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Copa : Tissa Vitarana out Kabir Hashim in. Why?

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by Prof. Tissa Vitarana

The Government has made a change in the composition of the Parliamentary Committee on Public Accounts ( COPA ). A major change is that its chairman, Tissa Vitarana, is no longer a member and thus no longer the chairman. As many people have asked me why this has occurred, I thought that for the record and to avoid any misunderstandings, I should make a public statement.

As COPA chairman I have done my duty to the best of my ability with the support of the members of the committee. At the outset I decided to probe the activities of the three main sources of revenue to Government, the Inland Revenue Department (IRD), the Customs, and the Excise Departments.

The Auditor General in his Report stated that many of the largest companies, including a major private bank, had not paid any income tax for six to seven years. When we probed this it came out that there were three successive Boards of Appeal in the IRD, and that a tax payer who did not get redress from the first Board of Appeal, could then go to the second and then the third board of Appeal as well. It would appear that the process took about a year and a half at each stage, so that the process could be delayed for five or more years. Then it would be possible to resort to the Law Courts as well. That was why the biggest contributors to Tax Revenue were able to avoid payment of their dues for so long, seriously affecting Government Revenue and Budgetary expenditure for national development. I, with the support of COPA, decided to propose to the Minister of Finance that there should be only one Board of Appeal in the IRD and that the matter should be settled within six months. Further that at least 50% of the tax amount should be collected at the outset, pending a decision on payment of the balance. I have been informed that both Big Business and some employees at the IRD were not happy with our proposal. Further suggestions were also made to ensure that the sharks were not able to escape the tax net, and officials were not able to take bribes.

With regard to the Customs Department, we found out that the HS Code was being manipulated to enable rich importers of large vehicles, companies or individuals, could avoid paying a substantial portion of the amount due to Government. To give one example, the category of “dual purpose vehicles” was being misused to enable luxury Mercedes Benz vehicles to pay the low duty applicable to ambulances. We proposed that the HS code should be made specific so that there would be a separate category each for ambulances and for luxury vehicles.

With regard to the Excise Department it was clear that adulteration of imported liquor was rampant and that little action was being taken against this abuse. The conduct of frequent raids and ensuring that the bottles collected were properly sealed and sent promptly to the Government Analyst for testing, required to be stepped up considerably if there was to be a significant impact. The attention being paid to stop or at least curtail the illicit liquor industry ( kassippu etc.) was totally inadequate. The conduct of frequent raids by a special Unit of well paid and well trained Police, located separately from the area Police, was essential to achieve a successful outcome.

COPA was also active in many other areas of public concern. To give an example my friend Dr. Prithiviraj Fernando was able to appear before officials of the Wild Life Department and show slides of his successful method for preventing the Elephant-Human conflict, based on protecting the village, and not trapping elephants. On following up we found that no progress had been made. The reason given was that the Wild Life Department had to follow their unsuccessful method of trapping the elephants as tenders had already been called for the purchase of the concrete columns and barbed wire.

The recommendations of COPA have to be sent to the Ministry concerned for action. If our suggestions led to loss of income to some officials the progress was not satisfactory. Further where we identified corrupt individuals there is no way of taking action against them. Not even to report to the Attorney General or the Police. This is very unsatisfactory and needs to be changed if COPA is to be more effective. Otherwise it is a waste of time and money. From what I have stated above, it will be evident why a government headed by Ranil Wickremesinghe will want me out of COPA and replace me with Kabir Hashim.



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Only a temporary reprieve

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The Supreme Court’s determination on the constitutionality of the Bureau of Rehabilitation Bill 

By Ambika Satkunanathan

The Supreme Court’s determination on the constitutionality of the Bureau of Rehabilitation Bill was met with relief last week. While the determination affirms many fundamental principles and constitutional protections, it provides only a temporary reprieve. Human rights activists and legislators who are concerned about the state’s attempts to restrict human rights through laws and institutions should maintain vigilance with regard to this proposed law.

The submissions of the Deputy Solicitor General reveal the government’s thinking on this issue; it exhibits contempt for basic legislative principles and highlight the absence of evidence based policy making that has the well being of the public at its core.

The Supreme Court, in no uncertain terms, found that vague provisions in the proposed law prevent the public from understanding the ambit of the law and stated that if government authorities are “cloaked with power under vague provisions” it can lead to arbitrary action since the officials themselves will not know the extent of their powers.

