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Biden’s Foreign Policy, Human Rights and Sri Lanka

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by Rajan Philips

Human Rights are among what has been called the “seven pillars” of President Biden’s foreign policy. The new President, who is really a very old hand “in the sausage-making process of foreign policy” through his long involvement in the Senate Foreign Relations Committee, delivered his first major policy statement on February 4, at the State Department. “America is back,” Biden declared, in clear repudiation of Trump’s ‘America First’ unilateralism. The choice of venue also signaled the return to institutional governance after four years of egotistical aberrations. Every American institution suffered under Trump, but none more than the State Department, traditionally the highest ranked in the Executive Branch.

Trumps’ foreign policy agents, from the Secretary of State George Mike Pompeo to UN Ambassador Nicky Hayley, had little background or even literacy in international affairs. Hayley’s “cesspool” comment about the UNHRC was typical of Trump staffers making speeches not to persuade the audiences they were addressing but to please the boss watching them on Fox News at the White House. Now, as part of the Biden Administration’s emphasis on Human Rights, America is back at the United Nations Human Rights Commission, even though the US is not among the current 47 country Members of its Council.

America’s exit from UNHRC under Trump and its return to the agency under Biden have been having political echo-effects in Sri Lanka. America’s position at UNHRC looms very much larger in Sri Lankan politics than Sri Lanka would ever figure in American foreign policy calculations. That is part of the natural order of things in a world of grossly unequal power relationships. As well, speculating about the motives of the US or other ‘core countries’ is not going to help Sri Lanka in its dealings with the UNHRC. Regardless of what the US says or does, Sri Lanka is stuck with the UNHRC for the foreseeable time unless and until the Sri Lankan government enlightens itself to find an internal solution to its external problem, which in itself is the externalization of a much older internal problem.

The reason why Sri Lanka is stuck in Geneva is not only because of its postwar hangovers but also because – as the UN Secretary General Antonio Guterres reminded Sri Lanka’s Ambassador Mohan Pieris: “it is important to recognize that in today’s world there is a growing concern and interest including international institutes from the human rights and legal dimensions on post conflict situations, mainly reconciliation and accountability.” The reminder was a rejoinder to Mr. Pieris’ needless intervention during a special session of the General Assembly for the presentation of the Secretary General’s Annual Report on January 28.

His pique was that his government was not being “made to feel that we are in it together” with the rest of the world because “the global temperature for Sri Lanka, particularly in the Human Rights Council has been maintained at an all time high.” The Secretary General assured the Ambassador that outside involvement will disappear when the Sri Lankan government starts responding substantially to questions of reconciliation and justice in Sri Lanka. It is now 12 years since the war ended and the first UNHRC resolution on Sri Lanka was passed. More than anyone else in the world, the people of Sri Lanka deserve a substantial response from their government.

The fault of the previous government was in co-sponsoring the 2015 UNHRC resolution on Sri Lanka while utterly failing to do anything substantially within the country either to win support for it among the Sinhalese, or to do anything significant to address the postwar difficulties in the northern and eastern provinces. The present government, for all the expectations that were invested on it, appears to be totally at sixes and sevens not only in Geneva but in every department of governance in Colombo. I am not imagining anything ridiculous to lampoon the government. The government’s key supporters, its protective commentators and even government ministers are getting frustrated with the ways the government is misfiring on all fronts and on all cylinders. And they are venting their frustrations, albeit for different reasons and for different purposes.

 

The global context

Specific to Geneva and the UNHRC, it is difficult to imagine that the government has anything smart up its sleeve or can find a way to extricate itself from the quasi-legal tangles that it has gotten itself into. More seriously, and tragically, it is difficult to expect this government to find an internal solution to our national problem, or its external manifestation at the UNHRC forum. In a way, Sri Lanka has lurched from the inept globalism of the previous government to the autarkic incompetence of the present. But there is no running away from the global context which insofar as Sri Lanka is concerned is heavily loaded with human rights considerations given the country’s postwar hangovers.

There is no question that the global context of human rights is not a level playing field. And President Biden is already showing that America will not engage with all countries equally. Saudi Arabia is more equal than others. Biden acted swiftly to end support to military operations in Yemen which has been devastated for seven years by the Saudi led war. The US will now shift to humanitarian operations. He informed the Saudis that he will only be dealing with King Salman and not the notorious Crown Prince Mohammed bin Salman (MBS). He made public the American intelligence report, that Trump had suppressed, implicating MBS in the killing of Saudi dissident and journalist Jamal Khashoggi.

