By Neville Ladduwahetty
During the recent committee state debates in Parliament on the financial vote of the Ministry of Foreign Relations, exception was taken by MP M. A. Sumanthiran for the decision the by the government to withdraw from co-sponsorship of Resolution 30/1 via 40/1, and went on to warn the government of inevitable consequences for withdrawing from international commitments.
Certainly, there are consequences if a sovereign State withdraws from international commitments on some whimsical pretext. In order to prevent such outcomes, the international community has developed international laws to discourage States from acting irresponsibly. If such restrictions do not exist, any accredited Officer of a State could jeopardize the interests of his State by undertaking commitments without following or even in contravention of internally formulated procedures of the State concerned. Under such circumstances, the international law provides for sovereign States to withdraw from commitments made by irresponsible members of such a State under provisions of Article 46 of the 1969 Vienna Convention on the Law of Treaties.
VIOLATION of DUE PROCESS
During the course of his address to the Human Rights Council on February 26, 2020, Sri Lanka’s Minister of Foreign Relations Dinesh Gunawardena stated: “Procedurally, in co-sponsoring Resolution 30/1, the previous government violated all democratic principles of governance – it declared support for the resolution even before the draft text was presented – it sought no Cabinet approval to bind the country to deliver on the dictates of an international body – there was no reference to Parliament on the process, undertakings and repercussions of such co-sponsorship – more importantly the Resolution itself included provisions which are undeliverable due to its inherent illegality, being in violation of the constitution, the supreme law of the country”.
The draft text referred to above is reported to have been prepared in the USA. As for the final text, former Minister Mangala Samaraweera is reported to have admitted that “the final text of the resolution was largely negotiated over the telephone with the President … the Prime Minister … and the Ambassador of the US and the High Commissioner of the UK.” (The Island, February 29, 2020). One cannot expect the latter two participants involved in the “negotiations” finalizing the draft to be aware of the impact of their deliberations on Sri Lanka’s Constitution, or whether any of its provisions were “deliverable”. On the other hand, the others who participated in finalizing the draft had done so regardless of its impact on the Constitution, without any heed to the oath they had taken to “uphold and defend the Constitution”. What fate awaits them for their treachery only time will tell” (The Island, “Fundamental Rights, Human Rights and other rights”, March 4, 2020).
If international law did not protect sovereign States from commitments made by treacherous and unscrupulous individuals the entire international order would be in chaos. It is to prevent such disaster that the international community incorporated Article 46 in the text of the Vienna Convention on the Law of Treaties 1969. Despite this provision, for some to keep repeating that international commitments should be upheld no matter the circumstances under which the commitment was made, calls into question the scruples of the individuals concerned.
Article 46 states: “A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”. Thus, since a Constitution is the most basic of a State’s “internal law of fundamental importance”, a State has the grounds to invalidate its commitments whether to the UNHRC or any other. Although this depends on whether a Resolution of the UN Human Rights Council reaches the status of a Treaty or not, no sovereign State should be expected to fulfill any commitment undertaken in violation of its Constitution since it forms the law of “fundamental importance” of its Peoples.
The fact that the infamous resolution that was co-sponsored by Sri Lanka violated Sri Lanka’s Constitution was conveyed in unambiguous terms to the Human Rights Council in March 2019 by the then Foreign Minister Tilak Marapana.
In the course of his statement he stated: “In referring to para 68 (C) of the OHCHR Report (A/HRC/40/23), which pertains to the Recommendations to GOSL, ‘to adopt legislation establishing a hybrid court to investigate allegation of violating and abuses of international law and violations of international humanitarian law’, I wish to make it clear that our position on this matter is as follows’:
“The Government of Sri Lanka at the highest political levels, has both publicly and in discussions with the present and former High Commissioner for Human Rights and other interlocutors, explained the constitutional and legal challenges that preclude it from including non-citizens in its judicial processes. It has been explained that if non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favour and also the approval of the people at a referendum”.
Having co-sponsored the UNHRC Resolution in 2015, the Consultation Task Force on Reconciliation Mechanisms appointed in January 2016 by the then Prime Minister also recommended a hybrid Court as stated in paragraph 24 cited below.
“The CTF recommends a hybrid Court with a majority of national judges as well as a sufficient number of international judges. This will ensure at least one international judge per bench and pre-empt delays due to the absence of one or more judges. It also recommends international participation in the Office of the Special Counsel of prosecutors and investigators, in addition to the provision of technical assistance. There should be clear guidelines and criteria spelt out and made public in respect of all aspects of international participation. International participation should be phased out once trust and confidence in domestic mechanisms are established and when the required expertise and capacity has been built up, nationally.”