In response to the Deputy Solicitor General’s submission that the court should consider the provisions as they exist and not speculate whether the law can result in an arbitrary exercise of power during implementation, the court affirmed it has jurisdiction to consider the threat of potential abuse of proposed laws. The court stated it does not have to await actual or imminent infringements by the implementation of the law if the concerns are based on “plausible possibilities”.

At a time when the government is weaponizing the law to restrict fundamental rights, the importance of these assertions by the court, which reiterate that law is made for the public, and hence the public should be able to understand the extent of its application, cannot be overstated.The government justified the (over) broad definitions in the proposed law on the basis it was not possible to be specific because the rehabilitation provided would depend on the category of persons to whom it was being provided. This illustrates the government had little or no idea about who was to be rehabilitation or how when it drafted the law.

The court did not accept the Deputy Solicitor General’s argument that future specific laws would define the category of persons who could be subject to rehabilitation, and said that would be a “dangerous route” to take, thereby recognizing the need for certainty in the ambit of the law.

The government’s claim it will draft laws in the future to specify who will be rehabilitated sounds disingenuous because even at present, there are laws that the government can utilize to send persons to rehabilitation such as regulations issued under the Prevention of Terrorism Act for the rehabilitation of former LTTE combatants.

A few critical issues however remain unresolved even following the Supreme Court’s determination. Although the court examined whether the provisions of the Bill are clear and whether there are adequate safeguards “for the achievement of the objective of the Bill” to prevent arbitrariness in the decision making process, the objectives themselves are problematic.

For instance, the cabinet memorandum on the Bill, which the court referred to and seemed to accept, proposes (compulsory) rehabilitation instead of imprisonment. Yet the reality is that where drug dependent persons are concerned, neither method leads to impactful outcomes. The cabinet memorandum further presents (compulsory) rehabilitation as a solution to prison overcrowding.

In reality, the solution that will lead to meaningful outcomes is the decriminalization of personal drug use and treating it as a health issue by providing voluntary, community-based solutions; not the establishment of more places of detention at which human rights can be violated.

The court states that the Bill’s inconsistency with the constitution shall cease if references to ex-combatants, violent extreme groups and “any other group of persons” are deleted, and Bill is limited to “drug dependent persons” and “such other persons as may be identified by law”. The court proceeds to accept that consent to rehabilitation must be without “duress, coercion or undue influence” and not as “an alternative to protracted remand”. Yet, at the same time, it accepts a contrary position, i.e. that (compulsory) rehabilitation (without consent) is possible through a judicial order.

Globally, including in Sri Lanka, evidence shows that compulsory rehabilitation is counter-productive and leads to quicker relapse. Further, compulsory rehabilitation contravenes human rights standards. It is due to this reason, the UN has repeatedly called upon countries to cease compulsory rehabilitation. The violation of fundamental rights during compulsory rehabilitation is hence not a “fanciful hypothesis” as there is documented evidence to that effect, especially at the military run centers at Kandakadu and Senapura.

The court also does not recognize right of a drug dependent person to leave treatment whenever they choose. Instead, the court says that steps have to be taken to apprehend persons leaving without authorization. Moreover, the court states that the issue of leaving rehabilitation when a person wishes has to be dealt with in regulations issued under the law.

However, if rehabilitation is not punitive, as claimed by the state, persons should be able to enter and leave rehabilitation voluntarily and any law enacted should be only to regulate the functioning of such centers to ensure they adhere to standards related to conditions, maintenance of records and confidentiality, much like the regulation of private healthcare providers.

While the court cannot rule on existing laws, it’s view that the current law dealing with drug dependent persons, i.e. the Drug Dependent Persons (Rehabilitation and Treatment) Act, provides curative means to deal with drug dependence does not align with evidence. Both in principle and practice, the current law is punitive, not curative. The abusive nature of the current law has to be studied in the context of proposed amendments to the Poisons, Opium and Dangerous Drugs Ordinance as well, because it expands the powers of the police and empowers them to refer a person to rehabilitation bypassing a judicial process.

