also important that the president should make his mark on the Sri Lankan people. He needs to win the trust of the people who did not vote for him. Having consolidated himself following his election by parliament to be president, he needs to take a more pro-active role in addressing the roots of the protest movement and not simply quashing its manifestations. There is a need to inform the people what the government will be doing to directly address the terrible impact of the economic crisis on the poorer sections of the population.

There is a widespread sense that those arrested for being members of the protest movement ought not to be subjected to the heavy hand of the law. At the present time, both in Geneva and in Sri Lanka, government spokespersons are denying the severity of the problems that exists. Successive governments denied the excesses that occurred during the war period, both in Geneva and at home. In Sri Lanka the majority of the population were prepared to go along with the denials of war time excesses due to the nature of the ethnic conflict that pitted the ethnic communities against one another. However, a policy of denying the impact of the economic crisis on the poor will not be able to garner similar support from any community in Sri Lanka and will end up pitting the majority of people against the government, just as happened during the height of the Aragalaya.

A declaration of an amnesty for all those accused and arrested for being part of the protest movement would be an act of follow-up statesmanship considering the controversy these arrests are causing both internationally and nationally with the human rights groups and the general public. The ongoing arrests of some who have been part of the protest movement have been justified on the basis that they engaged in violence or supported it. Others are accused of having burnt down the houses of government ministers, including the president’s own ancestral house which contained his family library and valuable works of art. Some have been arrested without being charged before the courts.

Magnanimity, empathy and fairness are very powerful in binding the community together. This is an opportunity for the president to show his empathy with all those others who down the years have lost their own homes to violence, during the two JVP insurrections and during the long period of the ethnic war. The government plans to compensate its members who lost their houses. It needs to also compensate those who lost their lives due to government failure, the most recent being those who died standing in long lines, or when their substandard gas cylinders exploded.

ACCEPT TRUTH

At present, the government is denying the veracity of studies done by international organisations, including UN organisations, on the extent of the malnutrition and stunting that affects children. They are also denying the veracity of claims of corruption in the procurement of fuel and other large contracts, even in the midst of economic crisis. It is also doing little to ameliorate these problems. The government points to the restoration of reasonable supplies of petrol, diesel, cooking gas and electricity which can create an impression of normalcy, but only for those who can afford the much higher prices at which these commodities are available. The government denials of the unequal distribution of the burden will ring hollow with the masses of people, whose support is needed if the government is to govern in a stable political environment.

Instead of denying the existence of problems, the government needs to accept their existence and take measures to address them. This applies to both the problems within the country and that are being discussed internationally. It needs to recognise that its denials have got no traction in Geneva, which is why Sri Lanka has had to face nine resolutions, each one getting more difficult to respond to. The resolution that will be voted on in the UN Human Rights Council later this week will call for greater support for the UN’s evidence gathering mechanism that has already been set up and to provide more support to those countries that pursue universal jurisprudence for crimes committed by Sri Lankan political and military leaders anywhere in the world.

The government needs to use every opportunity it can to seek the support of the international community. With the draft resolution now presented, the eyes of the international community are upon Sri Lanka. While it is too late to change the draft resolution, which will be soon voted on, the government can still seek to restore goodwill among those that are pursuing the resolution on Sri Lanka at the UN Human Rights Council session in Geneva. An amnesty for those who participated in the protest movement could send a positive signal that the government is willing to heed the concerns of the international community regarding human rights and democratic freedoms. The possibility of amnesty to be part of a Truth and Reconciliation Commission in which there is acknowledgment of past violations, expression of regret and accountability for them can also be explored.

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Treaty for a Lost City – inconvenient facts or legal myths?

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By Andrew Sheng
Asia News Netowrk

Is Hong Kong a lost city or being re-born after its baptism of fire? Hong Kong was always a “borrowed place, borrowed time”, to quote the legendary journalist Richard Hughes (1906-1984), immortalised in John Le Carre’s novels on the intersection of media and espionage in cities like Berlin or Istanbul located at the borderlands of great power conflicts. Having returned the city on 1 July 1997, can Britain hold China to the terms and conditions of the 1984 Joint Declaration with China?

