13th Amendment, UNHRC and India.

5Th-C-Cartoon1highly placed UPFA sources say they do not expect an Uva poll to take place until August. As for a presidential poll, these sources said, it would be in February next year. This is after the visit of Pope Francis to Colombo in January. President Mahinda Rajapaksa is set to attend the 69th UN General Assembly sessions which begin in September. Thereafter, the senior member said, he would have to present the Government’s budget. Immediately thereafter he would have to take part in the SAARC (South Asian Association for Regional Co-operation) summit in Kathmandu, Nepal, in November. In terms of the SAARC Charter, that absence of any head of any one state of a member country makes a summit invalid.

Yet, the broader backdrop in which these developments take place is interesting. The Office of the High Commissioner for Human Rights (OHCHR) took a step closer last week to naming an international investigation team to probe alleged war crimes in Sri Lanka. This is when the UN Human Rights Commissioner Navi Pillay briefed Sri Lanka’s Permanent Representative Ravinatha Ariyasinha on the contours of the OCHCR initiative — the result of the latest US backed resolution in March. The meeting took place on Friday, May 30. Ariyasinha has since reported on the matter to both President Rajapaksa and the External Affairs Ministry.

He has been told that the international investigation team will comprise two senior experts of stature and three special rapporteurs. Pillay is expected to announce details at the 26th sessions of the UN Human Rights Council which will be held in Geneva from June 10 to 27. Listed as Item 2 in the inaugural day agenda is an “update by the UN High Commissioner for Human Rights.” The team, which will sit in different capitals, will seek permission to visit Sri Lanka. However, the Government has made clear it will not allow them. A Government statement, after Pillay’s own, is to spell out Colombo’s response. Pillay has chosen not to hold a news conference on the matter though senior officials in her bureau do concede that putting together the investigation team and the areas for such an exercise has taken longer than expected. This is in view of the work involved.


UN Secretary General Ban ki-Moon on Friday named a successor to Pillay. An official announcement said: “The Secretary-General, following consultations with the Chairmen of the regional groups of Member States, today (Friday) informed the General Assembly of his intention to appoint H.R.H. Prince Zeid Ra’ad Zeid Al-Hussein of Jordan as the new United Nations High Commissioner for Human Rights.


“Prince Zeid Ra’ad Zeid Al-Hussein is currently Jordan’s Permanent Representative to the United Nations, a post he held previously for six and a half years, from 2000 to 2007. From 2007 to 2010 he served as Jordan’s Ambassador to the United States and non-resident Ambassador to Mexico. He also served as Jordan’s Deputy Permanent Representative at the United Nations, with the rank of Ambassador.”


A related issue — Indian Premier Modi’s request to President Rajapaksa to fully implement the 13th Amendment and go beyond, revealed in detail in these columns last week — reverberated in Parliament last Wednesday. External Affairs Minister G.L. Peiris was to explain why it would not be possible to heed the request. It was Opposition Leader Ranil Wickrmesinghe who raised a question. He noted: “On 26th May, 2014 President Mahinda Rajapaksa attended the swearing in ceremony of the new Indian Prime Minister Narendra Modi. Next day, bilateral talks were held between the two sides. The media reported that during the meeting, President Rajapaksa had explained the steps taken by the Sri Lanka Government to achieve national reconciliation. Subsequent to the talks, the Secretary to the Ministry of External Affairs, India, Shrimati Sujatha Singh in her media briefing stated ‘We on our side have urged upon President Rajapaksa that it is important for the wellbeing of the Tamils in Sri Lanka, that the 13th Amendment to be implemented, and that it is also important for it to go beyond. So we are hopeful that this request that is coming from the Prime Minister will be listened to and that Sri Lanka will take appropriate action as required.’


“An earlier Joint Press Statement issued by the two Governments on 17 May 2011 during the visit of Sri Lanka’s Minister of External Affairs to New Delhi to discuss national reconciliation in Sri Lanka, stated, ‘the External Affairs Minister of Sri Lanka affirmed his Government’s commitment to ensuring expeditious and concrete progress in the ongoing dialogue between the Government of Sri Lanka and representatives of Tamil parties. A devolution package, building upon the 13th Amendment, would contribute towards creating the necessary conditions for such reconciliation.


“Will the Minister inform the House of the government’s response to this issue raised by India side in regard to national reconciliation? What appropriate action will be taken in this regard? What were the assurances given to the then Prime Minister Dr Manmohan Singh and the then Leader of the Opposition in Lok Sabha and the present External Affairs Minister Sushma Swaraj in regard to a political solution for national reconciliation, by the President and the Government of Sri Lanka?”