Considering the legal and academic background of the persons who were involved in the Task Force it is a matter of deep concern that they too recommended mechanisms, either unaware or despite being aware, that the mechanisms involve serious constitutional and legal challenges. The image projected internationally by such irresponsibility reflects poorly on the country.
Under the circumstances, the only option open to any responsible government is to withdraw from undertakings that had been made by irresponsible persons who unwittingly or knowingly committed the country to fulfilling obligations that violate the country’s internal laws of fundamental importance.
The material presented above is not a lesson on international law. It is a lesson nevertheless that responsible persons should be aware of whether in Parliament or outside. The lesson is that although sovereign States are obligated to meet international commitments made on behalf of the State, international law also provides for States to withdraw from such obligations whenever commitments made by irresponsible persons impact on the “internal law of fundamental importance”. Such relief is provided in the Vienna Convention on the Law of Treaties 1969. If such provisions do not exist in international law, unscrupulous persons would be able to commit sovereign States to undertakings that would work against the interests of the State concerned.
However, a new lesson was introduced by Mr. Sumanthiran during the committee stage debates in Parliament. His lesson in history was that there were three kingdoms in the island and each of them fell at different times to the Western powers. If the reason for bring up such an issue was with the expectation that the national question should be based on historical underpinnings, claimants of other kingdoms would insist on going back to long periods of history when the island was a single kingdom for millennia. The lesson to be learnt is that such claims defy pragmatic realism. Therefore, the hope for all concerned is to improve on the institutions and practices, and continue with the political and administrative arrangements for a single sovereign State that were introduced by the West. To hope for anything more would only end up in mourning our dead.
Most Venerable Kotugoda Dhammavasa Uttareethara Maha Nayaka Thera turns 88
It was in the year 1803 that there was a renaissance within the Maha Sangha (the Great Community of Buddhist Monks) in Sri Lanka thereby adding a fresh chapter to the history of the Buddha Sasana in Sri Lanka. This was when the Most Venerable Welitara Sri Gnanawimala Thera, the Great Prelate received the Upasampada or the Higher Ordination in Burma, returned to Sri Lanka and established the Sri Lanka Amarapura Nikaya. (The name of this monk is embellished with traditional appellations such as Bodhisattva Gunopetha or being imbued with the qualities of a Bodhisattva or Buddha-Aspirant, and Preacher to King and Emperor.)
Thus the Amarapura Nikaya, which began with this Most Venerable Thera, later spread itself very rapidly down five generations of the Sangha spanning the entire Island. These generations of the Sangha organized themselves into 22 Nikayas. This was with the blessings of each of the Mahanayakas. They also preserved the identity of each such Nikaya.
In Sri Lanka, Amarapura Maha Sangha Sabha was formed in 1952 with the concurrence of 15 of these subsidiary Nikayas. Presidents of the Amarapura Maha Sangha Sabha have been;
1. the Most Venerable Prelate Beruwela Siri Nivasa Thera
2. the Most Venerable Mapalane Pannalankara Maha Nayaka,
3. the Most Venerable Uddammita Dhammarakhita Maha Nayaka,
4. the Most Venerable Balangoda Ananda Maithri Maha Nayaka
5. the Most Venerable Madihe Pannaseeha Maha Nayaka.
In the year 1962 all 22 Sub-Nikayas came together to form a more organized and properly constituted Sri Lanka Amarapura Maha Sangha Sabha. It was the Most Venerable Agga Maha Panditha Balangoda Ananda Maithri Thera who was installed as President and has been succeeded by;
1. the Most Venerable Dhammavansha Thera,
2. the Most Venerable Madihe Pannaseeha,
3. the Most Venerable Ahungalla Wimalanandi,
4. the Most Venerable Kandegedara Sumanavansha,
5. the Most Venerable Boyagama Wimalasiri,
6. the Most Venerable Kotugoda Dhammavasa and
7. the Most Venerable Dodampahala Chandrasiri.
The Most Venerable Chief Prelate Ganthune Assaji Thera is the current chair.
In terms of the Constitution approved in 1992, an Office of Supreme Prelate (Uttareethara Mahanayaka) was created, and the first to hold this office was the Most Venerable Madihe Pannaseeha Mahanayaka Thera who was succeeded by Most Venerable Davuldena Gnaneesara Thera. After his demise the Most Venerable Kotugoda Dhammavasa Thera, who turns eighty-eight today assumed and continues to be the Uttareethara Mahanayaka.
