Internationalism Research (AbhiGlobal Legal Research & Media)
Internationalism Research (AbhiGlobal Legal Research & Media)
In the ongoing 46th regular session of the United Nations Human Rights Council, being held in Geneva, the issue of Sri Lanka was discussed, with countries like China, India and the USA putting forth their viewpoints and strategies to help establish stability and peace in the coastal country. While China supported and commended the Sri Lankan government for their efforts to “protect and promote human rights”, India and the USA had concerns about marginalization of minorities and the “lack of accountability” and transparency, respectively.
The majority population group of Sri Lanka is that of the Sinhalese, also known as Hela. They contribute 75% of the total population of the island country. The minorities of the countries include the Muslims and the Tamils. Discrimination and violent persecution of minorities have been very common in Sri Lanka. In 1983, Liberation Tigers of Tamil Eelam (LTTE) launched a movement to fight the government of Sri Lanka to create their own independent Tamil state, named “Tamil Eelam” in the north-east part of the country, because of the oppression and constant discrimination against them. This movement went to create a situation of civil war in the country, that went on for 26 years, till 2009, when the military of the country defeated the LTTE. The conduct of the LTTE against the government of their own country got them enlisted as a “terrorist organization” in 32 countries (Council_on_Foreign_Relations, 2009). President Mahinda Rajapaksa declared the defeat of LTTE and other rebels in a G11 summit, in May 2009 (The_New_Yorker, 2011). The Tamil diaspora all over the world criticized and protested against the huge number of Tamil civilian casualties in Sri Lanka.
After this defeat of the LTTE, Sri Lankan President Rajapaksa declared that their government is dedicated to arriving at a political solution to the problem in Sri Lanka and for the same, he announced that the government would take action in accordance with the 13th Amendment to the Constitution of Sri Lanka (Ministry_of_Defence, 2009). The allegations of war crimes and crimes against humanity also surfaced. In fact, one of the main concerns of the US ambassador to UNHCR, Daniel Kronenfeld. It is alleged that a majority of the military heads and other political high-ranking officers in Sri Lanka are people being involved in war crimes and crimes against humanity (Human_Rights_Watch, 2020).
The Thirteenth Amendment to the Constitution of Sri Lanka (13A) contains provisions for the creation of Provincial Councils in Sri Lanka (Sri_Lanka_Guardian, 2013). It also makes “Sinhala” and “Tamil” the official languages of the country, and “English” the “link language” (The_Asia_Foundation, 2018).
India-Sri Lanka ties
Former Indian Prime Minister Rajiv Gandhi and Sri Lankan President J.R. Jayewardene signed the “Indo-Sri Lanka Accord” on July 29, 1987, which provides for devolution, i.e., distribution of power (Hindu, 2016). In February 2016, the Chief Minister of Sri Lanka’s northern province, C.V. Wigneswaran sought India’s direct aid in the complete implementation of the amendment (Business_Standard, 2016). In the ongoing 46th meeting of UNHCR also, Indian Ambassador to the UNHCR Indra Mani Pandey spoke about hoe the implementation of Amendment 13th and with devolution of power, the objectives of stability, peace and unity can be achieved. He also spoke about the rights of the Tamilians and other minorities.
India and Sri Lanka share a very deep “racial and cultural” link, and they also share a maritime border. India is the sole neighbouring country of Sri Lanka. These link between Sri Lanka and India were put to test during the Civil War in Sri Lanka, especially due to the controversy around India intervening during the war. In the past few years, China has also been quite successful in establishing excellent bilateral relations with Sri Lanka, especially in the field of naval agreements. To improve our relations with Sri Lanka, India signed a nuclear energy pact with Sri Lanka in the year 2015 (Mahr, 2015).
The relations between India and Sri Lanka started out with the spread of Buddhism in Sri Lanka. India intervened directly for the first time in the civil war in 1987, after much deliberations and negotiations, Sri Lanka and India entered into an agreement, also called the 13th Amendment. India’s intervention in the civil war was inevitable as the conflict in Sri Lanka also had a huge impact on the “unity, national interest and territorial integrity” of India. Rajiv Gandhi was assassinated on May 21, 1991, allegedly by LTTE. Owing to this, LTTE was declared to be a “terrorist outfit” in 1992. Since then, our bilateral relationship with the island country has significantly improved. India has consistently supported Sri Lanka’s peace process but now refrains to get directly involved. Both India and Sri Lanka are members of some common international organizations, like the South Asian Association for Regional Cooperation (SAARC), BIMSTEC, etc., dedicating efforts to flourish in the areas of both cultural and economic ties.