External Affairs Minister G.L. Peiris replied on Thursday. Here are excerpts from a lengthy statement:”I am glad the Leader of the Opposition raised this issue as it gives me the opportunity of clarifying some of the matters involved in the statement he’s made. President Mahinda Rajapaksa visited New Delhi for the purpose of extending his warmest felicitations to Shri Narendra Modi on his assumption of the high office of the Prime Minister of India….


“……. there were bilateral talks between the Indian side and the Sri Lankan side. Those bilateral talks straddled a wide range of matters. There were discussions about Shri Narendra Modi s vision for the future of SAARC, some discussion on expanding economic relations between India and Sri Lanka and reference was naturally made as well to matters connected with fishermen, an issue that has been under discussion for some time. It was not the case that there was detailed, in depth discussion of constitutional issue. That was among the matter that were discussed at a very cordial, friendly, informal discussion between the two leaders and the delegates present.


As far as the constitutional matters raised by the Leader of the Opposition are concerned, we can give a very simple answer. President Mahinda Rajapaksa explained our position in their regards with great lucidity. The 13th Amendment is nothing new. It has been part of our law for more than quarter of a century. During that very long period there were no fewer than five different governments which ruled this country……. during that whole period none of those five governments of different political complexion were able to fully implement the provisions contained in the 13th Amendment. Nobody was able to do that.


“It was not done by any government which ruled this country for a quarter of a century. The reason is clear. In order to implement legislative provisions of this nature which go to the heart of the country’s constitutional structure one of the essential conditions is agreement among the people of this country. There must be agreement. There must be consensus. A minimum threshold of agreement with regard to the core issues involved in this piece of legislation is a condition precedent for orderly and proper implementation of the 13th Amendment. I don’t think anybody would seriously contest that proposition and it is the fact that explains why none of these governments with different aspirations, different priorities, and representing different value systems were able to, on the ground, fully, to implement the 13th Amendment.


“In these circumstances the Sri Lankan side made it very clear that we must try to obtain this consensus as the foundation of a trajectory on the matter. If that is the case, we explained to the Indian side, the best mechanism, indeed the only available mechanism for the accomplishment of that objective is the Parliamentary Select Committee. These are matters that involve amendments where necessary to the Constitution of the Republic. That is essentially within the domain of Parliament. It is not a matter for the executive. It is therefore right and proper that these deliberations must take place within a PSC. Such a Committee has been appointed under the leadership of the Leader of the House Nimal Sirirpala De Silva. Many of us serve in that Committee.


The Government has made it very clear that this committee is performing an indispensable function at this time. It enables the articulation of different points of view all of which must be taken into account in order to arrive at a consensus which is necessary to carry this exercise forward.


“The Opposition Leader made reference to the visit several months ago to our country by Shrimathi Sushma Swaraj, at that time the Leader of the Opposition in the Lok Sabha and now my counterpart in the Government of India. She came here, she had discussions with us. I vividly remember a very fruitful discussion I had with her at which Nimal Siripala De Silva was also present. We told Shrimathi Sushma Swaraj on that occasion it would be exceedingly desirable for the TNA to take part in these discussions. It would make the discussions inclusive. Their presence is very important and we would like to do everything in our power to prevail upon them to come into these discussions.

“……. We made it clear to the Indian side at this discussion which took place at Hyderabad House in New Delhi on May 27 that the Government of Sri Lanka has a very definite view with regards to one aspect of this matter, namely the devolution of police powers. We made it crystal clear that the devolution of police powers is not acceptable. We also said this has nothing to do with ethnic considerations. This reservation is not linked to any policy that we have with regard to the northern and eastern provinces. We believe that the attribution of police powers to any provincial councils, where so ever it may be situated in Sri Lanka, is undesirable for basic reasons of policy. We do not believe orderly, coherent beneficial government is in anyway facilitated by the devolution of police powers to the provinces. That conviction on the part of the government of Sri Lanka was specifically articulated on this occasion. Subject to that, it is the position of the Government of Sri Lanka that this is a matter that must be dealt with above the level of partisan politics because it impinges crucially on the destiny of this country. We are therefore very eager to ensure within the PSC the fullest possible consultation with all shades of political opinion in this country…….”


