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Violation of due process in international commitments

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By Neville Ladduwahetty

Referring to his role in the 2015 UNHRC Resolution 30/1, Mr. Mangala Samaraweera as the Foreign Minister of the former Government made a startling revelation that contradicts the common understanding in Sri Lanka as to who sponsored and who co-sponsored UNHRC Resolution 30/1 (Ceylon Today, April 1, 2021). He is reported to have stated: “To say that Sri Lanka sponsored a resolution alone is an utter misleading lie…Although there had been 29 countries supporting Sri Lanka at the UNHRC in 2009 right after the war, the support dwindled down to 12 countries in 2014 when the UNHRC initiated a probe against the country for human rights violations”.

According to the report ‘he had appealed for the UNHRC to give the previous Government a little more time till September that same year to present the country’s own resolution for a national independent judicial mechanism. Then Premier Ranil Wickremesinghe, with a group of top level experts, drafted the resolution and invited the U.S. Ambassador and the UK High Commissioner to co-sponsor the resolution’.

The issues that arise from a literal interpretation of these comments are:

1. Even if Sri Lanka took the “initiative” to draft the resolution and invite the U.S. and U.K. governments to be co-sponsors, the eventual outcome was that the roles reversed and Sri Lanka ended up being the co-sponsors. It was this that led to Foreign Minister Dinesh Gunawardena stating at the 43rd Session of the Human Rights Council: “It is in this context that I wish to place on record, Sri Lanka’s decision to withdraw from co-sponsorship of Resolution 40/1… which also incorporates and builds on proceeding Resolutions 30/1 of October2015 and 34/1 of March 2017”.

2. Mr. Samaraweera also states that PM Ranil Wickramasinghe and a “group of top level experts” drafted the Resolution. If so, how come the PM together with the “top level experts” missed the fact that the judicial mechanism proposed in Paragraph 6 of the Resolution violates the Constitution, as admitted by the former Foreign Minister Mr. Tilak Marapana at the 40th Secession of the Human Rights Council when he stated: ” “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”.

It is inexplicable how the then PM and top-level experts failed to realize the “constitutional legal challenges that preclude from including non-citizens in its judicial process” during the drafting stages of Resolution 30/1. This is not so inexplicable considering that top level experts who were involved with the Task Force on Reconciliation Mechanisms also recommended that a Hybrid Court should conduct investigations into violations committed during the armed conflict without realizing the constitutional and legal challenges involved. A possible explanation for such serious lapses is that these top experts believe that because constitutional and legal challenges have been overcome in the past by governments violating due process, they need not concern themselves about such trivia. Resolution 30/1 is one instance where the gamble of the top-level experts failed when Sri Lanka withdrew from co-sponsorship.

VIOLATION of DUE PROCESS

Violation of due process was brought to the attention of the HR Council when Foreign Minister Dinesh Gunawardena at the 43rd Secession 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”.

Since the former government co-sponsored Resolution 30/1 without due process and furthermore, because the resolution contained provisions that violated the Constitution according to the present and former Foreign Ministers, Sri Lanka was in a position to legitimately withdraw from co-sponsorship because of provisions in the Vienna Convention. Article 46 of the Vienna convention 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 consent to be bound by UNHRC Resolution 30/1. The flaw in the UNHRC Resolution tabled at the Forty-sixth Secession is that it fails to recognize Sri Lanka’s withdrawal from Resolutions 30/1 and 40/1.

 

EAST CONTAINER TERMINAL and VIOLATION of DUE PROCESS

Another instance where due process was violated was in connection with the East Container Terminal. Due process requires that this project should comply with Article 157 of the Constitution that require a 2/3 approval of Parliament whenever a project is “essential for the development of the national economy”. The sub-titles to Article 157 is “International Treaties and Agreements” and the Article itself state: “Where Parliament by resolution passed by not less than two-thirds of the whole number of Members of Parliament (including those not present) voting in its favour approves as being essential for the development of the national economy, any Treaty or Agreement between the Government of Sri Lanka and the Government of any foreign State for the promotion and protection of the investments in Sri Lanka of such foreign State, its nationals, or of corporations, companies and other associations incorporated or constituted under its laws, such Treaty or Agreement shall have the force of law in Sri Lanka…”.

Whether a Treaty of Agreement that does not have a 2/3 approval of Parliament has no “force in Law in Sri Lanka” is not the issue. The issue is that any project that is “essential for the development of the national economy” should have a 2/3 approval of Parliament. The East Container Terminal project was not even tabled in Parliament making it another instance of the violation of due process.

