Confusion prevailing in respect of Reconciliation, Constitutional Changes and UNHRC Resolution
His Excellency, Maithripala Sirisena
President of Sri Lanka, Colombo 1, Sri Lanka
Copy to: Hon. Ranil Wickremasinghe, Prime Minister
Your Excellency, Honourable Prime Minister, Cabinet Ministers and Elected MPs,
Confusion prevailing in respect of Reconciliation, Constitutional Changes and UNHRC Resolution
The messages coming from leading members of your government tend to be confusing as they often contradict each other, and usually lack any form of consultation with the general public who will be affected by such policies. If there has been any consultation at all, it is with select individuals representing foreign funded NGOs or other special interest groups closely linked to the ruling political hierarchy.
- Reconciliation: While the Tamil IDPs have been systematically resettled in the north and east, no such action is being taken to resettle the Sinhalese and Muslim people who were evicted from these regions by the LTTE and other Tamil militant groups that carried on armed warfare to establish a separate state for Tamils encompassing the north and the east. All persons affected by the violence who were displaced from their original places of residence have an inherent right to return to their prior place of residence or alternate acceptable place with state assistance after restoration of normalcy. Even after the elapsing of 8 years since the elimination of LTTE terrorism, there has been a total lack of action as regards the resettlement of affected Sinhalese and Muslim IDPs, although the government keeps harping on reconciliation which requires the equitable treatment of all concerned not withstanding their ethnicity. As a consequence of the lopsided policies being adopted by the state, the north is becoming a mono-ethnic region which will give rise to separatist tendencies leading to yet another violent confrontation in the future that would seriously disturb the peace within the island.
- Constitutional Changes: The main areas of concern to the public were the 13th Amendment establishing Provincial Councils imposed on Sri Lanka by the Indian Government which militarily intervened in 1987 contrary to the Bandung and international principles to which they subscribed, to save the Indian trained and funded Tamil separatist terror groups unleashed by India to destabilize the country who were on the verge of elimination at the time. The enabling legislation was consequently passed by parliament through unethical and coercive means compelling the ruling party’s caucus to vote for it under threat of tabling undated ‘letters of resignation’ surreptitiously obtained by the then President . The other areas of concern to the public were the extent of powers wielded by the Executive President in times of peace and normalcy within the country, the maximum term the incumbent Executive President may hold office, and the need for truly independent Commissions to manage key areas such as the police, judiciary, bribery and corruption, public service, human rights, elections, finance, etc.
In fact, the present government campaigned on a platform of good governance, elimination of bribery and corruption, investigation and punishment of corrupt activities on the part of previous political leaders and officials, restoration of democracy, rule of law, media freedom and the establishment of independent commissions. They have fallen far short of their commitment with serious charges of new corruption such as the ‘Central Bank Bond Scam’ costing the nation immense amounts by way of higher interest charges for the next three decades including the stifling of the flow of FDIs, and politically motivated actions that have eroded the confidence in the new regime. There were proposals to reduce the powers of the executive presidency to which the present president wholeheartedly agreed, but there was no proposal to revise the existing constitution in its entirety including the pride of place given to the Buddha Sasana in order to give expression to a civilizational pillar which goes into the very root of our existence and history of the nation. While primacy of place is given to Buddhism which is the philosophy that nourished the nation for over the past 2300 years and gave us the humane values, culture and traditions, space has been provided for the practice all other faiths freely both in private and public without any bars whatsoever.
Sri Lankans resident in the homeland and overseas have earlier jointly made proposals to revoke the 13thAmendment imposed by India with the aim of restoring stability and removing any risk of the break-up of the unitary state of Sri Lanka. This involves switching from Provincial Councils to District Councils at the periphery, and scaling back excessive powers devolved to provinces and replacing same with adequate decentralized powers needed by districts to administer local subjects directly concerning the resident community. The District Secretariat already functioning could be easily adapted to serve the New District Councils. This move could be accompanied by sharing more powers at the Centre to compensate for withdrawal of provincial powers granted at the present time, while at the same time enhancing powers to gramiya (village) units at the grass roots as in the case of India’s Panchayat system. In addition, share some powers at the Centre by co-opting the elected members and qualified experts within the minority communities to Advisory Bodies to be set up for key Ministries where they would have input in the development of policy, plan implementation and monitoring process giving them an opportunity to have a say in the day to day governance of the nation. This is a proposal that would win the favour of a majority of the people as it would save an enormous amount of funds wasted by provinces in virtually running a weaker parallel administration to that of the centre. As an interim measure, steps should be taken on an urgent basis to amend 13A by deleting Police powers, restoring rights over land matters by transferring the related powers to the Central Government, and revoking the right of two or more Provincial Councils from amalgamating to form a unified Provincial Council, pending the holding of a National Referendum to determine the abrogation of the problematic 13th Amendment.