He was born on 26th January 1933 and ordained as a monk with the permission of his parents, on 17th August 1948. He received his Higher Ordination on 10th July 1954 at the Udakkukhepa Seemamalakaya set up on the River named the Kalu Ganga in Kalutara.
He had his training and primary instruction in the Buddha Dhamma from his Venerable Preceptors, later entered the Paramadhamma Chetiya Pirivena for his education. It was at the Maha Pirivena in Maligakanda where he received his Higher Education in three languages, under the shadow and tutelage of the Most Venerable Pandita Baddegama Piyaratana Thera.
With the demise of his preceptor, Dhammavasa Thera became the Prelate of the Dharmapala-arama Viharaya in Mount Lavinia. By this time he had already become very popular by broadcasting and delivering sermons in temples and in private homes, contributing to articles disseminating the Dhamma, and articles on topical subjects through the full-moon day publication entitled “Budusarana”, then to daily newspapers, and to the Vesak Annuals published by M D Gunasena & Co., Dinamina etc.
The Thera was also engaged in social welfare activities of the area by setting up Children’s and Young Persons’ Societies within the Vihara.
With the passage of time and the demise of remarkably eloquent monks such as the Most Venerable Narada Thera, Prelate of the Vajira-aramaya, Heenatiyana Dhammaloka, Kotikawatte Saddhatissa, Pitakotte Somananda, Kalukondayawe Pannasekera and other such classic preachers, Kotugoda Dhammavasa Thera stands out as a prime orator among those who came to the limelight after the days of the erudite monks of yesteryear.
Owing to the ceaseless invitations to deliver sermons extended to our Venerable Thera he travelled to various regions of the Island, yet fulfilling all his duties pertaining to his own Nikaya and to the work of the Sangha Sabha neglecting nothing whatever. With all this he continued to participate in the discharge of the infinite services expected of all erstwhile office bearers of the Sangha Sabha.
Our respected Thera was gradually chosen to hold various posts within the Amarapura Nikaya. Some such are his appointment in 1970 as an ordained member of the Working Committee and to the Post of Honorary Prelate (Maha Nayaka); in 1981 as the Chief Ecclesiastical Sangha Nayaka; and in 1990 as the Deputy Chief (Anunayaka) of the Amarapura Nikaya. At the same time it is because of his quality of being industrious that he was elected the Secretary (Lekhakadhikari).
The Venerable Anunayaka Thera who served the Maha Sangha Sabha of the Sri Lanka Amarapura Nikaya with great dedication, in order to ensure its unity and advancement, was in 1980 appointed its Co-Secretary (Sama Lekhakadhikari) and in 1992 as its Chief Secretary (Maha Lekhakadhikari) It is only appropriate to place on record that during this period of about fifteen years he performed a very special quality of service to the Sasana by updating the Amarapura Sangha Sabha; by setting up a Kathikavata (Ecclesiastical Edict) for the Amarapura Nikaya (whereby ‘rules governing the discipline and conduct of Buddhist monks including matters related to the settlement of disputes’ together with a Sanghadhikarana Panatha (i.e. an Ecclesiastical Act) were drafted and approved; and finally by drafting a strong, formal Constitution and obtaining approval for same.
It was on 17th December 2016 that the Venerable Kotugoda Dhammavasa Anunayaka Thera became the Mahanayaka of the Amarapura Nikaya, and that on a proposal made by none other than the Most Venerable Agga-maha-panditha Ambalangoda Sumangala Maha Nayaka Thera who, at the time, was himself the incumbent.
On 3rd October 2008 the Venerable Kotugoda Dhammavasa Maha Nayaka Thera was appointed to the post of Chairman, and it was on 26th May 2017 that he was elected Uttareethara Maha Nayaka or Supreme Maha Nayaka, which is the highest position within the Sri Lanka Amarapura Nikaya.
He has visited many countries in Asia and Europe disseminating the Dhamma and participating in Conferences thereby earning great international fame. Meanwhile he also serves as the incumbent monk of the Sri Lanka-aramaya in Myanmar and of the Charumathie Viharaya in Nepal.
In the matters of national and religious issues in the country he expresses his views in such a calm and collected manner that he has earned the respect of the Supreme Maha Nayaka Theras of other Nikayas and politicians both in power and in the Opposition and of intellectuals.
He has been honored with the title of “Agga Maha Panditha” by the Government of Myanmar. Although other honorary awards were conferred upon him by foreign countries and foreign institutions he does not use them, entirely because of his humble disposition.
