by Thambu Kanagasabai, Toronto, Canada, January 21, 2017
Under this scheme EU [European Union] grants additional tariff reductions to developing countries for imports eligible to qualify for these duty concessions. This scheme which was enjoyed by Sri Lanka until 2010 was suspended due to the ‘failure of Mahinda’s Government to address reported human rights violations in the country” The proposed GSP+ would consist of the full removal of duties of “66% of Tariff lines covering a wide array of products including textiles and fisheries”. European Union has recommended the restoration of this status noting the present Government ‘taking important steps to improve respect of human rights and extend good governance. The Commission has mentioned the following steps of the present Government justifying the restoration of this imports preferential treatment to Sri Lanka and for a final decision by European Parliament.
1. 19th Constitutional Amendment
2. Concrete actions to ensure cases of missing persons are examined.
3. Offering better protection of ‘witnesses and victims.
4. Releasing persons detained under controversial anti-terrorism regulations.
5. Has made commitments to UN Human Rights Council to promote reconciliation, accountability and human rights.
6. Has achieved most of its Millennium development goals, especially health, education and gender equality.
It is to be noted that this GSP+ is to be granted subject to the following important conditions
among others numbering 58.
1. “The remaining import duties on Sri Lankan products should be removed in exchange for the country’s commitment to ratify and effectively implement 27 International Conventions on Human Rights, labor conditions, protection of the environment and good governance.”
The EU Commission further stated that granting access to the scheme does not mean that the situation of the beneficiary country with respect of the 27 International Conventions is fully satisfactory.
“The reform process should include making Sri Lankan counter-terrorism legislation fully compatible with International Human Rights Conventions”. Furthermore a rigorous monitoring of the country’s progress in the area of sustainable development, human rights and good governance will also accompany the removal of custom duties.”
European Commission has also stated that ‘more needs to be done to improve on issues of concern, like stopping the use of torture by security forces and the related impunity.’ These are some of the matters that would be subject to GSP+ monitoring to ensure that positive progress continues to be made. It is to be noted that one third of Sri Lanka’s global exports is with European Union, and in 2015 this amounted to E2.6 billion which consisted mainly of textiles as well as rubber products and machinery.’
In recommending the GSP+ concession to Sri Lanka, the Commission has stated the following matters in support of its recommendation.
1. “The new Government has set out a programme of major reforms to address reconciliation and accountability in relation to the civil war, improve human rights and rule of law.”
2. “Sri Lanka is making good progress in releasing persons detained under PTA.”
3. “The President and Commanders of the Armed Forces have ordered strict actions to be taken against human rights violators in the security forces in relation to persons arrested and/or detained.”
4. “Sri Lanka is taking steps to implement the UNHRC resolution passed on October 1st 2015.”
5. “There are continued improvements on human rights, labor conditions, protection of environment, good governance”.
6. The Commission expects Sri Lanka to make counter-terrorism legislation fully compatible with international human rights conventions.”
The European Commission’s observations, conclusions and expectations in respect of the above matters which guided its recommendation need to be examined as to their situation and ground realities prevailing in Sri Lanka and expected to continue to prevail in future as well.
The statement of Commission concluding that “The new government has set out a programme of major reforms to address reconciliation and accountability in relation to the civil war” is contentious for the following reasons.
No meaningful steps including any legislation are in the offing or making by the Government though promises are plenty from the Government. The root cause of Sri Lanka’s problems, the ethnic issue remains intact without any legislative measures in the making, meeting the aspirations of Tamils.
Accountability is still remaining as a commitment but without any tangible or visible evidence, or steps to achieve it. Those who were involved in the war crimes, crimes against humanity etc. are roaming freely with Government’s protection and privileges and those who are called upon by the Courts and Tribunals to face the charges of bribery and corruption running into billions of Rupees is given bail often with freedom to travel abroad. President has lately condemned the law enforcement officials for producing the security personnel in courts.
Only time will tell whether any one will go through a fair trial and get proper punishment with a system of impunity prevailing in the country for security personnel and to expect accountability and justice for the criminals and victims is just only a hope against hope. It is also another feature in the judicial system to drag on cases indefinitely where security personnel and top political figures are involved. Example: Journalist Lasanta Wickremasinghe, Journalist Prageeth Eknneligoda, 16 French Action Farm Workers, killings of Tamils Members of Parliament Joseph Pararajasingam, and so on.
The statement of Commission “Sri Lanka is making good progress in releasing persons detained under PTA”, is partially true and is against the actual facts and situation as it is. There are still about 258 prisoners in jail some languishing from 1997 without any charges. Although there were some releases at intervals, the promises of President and Prime Minister of Sri Lanka made to Tamil people and Tamil leaders right from 2015 to finalize the release and fate of these prisoners remain in words despite numerous fasting campaigns of these detained prisoners.
The orders of the President and Commanders of Armed Forces to treat those arrested and or detained are welcome steps, but whether they are followed by the members of the security forces and police is only a matter of conjecture and assumption which need to be closely monitored and supervised by independent persons or bodies, viewing the entrenched culture of torture prevailing in Sri Lanka for decades as confirmed by the UN Rapporteur on Torture Juan Mendez in his report on 07/05/2016, after his visit to Sri Lanka in April 2016.
The statement of the Commission that “Sri Lanka is taking steps to implement the UNHRC resolution of October 2015” is far from true and sweeping.
Sri Lanka has only implemented two proposals of the Resolution, one, the passing of the Office of Missing Persons Act 2016 and the right of Protection to Witness Act 2016, while all other recommendations are remaining on paper. It is to be noted that although the OMP Act was passed in August 2016, yet the office has not started functioning and the progress in this matter is slow and disappointing.