Coming to the economic part of the bilateral relations, around 17% of the total development credit given out by India, is made to Sri Lanka. India has also been interested in doing a collaboration with Sri Lanka to develop tourism between both countries (News_Track_India, 2009). Sri Lanka and India have also signed an agreement on the repatriation of criminals. In 2015, Sri Lanka had accused India’s research and Analysis Wing (RAW) of playing the “role of uniting the opposition for the presidential election” (India, 2015).
Indian Prime Minister Narendra Modi, in a recent meeting with elected Sri Lankan ex-president Maithripala Sirisena, said that “India is Sri Lankan’s closet neighbour and friend. Our destinies are interlinked” (Mahr, 2015).
India wants Sri Lankan Government to make provisions that ensure justice, peace, unity, integrity, and equality for the entire population of Sri Lanka including the USA. India also seeks the implementation of the 13th Amendment of the Sri Lankan Constitution, which has provisions for the devolution of power to the provinces, to ensure the unity and integrity of the country.
This weekend, Sri Lankan President Gotabaya Rajapaksa had a talk with PM Modi, just a few days prior to the vote at UNHCR. After the recent decision of the Sri Lankan government to ban the burqa and to close 1000 Islamic schools, it has become even more important for Sri Lanka to win this vote now. According to the press, the leaders talked about cooperation in multilateral forums. This resolution of the UNHCR is backed by the UK and Canada. This resolution states that the condition of the minorities is deteriorating every day, the functions of the “civil government are being militarized” (WION, 2021) the resolution also says that the judiciary in Sri Lanka is losing its independence, and the civil society and media “are facing intimidation” (WION, 2021).
What the UNHRC Report on Sri Lanka Says
On Sept 26, 2020, there was a virtual Bilateral Summit between India and Sri Lanka, called the "Mitratva Magga-Path of Friendship: Towards Growth and Prosperity" (MEA, 2020), where Prime Minister Modi extended his congratulation to his Sri Lankan counterpart, Mr Mahinda Rajapaksa for assuming office as the Prime Minister post the August 2020 election.
Both countries expressed cooperation in areas of combating terrorism and drug trafficking, and agreed on an MoU for Implementation of (HICDP) High Impact Community Development Projects, till 2025. Both countries acknowledged their shared ties and “common heritage such as Buddhism, Ayurveda and Yoga” (MEA, 2020), and India announced a grant of USD 15million for promoting bilateral ties of Buddhism with the island nation.
PM Modi also resurrected talks for the implementation of the ECT (East Container Terminal) project for Colombo port, which was not pursued by Colombo even after the island nation’s signing of the development pact with Japan and India in 2019 (The Economic Times, 2020).
The most important point of the summit was PM Modi’s position that Sri Lanka should have devolution of power to the minority Tamil community, by focusing on enabling the implementation of the 13th Amendment which had taken the spirit of the Indo-Sri Lanka Agreement of 1987, to distribute power with the Tamil community as well.
The point of devolution of power in Sri Lanka is relevant not only for giving a say to the various minority communities but also because the UN Human Rights Council’s 46th Regular Session being held from 22nd Feb 2021 to 23 March 2021, would be discussing the Report by the UN High Commissioner for Human Rights, on the “Promoting reconciliation, accountability and human rights in Sri Lanka” (UNHRC).
The Report is a 17page document released on Feb 9th, 2021, enumerating the concerns over resurfacing of “dangerous exclusionary and majoritarian discourse” (UNHRC) in Sri Lanka. Sri Lanka withdrew from co-sponsorship of Human Rights Council resolutions 40/1, 34/1 and 30/1, in February 2020, in order to pursue its own ‘domestically designed’ reconciliation and accountability process. (UNHRC, 2021) The report pointed out that no Special Rapporteurs had visited the country since August 2019.
