Thursday, January 26, 2017

2:56:00 AM - No comments

Should economic and social rights be included in the new Sri Lankan Constitution?

                                                         Image : Courtesy NAFSO

On the 19th of November 2016 a panel of experts submitted a Sub-Committee report on Fundamental Rights to the Steering Committee of the Constitutional Assembly on the inclusion of economic and social rights in the new constitution. The Bar Association of Sri Lanka on the 10th January 2017 organized a public discussion on the perspectives of this subject matter with a diverse group of highly accomplished panellists consisting of both proponents and those arguing against the subject. I was one of the privileged few to acquire a seat in the audience.

What are economic and social rights?            
Economic and social rights roughly include those that are needed for a decent standard of living such as : labour rights, right to education, right to health, right to environment and natural resources, right of access to sufficient food and nutrition, clean water and sanitation, adequate housing and shelter etcetera.

The Sri Lankan Constitution of 1978 does not recognize these as rights per se but offer them as guidelines for policy making under the heading of directive principles of state policy. The current constitution does accommodate civil and political rights but the progressive development of civil and political rights were permissible only under the current regime of Sri Lanka which created a healthy climate for the functioning of rights compared with the previous regime. An example is: right to information aimed at ensuring public participation in governance and creating accountability for the people. [The possibility to pass this legislation under the present government is a positive development]

Economic and social rights however are dependent on the state and they must be progressively realized. There are authoritative documents on social economic rights as laid down in the ‘convention on economic, social and cultural rights’ and some of them are incorporated into documents such as the CEDAW, Child Rights convention, and Disabilities convention etcetera.

Is it a terrible idea to constitutionalize such rights?

The first impression that I got when I heard that people can make demands from the government to provide with access to schools, universities, jobs, housing schemes and enforce them in the courts sounded terrible enough. Imagine the State University Students who protest demanding for government jobs being able to go to court over it and judges adjudicating such matters making our courts ‘populist actors’.

The constitution of 1978 states that Sri Lanka is a ‘socialist state’ and it is indeed social welfare oriented with access to free education and free healthcare services. Sri Lanka is one of the very few countries that provide free education up to tertiary level and thus a majority of this country’s people have always been heavily dependent on the state. The attitude that the State must provide its citizens with everything is deeply embedded in the psyche of the average Sri Lankan including most of the people today. This attitude the State should provide everything seems to prevent our country from developing grass roots business initiatives and entrepreneurial spirits of the people. Proponents of free market economy at the discussion opinionated that constitutionalizing social and economic rights will further prevent economic development.

I reflected much about this statement. Most left-wing political parties in Sri Lanka will go to town over justiciability of social and economic rights in the constitution. While many State University Student Unions argue that private universities have to be closed down, the state should provide free education etc only chaos will occur with many groups in societies always engaged in contention with the State and empowering the judiciary (a body that lacks democratic legitimacy) to usurp the powers of the parliament.

The arguments by supporters of free market economics in the panel stated remedies that exist in administrative law, judicial review, enforcing civil and political rights through public interest litigation more than suffice to prevent executive action that encroaches on the rights of the people. An example was drawn from the Eppawela Phosphate Mining case which was adjudicated based on civil and political rights under the remedies that exist in the current system.

MP Sumanthiran who was in the audience gave another brilliant example of how free market economy has provided opportunities for development: “A small scale entrepreneur had identified that the husks of areconuts in a large estate can be used as a substitute for plastics and went to court over the right to purchase the husks which are usually discarded as a residue product. His Right to Business was guaranteed by the free market and not by the State enforcing social and economic rights”

Hence, what should be the role of the State in guaranteeing ‘rights’ for its citizens?

Today we see a post conflict society in an era struggling to coexist and sustain peace and reconciliation. Shouldn’t all rights be recognized equally? The State should not be pressurized to provide its citizenry with free goods and services but facilitate rights and development. In that light, Right to development should be recognized in the constitution under which the state must ensure inclusive development. Take for example: Land grabbing in Paanama when the residents (who are most –part illiterate engaged in vulnerable livelihoods of farming and fishing) were continuously evicted from their lands and dis-included in the tourism development projects of the area. Shouldn’t the government compensate such people and take initiative to facilitate their development by enabling them access to their previous livelihoods of fishing and farming and make profit out of the produce?