Instead of complying with provisions of due process required by the Constitution, a small group in the former government entered into an “understanding” with the governments of India and Japan to build operate and transfer the East Container Terminal. As with the co-sponsorship of UNHRC Resolution 30/1 without due process, in this instance too the former government violated due process, thus enabling the present government to abrogate whatever “understanding” that Sri Lanka had with the governments of India and Japan. Judging from media reports, the same fate would be experienced by this government if it ignores due process with the West Container Terminal. The lesson to be learnt is that short term gains are truly short term, and that such gains come not only at long term costs to governments, but also to international relations and ultimately to the people.

Other countries too, resort to violation of due process. For instance, according to a report in The Hindu the Maldivian Defence Minister Mariya Didi had signed a pact with India without approval of Parliament. This resulted in 51 legislators of the 87 member calling for an emergency motion demanding greater transparency in bilateral pacts. Apparently, the India’s External Affairs Minister S. Jaishankar who was in Male had tweeted: “Glad to sign …the UTF Harbour Project Agreement. Will strengthen Maldivian Coast Guard capability and facilitate regional HADR efforts. Partners in development, partners in security”. The Maldivian Defence Minister is reported to have stated: “Given our expansive maritime territory, the need to enhance local coast guard capabilities cannot be overstated… This dockyard and harbor will, in time, afford us the opportunity to protect our maritime interests on our own thereby enhancing our sovereignty”. Sounds perfectly justified, but the fact is that it violates due process judging from the protests of the Maldivian legislators. Prior to this, an article in the Institute of Peace and Conflict Studies by Dr. Narayanan states: “On 10 September 2020, Washington and Male signed the ‘Framework for U.S. Department of Defence – Maldives Ministry of Defence and Security Relationship’. This agreement ostensibly intends to deepen bilateral efforts towards maintaining peace and security in the Indian Ocean region”. Whether this agreement had the approval of the Maldivian Parliament is not known. Whatever the case may be, the hard reality is that the Maldives is totally linked up with India and U.S. on security related issues.

CONCLUSION

From the material presented above it is crystal clear that the trend is for major powers to engage with strategically positioned states to further their geopolitical interests by seeking arrangements that do NOT conform to constitutional and legal procedures of the state concerned, but through arrangements that violate due process. The primary reason for this being that the latter approach lends itself to arrangements that are more favourable to the major powers than resorting to the former. In the case of Sri Lanka, the examples cited above where Sri Lanka became a victim of this trend was in connection with co-sponsoring UNHRC Resolution 30/1 and the “understanding” reached between Sri Lanka, India and Japan on the East Container Terminal, and now perhaps with the West Container Terminal as well. The other example cited is in connection with the agreements reached between the Maldives, India and the U.S. relating to maritime infrastructure and security.

India and the U.S. along with Japan and Australia are part of a security alliance known as the Quad. Maldives has links to both U.S. and India even though it may not formally be part of the Quad. In addition, from a standpoint of strategic positioning, the Maldives, as it is with Sri Lanka, is almost midway between the choke points of Straits of Hormuz and Malacca. In such a background the links that the Maldives forged with India and the U.S. have to impact on Sri Lanka because Sri Lanka’s policy of neutrality isolates it in respect of the security relationship with the Quad and China, while engaging commercially with both and the rest of the world.



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Features

Strong on vocals

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The group Mirage is very much alive, and kicking, as one would say!

Their lineup did undergo a few changes and now they have decided to present themselves as an all male group – operating without a female vocalist.

At the helm is Donald Pieries (drums and vocals), Trevin Joseph (percussion and vocals), Dilipa Deshan (bass and vocals), Toosha Rajarathna (keyboards and vocals), and Sudam Nanayakkara (lead guitar and vocals).

The plus factor, where the new lineup is concerned, is that all five members sing.

However, leader Donald did mention that if it’s a function, where a female vocalist is required, they would then feature a guest performer.

Mirage is a very experience outfit and they now do the Friday night scene at the Irish Pub, in Colombo, as well as private gigs.

 

 

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Dichotomy of an urban-suburban New Year

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Ushered in by the ‘coo-ee’ of the Koel and the swaying of Erabadu bunches, the Sinhala and Tamil New Year will dawn in the wee hours of April 14. With houses to clean, preparation of sweetmeats and last-minute shopping, times are hectic…. and the streets congested.

