As per the 2015 Geneva resolution, members of the armed forces who are suspected of having committed war crimes but who cannot be taken before a war crimes tribunal due to the lack of evidence, will be removed from service through an administrative process.
by Mahinda Rajapaksa
( March 14, 2017, Colombo, Sri Lanka Guardian) The government’s efforts to fundamentally change the constitution, the law and the structure of the Sri Lankan state is expected to come to the fore in the months ahead. Since November last year, several documents that have either been officially released or have come to light by other means, reveal very clearly the intentions of the government. The reports of six subcommittees appointed by the Steering Committee of the Constitutional Assembly were published in November last year. The report of the Prime Minister’s Consultative Task Force on Reconciliation and Transitional Justice was released in January this year. In the meantime, the 58 conditions imposed by the European Commission to restore GSP+ to Sri Lanka and the Prime Minister’s framework for the new counter terrorism law that is to replace the Prevention of Terrorism Act, also came to light through the media.
The fountainhead of the four documents mentioned above is the UN Human Rights Council resolution of October 2015 which was brought against Sri Lanka by the Obama administration and the European Union and co-sponsored by the yahapalana government. Even though a radical regime change has taken place in the USA since then, the yahapalana government has not taken any steps to hold talks with the new US administration and to get the resolution against Sri Lanka amended. It thus becomes plain that the yahapalayakayas co-sponsored this dangerous resolution in 2015 not only due to pressure from foreign parties but also because of their intrinsic anti-national leanings. It should be borne in mind that as of this moment it is not the American government that is carrying forward the resolution against Sri Lanka, but our own government. The blueprint for change laid down for Sri Lanka by the yahapalana government as revealed by the documents mentioned above, can be summarised as follows:
The Prime Minister’s Task Force on Reconciliation has recommended that apologies should be tendered by the Sri Lankan State to the victims of the armed conflicts that took place in this country. However, they have not required any terrorist organisation or political groupings that backed the terrorists to tender apologies to anybody.
It has also been proposed by this task force, that LTTE cemeteries should be restored, the observance of ‘Maaveerar Dinam’ allowed to continue and the families of deceased LTTE cadres permitted to display a photograph of the deceased terrorist in LTTE uniform, in their homes. However no proposal has been put forward to commemorate the war heroes who died fighting terrorism or the victory that was achieved by them.
As a means of promoting reconciliation, all LTTE detainees who have not been charged under the PTA or other laws are to be released forthwith while members of the armed forces suspected of committing crimes are to be arrested.
A war crimes tribunal with foreign participation is to be set up to try members of our armed forces in terms of the Obama administration’s UNHRC resolution against Sri Lanka and the European Commission’s 58 conditions to restore GSP+. The Prime Minister’s Task Force on Reconciliation while also recommending a war crimes tribunal with foreign participation, has suggested that no LTTE members be prosecuted by this body if they have been through rehabilitation or have been prosecuted under the existing judicial system. They have however, suggested that leaders of the LTTE who left the terrorist organisation and allied themselves with the government of Sri Lanka should be tried for war crimes.
As per the 2015 Geneva resolution, members of the armed forces who are suspected of having committed war crimes but who cannot be taken before a war crimes tribunal due to the lack of evidence, will be removed from service through an administrative process. However according to the Prime Minister’s proposed law to replace the PTA, if sufficient evidence cannot be found against a terrorist suspect, the Attorney General or High Court can halt criminal proceedings against that terrorist suspect if he agrees to express remorse, tender an apology, participate in a program of rehabilitation, give a public undertaking not to commit any offence or engage in community service.
The PM’s Task Force on Reconciliation had recommended that no amnesties should be granted to members of the armed forces suspected of war crimes. However according to the Prime Minister’s proposed law to replace the PTA, even after a terrorist is found guilty by a court of law, the sentence will be mitigated if the convict publicly denounces terrorism, expresses remorse, or avers that he committed the crime only under instructions from superiors, etc.
A phased demobilisation of security forces personnel with an attractive early retirement package including pensions, admissions to good schools for their children, alternative civilian employment etc. has also been recommended by the PM’s Task Force on Reconciliation. None of the documents mentioned above have discussed how the security of the state can be ensured after demobilising experienced officers and soldiers in this manner.