These are the major flaws of the open-economy under the present government who are hell-bent on a neo-liberal agenda of development forgetting that a majority of the country’s citizenry are poor and vulnerable with limited access to resources. Poor people should not be victims of ‘social costs’ of development projects, instead they should be able to make profit out of it. The plural sector of the country such as NGOs which work to provide entrepreneurial training for self-resilient livelihoods must be encouraged to play a role that is complementary to that of the government. The Supreme Court is not accessible to a majority of the people in rural areas for litigation in case of breaches of such rights [right to land, right to livelihoods, right to profit from business] hence, protection of rights should be ensured at a devolved level.

 It is not the duty of the courts to decide how resources should be allocated, but it is the duty of the government which they have failed in many cases. There is pending litigation on land grabbing in Sri Lanka especially in the North and the East. The government continues to regulate the economy in a manner which is favourable to the rich but not to grass-roots entrepreneurs and young people in rural areas targeted as tourism hubs of the country.

It is time that all rights which are important for a ‘decent standard of living’ are recognized along the lines of right to inclusive development in an era of reconciliation and the state facilitate such rights prioritizing the vulnerable people, those affected by the war and young people who are dropped out from the knowledge economy of the country.

2:40:00 AM - No comments

Transitional Justice in Sri Lanka- An overwrought Trajectory

Sri Lanka is a beautiful island in the heart of the Indian Ocean.  Its mystical beauty from the offset since independence was marred by ethnic conflict between the majority Sinhalese and the minority Tamils. Although it may seem that the civil war had ethnic roots it was in actuality a war between the Sri Lankan government and the Liberation Tigers of Tamil Ealam (LTTE). The nature of the LTTE; whether it is a terrorist organization or a national liberation movement is subject to debate while it is generally accepted that it was indeed a ‘terrorist organization’. On 18th Of May 2009 the war ended with the Sri Lankan Government emerging as victor defeating the LTTE. Today we see a wounded community struggling to achieve reconciliation and national integration.

In post-conflict Sri Lanka, the Tamil minority has made and is continuing to make demands from the government for transitional justice which was accommodated with minute progress after the regime change in 2015. The Prime Minister-appointed Consultation Task Force on Reconciliation Mechanisms have suggested four mechanisms for the government to adopt : 1.) an Office on Missing Persons, 2.) an Office for Reparations, 3.) a Judicial Mechanism with a Special Counsel, and 4.) a Truth, Justice, Reconciliation and Non-Recurrence Commission.

A far-from satisfactory progress?

The government of Sri Lanka has set up the office for missing persons (OMP) but had failed to appoint the office and commence activities. Prima facie the OMP has attempted to describe its mandate (albeit vaguely) as set out in the official website of the Secretariat For Coordinating Reconciliation Mechanisms as a system to lodge inquiries for those who had been ‘missing in action’ from the North and East due to war, members of police and armed forces and those who went missing due to the insurrections of 1972 and 1989. It has also expressed the will to be subjected to international conventions in ascertaining ‘an enforced disappearance’ as per International Convention on Protection of All Persons from Enforced Disappearances.

OMP seems to be in function a ‘truth commission’ of sorts which will investigate into disappearance matters and provide answers to victims but it lacks a prosecutorial arm. The OMP Act clearly states “the findings of the OMP shall not give rise to any criminal or civil liability” and since the findings cannot be used in a court of law no event of adjudication will ever arise.  The Evidence Ordinance does not also apply to its mandate. Although this could potentially discourage victims from even utilizing the OMP, a positive development is that the body has expressly conveyed victims shall not be subject to threat or intimidation and OMP does not contravene the Right To Information Act. However, activities must officially commence for the citizens to witness for certain if any intimidation occurs. The previous commissions under the Rajapaksa regime had failed due to witness intimidation resulting in victims boycotting hearings.