This illustrates the state’s insidious attempt to extend its abusive tentacles, which the court has found to be unconstitutional. Simply put, if rehabilitation is voluntary, there is no need to empower the bureau to rehabilitate drug dependent persons. All that is required is for the government to dedicate resources to establishing centers, as well as ensure that existing centers adhere to human rights standards. Any law drafted to enable this would have to focus on the standards to which the centers have to adhere to ensure the rights of persons entering treatment voluntarily are protected.

The state has proposed the inclusion of once a month visits by the magistrate to the rehabilitation centers as a protection against torture. While this appears progressive, in practice, given the everyday nature of violence at the military run centers in particular, a monthly visit will do little to arrest deeply entrenched abuse.

Further, the purpose of law and processes should be to prevent abuse, rather than only to detect and address it after the abuse has taken place. Although the proposed new section also requires the magistrate to refer the case to the Inspector General of Police to commence an investigation into any cases of alleged torture, the historical failure to hold the police accountable and entrenched impunity raise grave doubts whether this will be adequate protection in practice.

The court reiterates there can be no derogation from the protection against torture enshrined in the constitution. Nevertheless, at the same time, it allows the provision that permits the use of minimum force to compel a person to obey lawful orders to remain intact. Since a person who is drug dependent will not be able to perform many functions during the withdrawal process due to physical and psychological changes they experience, this provision will allow the use of force for behaviour that is normal and to be expected during a withdrawal process.

This provision hence undermines the protection against torture guaranteed in the constitution. Additionally, the denial of evidence based and effective treatment options, such as harm reduction, and instead forcing persons to perform labour, may constitute inhuman treatment according to international human rights standards.

The cabinet memorandum on the Bill does not set out the empirical evidence on which the Bill is based. Nor did the Deputy Solicitor General make submissions in this regard. The result of disregard for evidence based policy making leads to the adoption of regressive positions on rehabilitation, such as labelling persons undergoing rehabilitation as persons with disabilities, which the court rightly states is inappropriate.

Interestingly, the Deputy Solicitor General submitted that the decision to involve the military in rehabilitation is a matter of policy and hence not within the purview of the court. The court found that since the cabinet memorandum on the Bill does not mention the involvement of the military, the Bill is not in line with the policy objective set out in the memo. The court further pointed out  the lack of clarity regarding military involvement, i.e., are they employees of the bureau, will the same disciplinary procedures apply to them? It is pertinent to note that through its argument to defend the involvement of the military in rehabilitation, the government has acknowledged that militarization is a government policy.

The Bureau of Rehabilitation Bill is just one building block in the state’s attempt to label certain social groups deviant, criminalize them based on their status/identity, use the law to arbitrarily detain them and subject them to a process of supposed rehabilitation. This process is militarized and will result in grave human rights violations.  Though containing many positive elements, the Supreme Court’s determination still leaves room for the proposed law to be used in relation to persons considered drug dependent persons, as it contains many provisions that will result in grave human rights abuses.(Groundviews)

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Belt and Road Buddhism in Sri Lanka?

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By Tabita Rosendal

(The Diplomat) Under China’s Belt and Road Initiative (BRI), a curious entanglement of economic investments and Buddhist diplomacy has been carried out in countries like Sri Lanka. This may at first appear an odd pairing, but it illuminates several interrelated trends in China’s foreign policy pursuits and its rise on the world stage.

In recent years, the Chinese Communist Party (CCP) has worked hard to mitigate criticism of its policies and its increasing global presence by portraying itself as a benevolent power intent on improving the lives of its neighbours. To this end, the CCP’s strategic goals are increasingly advanced via “soft power” initiatives to persuade others of China’s harmonious intentions. But what does Xi Jinping’s flagship foreign policy initiative, the BRI, really have to do with Buddhism in Sri Lanka?

Since the end of Sri Lanka’s 1983-2009 civil war, China’s economic presence has been a mainstay in the country. After the BRI’s inception in 2013, Chinese foreign direct investment and state-backed policy loans increased tremendously, particularly represented by the port projects in Hambantota and Colombo, both of which are associated with the maritime sphere of the BRI, known as the 21st Century Maritime Silk Road. Yet China is not the only major power with interests in Sri Lanka or the wider South and Southeast Asian regions.