Under the new law that has been proposed to replace the Prevention of Terrorism Act, the police OIC of the area, the Human Rights Commission and the local Magistrate will be required to ensure the safety and welfare of any terrorist suspect arrested. The permissible period of detention is to be reduced from three months 30 days and the maximum period from 18 months to six months. The suspect will be released on bail if he is not chargedwithin one year or the court proceedings take more than two years. These provisions have been drafted so as to provide the maximum leeway for terrorists and cause the maximum obstruction of the armed forces.
According to the recommendations of the Subcommittee on Police, Law and Order, if a state of emergency is to be in force continuously for a period in excess of 3 months or for a period of more than 90 days within a period of 180 days, the extension of the state of emergency will require a ‘special majority’ in parliament. The Supreme Court will be empowered to review and even annul orders imposing emergency and the emergency regulations that come into effect through such orders, thus restricting the powers of the executive in responding to breakdowns in law and order. No consideration has been given to the question of how law and order can be maintained by hogtying the executive, the police and the armed forces in this manner.
The Subcommittee on the Judiciary has recommended that appeals to the Human Rights Committee in Geneva be allowed by changing the law applicable to the incorporation of international treaties into local law. Thereby the Supreme Court of Sri Lanka will cease to be the highest court in the land because the Human Rights Committee will have the power of review over Supreme Court judgments. The subordination of the highest court to an international court entails a loss of sovereignty. One of the main reasons why Britain voted to leave the European Union was to escape the domination of the European courts system.
The Prime Minister’s Task Force on Reconciliation has requested the government to seriously consider the establishment of a secular state. Even though members of the government claim that the special status accorded to Buddhism will not be abolished, that too is a part of the agenda.
The Subcommittee report on Centre Periphery Relations has recommended that the powers of the provincial governors be abolished and that they be appointed with the concurrence of the chief ministers and required to perform their duties according to the chief minister’s instructions. The Governors uphold the writ of the government in the provinces. If his powers are diminished, Sri Lanka will automatically become a federal state.
In a further move to do away with the unitary state, the concurrent list in the constitution is to be done away with and any subject not specified in either the central government list or provincial list will be given to the provinces, thus enhancing the powers of the provinces vis a vis the central government. The District and Divisional Secretaries who now function under the central government are to be placed under the provincial units as a further means of shifting state power from the centre to the provinces and doing away with the unitary state step by step.
The jurisdiction of the national police force will be restricted to a few offences such as international crimes while all day to day police work such as crime fighting and investigation, narcotics, traffic, etc will be handed over to nine separate provincial police forces. Recruitment to these police forces will be based on residential and linguistic criteria and there will be no transfers between provinces. The provincial police forces will decide on the firearms they use and conduct their own training and be responsible to the provincial police commission and not to the IGP or the central government.
The Subcommittee on Centre Periphery Relations has recommended that all powers over State land be transferred to the provinces. If the central government needs to utilise a piece of State land for any purpose like national defence, a request will have to be addressed to the relevant provincial council. It is not difficult to imagine how the provincial authorities in the North and East will react to such requests.
The agenda that runs through the five documents mentioned above are, firstly, punishing the armed forces for winning the war, secondly, devolving more and more power to the provinces until the central government ceases to be relevant, thirdly, destroying the ability of the Sri Lankan state to respond adequately to a break down in law and order, fourthly demoralising and breaking the will of the majority of the population and the armed forces, and fifthly, creating as favourable space for separatism as possible. If these provisions are implemented, what we will be left with will be a fragmented Sri Lanka made up of nine federal states with a very weak central government which is legally prevented from responding effectively to situations of internal disorder. From that point, it will be just one step towards a separate state.
The Eelamist lobby both here and abroad working together with certain foreign powers, skewed the result of the 2015 January presidential election to bring into power a government through which they hope to achieve what could not be won through four decades of terrorism. I invite all SLFP members in the government, and parliamentarians of the UNP as well, to read the five documents mentioned here and to decide for themselves whether they want to betray the country and the nation by supporting this traitorous agenda. The main constitutional pledges given to the people at the last Presidential election was the abolition of the executive presidential system and electoral reform. The reason why the government is pursuing the above mentioned agenda with great enthusiasm while completely ignoring the constitutional pledges they gave to the people is obviously because they have other, more important masters to please than the people of this country.
( Mahinda Rajapaksa is a former President of Sri Lanka.Views expressed in this article are author’s own)