For the victim and witness protection service to function the police will have to be utilized.  Unfortunately there is on-going mistrust of the Sri Lankan police, which is operating under the central government of Sri Lanka. Thus ethnic minorities demand for devolution of police powers. This is reasonable given that the draconian Prevention of Terrorism Act in Sri Lanka is not repealed or modified and arrests have been made under the Act even under the present regime. Besides, language has also become a barrier for ethnic minorities to fulfil their expectations with the police. Another issue is OMP purported to be audited by the Auditor General’s Department (AGD).  The Auditor General’s recent statements to the media are suggestive of governmental intervention in the activities of the AGD creating a contention between Auditor General and members of the Parliament. All these issues have collectively contributed to the trust-deficit between the victims and the government.

A Hybrid Court for Sri Lanka and the political implications

UNHRC resolution of October 2015 recommended the creation of a hybrid court in Sri Lanka with the inclusion of international experts.  Although the government then promised to uphold the recommendations, the discussions have been subjected to heavy criticism and dispute. The victims from the North and East expect international experts because they lack faith in an all domestic set-up given that independence of the judiciary was compromised under the Rajapaksa-led regime. However, the current government is in favour of a domestic mechanism as worded by Sri Lankan Minister of Justice “Sri Lanka will go ahead with a domestic inquiry that would have a credible mechanism acceptable to the international community”. As requested by the president, international experts have been consulted such as Desmond Lorenz de Silva QC. This is not considered favourable because he was previously consulted by Rajapaksa and had cleared the SL armed forces of all war crimes.

The political implications of mechanisms for transitional justice reflect the inherent corruption and populist politics of Sri Lanka. The current regime came into power through immense support from the ethnic minorities and also left-wing political parties of the country. Those left-wingers were previously heavily in strife with the United National Party of Sri Lanka. The OMP extending its mandate to include victims of left-wing insurrections is an obvious tactic to gain those electoral votes in support of the government.  The actual commitment to the victims of war is only shrouded in the public diplomacy the government is engaged in: making promises to appear good to the international community but not keeping them. For the current government maintaining an electoral advantage through populist demands that oppose devolution (in the name of protecting the sovereignty of the country), Sinhala-Buddhist supremacy of the majority population and integrity of the armed forces are obviously more important.

Sri Lanka in the 21st century has not been successful in keeping religion and the State separate from each other. The leaders of the Buddhist clergy have vehemently opposed the Prime Minister’s request for devolution and any measures that undermine the sovereignty of the nation. In such a context the human rights obligations as set by the UNHRC and development of mechanisms towards transitional justice have become a limited progress and a limited reality. Victims continue to hold grudges, continue to search for answers not answered, continue to be discontent and hopes diluted. This does not mean that they should discard wishful thinking because development is yet to be seen albeit slow and unascertainable at the present. 

Sunday, January 15, 2017

12:21:00 AM - No comments

A shifting paradigm: and a rational US-Lanka relationship

In this article I wish to explore the foreign policy of Sri Lanka under a rational actor model taking into consideration a possible shift in paradigm of international understanding with USA.

Foreign policy is defined as a set of complex and dynamic political interactions that states engage in entering into relations with other states and external entities. Decision making is pivotal to the foreign policy process which involves many actors who participate in the process. Goldstein and Peevehouse describe decision-making as “a steering process in which adjustments are made as a result of feedback from the outside world”.  Many foreign policy experts use the rational actor model to explain foreign policy decision-making. In brief, according to the model decision makers set goals, evaluate their relative importance and choose a course of action with the highest benefits and lowest costs. However there is also certain amount of uncertainty and risks associated with such decisions.

Sri Lankan foreign policy shifts

The foreign policy of Sri Lanka too was a complex interaction since the dawn of history. The political ideologies of the governments in power have always shaped the foreign policy. For example the UNP governments of Sri Lanka that came into power immediately after independence up until the tenure of Sir John Kotelawala 1947-1956 had pro-western tendencies.