Sri Lanka’s strategic position in the Indian Ocean ensures its relevance to other regional and international powers, particularly those that make up the Quadrilateral Security Dialogue, or Quad: Australia, India, Japan, and the United States. The race is on to secure access to and use of Sri Lanka’s port placements, trans-shipment routes, and potential for naval bases. The Quad considers it crucial to displace China’s presence in the country and to contain the CCP’s influence in the Indo-Pacific. So how does Buddhism fit in?

Despite the CCP’s harsh religious repression and control within China’s borders, the Chinese government is increasingly working to disseminate a positive narrative of its religious policies to preserve or enhance its relations with countries that identify with those religions. This strategy supplements different foreign policy pursuits to convince other countries to support Chinese interests without the use of coercion. Buddhist-majority countries like Sri Lanka have become prime targets of this approach.

Indeed, due to the role of Buddhism as the primary religion in Sri Lanka, the government’s Buddhist Advisory Council and the remainder of Sri Lanka’s Buddhist clergy retain impressive clout in the country’s domestic and foreign politics. Yet the privileged position of Buddhism has had detrimental effects on ethnic and religious groups such as the Tamils and Muslims, and international human rights agencies and Western powers increasingly task Sri Lanka with addressing its faulty human rights framework before loans and investments are granted. Therefore, Sri Lanka has become increasingly dependent on China, which retains a pragmatic, “no-strings-attached” approach to lending under the BRI framework.

Aside from economic clout, China has attempted to position itself as a trusted partner to its religious neighbors by utilizing “strategic narratives” rooted in “typical” Chinese religions like Buddhism. In Sri Lanka, China’s narratives are forwarded by its extensive Buddhist diplomacy, which is carried out through high-level visits, joint religious events, and gifts and donations.

The narratives that China projects through these activities center on commemorating the historical Buddhist bonds between China and Sri Lanka, that are framed as shared Buddhist fate, ties, and values. Terms such as “millennium Buddhist fate” are commonly used to refer to their shared Buddhist heritage and the longevity of their relations. Moreover, Chinese official statements note the crucial role of Buddhist exchanges in furthering trade relations between China and Sri Lanka, arguing that Buddhism is a central part of cooperation under the BRI framework.

In a nutshell, China’s narratives attempt to establish a discourse concerning the continuation of Buddhist cooperation between the two countries as a prerequisite for establishing a “harmonious Buddhist world.” The BRI is promoted as a central part of strengthening Sri Lanka’s development, “bright future,” and in time, world peace. Sri Lankan actors often reproduce China’s narratives, and many statements largely mimic China’s discourse word for word.

But what does the CCP’s emphasis on utilizing Buddhist diplomacy tell us about China’s plans? In short, China’s rise in the international system has become dependent on perceptions of its ascent, and the CCP is increasingly attempting to portray the country’s pursuits through a “benevolent Buddhist” lens – at least in places where these discourses have local cultural resonances.

This is not a new phenomenon. Rather, it builds on decades of policies seeking to establish an image of China as a harmonious regional power. Further, while the CCP’s concurrent use of religious diplomacy and infrastructure investments under the BRI’s umbrella may seem like a strange development, this is part of the initiative’s original purview. The BRI has always been intended to be promoted through the concept of creating a “community of common destiny” set to secure China’s peaceful environment in order to facilitate its continued rise.

In other words, the goals of China’s concurrent use of Buddhist narratives and infrastructure investments are simple: to pave the way for the BRI’s current implementation, future projects, and investments, as well as to assuage potential criticism from influential Sri Lankan stakeholders. This holds important implications for the BRI’s progress in religious countries, particularly in South and Southeast Asia where the CCP is attempting to follow the same strategy.

While China’s Buddhist diplomacy seems to have met with some success in Sri Lanka, different stakeholders in Sri Lanka have also shown significant agency in utilizing China’s Buddhist narratives to serve their own national and international goals. Sri Lanka is increasingly utilizing Buddhism in its foreign policy to mitigate criticism of its human rights issues related to the Tamil and Muslim populations. Through reproducing China’s narratives, the Sri Lankan government can secure valuable support from the public, political elites, and the Buddhist clergy.

Naturally, this is not a foolproof strategy, and China’s Buddhist diplomacy is increasingly being criticized by Western analysts. Questions persist as to how the CCP can portray China as an atheist state while harnessing religious and cultural resources to serve its strategic interests abroad, as well as repressing its own ethnic and religious minorities at home. Yet so far, this has not dissuaded Sri Lanka from accepting China’s narratives of their shared faith in a “harmonious and peaceful Buddhist world.”