It is believed that New Year traditions predated the advent of Buddhism in the 3rd century BC. But Buddhism resulted in a re-interpretation of the existing New Year activities in a Buddhist light. Hinduism has co-existed with Buddhism over millennia and no serious contradiction in New Year rituals are observed among Buddhists and Hindus.

The local New Year is a complex mix of Indigenous, Astrological, Hindu, and Buddhist traditions. Hindu literature provides the New Year with its mythological backdrop. The Prince of Peace called Indradeva is said to descend upon the earth to ensure peace and happiness, in a white carriage wearing on his head a white floral crown seven cubits high. He first plunges, into a sea of milk, breaking earth’s gravity.

The timing of the Sinhala New Year coincides with the New Year celebrations of many traditional calendars of South and Southeast Asia. Astrologically, the New Year begins when the sun moves from the House of Pisces (Meena Rashiya) to the House of Aries (Mesha Rashiya) in the celestial sphere.

The New Year marks the end of the harvest season and spring. Consequently, for farming communities, the traditional New Year doubles as a harvest as well. It also coincides with one of two instances when the sun is directly above Sri Lanka. The month of Bak, which coincides with April, according to the Gregorian calendar, represents prosperity. Astrologers decide the modern day rituals based on auspicious times, which coincides with the transit of the Sun between ‘House of Pisces’ and ‘House of Aries’.

Consequently, the ending of the old year, and the beginning of the new year occur several hours apart, during the time of transit. This period is considered Nonegathe, which roughly translates to ‘neutral period’ or a period in which there are no auspicious times. During the Nonegathe, traditionally, people are encouraged to engage themselves in meritorious and religious activities, refraining from material pursuits. This year the Nonegathe begin at 8.09 pm on Tuesday, April 13, and continues till 8.57 am on 14. New Year dawns at the halfway point of the transit, ushered in bythe sound of fire crackers, to the woe of many a dog and cat of the neighbourhood. Cracker related accidents are a common occurrence during new year celebrations. Environmental and safety concerns aside, lighting crackers remain an integral part of the celebrations throughout Sri Lanka.

This year the Sinhala and Tamil New Year dawns on Wednesday, April 14, at 2.33 am. But ‘spring cleaning’ starts days before the dawn of the new year. Before the new year the floor of houses are washed clean, polished, walls are lime-washed or painted, drapes are washed, dried and rehang. The well of the house is drained either manually or using an electric water pump and would not be used until such time the water is drawn for first transaction. Sweetmeats are prepared, often at homes, although commercialization of the new year has encouraged most urbanites to buy such food items. Shopping is a big part of the new year. Crowds throng to clothing retailers by the thousands. Relatives, specially the kids, are bought clothes as presents.

Bathing for the old year takes place before the dawn of the new year. This year this particular auspicious time falls on April 12, to bathe in the essence of wood apple leaves. Abiding by the relevant auspicious times the hearth and an oil lamp are lit and pot of milk is set to boil upon the hearth. Milk rice, the first meal of the year, is prepared separate. Entering into the first business transaction and partaking of the first meal are also observed according to the given auspicious times. This year, the auspicious time for preparing of meals, milk rice and sweets using mung beans, falls on Wednesday, April 14 at 6.17 am, and is to be carried out dressed in light green, while facing east. Commencement of work, transactions and consumption of the first meal falls on Wednesday, April 14 at 7.41 am, to be observed while wearing light green and facing east.

The first transaction was traditionally done with the well. The woman of the house would draw water from the well and in exchange drop a few pieces of charcoal, flowers, coins, salt and dried chillies into the well, in certain regions a handful of paddy or rice is also thrown in for good measure. But this ritual is also dying out as few urban homes have wells within their premises. This is not a mere ritual and was traditionally carried out with the purification properties of charcoal in mind. The first water is preferably collected into an airtight container, and kept till the dawn of the next new year. It is believed that if the water in the container does not go down it would be a prosperous year. The rituals vary slightly based on the region. However, the essence of the celebrations remains the same.

Anointing of oil is another major ritual of the New Year celebrations. It falls on Saturday, April 17 at 7.16 am, and is done wearing blue, facing south, with nuga leaves placed on the head and Karada leaves at the feet. Oil is to be applied mixed with extracts of Nuga leaves. The auspicious time for setting out for professional occupations falls on Monday, April 19 at 6.39 am, while dressed in white, by consuming a meal of milk rice mixed with ghee, while facing South.