The Washington Post journalist was killed and dismembered like in medieval times but with modern electrical knives in the Saudi Embassy in Ankara, Turkey, in October 2018. But President Biden will not move to sanction the culpable prince. Saudi Arabia is too important an ally in the Middle East power game. So, thus far and no further, insofar as ‘recalibrating’ the US relationship with Saudi Arabia goes. Many of Biden’s supporters including White House staffers are not happy. Welcome to old school realpolitik.

But in a sign of the times, Reporters Without Borders (RSF) has filed a compliant of over 300 pages with the German office of the Federal Prosecutor accusing the Saudi Prince and his associates of crimes against humanity. Such litigations were made possible by Germany’s Code of Crimes Against International Law (VStGB), which became law in 2002, allowing prosecution of crimes outside Germany and not involving Germans. Last month, a German court convicted a former Syrian secret service member of crimes against humanity. These indications are baby steps in transnational justice and universal jurisdiction.

The appropriate venue for trying the Saudi Prince is the International Criminal Court (ICC) in The Hague. But as a “treaty-based court” created by the 1998 Rome Conference, it cannot try a Saudi as Saudi Arabia is not a signatory or ratifier of the ICC, unless the case is referred to it by the Security Council. That is hardly possible because three permanent members of the Security Council, with veto powers, have not ratified the ICC. Of the 12 investigation initiated by the ICC only three are outside Africa (Myanmar, Georgia and Libya). All the others are African countries, many of them on self-referral in what is known as “out-sourcing” justice by African countries to resolve internal disputes.

 

Colonial Continuity

In her January 2021 report on Sri Lanka, High Commissioner Michelle Bachelet outlines the options available to Member states for taking action against Sri Lanka, including referral (by another state) to the International Criminal Court, taking actions in their own national courts under universal jurisdiction, and applying targeted sanctions against state officials. But only targeted sanctions are included in the recommendations. Neither ICC referral nor action under universal jurisdiction is carried into the recommendations. The choices are indicative of the need for consensus even among the core countries. And universal jurisdiction is easier suggested than achieved. Already courts in the UK (2010), Australia (2011) and the US (2012) have rejected lawsuits and arrest requests against then President Mahinda Rajapaksa.

The problem for the government in the Commissioner’s 2021 report stems from its own actions and inactions during the last 15 months. These actions are seen by the Commissioner as “Emerging threats to reconciliation, accountability, and human rights.” The government protests too much that the Commissioner has no business in the country’s ongoing domestic matters, but it cannot pretend that the ongoing militarization, constitutional aberrations, setting up presidential commissions, and the alienation of religious minorities are all meant for the well-being of the people and the protection of their rights and interests.

The government considers the draft resolution based on the Commissioner’s report to be too much or too strong. On the other hand, the more ardent Tamil groups consider it to be too weak or too little, and a dilution of the Commissioner’s report. We do not know what the final resolution might turn out to be, but we can be sure that this is not going to be the end of it all.

In a way, what is being contested in Geneva can be seen as a continuation of the contest that began at least over 70 years ago in the twilight years of colonial rule. That was when the island’s political leaders communally jostled for post-independence power and position by submitting petitions and making special pleadings before the departing rulers. Perhaps the most dramatic forum where these contests played out before independence was the Soulbury Commission. And the most dramatic persona who stole everyone’s thunder, but actually accomplished little with his fifty-fifty cry was GG Ponnambalam.

Ponnambalam’s appearance before the Commission was all drama and eloquence and has for long been the stuff of Tamil political lore. As EFC Ludowyk, then Professor of English, would later critically record it for history, Ponnambalam “was responsible for several hours of impassioned oratory that enthused his supporters, but failed to persuade the tribunal which he exhorted.” The Soulbury Commission was quietly persuaded by the Board of Ministers to accept the constitutional proposals that Sir Ivor Jennings had prepared for them. Ponnambalam would eventually become a powerful minister in the first Senanayake government after independence. Then everything fell apart. Seventy years later, there is little drama in Geneva and the roles are somewhat reversed. The same contest continues, however, but with different actors and in the new language of human rights .