It has been reported in the media that part of the reasons for drafting a new constitution was to give effect to the presence of a multi-ethnic, multi-linguistic and multi-religious society in present day Sri Lanka, and to attempt to heal the divisions and differences and bring about a greater degree of reconciliation amongst the resident populace. Such thinking is flawed as people of different backgrounds lived in harmony in the earlier historical Kingdom of Sinhale pledging their loyalty to the state and in return receiving equal protection from the crown. The problems that we face today is due to foreign colonial powers having exploited the underlying differences in order to divide and rule the people and create hostilities between different communities thereby destroying the communal harmony and peace within the society. The solution does not lie in highlighting such differences and transforming the society into strict ethnic, cultural, linguistic and religious compartments, which will continue to pull the nation apart in different directions, but drawing strength from the past and building on the commonalities based on our shared values generating trust free of external divisive influences. The people of SINHALE always welcomed persons of different ethnic backgrounds that arrived later in the island to settle freely, making them an equal part of the nation of SINHALE with freedom to observe their cultures and religious beliefs so long as these did not threaten the peaceful co-existence of the resident populace.
Certain Tamil leaders and some foreign powers including India have said that a meaningful power sharing arrangement which gives the Tamils a due place must be put on the table, in order to create the stage for reconciliation to take place between the majority Sinhalese community and the minority Tamils who enjoy the same rights as the rest of the citizens. The Tamils who today number around 8 percent of the total population following the large scale migration of over a million Tamils to the west and other developed countries, have moved out of the north and east with almost 54 percent now living in the rest of the country with a high percentage in and around the capital city of Colombo, in mixed ethnic surroundings. Whilst the voluntary relocation of the Tamils is welcome, it is best to similarly arrange for other communities to be settled amongst the Tamils of the north and east in order to form similar multi-ethnic societies that will live side by side as in the more densely populated areas of the south to build better human relations leading to peaceful co-existence of the various ethnicities.
Tamil cooperation with the majority community following the grant of independence from Britain was short lived, as a section of the Tamils led by Mr. S.J.V. Chelvanayakam broke away from the Tamil Congress as early as 1949 to form what they called the ‘Ilankai Thamil Arasu Kadchi’’ (Lanka Tamil State Party) where they conjured up a Tamil Nation, but disguised it in English as the Federal Party which would stay within the Sri Lanka state, masking their hidden agenda of establishing a separate state for the Tamils. The ITAK replaced the word ‘Shamasthi’ with ‘innaipatchchi’ in 2008? If Shamasthi meant federal what does Innaipatchchi mean? We can conclude that innaipatchchi does not mean federal but confederal and that explains why ITAK/TNA leaders inclusive of the NPC Chief Minister are making demands that align with a confederal system. In 2008 ITAK not only amended its constitution but included a clause that completely endorsed the 1976 Vaddukoddai Resolution where they decided to form a separate state by all means including armed warfare. In so doing, ITAK & TNA officially puts to paper that its aims & objectives are for a separate state. Further, political parties should be barred from carrying names with ethnic or religious labels as they tend to heighten racial, ethnic and religious divides and disrupt peaceful co-existence.
Scale down the level of politicization and resultant political rivalry which unduly pits one against the other within society, by at least allowing for election of members of local government bodies based on individual qualifications instead of on party lines for each ward or electorate. This will eliminate confrontational party politics within each ward or electorate and it will greatly reduce excessive rivalry and hostilities at the local level. Adopt each electorate as the unit which elects representatives to the main parliament as well. It will attract better candidates at the general elections to the main parliament, as the need to canvass within a whole district can be avoided by seeking popular support within a single electorate with a smaller budget.