Traditionally, women played Raban during this time, but such practices are slowly being weaned out by urbanization and commercialisation of the New Year. Neighbours are visited with platters of sweetmeats, bananas, Kevum (oil cake) and Kokis (a crispy sweetmeat) usually delivered by children. The dichotomy of the urban and village life is obvious here too, where in the suburbs and the village outdoor celebrations are preferred and the city opts for more private parties.

 

 

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New Year games: Integral part of New Year Celebrations

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Food, games and rituals make a better part of New Year celebrations. One major perk of Avurudu is the festivals that are organised in each neighbourhood in its celebration. Observing all the rituals, like boiling milk, partaking of the first meal, anointing of oil, setting off to work, are, no doubt exciting, but much looked-forward-to is the local Avurudu Uthsawaya.

Avurudu Krida or New Year games are categorised as indoor and outdoor games. All indoor games are played on the floor and outdoor games played during the Avurudu Uthsava or New Year festival, with the whole neighbourhood taking part. Some of the indoor games are Pancha Dameema, Olinda Keliya and Cadju Dameema. Outdoor games include Kotta pora, Onchili pedeema, Raban geseema, Kana mutti bindeema, Placing the eye on the elephant, Coconut grating competition, Bun-eating competition, Lime-on-spoon race, Kamba adeema (Tug-o-War) and Lissana gaha nageema (climbing the greased pole). And what’s an Avurudhu Uthsava sans an Avurudu Kumari pageant, minus the usual drama that high profile beauty pageants of the day entail, of course.

A salient point of New Year games is that there are no age categories. Although there are games reserved for children such as blowing of balloons, races and soft drinks drinking contests, most other games are not age based.

Kotta pora aka pillow fights are not the kind the average teenagers fight out with their siblings, on plush beds. This is a serious game, wherein players have to balance themselves on a horizontal log in a seated position. With one hand tied behind their back and wielding the pillow with the other, players have to knock the opponent off balance. Whoever knocks the opponent off the log first, wins. The game is usually played over a muddy pit, so the loser goes home with a mud bath.

Climbing the greased pole is fun to watch, but cannot be fun to take part in. A flag is tied to the end of a timber pole-fixed to the ground and greased along the whole length. The objective of the players is to climb the pole, referred to as the ‘tree’, and bring down the flag. Retrieving the flag is never achieved on the first climb. It takes multiple climbers removing some of the grease at a time, so someone could finally retrieve the flag.

Who knew that scraping coconut could be made into an interesting game? During the Avurudu coconut scraping competition, women sit on coconut scraper stools and try to scrape a coconut as fast as possible. The one who finishes first wins. These maybe Avurudu games, but they are taken quite seriously. The grated coconut is inspected for clumps and those with ungrated clumps are disqualified.

Coconut palm weaving is another interesting contest that is exclusive to women. However men are by no means discouraged from entering such contests and, in fact, few men do. Participants are given equally measured coconut fronds and the one who finishes first wins.

Kana Mutti Bindima involves breaking one of many water filled clay pots hung overhead, using a long wooden beam. Placing the eye on the elephant is another game played while blindfolded. An elephant is drawn on a black or white board and the blindfolded person has to spot the eye of the elephant. Another competition involves feeding the partner yoghurt or curd while blindfolded.

The Banis-eating contest involves eating tea buns tied to a string. Contestants run to the buns with their hands tied behind their backs and have to eat buns hanging from a string, on their knees. The one who finishes his or her bun first, wins. Kamba adeema or Tug-o-War pits two teams against each other in a test of strength. Teams pull on opposite ends of a rope, with the goal being to bring the rope a certain distance in one direction against the force of the opposing team’s pull.

Participants of the lime-on-spoon race have to run a certain distance while balancing a lime on a spoon, with the handle in their mouths. The first person to cross the finish line without dropping the lime wins. The sack race and the three-legged race are equally fun to watch and to take part in. In the sack race, participants get into jute sacks and hop for the finish line. The first one over, wins. In the three-legged race one leg of each pair of participants are tied together and the duo must reach the finish line by synchronising their running, else they would trip over their own feet.

Pancha Dameema is an indoor game played in two groups, using five small shells, a coconut shell and a game board. Olinda is another indoor board game, normally played by two players. The board has nine holes, four beads each. The player who collects the most number of seeds win.

This is the verse sung while playing the game:

“Olinda thibenne koi koi dese,

Olinda thibenne bangali dese…

Genath hadanne koi koi dese,

Genath hadanne Sinhala dese…”

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