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Singarasa Case should guide GoSL’s Geneva policy

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BY Dharshan Weerasekera

In 2005, the Sri Lankan Supreme Court ruled in the seminal case Singarasa v. Attorney General (SC/SPLA/182/99) that the U.N. Human Rights Commission (the predecessor of today’s U.N. Human Rights Council) did not have jurisdiction, within Sri Lanka, to make recommendations on behalf of the petitioner. In doing so, the court decided that Sri Lanka’s accession to the optional protocol to the International Covenant on Civil and Political Rights (ICCPR) in 1997 had been done in a manner contrary to the Constitution, and hence illegal.

This case has invaluable lessons to teach in regard to the present government’s ‘Geneva Policy.’ By ‘Geneva Policy,’ I mean the government’s stance to the UNHRC’s follow-up resolutions to Sri Lanka’s unilateral withdrawal, in March 2020, from the co-sponsorship of Resolution 30/1 of October 2015. In response, the Council adopted Resolution Resolution than 30/1. Among other things, it establishes an evidence-gathering mechanism to collect evidence of war crimes and other crimes against Sri Lankans.

Meanwhile, in September 2022, the High Commissioner released a report on Sri Lanka’s progress in implementing the recommendations of Resolution 46/1. The government has officially rejected both, Resolution 46/1 and the High Commissioner’s report, on grounds that they were done without Sri Lanka’s consent and, therefore, contrary to the founding principles of the Council. (See A/HRC/51/G/1, paras 1.1, 1.2). However, the Foreign Ministry, in its response, lists various things that the government is doing to comply with Resolution 46/1.

I argue that the government, continuing to comply with the Resolution while, at the same time, rejecting it in principle, without first obtaining a definitive interpretation of the relevant legal position, from an international forum, or even the Sri Lankan Supreme Court, creates a dangerous precedent. Given the fact that state practice is one of the sources of customary international law, the government’s conduct has the potential to do irreparable harm to the long-term interests of the country.

Unfortunately, there is little, or no, discussion of these issues in local newspapers, and academic journals, and it is in the public interest to start one. In this article, I shall discuss: i) the facts and reasoning of the Singarasa judgment, ii) the High Commissioner’s report and the government’s reply, iii) assess of the government’s position, and draw the relevant conclusions.

The Singarasa case

In 1991, the High Court of Colombo convicted Singarasa of five charges, under the Prevention of Terrorism Act. The charges dealt with alleged attempts by Singarasa, and others, to attack the Army camps,in Jaffna and its suburbs. Singarasa appealed against the conviction to the Court of Appeal and then the Supreme Court. He also complained to the U.N. Human Rights Commission. The HRC could entertain petitions under the Optional Protocol to ICCPR. Sri Lanka had ratified the ICCPR, in 1980, and acceded to the protocol, in 1997. The HRC said that, Sri Lanka was under obligation to release Singarasa.

The main issue, in this case, is whether Sri Lanka’s accession to the ICCPR, and the related protocol, gives a right to an international body to intervene in the domestic sphere to determine Singarasa’s fate. The court answers ‘no,’ because of the following reasons. The court starts with the premise that the authority for the President to enter into international agreements comes from Article 33(f) of the Constitution. Article 33(f) states: “To do all such acts as, not being inconsistent with the provisions of the Constitution…he is required or authorized to do.” It follows that the President cannot agree to anything inconsistent with the Constitution.

The court then assesses the signing of the ICCPR, in 1980, and the subsequent accession to the optional protocol, in 1997, separately. The court points out that the ICCPR requires that the respective signatories adopt domestic legislation to implement the provisions of the covenant. This does not conflict with our Constitution and hence is lawful.

However, when acceding to the optional protocol, the government had issued a declaration that envisioned that the rights of Sri Lankan citizens could be adjudicated in tribunals, and forums, outside this country. The court points out that the institutions, through which Sri Lankans can vindicate their rights, within this country, are exhaustively set out in Article 105 of the Constitution, and the HRC is not one of them. Therefore, the court deems the accession to the optional protocol illegal. The court states:

“Where the President enters into a treaty or accedes to a covenant the content of which is inconsistent with the provisions of the Constitution or written law it would be a transgression of the limitation in Article 33 (f) and ultra vires—such acts of the President would not bind the Republic qua State.” (p. 11)

The High Commissioner’s report and the Government’s reply

The most disturbing aspect of the High Commissioner’s report is its description of the progress made by the impugned evidence-gathering mechanism. It states: “OHCHR continues to develop the information and evidence repository using an e-discovery platform….OHCHR commenced identifying material held by other actors and engaging with information providers. To date, the databases of two organisations have been migrated into the repository, and negotiations with other information providers are ongoing.” ((A/HRC/51/5, 4th October 2022, para 54.)