Chinese University of Hong Kong Law Professor CL Lim’s book, ” The Sino-British Joint Declaration” is a meticulously researched legal history of how the Joint Declaration came into being and whether it still has the force of law on both parties. There is a presumption that the Joint Declaration granted democratic rights to Hong Kong. The legal story is much more complex. This book draws on the British National Archives and study of the Basic Law of the Hong Kong Special Administrative Region (1990), the International Covenant on Civil and Political Rights (1966) [ICCPR], United Nations Charter, etc., to lay out the facts and opinions for the reader to judge who is right or wrong.

Cities and states are defined by their Constitutions, communal values, geography, cultures and histories. Prior to 1841, Hong Kong was a barren rock that was indisputably part of China. Hong was ceded under the Treaty of Nanjing after the First Opium War (1839-42); but the expiry of the 99 year New Territories lease meant that Britain could not hold onto Hong Kong after 1997. The People’s Republic of China (PRC), following earlier Chinese governments, has never recognised any “unequal treaty” with the Western Powers, but adopted the face-saving principle that “a sovereign may delegate under international law such control or authority to another for a limited period.” Once that sovereignty is resumed, the PRC will not brook any interference in its internal sovereign matters.

This book reads like a series of Queen’s Counsel briefs, densely argued on complex and subtle points presenting different opinions and perspectives. In normal legal disputes, the arbiter would be an independent court, but there is no final decision between China and United Kingdom, which are the five members of the UN Security Council that can veto any rulings at the United Nations level. The only appeal left is to the court of global public opinion, which is today dominated by the English-speaking media. As media today becomes more and more ideologically driven, it is unlikely that deeply held views will be changed by legal or rational arguments.

The genesis of the Joint Declaration was the need to ensure a smooth return of Hong Kong to China. In 1983, when the New Territories lease (covering 92% of Hong Kong) was running out, Britain initially sought to renew the lease, but found that China under Deng Xiaoping was adamant that China would resume sovereignty over Hong Kong. With confidence slipping, the Hong Kong currency was under attack, only to be restored by a peg against the US dollar. This gave impetus to settle the terms and conditions of return. As the book painstakingly pointed out, British negotiators were operating from a weak hand, wanting to retain as much influence and economic benefits as possible post-1997.

As described in Chapter 3, democracy under colonialism was never part of the negotiations. Hong Kong representatives played no part in the discussions between two sovereign powers. The Joint Declaration itself did not mention the word “democracy”. It basically stated that the Hong Kong SAR “will enjoy a high degree of autonomy, except in foreign and defence affairs” (Article 2) and that rights and freedoms will be ensured by Hong Kong SAR law (Article 5). Since the Basic Law, HKSAR’s constitution, is PRC law, the final interpretation falls to the Standing Committee of the National People’s Congress, not necessarily by the Hong Kong Court of Final Appeals.

The real point of dispute lies in the National Security Law, which was passed by the National People’s Congress in 2020, after the Hong Kong legislature was unable to enact Article 23 of the Basic Law. As public disorder arose with violent protests, the practical issue was whether HKSAR government could handle them without a National Security Law. Hong Kong was uniquely handicapped because in every other international financial centre, there exists very draconian national security laws that protect the integrity and security of the financial system, economy and sovereignty. Hong Kong was deeply polarised. No compromise seemed possible, and continued protests and violence would have destroyed Hong Kong. Between a rock and a hard place, the National Security Law was the least painful alternative barring more physical violence.

Treaty on a Lost Place highlighted the absurd situation of two sovereigns signing one piece of paper having different points of view. Such constructive ambiguity papered over destructive alternatives. The last British Governor Chris Patten was successful in persuading some Hongkongers that one man-one vote was what they deserve. Whether that is a cure all for Hong Kong’s ill is another matter. That his Conservative Party leadership was elected opaquely by of British people shows that different systems may not always practice what they preach. Hong Kong elites failed to correct the injustices that many young faced in not providing them affordable homes with meaningful, well paid jobs. Beijing’s mistake perhaps was to trust that Hong Kong could on her own resolve these contradictions within the larger struggle between China and the West on many fronts.

A Treaty is only a piece of paper. A city is not lost to Britain or China, but lost in its own direction, which must be re-found. The answers will not be found in international law, because that is itself being rediscovered in a new age of multipolar contestation. This book is a major contribution to our understanding of how international law is only one of many guides to the future. Hong Kong has to rediscover her own identity inside a larger identity. That is the tragedy and opportunity facing all islands within the grand ocean of mankind.

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