A Truth Commission like in South Africa is meaningless with the elimination of the LTTE leadership and them not being present to admit to their wrongdoing. Regurgitating the in savoury aspects may open up new wounds instead of healing the heavy hearts which is required at the moment. It is not a good guys versus bad guys issue, but acceptance of the fact that decisions made from time to time are not necessarily perfect and meeting the aspirations of all competing sectors. The nation has to adopt a forgiving and tolerant attitude to seek well balanced policies in attempting to rectify any shortcomings while ensuring that all citizens are secure from harm and treated justly.
A Plan of Action For Reconciliation: In order that the desired harmony and reconciliation may be achieved, we must refuse to recognize political parties with ethnic or religious labels, and furthermore give positive effect to the fundamental right of ‘Freedom of Movement’ where citizens are free to move to any part of the island which is their common homeland, and settle in wherever they may engage in lawful pursuits to support themselves and their families. This right of Freedom of Movement is currently not being upheld equally, as the internally displaced Sinhalese and Muslims are not being given equal treatment in the resettlement plans as Tamil IDPs are being given the highest priority. While in the early 1970’s there were as much as 27,000 Sinhalese and around 75,000 Muslims living in the Northern Province, their natural increases over time too should be taken into account in determining resettlement plans . Only about 57 Sinhalese families have been permitted to resettle in the Navattakuli area, with no statistics of resettled Muslims being available in the public domain. The few Sinhalese allowed to resettle too have not been provided the same level of assistance extended to the Tamil IDPs, even though they too were displaced owing to violence directed against them by extremist Tamil separatist terror groups.
The Sinhalese and Muslims of the eastern province too were attacked by the LTTE and other Tamil separatist terror groups in the 1980’s and 1990’s as they sought this region for their proposed mono-ethnic separate state of Tamil Eelam, forcing many thousands to flee the area thereby depriving themselves of their properties and livelihoods to seek safety elsewhere. They too have a similar right to be resettled in their places of origin with similar assistance as that given to Tamil IDPs. This policy of step-motherly treatment being extended to the Sinhalese and Muslim IDPs is paving the way for Tamil mono-ethnic regions that would tend to drift towards separatism rather than reconciling with the rest in forming a united nation.
Reconciliation between people of different backgrounds could take place mainly through interaction in day to day living, by fostering the sharing of space instead of compartmentalizing of different communities to different regions. The northern province which is predominantly Tamil following the historical events of ethnic cleansing during the time of Sankili, and policies subsequently adopted by our former European colonial masters and the more recent forced evacuations of non-Tamils by Tamil forces seeking a separate state, have led the region to become a mono-ethnic enclave with underlying separatist tendencies given voice to by prominent members of the Tamil community. While the road and rail links have helped somewhat for the meeting and mixing of communities within and outside the region, more needs to be done to encourage non-Tamils to move to the region just as a large percentage of Tamils have been welcomed by the Sinhalese and Muslims living elsewhere in the country. I would suggest as a policy measure, that the state formally decide to select new settlers in land development projects island-wide on the basis of National Ethnic Ratios, so that new communities will reflect the nation’s make up. Even the private sector too should be encouraged to follow a similar policy subject to their finding the necessary skills, so that multicultural communities will come into being everywhere. This will permit more non-Tamils to settle amongst the Tamils in the north and for more Tamils to settle in other areas leading to more interaction and shared community life that will help to establish inter-communal harmony and true reconciliation
Flawed UNHRC Process On Sri Lanka: The UNHRC adopted Resolution A/HRC/25/1 at its sessions held in March 2014 granting the High Commissioner an investigative mandate in violation of HRC Resolution 60/251 and the IB package, which is in direct conflict with the limits of authority of the HC. The High Commissioner, Ms. Navi Pillay has on her own extended the period of the investigation originally fixed from February 21, 2002 to May 19, 2009, to cover the additional period up to November 15, 2011, in direct variance with the enabling Resolution adopted at the March 2014 session of the UNHRC. The Resolution should have called for the investigation of the entire period of the armed conflict which commenced in 1983 and ended on May 19, 2009, as it now leaves out a major portion of the atrocities committed by the Liberation Tigers of Tamil Eelam prior to February 2002 and IPKF operations from 1987 to 1990 against Tamil armed groups in the north and east with reported HR violations. The UNHRC Resolution is based on the unofficial report commissioned by the Secretary General on his own accord without the authority of the UNGA, UNSC or the UNHRC, where he appointed a three member panel of so called experts from outside the UN system on issues of accountability in Sri Lanka, that looked into the last stages of the conflict covering the period from January 1, 2009 to May 19, 2009. The UNSG most likely influenced by the western funded rights groups, western powers and the remnants of the LTTE rump domiciled in western countries decided to take this course of action against Sri Lanka.