The report also details what the OHCHR plans to do with this information. It says: “To develop possible strategies for future accountability processes, the project team started mapping potential accountability process at international level, including through consultations with relevant stakeholders, in particular national authorities, victims and civil society organisations.” (para 56.)

In sum, it is clear that a vast operation is underway, not just to collect evidence against Sri Lanka but to set the groundwork to help prosecute Sri Lankans before various national and international forums. To the best of my knowledge, the founding statutes of the UNHRC, as well as the OHCHR, do not give enforcement capabilities to these institutions to prosecute or assist in the prosecution of people for violations of human rights and other offences.

Their respective mandates to protect and promote human rights are to be carried out with the consent of all nations concerned and in a spirit of “cooperation and constructive international dialogue.” Therefore, through the impugned mechanism the OHCHR has now arguably expanded its mandate to include an enforcement component, seemingly without any debate or discussion of the matter before the Council.

To turn to the government’s response, in the introductory paragraphs of the said document, the government rejects both resolution 46/1 as well as the High Commissioner’s report on grounds that they violate the UN’s founding principles. However, for much of the remainder of the report (which runs to 16 pages) the government enumerates the various things it has been doing to implement various provisions of the resolutions. For instance, the government discusses the work being done under the Office on Missing Persons, Office for Reparations, and so on.

On the OMP, the report states inter alia: “The OMP conducted panels of inquiries as part of the verification process. More than 89% of persons (1207 of 1370 applicants invited for inquiries) met with members of the panel and their testimonials were recorded.” (A/HRC/51/G/1, 9th September 2022, para 46)

Meanwhile, on the Office for Reparations, the report says, “The office processed 5964 claims for payment, by the end of 2021, and paid a sum of Rs. 399.8 million in settlement, out of the allocated sum of Rs. 800 million….Upto the end of 2022, the OR received Rs. 226 million to pay compensation and 2097 claims were settled utilizing Rs. 153 million.” (para 56)

In sum, even though the government has nominally rejected resolution 46/1 and by extension resolution 30/1 as well, the government is expending great energy, including enormous sums of money, to comply with various provisions of those resolutions.

Assessment of the policy

The Singarasa case establishes that the President, when conducting foreign policy, is exercising the power conferred under Article 33 (f) of the Constitution. One cannot suppose that it is consistent with the Constitution to comply with the provisions of a resolution that the Government itself considers to be in violation of the founding principles of the UNHRC.

Admittedly, a resolution of the UNHRC does not rise to the level of a treaty or covenant. However, there should now be a serious debate in this country about whether the reasoning above should apply to such resolutions which continue to target Sri Lanka on the world stage.

Furthermore, if, as I have suggested, the OHCHR has expanded its mandate by exploiting the provisions of Resolution 46/1 to acquire capabilities that were never envisioned in the relevant founding statutes, permitting such conduct to continue has the potential to set precedents in customary international law, with grave consequences for Sri Lanka, as well as other nations.

Therefore, Sri Lankan citizens are entitled to know the legal basis for the government’s continued compliance with provisions of Resolution 46/1, while nominally rejecting the Resolution. The only institution that can provide a legal opinion binding on the government is the Supreme Court. The President has the capacity, under Article 129 of the Constitution, to request an advisory opinion of the Supreme Court on any matter of public importance.

In these circumstances, it is incumbent on the government to seek an advisory opinion as to whether it is lawful for the government to continue complying with provisions of Resolution 46/1 unless and until the UNHRC clarifies its position in regard to the impugned mechanism.

Conclusion

It is in the interest of all Sri Lankans to keep a close eye on what the government is presently doing in Geneva. There is a famous legal maxim that says, “The laws assist the vigilant, not the sleepy.” Ultimately, it is the Sri Lankan people who will pay the price for any mistakes or missteps that successive governments make in regard to their “Geneva Policy.’

(The writer is an Attorney-at-Law)



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Silence of the majority keeps West Asian conflict raging

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Pope Leo the XIVth / President Donald Trump

With no military quick-fix in sight to the ongoing, convoluted West Asian conflict it ought to be clear to the rationally inclined that there is no other way to a solution to the blood-letting other than through a negotiated one. Unfortunately, there are not many takers the world over for such an approach.

Consequently the war rages on incurring the gravest human costs to all relevant sides. Whereas it should be obvious to the Trump administration that Iran wouldn’t be backing down any time soon from its position of taking on the US frontally and with the required military competence in the Hormuz Strait and adjacent regions, the US demonstrates a stubbornness to persist with war strategies that are showing no quick, positive results on the ground.

