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Get ready for the next round of ‘Vexatious Persecution’!

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by Malinda Seneviratne

There’s a bill currently at the ‘Committee Stage’ in the UK’s House of Lords which that country’s High Commissioner in Sri Lanka, Sarah Hulton, cannot pretend to be unaware of. It’s called ‘The Overseas Operations (Service Personnel and Veterans) Bill.’ The second reading of the Bill was passed by Parliament last September by 331 to 77.

It was essentially a bipartisan piece of legislation with just 18 Labor MPs opposing it, along with the SNP and Liberal Democrats. The Labor leadership urged Labor MPs not to vote against it. They were ordered to abstain, warning that those voting against it would have to resign any posts they held. MPs Olivia Blake and Beth Winter duly stepped down from their roles. Nadi Whittome, the shadow health secretary’s parliamentary private secretary (PPS), was sacked.

The Bill is said to be part of the UK government’s response to ’the judicialization of war: the extension of human rights norms to overseas combat operations and the birth of a litigation industry that has unleashed a torrent of “vexatious claims” against British forces. ‘Lawfare’ is what the UK wants to trump. In short, it would give British forces the license to do whatever, absolute or near absolute impunity is what is to be legislated.

Now what has all this got to do with Sri Lanka? Well, we’ve had Hulton making noises about Sri Lanka and human rights. She tweeted, ‘UK raising human rights concerns with Sri Lanka, including forced cremation of #COVID19 victims. UN report to be published next week, will inform the approach to @UN_HRC.’ Meanwhile UK’s Permanent Representative to the UN in Geneva, Julian Braithwaite, has said that his country would be considering the new UN Human Rights report on Sri Lanka at the upcoming session of UN Human Rights Council (UNHRC). That’s more diplomatic, but then again both Braithwaite and Hulton know the adage ‘charity begins at home,’ but they are far away from their respective villages and washing dirty linen in public is not their business. Understood.

Hulton is worried about how dead bodies are to be disposed of, i.e. of Muslims who succumb to Covid-19. Hulton could of course have expressed serious concern about the blatant violation of the principle of equality and especially the open subjugation of women embedded in several pieces of legislation including but not limited to the Muslim Marriage and Divorce Act. The living oppressed aren’t her concern. They don’t disturb the likes of Braithwaite and that’s all good as far as the other interlocutor Aliana B Teplitz, the US Ambassador, who also talks of the cremation issue and condescendingly wants Sri Lanka to come up with a meaningful plan at the UNHRC, the body which her government withdrew from after calling it ‘a cesspool of bias.’

Now, in December 2020, Fatou Bensouda, the Prosecutor of the International Criminal Court concluding the preliminary examination of charges against the UK regarding war crimes in Iraq, stated that members of the British armed forces had indeed committed the war crimes of willful killing, torture, inhuman/cruel treatment, outrages upon personal dignity, and rape and/or other forms of sexual violence. The Office has identified a confined number of incidents which, while not exhaustive, appear to correspond to the most serious allegations of violence against persons in UK custody. It is no surprise that the ICC, despite all this, cited ‘the UK’s willingness to genuinely investigate and prosecute these war crimes’ as sufficient reason to close the examination. We don’t know how on earth Ms Bensouda concluded ‘genuineness’ considering the deliberate moves on the part of the UK to decriminalize war crimes through ‘anti-vexatious claims’ legislation. Indeed her copout statement is vexatious in the extreme.

One wonders if Ms Hulton and Ms Teplitz ever met the UN Resident Coordinator in Sri Lanka, Ms Hanaa Singer. Singer does meet with the leaders of Tamil political parties and probably advises them on how to draft petitions to the UNHRC, human rights outfits and of course submissions to the Experts’ Committee on drafting a new constitution. It’s an old game. You script it, the script is played and the script-writer explains, ‘what a performance, what a script!’

If these individuals do meet it is quite likely that they talk of (if not plot) moves against Sri Lanka. One wonders if, say during a break or in a lighter moment, they guffaw about US and UK war crimes. One wonders if Singer chuckles and tells Hulton ‘isn’t it a hoot that you are planning to drag Sri Lanka over the coals and at the same time want to legislate against lawfare, so-called?’