At the end of and exposition of the Dhamma (a Dharma Desana) at Temple Trees His Excellency Mahinda Rajapaksa (who was then the incumbent President of the country) made an offering to him of about 14 perches of land in Wellawatte. Upon this land stands today, the “Office of the Sangha Sabha of the Amarapura Maha Nikaya”, a three-storied building replete with all conceivable facilities. It is a matter of great joy to us that in honour of the Most Venerable Kotugoda Dhammavasa Maha Nayaka Thera it was possible for us to make an offering of this building to the Buddha Sasana, on the 15th of August 2020.
We offer merit to His Excellency the President and the Honourable Prime Minister who are today attending to each and every need of our Supreme Maha Nayaka Thera in a spirit of extending infinite regard and respect to him, in appreciation of the national and religious service the Maha Thera has rendered.
Let us also gratefully place on record that the Honourable Sajit Premadasa, Leader of the Opposition, has provided an elevator as an offering to facilitate the caring for our Mahanayaka Thera.
I also wish to thank the Doctors, the Staff of the Nawaloka Hospital, Members of the Nikaya-abhivrudhi Dayaka Sabha (Organization for the Advancement of the Nikaya) and the Dayaka Sabha of the Mahanayaka’s Vihara and who are all providing medical care.
Arrangements were made by the Dayaka Sabha and the student monks to offer alms to the Sangha to mark the birthday of our Thera when he reached the age of 88, on 26th January 2021.
On 21st January 2021 at 7.00 p.m. a Bodhi Pooja was organized by the Amarapura Nikaya-abhivruddi Dayaka Sabha at the historic Kalutara Bodhi to invoke blessings upon our Supreme Maha Thera.
May the Supreme Maha Nayaka Agga Maha Panditha Kotugoda Dhammavasa Maha Nahimi live a life free from sickness and sorrow.
Deshamanya Ajita de Zoysa
Sri Lanka Nikaya-abhivruddi Dayaka Sabha
Govt.’s choice is dialogue over confrontation
By Jehan Perera
Preparing for the forthcoming UN Human Rights Council cannot be easy for a government elected on a nationalist platform that was very critical of international intervention. When the government declared its intention to withdraw from Sri Lanka’s co-sponsorship of the October 2015 resolution No. 30/1 last February, it may have been hoping that this would be the end of the matter. However, this is not to be. The UN Human Rights High Commissioner’s report that will be taken up at the forthcoming UNHRC session in March contains a slate of proposals that are severely punitive in nature and will need to be mitigated. These include targeted economic sanctions, travel bans and even the involvement of the International Criminal Court.
Since UN Secretary General Ban Ki-Moon’s visit in May 2009 just a few days after the three-decade long war came to its bloody termination, Sri Lanka has been a regular part of the UNHRC’s formal discussion and sometimes even taking the centre stage. Three resolutions were passed on Sri Lanka under acrimonious circumstances, with Sri Lanka winning the very first one, but losing the next two. As the country became internationally known for its opposition to revisiting the past, sanctions and hostile propaganda against it began to mount. It was only after the then Sri Lankan government in 2015 agreed to co-sponsor a fresh resolution did the clouds begin to dispel.
Clearly in preparation for the forthcoming UNHRC session in Geneva in March, the government has finally delivered on a promise it made a year ago at the same venue. In February 2020 Foreign Minister Dinesh Gunawardena sought to prepare the ground for Sri Lanka’s withdrawal from co-sponsorship of UN Human Rights Council resolution No 30/1 of 2015. His speech in Geneva highlighted two important issues. The first, and most important to Sri Lanka’s future, was that the government did not wish to break its relationships with the UN system and its mechanisms. He said, “Sri Lanka will continue to remain engaged with, and seek as required, the assistance of the UN and its agencies including the regular human rights mandates/bodies and mechanisms in capacity building and technical assistance, in keeping with domestic priorities and policies.”
Second, the Foreign Minister concluding his speech at the UNHRC session in Geneva saying “No one has the well-being of the multi-ethnic, multi-lingual, multi-religious and multi-cultural people of Sri Lanka closer to their heart, than the Government of Sri Lanka. It is this motivation that guides our commitment and resolve to move towards comprehensive reconciliation and an era of stable peace and prosperity for our people.” On that occasion the government pledged to set up a commission of inquiry to inquire into the findings of previous commissions of inquiry. The government’s action of appointing a sitting Supreme Court judge as the chairperson of a three-member presidential commission of inquiry into the findings and recommendations of earlier commissions and official bodies can be seen as the start point of its response to the UNHRC.