Navi Pillay, the High Commissioner for Human Rights who is a South African of Indian Tamil descent comes from a South African community which has raised funds for the Tamil Tigers and even operated military training camps, which were ordered to be dismantled by President Nelson Mandela at the request of Sri Lanka’s Minister of Foreign Affairs, the Late Hon. Lakshman Kadirgamar. Her actions tend to be influenced by the views of major western powers which still selectively follow their ‘divide and conquer’ agendas that exploit ethnic, religious and other differences to weaken or even break up nations in the guise of extending democratic freedoms and human rights. In the case of Sri Lanka, her bias is apparently linked to her Indian Tamil roots that induced her community in South Africa to fund the Tamil Tiger terrorists and even arrange secret military camps to throw in their lot to fight alongside the LTTE in pursuit of a separate state of Tamil Eelam” to be carved out of Lanka’s sovereign territory. As an official of an international body reviewing aspects of a conflict involving Sri Lanka and the militant Tamils designated as a terrorist movement by the UN Security Council, she should have been wise enough to recuse herself to avoid criticism of her highly assertive and biased role.
The UN Secretary General Ban ki-Moon selected persons who had publicly declared their antipathy to Sri Lanka such as Marzuki Darussman, Steven Ratner and Yasmin Sooka a close associate of Navi Pillay for his panel. The panel gathered information mainly from pro-Tamil Tiger supporters, just one side of the conflict which is obviously a prejudiced source, and comes up with what they term as credible allegations” of violations of International Humanitarian Law and International Human Rights Law on the part of the Sri Lankan armed forces. The panel also arrived at guesstimates of civilian deaths repeating the fibs of Gordon Weiss and the ICG of tens of thousands said to be the highly inflated number of around 40,000 without any logical basis, even ignoring the UN Resident Representative’s count of 7,721 from August 2008 to May 13, 2009 without distinguishing between combatants and civilians. The panel which conducted its hearings in New York stated that none of the allegations have been proven, and also that their report does not meet the high standards of a UN report, and further goes on to lock away the evidence presented to them for the next 20 years. To add insult to injury, Ban ki-Moon causes the panel’s report to be leaked, although it was intended purely for his own guidance in dealing with similar situations in the future, and not meant for worldwide publication or any related UN action. The SG not only violated the spirit of the Joint Statement with Sri Lanka but acted in an interventionist role outside the limits of his authority to single out Sri Lanka for arbitrary treatment. The SG’s actions are in direct violation of Article 2 (7) of the UN Charter which prohibits intervention in matters which are essentially within the domestic jurisdiction of any state.
Furthermore, these actions on the part of the SG are in contravention of the decision taken by the UNHRC of June 2009, where the issues of human rights and international humanitarian laws were discussed resulting in a resounding vote upholding Sri Lanka’s sovereign right to defend her security using every possible means within her power. It is relevant to quote from the Op Ed column which appeared in ‘The Hindu’ newspaper of June 25, 2010, which stated as follows: Sri Lanka is a sovereign, independent country, having the indisputable right under the UN Charter itself, to act in its best judgment on issues relating to its internal affairs, especially where maintenance of peace and security is concerned”. Sri Lanka not only eliminated terrorism, but also restored the ‘Right to Life’ of all her citizens who were constantly targeted by the Tamil Tigers, whilst at the same time rescuing 300,000 Tamil IDPs who were being used as a human shield by the cowardly terrorists since resettled, but also rehabilitated and released nearly 12,000 former LTTE fighting cadres with new life skills to society.