Clearly, the virtual ‘lock down within a lock down’ situation in the Strait is not proving beneficial for either party. Instead, the spilling of civilian blood in particular continues with unsettling regularity along with an all-encompassing economic crisis that carries a staggering material toll for ordinary people all over the world.

From this viewpoint it is commendable for Pakistan to offer itself as a peace mediator and go ‘the extra mile’ to keep the principal parties engaged in some sort of negotiatory process. But its efforts need to win greater support from the world community. It is a time for peace-makers the world over to stand up and be counted.

It is also a time for straight-talking. To his glowing credit Pope Leo XIV is doing just that and he is the only religious head worldwide to do so. Very rightly he has called on President Trump to end the war through negotiations and described it as ‘unjust’ and ‘a scandal to humanity’.

May this crucial cause be taken up by more and more world leaders, is this columnist’s wish. Instead of speaking fatalistically about a ‘Third World War’, decision and policy makers and commentators, and these are found in plenty in Sri Lanka as well, would do better to help in drumming-up support for a peaceful solution and the latter is within the realms of the possible.

Incidentally, the commonplace definition of the phrase ‘World War’ is quite contentious and it would be premature to speak forebodingly about one right now. The fissures within the West on the Middle East conflict alone rule out the possibility of a ‘World War’ occurring any time soon.

Instead, it would be preferable for the international community, under the aegis of the UN, to take the ‘straight and narrow’ path to a peaceful solution. As implied, this path is no easy avenue; it is cluttered with obstacles that only doughty peace makers could take on and clear.

However, the path to a negotiated peace is worth taking and no less a power than the US should know this. After all, the US ‘bled white’ in Vietnam and had to bow out of the conflict, realizing the futility of pursuing a military solution. A similar lesson should have been learned by Russia which bled futilely in Afghanistan. It too is in an unwinnable situation in Ukraine.

The Pope’s observations to President Trump on negotiating peace have earned for him some snarls and growls of criticism but with time these critics would realize that peace could come only by peaceful means and not through ‘the barrel of a gun.’

For far too long the ‘silent majority’ of the world has allowed politicians to take the sole initiative on working towards peaceful solutions to conflicts and wars. As could be seen, the results have been disastrous. The majority of politicians speak the language of Realpolitik only and this tendency runs contrary to the ways of the selfless peace maker.

Power, which is the essence of Realpolitik, and peace are generally at loggerheads in the real world. Power and self-aggrandizement have to be shelved in the pursuit of durable peace anywhere and it is a pity that the likes of Donald Trump and his team are yet to realize this.

At this juncture the ‘peace constituency’ or the silent majority would need to take centre stage and play their rightful role as the ‘Conscience of the World’. If the latter begins to take on the cause of peace in earnest everywhere, the politicians would have no choice but to pay heed to their cause and take it up, since a contrary course would earn for them public displeasure and votes.

An immediate challenge would be for the ‘peace constituency’ to come together and act as one. Right now, such a coordinating role could be played effectively by only the UN and its agencies. Practical problems are likely to get in the way but these need to be managed insightfully and resourcefully by all stakeholders to peace.

In fact the time couldn’t be more appropriate for the backers of peace to come together and work as one. Right now, economic pressures are increasing worldwide and no less a public than that in the US is beginning to feel them in a major, crushing way.

Going ahead the US public, along with other polities, would find the economic consequences of war to be intolerable. There would be no choice but for governments and peoples to champion peace. Peace makers would need to ‘strike while the iron is hot.’

The success of the above endeavours hinges on the importance humans attach to their consciences. The danger about prolonged wars is that they deaden consciences; particularly those of politicians. The latter deaden their consciences to the extent that they prove impervious to the pain and suffering wars incur.

Thus, the ‘peace constituency’ has its work cut out; it cannot rest assured that politicians would prove sensitive to their demands. The latter would need to be constantly dinned into the hearts and minds of politicians and decision-makers if peaceful solutions to conflicts are to be arrived at.

Likewise, the publics of war-torn countries would need to demand the activation and sustaining of accountability processes with regard to those sections that are suspected of committing war crimes and like atrocities. Those publics that cease to demand accountability from powerful sections among them which are faced with war-time atrocity charges are as good as condemning themselves to lives of permanent dis-empowerment and enslavement.

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Don’t take the baby: In the quiet night, mother always returns

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Grey Slender Loris

Chaminda Jayasekara

There is a particular stillness in Sri Lanka’s forests, after dusk — a kind of hushed expectancy where shadows lengthen, cicadas soften their chorus, and the night begins to breathe in its own rhythm. It is a world that does not reveal itself easily. You have to wait for it. You have to listen.