The government’s setting up of a Commission of Inquiry has yet to find a positive response from the international and national human rights community and may not find it at all. The national legal commentator Kishali Pinto Jayawardene has written that “the tasks encompassed within its mandate have already been performed by the Lessons Learnt and Reconciliation Commission (LLRC, 2011) under the term of this President’s brother, himself the country’s Executive President at the time, Mahinda Rajapaksa.” Amnesty International has stated that “Sri Lanka has a litany of such failed COIs that Amnesty International has extensively documented.” It goes on to quote from the UN High Commissioner for Human Rights that “Domestic processes have consistently failed to deliver accountability in the past and I am not convinced the appointment of yet another Commission of Inquiry will advance this agenda. As a result, victims remain denied justice and Sri Lankans from all communities have no guarantee that past patterns of human rights violations will not recur.”
It appears that the government intends its appointment of the COI to meet the demand for accountability in regard to past human rights violations. Its mandate includes to “Find out whether preceding Commissions of Inquiry and Committees which have been appointed to investigate into human rights violations, have revealed any human rights violations, serious violations of the international humanitarian law and other such serious offences.” In the past the government has not been prepared to accept that such violations took place in a way that is deserving of so much of international scrutiny. Time and again the point has been made in Sri Lanka that there are no clean wars fought anywhere in the world.
International organisations that stands for the principles of international human rights will necessarily be acting according to their mandates. These include seeking the intervention of international judicial mechanisms or seeking to promote hybrid international and national joint mechanisms within countries in which the legal structures have not been successful in ensuring justice. The latter was on the cards in regard to Resolution 30/1 from which the government withdrew its co-sponsorship. The previous government leaders who agreed to this resolution had to publicly deny any such intention in view of overwhelming political and public opposition to such a hybrid mechanism. The present government has made it clear that it will not accept international or hybrid mechanisms.
In the preamble to the establishment of the COI the government has made some very constructive statements that open up the space for dialogue on issues of accountability, human rights and reconciliation. It states that “the policy of the Government of Sri Lanka is to continue to work with the United Nations and its Agencies to achieve accountability and human resource development for achieving sustainable peace and reconciliation, even though Sri Lanka withdrew from the co-sponsorship of the aforesaid resolutions” and further goes on to say that “the Government of Sri Lanka is committed to ensure that, other issues remain to be resolved through democratic and legal processes and to make institutional reforms where necessary to ensure justice and reconciliation.”
As the representative of a sovereign state, the government cannot be compelled to either accept international mechanisms or to prosecute those it does not wish to prosecute. At the same time its willingness to discuss the issues of accountability, justice and reconciliation as outlined in the preamble can be considered positively. The concept of transitional justice on which Resolution No 30/1 was built consists of the four pillars of truth, accountability, reparations and institutional reform. There is international debate on whether these four pillars should be implemented simultaneously or whether it is acceptable that they be implemented sequentially depending on the country context.
The government has already commenced the reparations process by establishing the Office for Reparations and to allocate a monthly sum of Rs 6000 to all those who have obtained Certificates of Absence (of their relatives) from the Office of Missing Persons. This process of compensation can be speeded up, widened and improved. It is also reported that the government is willing to consider the plight of suspected members of the LTTE who have been in detention without trial, and in some cases without even being indicted, for more than 10 years. The sooner action is taken the better. The government can also seek the assistance of the international community, and India in particular, to develop the war affected parts of the country on the lines of the Marshall Plan that the United States utilized to rebuild war destroyed parts of Europe. Member countries of the UNHRC need to be convinced that the government’s actions will take forward the national reconciliation process to vote to close the chapter on UNHRC resolution 30/1 in March 2021.
Album to celebrate 30 years
Rajiv Sebastian had mega plans to celebrate 30 years, in showbiz, and the plans included concerts, both local and foreign. But, with the pandemic, the singer had to put everything on hold.
However, in order to remember this great occasion, the singer has done an album, made up of 12 songs, featuring several well known artistes, including Sunil of the Gypsies.
All the songs have been composed, very specially for this album.
Among the highlights will be a duet, featuring Rajiv and the Derena DreamStar winner, Andrea Fallen.
Andrea, I’m told, will also be featured, doing a solo spot, on the album.
Rajiv and his band The Clan handle the Friday night scene at The Cinnamon Grand Breeze Bar, from 07.30 pm, onwards.
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