Two Presidential Commissions have studied this subject of ‘Missing Persons’ and a wealth of material has been gathered after meeting with the affected people. The second commission led by Justice Maxwell Paranagama had the benefit of renowned legal experts from the UK and the USA led by Sir Desmond de Silva, QC, UK, Professor Sir Geoffrey Nice, QC, and Professor David Crane from the USA , who are all highly recognized legal luminaries both internationally and in their respective countries, in an advisory capacity. They are similarly acknowledged by the UN authorities which retained their services in the ICC and other tribunals where leaders of several countries were tried for violation of international humanitarian laws and war crimes in past conflicts. The Paranagama Commission also had a leading military personality in Major General (Rtd.) Sir John Holmes, former leader of the British SAS, who had the experience and background to analyse and study the battle situations faced by the Sri Lanka Army (SLA) in facing the armed LTTE terrorists who forcibly used the Tamil civilian population as a pool of auxiliary forces to be conscripted for battle,( exploited for their labour in building defensive berms, etc., or as a human shield or sandbags), was firmly of the opinion that the SLA took necessary precautions to minimize casualties and assessed proportionality in pursuing their military objectives. Based on the latest information gathered by the Justice Paranagama Commission, they were presented with a total of 19,000 complaints relating to missing persons of whom 14,000 were from Tamil residents of the north many of whom have most likely left Sri Lanka’s shores and even taken different identities, and 5,000 from family members of security forces personnel who are missing in action during the period from 1983 to 2009.
The report of the Commission had been duly presented to the Government by August 15, 2015, along with the detailed explanatory notes provided by the legal experts in support, wherein paragraph 49, a strong rebuttal of the grave allegations made in the UNSG’s PoE report and the OISL had been provided. Strangely, for some unknown reason, the current government failed to use this valuable report to defend Sri Lanka’s good name at the subsequent sessions of the UNHRC, which is a gross dereliction of duty for which no answer has been received up to now. It has also failed to provide the contents of these reports affecting the country in the national languages for the wider understanding of the general public. The government has failed to represent the people and nation of Sri Lanka by disregarding these expert opinions by bowing to foreign sources with questionable agendas. It is indeed laughable to have the United Nations Human Rights Commissioner, Prince Zeid, call on Sri Lanka to disband the Sri Lanka Missing Persons Commission and assign its work to a more credible body, notwithstanding the fact that we are a sovereign country and an equal member of both the UN and UNHRC of which he is only a paid employee.
The Office of Missing Persons Act No: 14 of 2016 as amended by the Office on Missing Persons (Amendment) Act, No. 9 of 2017, which were hurriedly passed without proper public consultations and just made operative, is not merely an office but a tribunal with a vast array of powers to conduct investigations and even accept evidence disregarding provisions in the Evidence Ordinance. Yet another anomaly is the empowerment of the OMP to receive funds from any source local or foreign which could lead to undue influence in its proceedings. Furthermore, all officers of the OMP have been granted complete immunity from civil and criminal liability for any act or omission on their part or the contents of any report they may publish with the ability to withhold information, even when their actions are reviewed by the Supreme Court overriding articles 126 and 140 of the constitution. This certainly leaves room for unfair practices and excesses on the part of the OMP to escape public scrutiny giving rise to a great deal of public concern.
It is shocking to say the least to have the leadership of the present government decide to co-sponsor a resolution drawn up by western countries, INGO and the rump of the LTTE based overseas against Sri Lanka. More damage was done by deliberately shelving the valued legal and military opinions gathered from world renowned experts on the conduct of Sri Lanka’s Security Forces in the armed conflict concluded on May 19, 2009. The western powers which adopt policies of regime change, engage in military intervention with limitless collateral damage, death and displacement, have as their primary objective not the much publicized democratization of societies or upholding of human rights, but destabilization and the division of countries to enable exploitation of resources, establishing military bases and benefiting otherwise. Due to the lack of foresight on the part of the present national leaders who would do deals to gain power and control the financial and economic levers of the nation, we have opened ourselves to further intrusions by the same western powers who are only focussed on their hegemonic interests and domination over their former colonies. It is time the public becomes aware of the dangerous waters in which the ship of state is sailing and take measures to steady the course and get a capable captain and crew from amongst the educated and proven leaders in their midst.
Yours sincerely,
Mahinda Gunasekera