Finally, while it is uncertain whether the new Sri Lankan government under President Ranil Wickremesinghe and Prime Minister Dinesh Gunawardena will continue to support China’s Buddhist visions, neither is a stranger to working with the CCP, and both have already started cultivating their relations with the Sri Lankan Buddhist clergy. Therefore, the CCP may find that its dual strategy of “Buddhism and benefits” lends itself well to its strategic pursuits, though much continues to depend on the willingness and agency of BRI host countries in accepting China’s own narratives about its supposed “harmonious rise.”

This article is based on the findings of a research paper published in The Pacific Review, an international relations journal covering the interactions of the countries of the Asia-Pacific. The Pacific Review has a particular interest in how the region is defined and organized, and covers transnational political, security, military, economic, and cultural exchanges in seeking greater understanding of the region.

Tabita Rosendal is a Ph.D. student in the Centre for East and South-East Asian Studies, at Lund University, and an affiliated researcher at the Nordic Institute of Asian Studies (NIAS). Her research focuses on the contemporary Chinese governance practices of the 21st Century Maritime Silk Road component of the BRI, and the role of China’s state-owned enterprises in port projects in Sri Lanka and China.

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Why civil society is in error

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By Uditha Devapriya

US Assistant Secretary of State Donald Lu visited Sri Lanka last Wednesday, October 19. He is reported to have arrived early morning. Having briefed US Embassy staff, he then presided over a civil society roundtable, after which he paid a visit to President Ranil Wickremesinghe and Foreign Affairs Minister Ali Sabry. Given that civil society does not see the president eye-to-eye, there’s little doubt that these two sessions yielded two completely different pictures of Sri Lanka’s situation. In any case, while commending civil society, Mr Lu went on record stating that President Wickremesinghe was “the right person to get country out of crisis.” This was obviously not a sentiment shared by civil society.

There is such a thing as diplomatic protocol. Although State propaganda immediately made use of Mr Lu’s statement, as one commentator pointed out on Twitter, there was no way a high-ranking US diplomat would describe a country’s president as the wrong person to lead the country, especially during a courtesy call. Yet if Mr Lu’s visit reassured certain members of civil society that the world’s most powerful purveyor (or propagandist, depending on how you see it) of liberal democracy was looking out for them, his visit to the president’s office left them cold. The notion that the US will promote their values, which they feel to be in the country’s interests, no longer seems to hold as it did, say five years ago.

This is symptomatic of a wider paradigm shift among and within civil society, concerning the international community. There is a sense of disappointment at the way the Core Group operated in Geneva. While nationalists deride the UNHRC as a Western conspiracy, liberals and Colombo’s NGO-cracy point out it is not doing enough to pressurise the government. Prime among their concerns are the abolition of the Executive Presidency and the repeal of the Prevention of Terrorism Act. The civil society argument is simple and tenable: given the scale of the economic crisis, there has never been a better time to unify people on issues like anti-terror legislation and minority rights. As such, it is within not merely the jurisdiction of the UNHRC but also their responsibility to hold the State to account.

The government’s argument, on the other hand, is that the economic crisis trumps all other considerations and that more time is needed, until the worst is over, to focus on civil society concerns. As expected, it has rejected the UN resolution.

There are two schools of thought about the UNHRC session. The first holds that it represents a diplomatic failure, the second that it underlines the country’s human rights failures. Both note the diminution of support for the country from the Global South at the session, though the government highlights the abstentions it “won” as some sort of a victory. Yet while the first school argues that the country should do more to canvass support from other states, the second contends that the government must push hard-hitting reforms to get out of the mess it pushes itself into every March or September at Geneva.

Here, then, are the main cleavages within Sri Lanka’s civil society and intellectual circles: between what I call the human rightists and the diplomatists. The diplomatists do not view human rights as ends in themselves: they consider the resolution of such issues as vital to the country’s image abroad. The human rightists, on the other hand, consider them as ends in themselves, which have no meaning outside their frame of reference. They need to be pursued because they are in line with certain fundamental values.