The UNHRC resolution which is also owned by Sri Lanka and its failure to implement is nothing but a slap on UNHRC. It is to be noted that Sri Lanka’s own LLRC Commission’s report of 2012 is suffering the same fate excepting the implementation of some procedural recommendations.
The UNHRC’s recommendations of a hybrid court has been flatly rejected by the Government, including the recommendations of its own Consultation Task Force which received 7306 submissions from the public all over the Island and submitted its report on 3rd January 2017 calling for a hybrid system of judicial process.
The Government including the President has vowed that ‘it would not allow the prosecution of ‘war heroes’. In the face of this sweeping statement of impunity, it will be whimsical to expect accountability or justice from the Government and the Commission’s optimism in this matter is shaky and fragile.
The Commission’s statement as ‘concrete action to ensure cases of missing persons are examined’ is also far from true. It is reported that about 65,000 persons are said to be missing since 1994 including security forces involved in the fighting. The Commission appointed by the Government to investigate missing persons has wound up after receiving about 20,000 complaints of missing persons. However the Commission has failed to proceed further with any investigation as to those missing and it has neither sought information nor initiated inquiries as to the exact figure of missing. It has to be noted that the proposed Office of Missing Persons also does not have any powers to initiate prosecution against the offenders and the process to haul up the wrong doers to courts is also at the discretion of the Office which is yet to function. In this respect, in the recent case in Courts dealing with a habeas corpus application of Ananthi Sasitharan who sought information as to her husband who surrendered to the army in May 2009, the Army Officer who gave evidence to Court and promised to bring the list of surrendered persons later backtracked his statement in the next hearing and denied existence of any list of surrendered persons which is approximately more than 30,000. Besides, the Government has so far not disclosed any information as to the number of persons disappeared including surrendered, missing and dead. There is still no sign of this happening in the future, not to mention accountability and justice for the grieving victims. Statistical information is still not provided or available, as to names, identities etc. This serious lack of human concern is tormenting the families of disappeared persons who are still waiting and hoping for any information as to their loved ones.
The Commission’s expectation that Sri Lanka will make Counter Terrorism Legislation fully compatible with international human rights conventions is fair and natural. However, the proposed counter Terrorism Legislation which is expected to be presented shortly appears to be not much different and could be more harming according to leaked sources of information.
The ‘good governance’ is also losing its credibility due to lack of action against corruption, stalling judicial process, and corruption alleged persons being appointed to Government’s positions including protecting the corrupt by Ministers while bribery and corruption also appears to be raising its ugly head in this Government of ‘good governance’. Increasing disillusionment of people can be observed as to the present Government’s rule, Tamils, Muslims and Sinhalese as well.
For the Tamils, ‘good governance’ is just a mirage for the following reasons:-
[i] 37,000 acres of land in the North are still under the control of Security Forces including about 4,000 acres in the Jaffna peninsula. There is no sign of releasing all these lands in the near future, instead security positions are being installed and strengthened. It is to be noted that fertile lands of the legal owners of the lands are being cultivated by the military where the legal owners [farmers] are forced to live in poverty. Also the coastal areas for fishing are occupied by the Navy and the only fisheries harbour in the North [Myliddy] is under the control of the Navy depriving the fishermen to earn their livelihood.
[ii] There is no sign of releasing the remaining 258 political prisoners with or without bail.
[iii] To expect justice for Tamils victims from a judicial institution entirely manned by Sinhalese members is becoming a rare commodity. The latest case of Parliamentarian and human rights activist Ravi raj ‘verdict by jurors [all Sinhalese] freeing all accused is one example.
Another example of similar case is the Kumarapuram massacre where the six former army Corporals who were accused of this massacre of 24 civilians in Kumarapuram, Trincomalee in 1996 have been acquitted after they were found not guilty by the Anuradhapura High Court.
In addition to these cases, there are several cases still in pending and being stalled like Trincomalee five high school students massacre, 16 Action [French] Farm workers etc.
[[iv] Expecting full devolution of powers to the Provinces even under 13th Amendment is next to impossible. Already chauvinistic politicians in the South and Buddhist clergy from high to low have issued their warnings to the Government not to introduce any legislative measures affecting Buddhism, unitary form of government or extensive devolution to the Provinces.
[v] Tamils have no faith in the face saving measures of the Government as can be seen in the Government’s rejection of its own Commission’s recommendations like the recent Consulting Task Force’s recommendations coupled with setting up of several toothless Commissions like the recent Commission for Missing or Disappeared, or the proposed Office of the Missing Persons which is only an inquisitorial body without any powers to indict and produce any one in Court.
[vi] Accountability and justice will also suffer in the hands of a localized internal judicial mechanism which is stained with impunity which the Consultative Task Force also endorsed it in it’s January 2017 Report by saying,”failure of the existing judicial system’ in Sri Lanka which has already rejected a hybrid court as well as the presence of any foreign judicial official in Sri Lanka. Full compliance of the 58 conditions by Sri Lanka particularly the core recommendations of ending impunity, torture, prosecution of human rights violations, devolution of powers, release of lands and designing a transitional justice mechanism consistent with UNHRC resolution on hybrid court is only a matter of conjecture with cautious optimism. However, conditions affecting the political fortunes of ruling parties can be expected to be glossed over by the Sri Lankan government. If European Union also glosses over these conditions allowing their pass over, it will be considered as a licensing of immunity and impunity to Sri Lanka for its commissions and omissions inflicted for more than 20 years.
The European Parliament and the European Council have now up to four months to raise potential objections before the measures become effective.
European Commission also deserves to be appreciated for identifying and highlighting the burning issues and pending matters which need to be immediately addressed by the time buying Sri Lankan government.
When accountability is shielded, Justices dies leaving Reconciliation meaningless.
Thambu Kanagasabai – LLM [Lond]
Former Lecturer of Law – University of Colombo