The need for an HRC review and reconciliation was after the civil war ended in 2009, it left behind a shattered society with human rights abuses from both government and the Liberation Tigers of Tamil Eelam (LTTE), including human rights violations like “extrajudicial killings, widespread enforced disappearances, arbitrary detention, torture and sexual violence, which affected Sri Lankans from all communities” (UNHRC, 2021).
After the end of civil war, the government appointed the ‘Lessons Learned and Reconciliation Commission’ in May 2010 which failed to pin accountability for the human rights violations and even with the government’s work on the rehabilitation of former LTTE cadres, enforced disappearances, abduction, killings continued (Para 13 of the Report, (UNHRC, 2021)).
However, in 2015, the 19th Constitution Amendment tried to bring ‘checks and balance’ to the executive power (Para 17 of the Report, (UNHRC, 2021)), but after the Easter bombings of April 2019, violence against the Muslim minority, declaration of State of Emergency and heavy militarization emerged. Recently, the Presidential Commission of Inquiry (CoI) into the Easter bombings, in a move which might seem a tactic to consolidate power with the present Sri Lankan President, called for criminal proceedings against the previous President Maithripala Sirisena, while also accused previous Prime Minister Ranil Wickremesinghe of an “alleged ‘lax approach’ to Islamic extremism” (EconomyNext, 2021).
The Report of 9th Feb 2021, titled A/HRC/46/20, categorized 6 major issues which emerged in 2020, which, as per the report, shall be discussed below:
(a) Militarization of Civilian Government Functions- The Report pointed out that from December 29, 2019, the government included 31 bodies under the control of the Ministry of Defense, and among these bodies were the ‘National Media Centre’, ‘the Telecommunications Regulatory Commission’, and the police was moved under the control of a new Ministry of Public Security. So instead of de-centralizing power, even civilian functions like media are brought under the control of the Defense Ministry.
(b) Reversal of Constitutional Safeguards- on October 29, 2020, the 20th Constitution Amendment expanded the presidential powers. In the 20th Constitution Amendment, under Chapter VIII of ‘The Executive’, under Article 44 (2), “The President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister under the provisions of paragraph (1) of this Article or the provisions of paragraph (1) of Article 45 and may for that purpose determine the number of Ministries to be in his charge, and accordingly, any reference in the Constitution or any written law to the Minister to whom such subject or function is assigned shall be read and construed as a reference to the President.” (Department of Government Printing, 2020)
The UNHRC expressed its concern in the Report that the independence of the Election Commission, the police, the judiciary is eroded, and further erosion of this independence of the institutions of democracy is indicated with the replacement of the Constitutional Council with the Parliamentary Council which would now recommend appointments to the President. (Para. 24 of the Report).
(c) Political obstruction to prevent accountability for crimes and human rights violations- the Report holds that State interference in the prosecution of people involved in the atrocities of the civil war is eroding public confidence. The Presidential Commission of Inquiry into the ‘political victimization’ of public officials, effectively put the brakes on the prosecution of former Admiral Wasantha Karannagoda and former Navy Spokesman D.K.P. Dassanayake, in the issue dealing with the disappearance of 11 persons between 2008 to 2009, and so public grievances from the time of the end of the civil war in 2009, still find no redress.
(d) Majoritarian and exclusionary rhetoric- the Report noted that the public policies reflected “the perceived interests of the Sinhala Buddhist majority and show minimal consideration for minority communities. Ethnic and religious minority communities are left behind and excluded in such official discourse and are often perceived and treated as posing a threat.” (Para 29 of the Report, (UNHRC, 2021). The Report also noted the distress caused to the Muslim minority, due to the mandatory cremation of Covid-19 infected people, as they could not follow their ritual burial practices.
(e) Surveillance and intimidation of civil society and a shrinking democratic space- the case of online activist Ramzy Razeek who was arrested on 9 April 2020 under the Computer Crime Act, for raising his comment against the anti-Muslim sentiments in the community on his Facebook page, was given in the Report about the increased surveillance on speech. (Para. 35 of Report, (UNHRC, 2021)).