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Port City Bill Requires Referendum

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by Dr Jayampathy Wickramaratne,PC

The Colombo Port Economic Commission Bill was presented in Parliament on 08 April 2021, while the country was getting ready to celebrate the traditional New Year. With the intervening weekend and public holidays, citizens had just two working days to retain lawyers, many of whom were on vacation, and file applications challenging the constitutionality of the Bill in the Supreme Court within the one-week period stipulated in the Constitution. One wonders whether the timing was deliberate.

Special economic zones are common. They are created mainly to attract foreign investments. In return, investors are offered various concessions so that their products are competitive in the global market. Several negative effects of such zones have also been highlighted. The sole purpose of this article, however, is a discussion on the constitutionality of the Bill.

The Bill seeks to establish a high-powered Commission entrusted with the administration, regulation and control of all matters connected with businesses and other operations in and from the Colombo Port City. It may lease land situated in the Colombo Port City area and even transfer freehold ownership of condominium parcels. It operates as a Single Window Investment Facilitator for proposed investments into the Port City. It would exercise the powers and functions of any applicable regulatory authority under any written law and obtain the concurrence of the relevant regulatory authority, which shall, as a matter of priority, provide such concurrence to the Commission. The discretion and powers of such other authorities under the various laws shall thus stand removed.

The Commission consists of five members who need not be Sri Lankan citizens, quite unlike the Urban Development Authority, the Board of Management of which must comprise Sri Lankan citizens only. One issue that arises is that the vesting of such powers upon persons with loyalties to other countries, especially superpowers, would undermine the free, sovereign, and independent status of Sri Lanka guaranteed by Article 1 of our Constitution. It would also impinge on the sovereignty of the People of Sri Lanka guaranteed by Article 3 read with Article 4.

The removal of the discretionary powers of the various regulatory authorities is arbitrary and violative of the right to equal protection of the law guaranteed by Article 12 (1).

Under Clause 25, only persons authorized by the Commission can engage in business in the Port City. Clause 27 requires that all investments be in foreign currency only. What is worse is that even foreign currency deposited in an account in a Sri Lankan bank cannot be used for investment. Thus, Sri Lankans cannot invest in the Port City using Sri Lankan rupees; neither can they use foreign currency that they legally have in Sri Lanka. The above provisions are clearly arbitrary and discriminatory of Sri Lankans and violate equality and non-discrimination guaranteed by Article 12. They also violate the fundamental right to engage in business guaranteed by Article 14 (1) (g).

Under clause 35, any person, whether a resident or a non-resident, may be employed within the Port City and such employee shall be remunerated in a designated foreign currency, other than in Sri Lanka rupees. Such employment income shall be exempt from income tax. Clause 36 provides that Sri Lankan rupees accepted within the Port City can be converted to foreign currency. Under clause 40, Sri Lankans may pay for goods, services, and facilities in Sri Lankan rupees but would be required to pay a levy for goods taken out of the Port City, as if s/he were returning from another country! The mere repetition of phrases such as ‘in the interests of the national economy’ throughout the Bill like a ‘mantra’ does not bring such restrictions within permissible restrictions set out in Article 15.

Clause 62 requires that all disputes involving the Commission be resolved through arbitration. The jurisdiction of Sri Lankan courts is thus ousted.

In any legal proceedings instituted on civil and commercial matters, where the cause of action has arisen within the Port City or in relation to any business carried on in or from the Port City, Clause 63 requires Sri Lankan courts to give such cases priority and hear them speedily on a day-to-day basis to ensure their expeditious disposal.

The inability of an Attorney-at-Law to appear before the court even for personal reasons, such as sickness, shall not be a ground for postponement. These provisions are arbitrary and violate Article 12.

Clause 73 provides that several Sri Lankan laws listed in Schedule III would have no application within the Port City. Such laws include the Urban Development Authority Act, Municipal Councils Ordinance, and the Town and Country Planning Ordinance. Under Clauses 52 and 53, exemptions may be granted by the Commission from several laws of Sri Lanka, including the Inland Revenue Act, Betting and Gaming Levy Act, Foreign Exchange Act, and the Customs Ordinance.

The Commission being empowered to grant exemptions from Sri Lankan laws undermines the legislative power of the People and of Parliament and violates Articles 3 and Article 4 (c) of the Constitution.

Several matters dealt with by the Bill come under the Provincial Councils List. They include local government, physical planning, and betting and gaming. Article 154G (3) requires that such a Bill be referred to Provincial Councils for their views. As Provincial Councils are not currently constituted, passage by a two-thirds majority will be necessary in the absence of the consent of the Provincial Councils.