In ‘Sri Lanka’s foreign policy: A study in non-alignment” by Nissanka, the author explains that domestic concerns shaped the UNP leaders to formulate the pro-western foreign policy. Ceylon after independence lacked a standing military force and technical experts who could run the foreign office and hence relied heavily on the British which is why they were prompted to sign the Defence and External Affairs Agreement. Due to this decision the British had ample access to the strategically located port of Trincomalee. This port even today has immense geopolitical significance and serves as an attraction to great powers such as China, Russia and the USA.

As soon as S.W.R.D Bandaranaike came into power in 1956 we see how his nationalist sentiments had a huge impact on the decision to change the foreign policy drastically towards being more aligned with socialist states such as China and Russia.  He abrogated the defence agreement with the British on grounds of state sovereignty. This does not mean that the previous governments did not enter into foreign relations with socialist states. In fact the oldest trade agreement of Ceylon with China was brokered in 1952 which was the “rubber-rice pact”. This indicates that although political ideologies are important greater economic concerns can prompt leaders to take certain decisions contradictory to any political ideology.

Applying that analysis to the modern context- Today the foreign policy of Sri Lanka cannot be explained in a couple of words as ‘pro-western’ or ‘non-aligned’. It is much more complex and a mere objective observer would find it difficult to identify the current government’s standpoint. Sri Lanka has opened up high level talks with India on a FTA and recommencing of the Sethusamudram project. At the same time relationship with China cannot on any grounds be abrogated because of their significant economic aid to the country’s development agenda. EU as a regional body also exerts pressure on the government in laying down conditions that poses a threat to the sovereignty of the state with the recommencing of high level talks on GSP plus.  There is no coherence however in the Sri Lankan Foreign policy under the shifting paradigms of power balance in the international system. Sri Lanka just seem to play along with India, China, EU with the bigger power dictating the terms.

A new dawn for Sri Lanka- US relations?

US under Obama administration was greatly involved in the human rights record of Sri Lanka. The recent election however is a game-changer. The US election could potentially alter the US involvement in Sri Lanka greatly. Many speculated that Clinton as president would have probed deeper into the human rights record of Sri Lanka as she was given immense support by the Tamil Diaspora. However Trump as president presents a dilemma to Sri Lankan relations with USA. Trump’s main goal is to vanquish the ISIS  hence his focus would be on dealing with the Middle-East, Russia and China. He does not speak about small states which seemingly allude to the fact that small states are not part of his foreign policy agenda.

Many nationalists take this as an opportunity to triumph over the fact that USA will cease to be interventionist in the Sri Lankan human rights issue. This is definitely bad news for minorities in Sri Lanka. What if Trump retroactively validate certain norms that are detrimental to human rights discourses around the world? During the Bush administration the ‘war on terrorism’ was used as a pretext to violate international law and flout the moral dimensions of the international protection of human rights. Trump’s rhetoric is suggestive of bringing back that climate of terror today. US might not probe into Sri Lankan affairs under a Trump administration hell-bent on fighting the ISIS. However Sri Lanka must not go back on its current progress on human rights.

The EU has taken up the role to pressurize the government to engage in devolution, amend the Prevention of Terrorism Act, amend the Penal Code and make room for protection of rights as per ICCPR, convention on child rights etcetera. There is much protest regarding this as posing a threat to sovereignty of the country but in order to ensure there is sustainable peace the government must diplomatically deal with the minorities and not refute on the promises made. The government has embarked on reparations with the establishment of the office for missing persons. Although it is criticized for lacking a prosecutorial arm it is nevertheless a positive progress. At the same time under the present government there is no need for any foreign intervention because of the positive progress on human rights. As long as any Sri Lankan politician do not embark on a spree of nationalist rhetoric to upset the current balance in ethnic harmony Sri Lanka is good to go.