And then, suddenly, you see them — a pair of luminous, unblinking eyes suspended in the dark.

The Grey Slender Loris, or unahapuluwa, emerges, not with drama, but with quiet precision. Small, slow-moving, and almost impossibly delicate, it is one of Sri Lanka’s most enigmatic nocturnal primates — a creature that has survived millennia by mastering the art of stillness.

Yet, during these months — from late March through July — the forests hold a more tender story. It is the breeding season of the slender loris, and with it comes a scene that is often misunderstood by those who encounter it for the first time: a tiny infant, alone on a branch, barely three inches long, its fragile body silhouetted against the night.

Grey Slender Loris with twin babies

To many, it appears to be a moment of abandonment.

To nature, it is a moment of trust.

“People often act out of compassion, but without understanding what they are seeing,” explains Chaminda Jayasekara of the University of Hertfordshire. “A baby loris left alone is not necessarily in danger. In fact, it is part of a natural process that is critical for its survival.”

According to Jayasekara, when a baby loris is about a month old, the mother begins a remarkable routine. As darkness settles, she gently places her infant on a secure branch and moves off into the forest to forage. Her journey can take her hundreds of metres away — sometimes close to 800 metres — as she searches for insects and other small prey.

In those hours of solitude, the infant is not abandoned. It is learning.

Clinging to the branch, it begins to explore its immediate surroundings. Tentatively, almost hesitantly, it reaches out — testing balance, grip, and instinct. It may attempt to catch tiny insects, mimicking behaviours it will one day rely on entirely. This is its first classroom, and the forest its only teacher.

“Those early nights are crucial,” Jayasekara says. “The baby is developing motor skills, coordination, and the ability to interact with its environment. These are things that cannot be replicated in captivity.”

And yet, this is precisely where human intervention often disrupts the process.

Across rural and even semi-urban Sri Lanka, stories circulate of well-meaning individuals who come across a lone baby loris and assume the worst. Driven by concern, they pick it up, take it home, or attempt to hand-rear it — believing they are saving a life.

Grey Slender Loris

But the reality is far more complex — and far more tragic.

“When a baby is removed unnecessarily, it loses something fundamental,” Jayasekara emphasises. “It loses the chance to learn how to survive in the wild. Without that, even if it survives in the short term, its long-term prospects are extremely poor.”

The forest, after all, is not just a habitat. It is a living, evolving system of lessons — how to detect predators, how to navigate branches, how to hunt silently, how to recognise territory. These are not instincts alone; they are behaviours refined through experience.

And the mother, contrary to assumption, is rarely far away.

“If people simply waited — even for several hours — they would often see the mother return,” Jayasekara explains. “She knows exactly where she left her baby. Her absence is temporary, purposeful.”

The advice from conservationists is clear and consistent: observe, but do not interfere.

If you encounter a baby loris, watch quietly from a distance. Avoid using bright lights or making noise. Give it time — at least 10 to 12 hours — before drawing conclusions. In most cases, the situation will resolve itself, just as nature intended.

35 days old Grey Slender Loris

Only if the animal is clearly injured, or if there is strong evidence of abandonment after prolonged observation, should intervention be considered — and even then, it must be done through the proper channels, particularly the Department of Wildlife Conservation.

Attempting to care for such a delicate animal at home is not only ineffective but often fatal.

Sri Lanka is home to two species of slender loris — the Grey Slender Loris and the Red Slender Loris — each adapted to specific ecological zones across the island. Both are protected under national legislation and recognised internationally as species requiring urgent conservation attention.

Their threats are many: habitat loss, road mortality, illegal pet trade, and, increasingly, human misunderstanding.

Yet, in the midst of these challenges, there are also signs of hope.

In recent years, the slender loris has become the focus of a unique form of wildlife tourism — one that values patience over spectacle. Night walks, conducted with trained naturalists and strict ethical guidelines, offer visitors a chance to witness the loris in its natural environment without disturbing its behaviour.

At places like Jetwing Vil Uyana, this approach has been refined into a model of responsible eco-tourism. Over more than a decade, the property has developed a dedicated Loris Conservation Project, recording thousands of sightings while educating visitors and supporting local communities.

Here, the loris is not handled, chased, or exploited. It is simply observed — a quiet presence in a carefully protected landscape.

“The success of such initiatives shows that conservation and tourism do not have to be at odds,” Jayasekara reflects. “When done responsibly, tourism can actually support conservation by creating awareness and value for these species.”