Writing to Factum, Sanja de Silva Jayatilleka notes that “in the absence of healthy respect for human rights … diplomacy, however skilled, can only play a limited, increasingly marginal role.” By contrast, Paikiasothy Savaranamuttu in Groundviews argues that “the resolution keeps Sri Lanka on the international agenda.” For me this is the main dividing line: between the diplomatist view of human rights as a platform for “creative diplomacy” (Jayatilleka) and the human rightist view of it as “a reference point” (Savaranamuttu). I am not denying that the two share certain opinions. But the differences are too stark. This comes out palpably in the way civil society views the political dimensions of their concerns.

Civil society groups and activists seem to assume, and argue, that organisations like the International Monetary Fund or the World Bank look into political governance structures, outside their jurisdiction in economic reforms. The young protesters at Gotagogama who demanded early on that the IMF not bail out the government were clearly naïve enough to think that the IMF would prioritise their concerns; that Colombo’s civil society shared their perspective is somewhat, to say the least, astounding.

But it is also understandable. If these groups view human rights and democracy as universal values that have no frame of reference outside themselves, if they view them as detached from international politics, then they will see every multilateral organisation, including those having no jurisdiction over human rights, as advocates of its causes.

This argument does not and should not belittle civil society itself. Civil society has played an important role in the country’s political and social life, and it should not be marginalised or made to feel like an outsider, or worse, a terrorist. Its move against the proposed Bureau of Rehabilitation should be welcomed by all progressives, whatever their political orientation. Yet the inability of civil society to see the issues they raise as ends in themselves rather than means to ends – to understand that issues like human rights are used by various groups to promote their ends – is perhaps their blindest spot. That sections of civil society have been co-opted by this regime only proves my point: even authoritarian States can use progressive rhetoric to ensnare these groups, even while brutally suppressing dissent.

That is why I believe that civil society urgently needs to go beyond where it is now. It must use international platforms to advocate their causes. It must also come to terms with the fact, the undeniable fact, that human rights cannot be delinked from international politics, and that it is used by certain countries to advocate certain agendas. This should not make civil society apathetic to the excesses of the State: it must work against the State whenever the State works against them and those they represent. Yet to jump on one bandwagon or the other, internationally and at home, in the guise of protecting human rights, would be a pyrrhic victory: the yahapalana regime and its co-option of civil society is a case in point here. Civil society’s dependence on foreign patronage should hence not blind it to certain truths about their causes, and the wider political dimensions of those causes.

For me, civil society assumptions about human rights, democracy, accountability, and international politics can all be traced back to their failure to emphasise the distinction between a State and a regime. Many civil society activists conflate the two. Yet a State is not a regime: the latter can be replaced, the former cannot and should not.

In no country in the world, not even in the United States, does civil society square the one with the other. And yet, Colombo’s civil society has given the impression that it is working against the State, instead of specific regimes harbouring authoritarian tendencies. For all their faults, the protesters at Gotagogama – the overwhelming majority of them – did make this distinction: that is why, even after occupying one government building after another, the leftist student groups that led the protests until Gotagogama disbanded warned visitors that these establishments belonged to the State, and as such belonged to all.

The diplomatists see human rights and other concerns for what they are: a platform for creative diplomacy, and not ends in themselves. I think this approach helped us a great deal in 2009, when we won support across countries and regions. The government, however, failed to seize the moment, to use it to promote rather than belittle human rights. It is one thing, after all, to call out what Eric Hobsbawm called “the imperialism of human rights”, and quite another to consider human rights as alien to the country’s culture. To paraphrase a former diplomat, human rights is not a devil to be exorcised, but something to be used for the benefit of all. At the end of the day the responsibility of a country’s State is to its people, and to their well-being. Any regime that strays from this responsibility relinquishes its right to exist. This is the argument the young Gotagogama protesters used.

In the sense that values like democracy and human rights are universal, and apply to every country, every society, every community, I am hence in agreement with civil society. In the sense that they do not exist outside themselves, that international institutions like the IMF consider them universal enough to supersede all other priorities and factors, including their functional jurisdictions, I consider civil society to be in error. That it appears to be growing tired of the UNHRC, the Core Group, and other alliances, shows that it has realised the limits of multilateral engagement and the flaws of its assumptions. A paradigm shift thus seems to be in order. Whether civil society will take the leap remains to be seen.

The writer is an international relations analyst, researcher, and columnist who can be reached at udakdev1@gmail.com

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