India would greatly benefit from Trump because he had declared that Pakistan is the next most dangerous state after Iran. However Pakistan is a great friend of Sri Lanka. In 2013 when MDMK chief protested against Sri Lankan officers who were undergoing training in Indian Army School, Pakistan offered to train the officers in their state. In 2016 Pakistan even agreed to give Sri Lanka a most-favoured nation status which is ample evidence for a cordial relationship. Entering into an FTA with India on the other hand was not a popular decision which even threatened the current government to lose its electoral advantage.  Sri Lankan foreign office must make rational foreign policy decisions not to upset the Pakistani relationship taking into considerations the shift in paradigm in US foreign policy towards Pakistan. After all Sri Lanka as a small state should capitalize on how to gain the most even from Trump.

Sunday, January 8, 2017

9:59:00 AM - No comments

Real Housewives of ISIS- creating an uproar!

Women under the ISIS suffers greatly due to the harsh impositions made on them by the 'morality police'. Women have to adhere to absolutely strict dress codes which include: covering hands by gloves, feet by socks in addition to the other heavy garments they are compelled to wear. The women are given directives to even cover their eyes. Not adhering to this strict dress code would earn them whips. The 'morality police' is omnipresent in their lives stationed everywhere in shops, roads, and all public places.

BBC's launching of 'Real Housewives of ISIS' is a biting satire of the ISIS. Many comments suggest that the videos are offensive to Muslims but these funny clips seem to invoke debate around not just the life of women under the oppressive clutches of the Islamic Levant but also the futility of the religion itself in its extreme form. [emphasis added]

In the video, we see that the houses are completely demolished and what's happening inside the house can be seen through the broken walls. This suggests that anyone can peer even inside the house and walls are not preventing the women from seeking comfort inside their homes as well. The susceptibility of women as portrayed in the video draws attention to how their fates are sealed and the only form of escapism is death itself. The women in the clip adorn a jacket of explosives on their bodies. This is deeply satirical of the only mode of escapism from the repressive regime of the ISIS.

WashingtonPost brings up a widely held criticism that the clips promote Islamophobia by "playing on draconian stereotypes of Muslim women" However 'islamophobia' as projected through Real Housewives of ISIS may serve as a deterrence to young women lured into joining the ISIS from European countries.  It is currently trending viral and creating debate. Hopefully the message intended to communicate (albeit ambiguous and subject to interpretation) reaches a wide audience and spark awareness on the futility of the concept of 'Caliphate' devised under the rule of ISIS and deter those who wish to join it.

Saturday, January 7, 2017

10:16:00 PM - No comments

The appalling strategies of war: in the Great War of Africa


The Second Congo War or the Great War of Africa was one which took place in the Democratic Republic of Congo which began in 1998 and officially ended in 2003 after which a transitional government took over power; a war which recorded a casualty of 38 million people. The roots of this war go back to the 1994 civil war and genocide of the Tutsi ethnic group in Rwanda by the Hutu. Hundreds of thousands of Hutu refugees and most surviving Hutu soldiers had fled to neighbouring Congo, where new dictator Laurent Kabila allowed them to conduct cross-border raids into Rwanda.  Antagonistic feelings were developed in the Congo against the Tutsi of both Rwanda and those native to eastern Congo. Kabila fuelled these fears and animosity for his own political advantage. Kabila’s fight against rebels was aided by forming military alliances with neighbouring countries including: Zimbabwe, Angola, Namibia and Chad. Then the war became something more than fighting rebels but about exploiting the rich resources of Congo and taking them back home [gold, copper, silver, diamonds, cobalt, uranium, colton, oil and mineral water]

What were the strategies used?

Military strategies and tactics used in warfare include planning, coordination, and general direction of military operations to meet political and military goals. According to Carl von Clausewitz "Tactics is the art of using troops in battle; strategy is the art of using battles to win the war”. There are many offensive and defensive military strategies. Some offensive strategies are: attrition, annihilation, exhaustion, intimidation, subversion and extermination.