There is something profoundly moving about encountering a loris in the wild. It does not roar or charge. It does not demand attention. Instead, it exists — quietly, deliberately — as it has for millions of years.

And perhaps that is why it is so easily misunderstood.

In a world that often equates visibility with importance, the loris reminds us that some of the most extraordinary lives unfold beyond the spotlight.

It also reminds us of something else — something simpler, yet harder to practice.

Restraint.

Because conservation is not always about stepping in. Sometimes, it is about stepping back. About recognising when nature does not need our help, but our patience.

So if, on some future night, you find yourself walking beneath the trees, and your light catches a tiny figure sitting alone on a branch — do not rush forward.

Pause.
Watch.
Let the moment unfold.

Because somewhere, moving silently through the darkness, guided by instinct and memory, a mother is already on her way back.

And by morning, the forest will be whole again.

 

By Ifham Nizam

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Kumar de Silva: 40 years of fame and flair

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Kumar de Silva: The four-decade journey

We first saw him on the small screen in January 1986 – a relatively raw, totally untrained and a very nervous 24-year-old presenting ‘Bonsoir’ on ITN.

And now, 40 years later, and as one looks back, one realises what a multi-dimensional journey Kumar de Silva has navigated across the small screen yes, from your television screens to your laptops, and iPads, tabs, and mobile phones.

Says Kumar: “It is the French language I speak that opened the world of television to me, 40 years ago. It was ‘Bonsoir’ alone, and so to my French teacher at Wesley College, Mrs. BA Fernando, to ‘Bonsoir’, and to the Embassy of France in Sri Lanka, I am eternally grateful”.

Promoting the French language, and culture, in Sri Lanka, in a big way

Kumar went on to say that on the heels of ‘Bonsoir” came ‘Fanclub’, on ITN, describing it as yet another resounding success story which saw him as a music DJ on TV.

His inherent talent saw him handle a range of contrasting programmes across ITN, TNL, Prime TV and SLRC with consummate ease – from News Reading, Business Talk Shows, Celebrity Chats, to Dhamma discussions, on Poya Days, to name a few.

Kumar – the 1986 look

Trained in Paris in television production and presentation, the Government of France, in 2012, conferred on him the title of ‘Chevalier dans l’Ordre des Arts et Lettres’ (Chevalier in the Order of Arts and Letters) in recognition of his contribution to promoting the French language, and culture, in Sri Lanka.

In celebration of his four decades on the small screen, Kumar recently launched ‘Bonsoir Katha’, the Sinhala translation (by Ciara Mendis) of his English book ‘Bonsoir Diaries’ (2013), at a gala soiree. at the Alliance Francaise de Colombo, under the distinguished patronage of the French Ambassador in Sri Lanka, Remi Lambert, and francophone President Chandrika Kumaratunga.

He’s now excited about launching the French version of this book, ‘Les Coulisses de Bonsoir’, in Paris, in autumn this year. It is currently being translated by Guilhem Beugnon, a former Deputy Director of the Alliance Francaise de Colombo. This will, co-incidentally, also be Kumar’s 30th visit to Paris.

Chief Guest French Ambassador in Sri
Lanka Remi Lambert

Says Kumar: “The word GRATITUDE means a lot to me and so I always make it a point to spend time with two very special French people every time I go to France. One is Madame Josiane Thureau, formerly of the French Foreign Ministry, who began ‘Bonsoir’ in Sri Lanka. way back in the mid-1980s. The other is Madame Aline Berengier, the lady who designed the ‘Bonsoir’ logo – the Sri Lankan elephant in the colours of the French national flag”.

Kumar is also a much-sought-after Personal Development and Corporate Etiquette Coach in Colombo’s corporate world. Over the past 15 years, tens of thousands of corporates, have been through the different modules of his interactive training sessions. There have also been thousands of school leavers and undergraduates from national and private universities, many of whom will constitute the corporates of tomorrow.

Guest of Honour francophone President Chandrika Kumaratunga at the gala soiree
at the Alliance Francaise de Colombo

The multi-talented Kumar turns 65 next year, and his journey on the small screen still continues – you see him on the (monthly) ‘Rendez-Vous with Yasmin and Kumar’ on the French Embassy’s YouTube Channel, and (every Friday) on ‘Fame Game with Rozanne and Kumar’ on Daily Mirror Online, Hi Online and The Sun Online.

There’s yet another podcast in the pipeline, he indicated, but diplomatically declined to give us details. All he said, with a glint in his eye, was, “It will hit your screens soon.”

Whatever he has in mind, one can be certain that the new programme will continue to showcase Kumar de Silva’s enduring presence in Sri Lanka’s entertainment scene.

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