The exclusion of the Municipal Councils Ordinance from the Port City area is not possible under the Constitution. When the Greater Colombo Economic Commission was sought to be established in 1978 under the 1972 Constitution, a similar exclusion was held by the Constitutional Court not to be arbitrary. Since then, under the Thirteenth Amendment under the 1978 Constitution, local government has been given constitutional recognition and included under the Provincial Council List. Under the present constitutional provisions, therefore, the Port City cannot be excluded from laws on local government.

The writer submits that in the above circumstances, the Colombo Port Economic Commission Bill requires to be passed by a two-thirds majority in Parliament and approved by the People at a Referendum. Quite apart from the constitutional issues that arise, such an important piece of proposed legislation needs to be widely discussed. It is best that the Bill is referred to a Parliamentary Committee before which the public, as well as citizens’ organizations and experts in the related fields, could make their submissions.

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Investigative Journalism?

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I usually end up totally exhausted when I finish reading the local newspapers from the Pearl. There are so many burning questions and so much is written about them but there are no conclusions and definitely no answers. For example, we seem to have three burning issues right now and this is not in order of importance.

We have a lengthy report that has been published on the Easter Sunday carnage. Everybody knows what I am talking about. However, no one, be it an editor, a paid journalist or a single one of the many amateurs who write to the papers, has reached a conclusion or even expressed an opinion as to who was responsible. At least not a believable one! Surely there are energetic and committed young people in the field of journalism today who, if asked, or directed properly will go out and find a source that would give them at least a credible hypothesis? Or do conclusions exist and has no one the courage to publish them?

At least interview the authors or should I use the word perpetrators of that report. If they refuse to be interviewed ask them why and publish an item every day asking them why! Once you get a hold of them, cross-examine them, trap them into admissions and have no mercy. It is usually geriatrics who write these reports in the Pearl and surely a bright young journalist can catch them out with a smart question or two, or at least show us that they tried? The future of the country depends on it!

We have allegations of contaminated coconut oil been imported. These are very serious allegations and could lead to much harm to the general populace. Do you really believe that no one can find out who the importers are and what brands they sell their products under? In this the Pearl, where everyone has a price, you mean to say that if a keen young journalist was given the correct ammunition (and I don’t mean 45 calibres) and sent out on a specific message, he or she couldn’t get the information required?

We are told that a massive amount of money has been printed over the last few months. There is only speculation as to the sums involved and even more speculation as to what this means to the people of the Pearl. Surely, there are records, probably guarded by extremely lowly paid government servants. I am not condoning bribery but there is nothing left to condone, is there? There are peons in government ministries who will gladly slip you the details if you are committed enough and if you are sent there to get it by a boss who will stand by you and refuse to disclose his sources.

I put it to you, dear readers, that we do not have enough professional, committed and adequately funded news organisations in the country. We can straightaway discount the government-owned joints. We can also largely discount those being run by magnates for personal gain and on personal agendas. As far as the Internet goes, we can forget about those that specialise in speculative and sensationalist untruths, what are we left with O denizens of the Pearl? Are there enough sources of news that you would consider willing to investigate a matter and risk of life and limb and expose the culprits for the greater good of society? Can they be counted even on the fingers of one hand?

In this era when we have useless political leaders, when law and order are non-existent when the police force is a joke, it is time the fourth estate stepped up to the mark! I am sure we have the personnel; it is the commitment from the top and by this, I mean funding and the willingness to risk life and limb, that we lack. Governments over the last few decades have done their best to intimidate the press and systematically destroy any news outlet that tried to buck the usual sycophantic behaviour that is expected from them by those holding absolute power.

Do you think Richard Nixon would ever have been impeached if not for the Watergate reporting? Donald Trump partially owes his defeat to the unrelenting campaign carried out against him by the “fake news” outlets that he tried to denigrate. Trump took on too much. The fourth estate of America is too strong and too powerful to destroy in a head-to-head battle and even the most powerful man in the world, lost. Let’s not go into the merits and demerits of the victor as this is open to debate.

Now, do we have anything like that in the Pearl? Surely, with 20 million-plus “literate” people, we should? We should have over 70 years of independence built up the Fourth Estate to be proud of. One that would, if it stood strong and didn’t waver and collapse under pressure from the rulers, have ensured a better situation for our land. Here is Aotearoa with just five million people, we have journalists who keep holding the government to account. They are well-funded by newspapers and TV networks with audiences that are only a fraction of what is available in the Pearl. Some of the matters they highlight often bring a smirk of derision to my face for such matters wouldn’t even warrant one single line of newsprint, should they happen in the Pearl.