In the Congo wars we see that intimidation was used as a strategy through various weapons of war such as genocide and mass rape.  Panzi Hospital in Bukavu,  40,000 rape victims in the eastern Democratic Republic of Congo has been treated since 1999. U.N. has called the Congo the “rape capital of the world” for its use of rape as a weapon of war. Women have been systematically targeted and attacked on an unprecedented scale. Sexual violence is typically used to humiliate and intimidate a victim. But in the eastern Congo, it has been used as a combat strategy to further political and military gains. All sides of the conflict have been accused of attacking communities in close proximity to mines and other resources. Rape was used to terrorize the members of the family, intimidate women, break down the family structure and gain access to nearby resources.

‘Rape’ – the darkest weapon of war and most brutal strategy

In Minova, a town to the east of the Democratic Republic of Congo (DRC), is the site of one of the most appaling accounts of sexual violence. A study estimated that 48 women were raped every hour.  Médecins Sans Frontières (MSF) reported that over 50 per cent of survivors believed that the use of rape was a deliberate tactic used for the extermination of the Congolese people. However an accurate statics on those who died as a direct result of rape cannot be properly documented and many sources provide different accounts of the numbers.

Rape victims also suffered from various sexually transmitted diseases that threatened their lives and also spread of such diseases among the community. Since the outbreak of fighting in 1998, around 5.4 million people have died in the Congo. The vast majority have died from indirect consequences of the war, such as malaria, malnutrition and diarrhea. Thus it could be assumed that disease could have led to attrition which is also a strategy of war whereby the opposing forces are wearied down. In this case rape had spill-over effects of deaths by disease.

Clausewitz described five elements of strategy: moral, physical, mathematical, geographical, and statistical. Rape can be understood as a physical crime because it violates the bodily integrity rights of a victim. However it also has moral and psychological consequences. Psychological trauma includes nightmares and insomnia. In DRC 77 percent had reported that they suffered from these. 91 percent of survivors reported that they lived in fear and felt ashamed over the assaults. At the Saint Paul Health Center in Uvira, in a review of medical records from 658 survivors nine percent returned positive for HIV. Other sexual infections were syphilis, with thirteen percent infected, and a further 31 percent were infected with gonorrhea. Few victims seek medical attention, due to the costs associated with health care, and also due to the fact that should it become publicly known that they were raped, these survivors would then be socially stigmatized.

Genocide and ethnic cleansing is also a weapon of war which can be categorized under the extermination category. In the Second World war Jews were exterminated by Fasicts and Nazis.  Extermination of Tutis’s by the Hutu’s occurred in the Rwandan case.  Subversion was also a military and political strategy in the Congolese war. Ugandan and Rwandan armies invaded the Congo and overthrew the country’s decades-long dictator Mobutu Sésé Seko. He was replaced by the rebel leader Laurent-Désiré Kabila, who changed the country’s name from Zaire to the Democratic Republic of the Congo. When these types of transitions happen subversion is used to force allegiance to the new leader because it destroys the previously established regime and its power structure.

Soon after seizing power, Kabila turned on his Rwandan and Ugandan allies and expelled them from the Congo. This led to the second civil war in 1998, when Rwandan and Ugandan forces invaded the Congo once again. This was when the war over the resources of the DRC began. Clausewitz recognized that, theoretically, an enemy could be worn down through a strategy of exhaustion.  In the case of war in DRC many of the belligerents and combatants were fighting to acquire resources and exhaust the country of its resources. This could have worn down the governments because they later signed the Lusaka agreement to hold a ceasefire. Arguably in this case all the parties who engaged in negotiation and exchange prisoners of war led to a balance of power [atleast for a brief period] but it was necessitated due to the exhaustion of resources and men.


In modern times the world has still failed to bring accountability for most of the atrocious crimes committed during the Great War of Africa. Ntaganda a warlord who commanded the Union of Congolese Patriot fighters was engaged in mass rape and pillaging of resources. He was wanted for war crimes and he evaded international authorities for seven years until surrendering to the U.S. Embassy in Kigali, Rwanda, in 2014. The ICC has now commenced trials against this man for war crimes and crimes against humanity.  It could be argued that the existence of the ICC which has powers of universal jurisdiction can serve as deterrence of war crimes. However many such crimes have been ignored and the world has turned a blind eye towards them as evidenced by the mass rape of Congo.