(f) New and exacerbated human rights concerns- According to the Report, the Prevention of Terrorism Act of 1978 is still in use, despite a Human Rights Council Resolution taken on 21st March 2019 to repeal it (UNHRC, 2019), and a worrying pattern of custodial deaths in prisons has emerged. But to be fair, the Report also lauded the efforts of the Attorney General’s issuance on the many offences on which bail and release of many prisoners were granted, to prevent the spread of Covid-19 in overcrowded prisons(Para 39 of Report, (UNHRC, 2021)).
In response to the Report of UNHRC issued on 9th Feb 2021, Sri Lanka responded with its comments. On 24th Feb 2021, the Permanent Mission of Sri Lanka gave its comments to the “draft report of the Office of the United Nations High Commissioner for Human Rights on promoting reconciliation and accountability in Sri Lanka (A/HRC/46/20)” (UNHRC).
Sri Lanka very categorically noted in its comments that the United Nations High Commissioner of Human Rights (UNHCHR) Report on Sri Lanka had “speculative, presumptive and unsubstantiated opinions and/or assertions on action (including administrative decisions) taken by the democratically elected President…the High Commissioner’s draft report is inconsistent and/or goes beyond the mandate granted by Resolution 40/1. This has implications for the autonomy of decision making by sovereign States, in matters within their purview.” (UNHCHR, 2021)
Of all these 6 issues raised by the 9th Feb 2021 Report of the UNHCHR, the issue of devolution of power and also the issue of concentration of power in the hands of a select few is a real challenge in Sri Lanka, which can be substantiated by a brief summary of Sri Lanka’s power struggle. The British had created a legislative Council in Ceylon in 1833 through a Constitution, and this Constitution was changed by the British in 1910, 1920 and 1924, but all these changes did not help for there wasn’t much power given for local governance to the population. On 4 Feb 1948, the island nation got free from the British, and it was still a part of the Commonwealth. It was only in 1972 that Sri Lanka officially proclaimed independence. In 2000, there was a demand for a Tamil State, but a new Constitution was not written. In 2009, the then President Mahinda Rajapaksa through the 18th Constitution Amendment expanded the Executive powers and eliminated term limits to the President’s office. The Executive (President’s office forming part of the Executive) holds the most power. The President is the leader of the Government and the Armed Forces and is elected by the direct vote of the people for a tenure of 6years, and after the 18th Amendment, the number of times a President may be re-elected is not limited. With a unicameral legislature, the power to appoint cabinet minister, the Prime Minister and even the power to appoint Supreme Court judges is in the hands of the President, and thus, the centralization of power is an undeniable feature in Sri Lankan polity (International Institute for Democracy and Electoral Assistance (IDEA) - ConstitutionNet ). But it is also a fact that any Report to any International body like the UNHRC cannot undermine the sovereign authority of a country of choosing what methods it uses for the effective administration of its country.
It is unclear yet whether Sri Lanka will receive India’s support because from PM Modi’s remarks on 26th Sept 2020, India certainly wants devolution of power to the Tamils as per the 13th Amendment, so that a just treatment to Minorities is ensured after the civil war between the Tamils and the Sinhalese. The report on Sri Lanka by UN-OHCHR Chief, Michelle Bachelet states that since becoming the President, Rajapaksa has “appointed 28 military and intelligence personnel”. These officers are those who have been implicated by the United Nations for being involved in war crimes and crimes against humanity during the civil war in Sri Lanka.
The Presidential Commission of Inquiry (CoI), which called Ranil Wickremsinghe’s approach lax on ‘Muslim extremism’, what can be jotted from the pinpointing of a particular minority is that there is a challenge in Sri Lanka of addressing proper representation to its various religious groups, and devolution of power might perhaps allow for a diverse political representation. Moreover, Sri Lanka also had refused to carry on a port agreement with Japan and India and instead moved to do an energy project with a Chinese company. This has made it clear for India and the Indian Government that Sri Lanka is giving preference and greater importance to China, over its long-time friend and neighbour, India. Therefore, the future of the bilateral relations of India with Sri Lanka cannot be predicted right now because of all the recent happenings. The relation between the two countries is very unpredictable and can go anyway from here.
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