Talking of intimidation from the rulers, most of us are familiar with the nationalisation of the press, the murder and torture of journalists, the burning of presses to insidious laws been passed to curtail the activities of Journalism. These things have happened in other countries, too, but the people and press have been stronger, and they have prevailed. We are at a watershed, an absolutely crucial time. It is now that our last few credible news sources should lift their game. Give us carefully researched and accurate reports with specific conclusions, not generalisations. Refuse to disclose your sources as is your right, especially now that the myopic eye of the UNHCR is turned in our direction.

All other ways and means of saving our beloved motherland, be it government, religion, sources of law and order and even civil society leadership seems to have lapsed into the realm of theory and rhetoric. Our last chance lies with the Fourth Esate and all it stands for. I call for, nay BEG for, a favourable reaction from those decision-makers in that field, who have enough credibility left in society, DON’T LET US DOWN NOW!

 

 

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The world sees ugly side of our beauty pageants

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Yes, it’s still the talk-of-the-town…not only here, but the world over – the fracas that took place at a recently held beauty pageant, in Colombo.

It’s not surprising that the local beauty scene has hit a new low because, in the past, there have been many unpleasant happenings taking place at these so-called beauty pageants.

On several occasions I have, in my articles, mentioned that the state, or some responsible authority, should step in and monitor these events – lay down rules and guidelines, and make sure that everything is above board.

My suggestions, obviously, have fallen on deaf ears, and this is the end result – our beauty pageants have become the laughing stock the world over; talk show hosts are creating scenes, connected with the recent incidents, to amuse their audience.

Australians had the opportunity of enjoying this scenario, so did folks in Canada – via talk show hosts, discussing our issue, and bringing a lot of fun, and laughter, into their discussions!

Many believe that some of these pageants are put together, by individuals…solely to project their image, or to make money, or to have fun with the participants.

And, there are also pageants, I’m told, where the winner is picked in advance…for various reasons, and the finals are just a camouflage. Yes, and rigging, too, takes place.

I was witnessed to one such incident where I was invited to be a judge for the Talent section of a beauty contest.

There were three judges, including me, and while we were engrossed in what we were assigned to do, I suddenly realised that one of the contestants was known to me…as a good dancer.

But, here’s the catch! Her number didn’t tally with the name on the scoresheet, given to the judges.

When I brought this to the notice of the organiser, her sheepish reply was that these contestants would have switched numbers in the dressing room.

Come on, they are no babes!

On another occasion, an organiser collected money from the mother of a contestant, promising to send her daughter for the finals, in the Philippines.

It never happened and she had lots of excuses not to return the money, until a police entry was made.

Still another episode occurred, at one of these so-called pageants, where the organiser promised to make a certain contestant the winner…for obvious reasons.

The judges smelt something fishy and made certain that their scoresheets were not tampered with, and their choice was crowned the winner.

The contestant, who was promised the crown, went onto a frenzy, with the organiser being manhandled.

I’m also told there are organisers who promise contestants the crown if they could part with a very high fee (Rs.500,000 and above!), and also pay for their air ticket.

Some even ask would-be contestants to check out sponsors, on behalf of the organisers. One wonders what that would entail!

Right now, in spite of the pandemic, that is crippling the whole world, we are going ahead with beauty pageants…for whose benefit!

Are the organisers adhering to the Covid-19 health guidelines? No way. Every rule is disregarded.

The recently-held contest saw the contestants, on the move, for workshops, etc., with no face masks, and no social distancing.

They were even seen in an open double-decker bus, checking out the city of Colombo…with NO FACE MASKS.

Perhaps, the instructions given by Police Spokesman DIG Ajith Rohana, and Army Commander, General Shavendra Silva, mean nothing to the organisers of these beauty pageants…in this pandemic setting.

My sincere advice to those who are keen to participate in such events is to check, and double check. Or else, you will end up being deceived…wasting your money, time, and energy.

For the record, when it comes to international beauty pageants for women, Miss World, Miss Universe, Miss Earth and Miss International are the four titles which reign supreme.

In pageantry, these competitions are referred to as the ‘Big Four.’

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