Firstly, diplomatic sources confirm that President Rajapaksa did explain to Premier Modi the inability of his Government to grant Police powers to Provincial Councils. During the talks, he had pointed to Ceylon Workers Congress (CWC) leader Arumugam Thondaman and asserted that even he would agree that it was not possible. Thondaman was seen nodding his head in agreement, the sources added. However, the question Wickremesinghe astutely posed in Parliament was to highlight the contradictions in the news release issued by the Sri Lanka side and the remarks made by Indian External Affairs Secretary Sujatha Singh. Whilst Colombo’s news release remained silent on the 13th Amendment, it was Singh who said Modi had urged that the Government fully implement it and go beyond. Now, Peiris claims he is “glad” Wickremesinghe raised it and goes on to admit that the matter indeed figured. Why then did the Sri Lanka news release make no reference to it?


Surely, on an important national question, is it not incumbent on the country’s External Affairs Minister to place facts before people instead of waiting till issues are raised in Parliament. Secondly, he has made it unequivocally clear that India’s latest request to fully implement the 13th Amendment will not be heeded by the Rajapaksa administration. He has declared that “the best mechanism, indeed the only available mechanism for the accomplishment of that objective is the Parliamentary Select Committee.” However, New Delhi has continued to take up the position that issues related to the 13th Amendment were the by-product of the Indo-Sri Lanka Agreement of 1987 to which the UPFA Government has responded that “it has been thrust on Sri Lanka.”


Yet, Peiris was silent on why the Government extended an invitation to South Africa to help in Sri Lanka’s peace and reconciliation efforts. That country’s special envoy, Deputy President Cyril Ramaphosa is due in Colombo early next month. Ahead of the visit, diplomatic sources say, he plans to travel en route to New Delhi. Thus, the External Affairs Ministry has muddled many an issue by the spin it gave on news releases is all too well known.


Its ineffective role figured even at Thursday’s weekly ministerial meeting. None other than President Rajapaksa observed there was no one in the External Affairs Ministry to monitor Ministers who were making overseas visits and signing agreements without prior approval. He warned them not to do so and pointed out that there were instances when the Government was forced to pay millions of dollars in damages. He said that in future such agreements, if any, would have to be first cleared officially. For this purpose, it would become necessary for an EAM official to be co-opted. Minister Vasudeva Nanayakkara had said that even agreements entered with foreign parties by Non-Governmental Organisations (NGOs) should be scrutinised. Rajapaksa was not in favour of the move. He said that would give the impression that the Government was controlling the NGOs. He said there should be some flexibility.


However, he took the opportunity to point out that the Bar Association of Sri Lanka (BASL) had rented out a section of its offices to USAID, the aid giving arm, which was part of US efforts at trying to destabilise the Government. One Minister was to point out that the USAID was also providing financial assistance to BASL whilst another said the USAID project was previously offered to the Ministry of Justice but was rejected.


The ministerial meeting also saw a heated debate on entrance examination papers for the Law College being only in English. The issue was raised by Minister Vasudeva Nanayakkara who argued that it should be in all three languages. He said it was a constitutional right of any prospective student. Ministers Dinesh Gunawardena and Rajitha Senaratne concurred. President Rajapaksa turned to Justice Minister Rauff Hakeem. The latter was to defend the Council of Legal Education which is responsible for setting the question papers. He was to say that though the question paper was in English, it could be answered by a student in his language of preference — Sinhala, English or Tamil. If the eight questions have been reduced to six, in terms of a new arrangement, questions on Language General Knowledge were to be both in Sinhala and English.


In a light hearted comment, Rajapaksa averred to an issue which Minister Nanayakkara had raised on an earlier occasion. It was about the son of a leading Colombo lawyer who had practised in Britain. He had been refused entry to the Law College since he did not have a credit pass in Sinhala. When the debate over the issue continued, Rajapaksa urged the ministers who were seeking a change in the system to meet Minister Hakeem and discuss issues. “Don’t drag me into this issue. I am in agreement with the rationale (i.e. the procedure followed by the Council of Legal Education), Rajapaksa added. The issue of limiting entrance to Law College to those below the age of 35 also figured.

In the light of Human Rights Commissioner Pillay’s statement in Geneva, the week will be one of trouble shooting in the international front. With little or no input from the External Affairs Ministry, how the Government will cope with the issues arising from the international investigation remains to be seen. This is at a time when early preparations for provincial and later presidential elections get under way.


Courtesy Sunday Times- SL

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