Here’s a question none of them would have considered or would wish to be put to them: ‘What if Sri Lanka did a xerox of “The Overseas Operations (Service Personnel and Veterans) Bill,” only expanding its relevance to include all operations including those targeting terrorists and terrorism at home?’ What if Foreign Minister Dinesh Gunawardena invited Ms Hulton, Ms Teplitz and Ms Singer for tea/coffee, cookies and bibikkan, handed a copy of proposed legislation along those lines, remarking with a chuckle, ‘we were inspired by our former colonial rulers, the mother country, the empire on which the sun never sets and the fact that neither the USA nor the UN seem to find anything wrong with the bill,’ and ask, kindly, politely, ‘could you help us by tweeting warm and supporting comments?’

Could happen, but probably won’t. At least not in this way. Still, it’s something that the government could think of. If not for anything but to call out the humbuggery and to drive home the point that none of these people give a hoot about human rights and that the circus is about persecution. Vexatious persecution, in fact.

What’s the government’s response, is the question that we need to ask. Reactive or proactive? It looks like the former. Typically actions against countries, honorable and otherwise, are long-drawn affairs where the planning begins at the conclusion of one session with all manner of interventions carefully phased to climax at the next session. Those at the receiving end of vexatious moves ought to do the same. We are less than four weeks away from ‘Geneva.’ There will be other Genevas. The balance of forces obviously is skewed against Sri Lanka and this will be the case into the foreseeable future. All the more reason for round-the-year work on these issues, not just to counter outrageous claims, but to tell our story and get our house in order.

On the other hand, as the anti-Sri Lanka lobby well knows, UNHRC resolutions are non-binding and what teeth they have depends on co-sponsorship. It’s at the General Assembly that things can get hot. And that’s where we have to fight the hardest. And that’s where we have to figure out who our friends are.

There’s talk about taking a nonaligned stand with regard to the play of global powers in the Indian Ocean. That’s all bunkum. There’s no such thing as neutrality. There are no ethics. There is lawfare. There are vexatious claims. There’s threat, as a more cost-effective arm-twister than its execution. In the long run, countries such as Sri Lanka are best served by unity and maybe Sri Lanka could take the lead in reviving the Non-Aligned Movement (NAM). Of course many of the NAM members are aligned (read, subservient) to one or more of the major powers. Some have moved on, like China, which is set to take over the No 1 spot from the USA before the decade is out.

A 21st Century version of ‘The Tricontinental’ championed by Ernesto Che Guevara is an option, but that’s a long term plan and obviously a long shot. What do we do right now? The USA is, as pointed out, slipping. It has to hold hands with India, Japan and Australia to counter China. The UK wants to join this ‘Quad,’ a ‘Quin’ is the shelter that country seeks. What does Sri Lanka do? Where does Sri Lanka go?

The answer is ‘tried and tested.’ Obviously the US is not a friend. The UK? Well, they are yet to return the loot and compensate for genocide, ethnic cleansing, cultural erasure and other forms of vandalism and outright theft. The UN is a creature of the USA, notwithstanding damning censure of its ‘soft’ (arm-twisting) arm (UNHRC) as, as mentioned above, ‘a cesspool of bias.’

China. That country has been vilified no end by the leaders of countries that have no moral authority to do so and of course by their lackeys. China: a country that has always stood with Sri Lanka against vexatious prosecution/persecution. China: never said ‘change your constitution or else…!’

It looks like Sri Lanka will not have to choose. The choosing is being done by the likes of Teplitz, Hulton and Singer.

India? Well, India has kindly offered to help counter the Covid-19 pandemic via vaccine diplomacy. India decided to send a bunch of stuff, FoC. Sri Lanka will have to pay for the rest. It’s a decent price, admittedly. We don’t know if this ‘decency’ is the price India pays to take control of the Colombo Port, beautifully positioning that country to obtain full control of transshipment business in the region by a) wrecking operations here, and b) developing a home port in South India.

The vaccine is cheap in other ways too. In any case 99.5% of the infected recover. No vaccine is 100% reliable. That unreliability could be less than 0.5%, more than 0.5% or 0.5%. In other words, hardly something to go wild about. It would, however, boost confidence in the entire public and that’s fundamentally necessary to get life back on track. Thanks are due to Prime Minister Modi, let us not be ungracious.

Let us also retain perspective, though. And perspective, right now, means we cannot drop our guard. We should not be persuaded to roll over and die in Geneva. We are not required to remain silent when we can and should call out the humbuggery. Vexatious Persecution: that’s a term that the Foreign Ministry needs to learn. And use!



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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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